' MUHAMMAD NAWAZ ABBASI, J.---This petition underArticle 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has been preferred against the judgment, dated 10-7-2002 passed by a Division Bench of Lahore High Court, Lahore, in Intra-Court Appeal No,83 of 2002 which arose out of Writ Petition No,3197 of 2002 disposed of by a learned Single Judge vide judgment, dated 22-5- 2002.
' The facts in small compass giving rise to this petition are that a committee of senior technical staff constituted by WAPDA (MEPCO) authorities having conducted raid at Colony Textile Mills (appellant herein) on 23-9-1997 and on deducting theft of electricity, disconnected the electricity connection of the mill. The deduction bill of Rs,1,60,77,676 was sent to the petitioner and a criminal case under section 39-A of Electricity Act, 1910, was also registered against the management of the mill on 24-9-1997 which was later cancelled on the report given by the Electricity Inspector. The petitioner challenged the legality of detection bill in the Lahore High Court, Lahore, through a Constitution petition which was disposed of with the observation that the matter would be referable to the Electric Inspector. Later the Electric Inspector declined to entertain the application of the petitioner on the ground that the matter related lo the theft of electricity, therefore, he would not be competent to adjudicate upon the dispute. The petitioner while challenging the order of Electric Inspector filed another writ petition in the High Court but failed. The matter was brought to:this Court and during the course of hearing of the case, the parties entered into a compromise before this Court in the light of which the case was disposed of vide order, dated 9-10-1997 as under:- "During arguments it was agreed between the counsel for the parties that the appellants would be afforded opportunity to join the process of checking/examination of the electric meters and other relevant apparatus and then the matter will be resolved in accordance with law.
' Consequently, we dispose of these appeals in the above terms and direct the parties to appear before the Chief Executive concerned on 8-6-2001 who shall determine the dispute in accordance with law after associating both the sides with the process of checking the meter and other disputed' apparatus and also giving opportunity of hearing to both the tides. Any party feeling aggrieved from the decision made by the Chief Executive can redress his grievance in accordance with law."
3. In pursuance of the order of this Court, Chief Executive, (C.E.) MEPCO, having conducted a detailed inquiry in the matter, fixed the liability of the petitioner to the tune of Rs,12,2330,881. The petitioner-being dissatisfied with the verdict given by C.E. MEPCO filed aConstitution Petition bearing No, 3197/02 seeking declaration that the verdict was beyond the scope of order, dated 31- 5-2001 passed by this Court and prayed for a direction to the C.E. For the examinaton of the matter in strict observance of the order passed by this Court. The writ petition failed and the petitioner filed an I.C.A. Which was dismissed by a Division Bench of Lahore High Court, Multan Bench vide the impugned judgment.
4. The grievance of the petitioner in the writ petition was that the dispute relating to the initial deduction bill was required to be inquired in terms of the direction of this Court in Civil Appeal No,1647 of 1997 and but (MEPCO) instead of undertaking the exercise of getting the meter and metering apparatus checked by Electric Inspector, constituted a team of WAPDA officials, for checking the meter and metering apparatus and on the basis of the report given by the said team, fixed the liability of petitioner to the tune of Rs,12,23,30,881 arbitrarily. The grievance of the petitioner in nutshell was that C.E. MEPCO while proceeding in departure to the direction of this Court enhanced the amount of detection bill malafidely and without lawful authority.
5. The case of the respondents was that petitioner was guilty of committing theft of the electricity by using extra-legal apparatus and during the proceedings before the C.E. It transpired that the actual theft of electricity committed by the petitioner was to the tune of Rs,12,23,30,881 and not Rs,3,60,77,676, therefore, the revised detection bill was sent to the petitioner. Precisely, it was pleaded that it was a case of dishonest obstruction and consumption of energy which would fall within the ambit of section 26-A of the Electricity Act, 1910, and would not be dealt with under section 26 of the said Act by the Electric Inspector.
' Learned counsel for the petitioner has raised the following contentions in support of this petition:-- - (a). That the refusal to grant the permission of amendment of the writ petition to take additional grounds would amount to condemn the petitioner unheard.
(b) That the failure of taking notice of the subsequent events by the High Court for grant of appropriate relief in the changed situation, caused injustice to the petitioner.
(c) That the dispute between the parties related only to the detection bill amounting to Rs,3,60,77,676 for the period from July, 1995 to May, 1997 whereas C.E. MEPCO while travelling beyond the scope- of order of this Court, re-determined the liability of the ' petitioner to the tune of Rs,12,23,30,881 through an illegal exercise of jurisdiction.
(d) That in pursuance of the order of this Court, respondents were required to get the meter/meter apparatus checked in terms of section 26(6) of the Electricity Act, 1910, read with section 38(2)(ii) of the Regulation, Transmission and Distribution of Electricity Power Act, 1997 and the noncompliance thereof has caused serious prejudice to the petitioner.
(e) That the Chief Executive was not authorized to appoint a team of WAPDA officials to conduct the inquiry.
' In the nutshell, the contention of the learned counsel was that the matter relating to the examination of meter and metering apparatus would need determination by the Electric Inspector and that fixing of the additional liability of the petitioner by revising the detection bill by the C.E.
Was without lawful authority. Learned counsel for the petitioner laid much stress for referring the matter to the Electric Inspector as per requirement of section 26(6) of the Electricity Act, 1910 or the Inspection Office of the Provincial Government established under section 38(2)(ii) of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 for determination of the dispute.
7. Learned counsel representing the respondent, on the other hand, has submitted that in case of theft of electricity, through dishonest obstruction or consumption of energy, the licensee is authorized to determine the liability of consumer, without the interference of Electric Inspector or any other authority, therefore, the matter was not referable to any other authority and that the jurisdiction of Electric Inspector is confined only to the extent of cases falling under. Section 26(B) of Electricity Act, 1910 and not 26-A of the said Act. The reliance has been placed on the following case-law:---
8. The allegation against the petitioner, an industrial concern, is that energy was being supplied by the -'petitioner to the unit by committing theft of electricity. Initially the deposit of an amount of Rs,3,60,77,676 was demanded by sending a detection bill under section 26-A of Electricity Act, 1910 and on conclusion of the inquiry in pursuance of the direction of this Court, the Chief Executive determined the liability of the petitioner to the tune of Rs,12,23,30,881, therefore, the pivotal question for determination would be whether the dispute would fall under section 26(6) of Electricity Act, 1910 and was referable to Electric Inspector appointed under section 36 of the said Act and after promulgation of Regulation of Generation, Transmission and Distributionof Electric Power Act, 1997 the Inspection Office established by the Provincial Government under section 38 of the Act would have exclusive jurisdiction to adjudicate the dispute or not. The next question would be if the matter is covered by section 26-A of Electricity Act, 1910 and the licensee has the exclusive jurisdiction to fix the liability of consumer, the Chief Executive while holding inquiry
9. With a view to ascertain to the correct legal position the examination of sections 26 and 26-A of the Electricity Act, 1910 and section 38 of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 is necessary:--- "Section 26.Meters.--- In the absence of an agreement to the contrary, the amount of energy supplied to a consumer or the electrical quantity contained in the supply shall be ascertained by means of a correct meter, [maximum demand indicator and other measuring apparatus]; and the licensee shall, if required by the consumer, cause the consumer to be supplied with such a meter, [maximum demand indicator and other measuring apparatus].
' Provided that the licensee may require the consumer to give him security of the price of a meter, [maximum demand indicator and other measuring apparatus]; and enter into an agreement for the hire thereof, unless the consumer elects to purchase a meter, [maximum demand indicator and other measuring apparatus].
(2) Where the consumer so enters into an agreement for the hire of a meter, [maximum demand indicator and other measuring apparatus]; the licensee shall keep the meter, [maximum demand indicator and other measuring apparatus] correct, and, in default of his doing so, the consumer shall, for so long as the default continues, cease to be liable to pay for the hire of the meter, [maximum demand indicator and other measuring apparatus].
(3) Where the meter, [maximum demand indicator and other measuring apparatus]; is the property of the consumer, he shall keep the meter, [maximum demand indicator and other measuring apparatus] correct, and in default of his doing so the licensee may, after giving him even days' notice, for so long as the default continues, cease to supply energy through the meter, [maximum demand indicator and other measuring apparatus].
(4) The licence or any person duly authorized by the licencee shall, at any reasonable time and on informing the consumer of his intention, have access to, and be at liberty to inspect and test and for that purpose, if he thinks fit, take off and remove, any meter, [maximum demand indicator and other measuring apparatus] referred to in subsection (1); except where the meter, [maximum demand indicator and other measuring apparatus] is so hired as aforesaid, at reasonable expenses of and incidental to, such inspecting, testing, taking off and removing shall, if the meter, [maximum demand indicator and other measuring apparatus] is found to be otherwise than correct, be recovered from the consumer; and, where any difference or dispute arises as to the amount of such reasonable expenses, the matter shall be referred to an Electric Inspector and the decision of such Inspector shall be final: ' Provided that the licensee shall not be at liberty to take off or remove any such meter. [maximum demand indicator and other measuring apparatus] if any difference or dispute of the nature described in subsection (6) has arisen until the matter has been determined as therein provided.
(5) A consumer shall not connect any meter, [maximum demand indicator and other measuring apparatus] referred to in subsection (1) with any electric supply-line through which energy is supplied by a licensee, or disconnect the same from any such electric supply-line, without [obtaining the consent of the licensee in writing which shall not be unreasonably withheld by the licensee].
"[(5-A) A consumer shall not injure any meter, maximum demand indicator and other measuring apparatus, or alter their indexes or prevent them from duly registering the amount of energy supplied or the electrical quantity contained in the supply.] [(6) Where any difference or dispute arises between a licensee and a consumer as to whether any meter, maximum demand indicator or other measuring apparatus is or is not correct the meter shall be decided, upon the application of either party, by an Electric Inspector, within a period of ninety days from the date of receipt of such application, after affording the parties an opportunity of being heard, and where the meter, maximum demand indicator or other measuring apparatus has, in the opinion of the Electric Inspector, ceased to be correct, the Electric Inspector shall estimate the amount of energy supplied to the consumer or the electrical quantity contained in thesupply, during such time as the meter indicator or apparatus has not, in the opinion of the Electric Inspector, been correct; and, where the Electric Inspector fails to decide the matter of difference or dispute within the said period or where either the licensee or the consumer decline to accept the decision of the Electric Inspector, the matter shall be referred to be Provincial Government whose decision shall be final: ' Provided that, before either a licensee or a consumer applied to the Electric Inspector under this subsection he shall give to the other party not less than seven day's notice of this intention so to do.].
(7) In addition to any meter, [maximum demand indicator or other measuring apparatus] which may be placed upon the premises of a consumer in pursuance of the provisions of subsection (1), the licensee may place upon such [other] premises such meter, maximum demand indicator or other apparatus as he may think fit for the purpose of ascertaining or regulating either the amount of energy supplied to the consumer, or the number of hours during which the supply is given, or the rate per unit of time at which energy is supplied to the consumer, or any other quantity or time connected with the supply: ' Provided that the meter, indicator or apparatus shall not, in the absence of an agreement to the contrary, be placed otherwise than between the distributing mains of the licensee and any meter referred to in subsection (1): ' Provided also, that, where the charges for the supply of energy depend wholly or partly upon the reading or indication of any such meter, indicator or apparatus as aforesaid, the licensee shall, in the absence or in agreement to the contrary, keep the meter, indicator, or apparatus correct; and the provisions of subsections (4)(5), [5-A] and (6) shall in that case apply as though the meter, indicator or apparatus were a meter referred to in subsection (1).A 'Explanation.----A meter shall be deemed to be "correct" if it registers the amount of energy supplied, or the electrical quantity contained in the supply, within the prescribed limits of error, and a maximum demand indicator or other apparatus **[..] shall be deemed to be "correct" if it complies with such conditions as may be prescribed in the case of any such indicator or other apparatus."
' Section 26-A.
"26-A. Dishonest abstraction or consumption of energy.--- ' Notwithstanding anything contained in section 23, the licensee may charge the consumer on the basis of one or more of the following considerations for the amount of energy deemed to have been dishonestly abstracted, consumed or used for the period during which the meter, maximum demand indicator or, other measuring apparatus had, in the opinion of the licensee, remained disconnected, injured, altered or prevented from registering the amount of energy supplied or the electrical quantity contained in the supply---
(a) consumer's connected load or maximum demand in kilowatt during any period;
(b) consumer's maximum consumption of energy in kilowatt hours during any period;
(c) consumer's load factor;
(d) the power factor of consumer's load;
(e) the hours and the time for which the energy is deemed to have been abstracted, consumed or used by the consumer; and
(f) the purpose for which the energy is deemed to have been abstracted, consumed or used by the consumer.
The difference of above statutory provisions is obvious as the jurisdiction of the Electric Inspector is confined to the disputes relating to the matters falling under section 26(6) of the Electricity Act, 1910 and the matter relating to the charges on account of dishonest obstruction of energy would not be referable to the Electric Inspector. If the matter relates to the correctness of meter, maximum demand indicator, or other measuring apparatus, the dispute for consumption of electricity is referable to the Electric Inspector and in case for dishonest obstruction and consumption of energy, the licensee under section 26-A of the Electricity Act, 1910, may charge the consumer on the basis of considerations mentioned therein. The distinction is that in case of defect in the metering equipment or any fault caused by the consumer with the intention to prevent the meter from registering the consumption of energy, the assessment made by the licensee of the charges through detection bill can be subject to scrutiny by way of reference made to Electric Inspector by the consumer but if the metering equipment was completely by passed and through a device energy was being supplied by dishonest obstructions of electricity and the question relating to the correctness of metering equipments or the measuring apparatus was not involved, the charge made under section 26-A is not a dispute referable to the Electric Inspector in terms of section 26(6) or any other provision of the Electricity Act, 1910. It is clear that section 26 (6) is not attracted in the cases in which the dispute related to the dishonest obstruction or consumption of energy but if the dispute between the licensee and the consumer is on account of any defect in meter, the maximum demand indicator or other measuring apparatus is or is not correct, the matter shall necessarily be decided by the Electric Inspector on an application moved by either the licensee or the consumer. The scope of the subsection (6) of section 26 is limited to the extent of defect in the meter or the metering apparatus which cannot be enlarged to a case of dishonest obstruction or consumption of energy for the purpose of conferring the jurisdiction to the Electric Inspector to scrutinize the demand made by the licensee under section 26-A of the Act. In the nutshell, section 26(6) is confined to the cases in which due to any technical fault or defect the meter is not in order and is not registering energy correctly. In the present case, the meter registering electric energy supplied to the petitioner was found in perfect condition, therefore, the dispute would not fall under section 26(6) ibid for adjudication by the Electric Inspector. Thus in case of complete bypass of the meter, if the consumer dishonestly obstructs and consumes the electricity through illegal device and meter equipment is not involved, the provisions of section 26(6) are not attracted and the licensee can assess the consumption under section 26-A of the Electricity Act, 1910. The jurisdiction of the Electric Inspector under section 26(6) is related to the meter or maximum demand indicator and other measuring apparatus supplied for ascertaining the energy consumed at the premises but the dispute relating to the detection bill for dishonest obstruction through illegal method, would not be adjudicatable by the Electric Inspector and consumer in such cases may, if so desired invoke the jurisdiction of Civil Court. The contention of the learned counsel that Regulation of Generation, Transmission and Distribution of Electric Power Acts 1997 being special law would have overriding effect to Electricity Act, 1910 and the matter was essentially required to be referred to the Inspection Office of the Provincial Government established under section 38 of the Act for adjudication of such disputes has no substance. The said section is read as under:--- "38. Provincial offices of Inspection.--- (1) Each Provincial Government shall---
(a) establish offices of inspection that shall be empowered to:---
(i) enforce compliance with distribution companies' instructions respecting metering, billing, electricity consumption charges and decision of cases of theft of energy; and
(ii) make determination in respect of disputes over metering, billing and collection of tariff and such powers may be conferred on the Electric Inspectors appointed by the Provincial Government under section 36 of the Electricity Act, 1910 (Act IX of 1910), exercisable, in addition to their duties under the said Act.
(b) establish procedures whereby distribution companies and consumers may bring violations of the instructions in respect of metering, billing and collection of tariff and other connected matters before the office of inspection; andenforce penalties determined by the Provincial Government for any such violation.
' The Provincial Government may, upon request by the Authority, submit to the Authority---
(a) a copy of any document in the charge of the Provincial Government r. ,sting to Provincial offices of inspection; and
(b) other report's, statements and information as the Authority determines to be necessary or appropriate for the Authority's periodic assessment of the effectiveness of inspection made by Provincial Offices of inspection."
11. The examination of section 38 of the Regulation of Generation, Transmission and Distribution of Electric. Power Act, 1997, would show that the inspection office is powered to enforce compliance with distribution companies regarding instructions in respect of metering, billing, electricity consumption charges and also determination of disputes of metering, billing and collection of tariff under section 26 of the Electricity Act, 1910. There is no mention of the charges of energy consumed or used through dishonest obstruction by altering or preventing from registering the amount of energy supplied and thus the respondent in such a case can competently assess the consumption of electricity. Section 26 of Electricity Act, 1910, being not controlled by section 38 of the above Act, shall operate independently and the licensee in the cases falling under said section can assess the charge for consumption of electricity without the intervention of Electric Inspector, or Inspection Office established under section 38 of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997:
12. So far the controversy relating to the enhancement/increase in the claim by the Chief Executive MEPCO is concerned, we have noticed that initially the team of WAPDA officials after raiding the premises of the petitioner, sent a detection bill to the tune of Rs,3,60,77,676 for the period from July 1995 to May 1997 but later in the inquiry conducted by the Chief Executive MEPCO in pursuance of the order passed by thisCourt on 31-5-2001, the amount of detection bill was determined to the tune of Rs,12,23,30,881. In reply to the objection of the petitioner that the dispute was confined only to the extent of detection bill of Rs,3,60,77,676 initially sent to him, the Chief Executive MEPCO who is present in person has explained that the amount was assessed after a detailed inquiry by associating the petitioner and the representatives of WAPDA and that the proceedings were held strictly in terms of the order of this Court in Civil Appeal No, 164 of 1997. The question whether the evaluation of electricity consumption and assessment of the bill was made on the basis of consideration mentioned in section 26-A of the Electricity Act, 1910 or not, cannot be gone into by this Court and to resolve the issue, an independent inquiry shall be necessary.
13. We, therefore, keeping in view the nature of controversy, deem it proper to send this matter to the Chairman WAPDA who shall constitute a committee consisting upon independent Engineers of the relevant field for assessm ent of the charges by evaluating the electricity consumed in the light of consideration mentioned in section 26-A of the Electricity Act, 1910 and submit report to the Chairman WAPDA who shall finally decide the matter strictly in accordance with the provisions of Electricity Act, 1910.
14. This petition is accordingly, converted into appeal and is disposed of in the above terms with no order as to costs.