WATER AND POWER DEVELOPMENT AUTHORIYT and others---Appellants Versus Messrs KAMAL
FOOD (PVT.) LTD. OKARA and others---Respondents
Citation: 2012 PLD 371
Result: Order Accordingly
Court: Supreme Court of Pakistan
Date of Decision: 25th October, 2011
Judge(s): Nasir-ul-Mulk and Amir Hani Muslim, JJ
Case Number: Civil Appeals Nos. 1511, 1513, 1514, 1515 and 1519 of 2006
JUDGMENT
JUDGMENT
NASIR-UL-MULK, J.---By this common judgment, it is proposed to dispose of Civil
Appeals Nos. 1511, 1513, 1514, 1515 and 1519 of 2006 as they involve a common
question of law, namely, does the Electric Inspector or the Advisory Board, constituted
under the Electricity Act, 1910, are vested with any power under the Act to determine
a controversy between Licensee and the Consumer regarding allegation of theft of
electricity. The appeals filed by the Water & Power Development Authority (WAPDA)
and Gujranwala Electric Power Company (GEPCO) arise under different
circumstances. Leave to appeal was first granted in C.P. No.2245-L of 2004, out of
which, Civil Appeal No.1511 of 2006 arises. The facts of the case as well as the
proposition of law have been stated in the leave granting order dated 4-9-2006. The
same is reproduced:-
"2. Dispute had arisen between the parties relating to theft of electricity and detection
bill was issued in pursuance thereof. The detection bill was challenged by respondent
No.1 before the Electric Inspector where the petitioner raised an objection with regard
to the jurisdiction of the Electric Inspector to proceed to determine the legality and
correctness of detection bill issued due to theft of electricity as the dispute would have
to be adjudicated by a civil court. The objection was over-ruled and the case was
decided on merits. The finding of the Electric Inspector was challenged by the
petitioner before the Advisory Board who also dismissed the appeal of the petitioner
upholding the order of Electric Inspector. The said two orders were assailed by the
petitioner before the High Court by filing W. P. No. 23088 of 1997 which was disposed
of as stated above.
3. The ground which weighed with the High Court in dismissing the writ petition of the
petitioner was that the Advisory Board had nominated a person at the request of the
petitioner to inspect the Anti Theft Box installed at the premises of respondent No.1
who repeatedly asked the nominee of WAPDA to accompany him so that the inspection
could be made but the representative of WAPDA did not avail of the opportunity and
deliberately avoided participation in the inspection of anti theft box.
4. The contention of the learned counsel for the petitioner is whether in pursuance of
the pronouncement of the learned Full Bench of Lahore High Court in the case of
Water and Power Development Authority and others v. Mian Muhammad Riaz and
another (PLD 1995 Lahore 56) that Electric Inspector and the Advisory Board would
not have jurisdiction to proceed with a case involving theft of electricity legally passed
the orders dated 16-10-1995 and 12-10-1997 respectively and as to what will be the
legal status of such orders. It is pertinent to note that in the memo of petition filed
before the High Court no specific objection that the Electric Inspector and the
Advisory Board assumed jurisdiction illegally to proceed with the matter which related
to theft/dishonest consumption of electricity was taken. It was submitted that it being
a legal issue relative to the jurisdiction of the forum/tribunal could be raised at any
stage and further that objection to the above effect was raised before the Electrical
Inspector.
5. In view of the facts stated and the pronouncement of this Court in the case of Caltex
Oil (Pakistan) Limited v. Collector, Central Excise and Sales Tax and others (2006
SCMR 1519) to the effect that legal objection can be raised at any stage, we deem it
appropriate to grant leave to appeal to determine, amongst others, the
issues/questions mentioned above. Leave granted."
2. On 5-9-2006 leave to appeal was also granted in C.P. No.2697-L of 2004, out of
which Civil Appeal No.1513 of 2006 arises, by a detailed order by the same Bench,
involving the same question of law as reflected in the above order but without
reference to the same. This petition was barred by 11 days and the arguments raised
on the question of limitation were also ordered to be considered at the hearing of
appeal. The appeal is directed against the judgment of the Lahore High Court dated
31-5-2004 dismissing the writ petition filed by the appellant, M/s. Gujranwala
Electricity Power Company (GEPCO), challenging the order of the Electric Inspector
regarding detection bill issued to the respondent/consumer. The appellants had
questioned the assumption of jurisdiction by the Electric Inspector. The petition was
dismissed on the ground that the question of jurisdiction could be raised by the
petitioners before the Advisory Board under the provisions of the Electricity Act, 1910.
3. Civil Appeals Nos. 1514 and 1515 of 2006 arise out of single judgment of the Lahore
High Court dated 12-6-2006, dismissing the two Civil Revisions, Nos.1012 and 1016 of
2006, filed by the appellants, against the judgments and decrees of the Trial as well as
the First Appellate Court in favour of the respondent/consumer, Rashid Ahmad,
running a business concern by the name of Arain Ice Factory, situated in Tehsil and
District Toba Tek Singh. The two civil revisions arose out of two separate suits, filed by
the respondents, No. 300-1 of 1997 instituted on 1-11-1997, questioning the inclusion
of Rs.1,68,388/- in the bill dated 11-10-1997, on the ground that the respondent had
already informed the petitioner that on account of some technical fault the meter
installed at the Factory was running 40% fast than the normal. This suit was decreed
as prayed for and the judgment and decree was upheld by the impugned judgment.
The second suit, No.50-1 of 1998, was filed by the respondent on 19-1-1998,
challenging the detection bill amounting to Rs.1,03,613/- for the month of January,
1997. This suit was also decreed in favour of the respondent and the judgment and
decree of the Trial Court was upheld by the High Court.
4. Through Civil Appeal No.1519 of 2006, the Water & Power Development Authority
has assailed the judgment of the High Court whereby writ petition filed by the
petitioner was disposed of in the terms that the findings of the Advisory Board
regarding the criteria adopted for determining the energy consumption by the
respondent/consumer for the period from April 1993 to January 1994, be determined
on the basis of average monthly bills during the period, April 1991 to January 1992,
instead of April, 1993 to January, 1994. According to the impugned judgment, the
learned counsel appearing for the present appellants had expressly given up the
challenge to the jurisdiction of the Advisory Board.
5. We heard the learned counsel for the parties and examined Sections 26(6) and 26-A
of the Electricity Act, 1910, in the light of the case-law cited by them. For the sake of
facility, the two statutory provisions are reproduced as under:--
"26(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 matter 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 the
supply, 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."
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."
6. There are three judgments of significance placing construction on the above
statutory provisions on the extent to which the Electric Inspector or the Advisory
Board constituted in the Electricity Act, can exercise powers regarding allegation by
the licensee of theft by the consumer. The first inline is the judgment of the full bench
of the Lahore High Court in the case of "Water and Power Development Authority and
others v. Mian Muhammad Riaz and another (PLD 1995 Lahore 56))" cited in the leave
granting order (ibid). The other two judgments are of this Court in "Colony Textile
Mills Ltd. Multan v. Chief Executive, MEPCO (2004 SCMR 1679)" and the other
"Multan Electric Power Company Ltd. v. Muhammad Ashiq (PLD 2006 SC 328)".
7. Mr. Aurangzeb Mirza, learned ASC, appearing for Water and Power Development
Authority, had mainly relied upon the judgment of the full bench of the Lahore High
Court in "Water and Power Development Authority and others v. Mian
Muhammad Riaz and another" (ibid), contending that the Electric Inspector had no
authority to adjudicate upon the allegation of theft made by WAPDA against the
respondent/consumer and that the only remedy available to the respondent was by
way of civil suit in a Court of Law. The full bench of the Lahore High Court in the said
case, while referring to sections 23, 24, 26 and 26-A, held that section 26-A of the
Electricity Act as amended by the Punjab Amendment (Ordinance XXIX of 1971) does
not empower the Electric Inspector to take cognizance of any allegation by a licensee
of dishonest abstraction or consumption of energy by the consumer, as unlike the
preceding statutory provisions, it does not make any reference to Electric Inspector.
The facts of that case were that WAPDA had raised additional demand against the
respondent, an industrial consumer, alleging that he had committed theft, by passing
the metering equipment, and illegal connecting the main line with the service line and
by this device supplied energy to his plant and machinery directly. It was in these
circumstances that the Court held that since there was no metering equipment
involved in the theft of energy by the respondent, the provision of section 26(6) of the
Electricity Act was not attracted. More recently this Court in the "Colony Textile Mills
Ltd. Multan v. Chief Executive, MEPCO (2004 SCMR 1679)" (ibid) while interpreting
section 26(6) and section 26-A of the Electricity Act, laid down the circumstances in
which the Electric Inspector could still exercise its authority even when there is
allegation of theft of electricity. In the context, the following passage from the
judgment is instructive:--
"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 obstruction 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 Electric Inspector in terms of section 26(6) or any other provision of the Electricity
Act, 1910."
8. The above principle laid down in "Colony Textile Mills Ltd. Multan" was cited with
approval in the subsequent judgment of this Court in "Multan Electric Power Company
Ltd." (ibid). It follows from the above case-law that where the allegation against the
consumer of electrical power is of dishonest consumption of energy through
manipulation of, or tampering with, the metering equipment or other similar
apparatus, the Electric Inspector would still have the authority to entertain reference
under section 26(6). In case the theft alleged is by means other than the tampering or
manipulation of the metering equipment etc, the matter would fall exclusively under
section 26-A of the Act, outside the scope of powers of the Electric Inspector. Since the
Electric Inspector possesses special expertise in examining the working of the
metering equipment and other related apparatus, it makes sense that any issue
regarding their working, functioning or correctness, whether or not deliberately
caused, be examined by him. It may be added that section 26-A is an enabling
provision empowering the licensee to charge the consumer for dishonest extraction or
consumption of electricity. It does not provide any procedure for resolving any dispute
between consumer and the licensee on a charge of theft. It should, therefore, be read
in conjunction with the other relevant provisions, including section 26(6) of the Act.
9. Having held that the Electric Inspector and the Advisory Board constituted under
the Act are empowered to resolve allegation of theft of electricity if the same has
allegedly been committed by the consumer through deliberate tampering with the
metering equipments etc, we now examine the facts of each Appeal before us.
10. In Appeal No. 1511 of 2006, the issue before the Electric Inspector as well as the
Advisory Board was the accuracy of the metering equipments installed in the premises
of the respondents, which, upon checking by the Electric Inspector, was found to be
12% fast. The Advisory Board held that the appellant/WAPDA had failed to establish
the tampering of the Anti Theft Box (ATB) by the respondent/consumer. The appellant
did not question the jurisdiction of the Electric Inspector either before the Advisory
Board or before the High Court. The Electric Inspector was within his powers to take
cognizance of the Reference.
11. In Appeal No. 1513 of 2006, the Electric Inspector had set aside the detection bill
issued on the charge of theft of electricity to the consumer/respondent. In this case the
allegation against respondent was of theft of electricity by bypassing the metering
equipment. The question of jurisdiction was raised by the appellant before the High
Court. Since the appellant had not filed any appeal against the decision of the Electric
Inspector, the Court held that the question of jurisdiction could be raised in appeal
before the Advisory Board. As the theft alleged was on account of bypassing the
metering equipment, the dispute did not fall within Section 26(6) of the Act and,
therefore, was not within the ambit of the powers of the Elector Inspector.
12. In Appeals Nos. 1514 and 1515 of 2006 arising out of the same metering
equipment at the premises of the respondent, the allegation of theft by the appellant
related to the metering equipment. The respondent/consumer had questioned the
detection bill in a civil suit and interestingly the appellant (licensee) had raised
objection to the jurisdiction of the civil court before the High Court on the ground that
since the matter related to the correctness or otherwise of the metering equipment,
the matter fell within the exclusive jurisdiction of the Electric Inspector. In view of our
above discussion, such objection is sustained and we hold that the civil court had no
jurisdiction in the matter.
13. In Civil Appeal No. 1516 of 2006, the dispute before the Electric Inspector and the
Advisory Board was of theft related to the reading of the meters installed at the
premises of the respondent. The question of jurisdiction by the appellant was raised
before the High Court but the same was not entertained. No interference is called for
in the assumption of jurisdiction by the Electric Inspector.
14. In view of the above, Appeals Nos.1511 and 1513 of 2006 are allowed and the
impugned orders of the Electric Inspector are set aside leaving the
respondent/consumer to take recourse to any other legal remedy available to him
under the law. Appeals Nos.1514 and 1515 of 2006 are also allowed and the impugned
judgment and decrees are set aside and the suits filed by the respondent/consumer are
dismissed. However, subject to law, he may approach the Electric Inspector for
determination of the dispute under Section 26(6) of the Act. Civil Appeal No. 1519 of
2006 is dismissed.
