WAPDA through Chairman and 4 others---Petitioners Versus Messrs CHINA PETROLEUM

ENGINEERING CONSTRUCTION CORPORATION---Respondent

Citation: 2016 YLR 267

Result: Petition Accepted
Court: Lahore High Court
Date of Decision:
Judge(s): Arshad Mahmood Tabassum, J
Case Number:
JUDGMENT

JUDGMENT

ARSHAD MAHMOOD TABASSUM, J.---Through the instant petition under

Section 115, C.P.C., the petitioners have called in question judgment and decree dated
15.03.2006, passed by a learned Additional District Judge, Attock, whereby he
dismissed appeal, preferred by the petitioners against judgment and decree dated
04.07.2005, passed by a learned Civil Judge, Attock, decreeing the suit of the
respondent/plaintiff for declaration and permanent injunction.

2. Briefly, the facts of the case are that Messrs China Petroleum Engineering
Construction Corporation, G.T. Road Hatian, Tehsil and District, Attock, respondent
herein, on 02.09.2000, instituted a suit for declaration to the effect that the detection
bill for the month of July, 2000 for an amount of Rs.1,41,770/- had wrongly been issued
and the same was based on mala fide, hence, ineffective upon its right and liable to be
set aside. By way of consequential relief, decree for permanent injunction was prayed
for directing the petitioners/defendants not to add the amount of detection bill in the
future bills as arrears. The said suit was contested by the petitioners/defendants
through filing their written statement, wherein they raised several preliminary
objections, including that the civil court had no jurisdiction in view of the provisions of
Section 54-C of the Electricity Act, 1910. However, it was conceded that the
respondent/plaintiff was paying bills as per tariff A-2 and only dispute was that the
electricity meter had been tampered.

3. On the basis of divergent pleadings of the parties, the learned trial court framed the
following issues:-

"ISSUES

(1) Whether the suit is not maintainable in its present form?

 (2) Whether the plaintiff has no cause of action? OPD

(3) Whether the plaintiff is stopped by his words and conduct to file the suit?
OPD

(4) Whether this court lacks jurisdiction to try this suit in view of Section 54 of
Electricity Act? OPD

(5) Whether the plaintiff is entitled to the decree as prayed for? OPP

(6) Relief."

4. Both the parties produced their respective evidence. Ultimately, the learned trial
court, after hearing the learned counsel for the parties, decreed the suit vide judgment
and decree dated 04.07.2005 as prayed for. Being dissatisfied with the impugned
judgment, the petitioners preferred an appeal, which, as pointed out above, failed as
the same was dismissed, hence, this petition.

5. Nobody has turned up on behalf of the respondent, therefore, the respondent has
been proceeded against ex-parte.

6. I have heard ex-parte arguments, addressed by the learned counsel for the
petitioner and have myself perused the documents annexed with this petition.

7. Learned counsel for the petitioners, at the very outset, has argued that the suit filed
by the respondent/plaintiff was not maintainable in view of provisions of Section 54-C
of the Electricity Act, 1910 (the Act), as the dispute was refer able to the Electric
Inspector and the respondent/ plaintiff, if felt aggrieved, should have approached the
said Electric Inspector, as provided under Section 26(6) of the Act and that the
jurisdiction of the learned Civil Court was barred in view of the provision of Section
54-C of the Act.

8. The petitioner, being defendant in the suit had raised preliminary objections to the
effect that in view of Section 54-C of the Act, the learned Civil Court lacks jurisdiction
in the matter. Keeping in view the said preliminary objection, the learned trial court
framed the following issue No.4.

(4) "Whether this court lacks jurisdiction to try this suit in view of Section 54 of
 Electricity Act? OPD"

and while rendering its decision, the learned trial court has observed as under:-

"As I have already held that the provisions of sections 24 and 26-A of the
Electricity Act are not observed by the defendants WAPDA the jurisdiction of
Civil Court cannot be ousted under Section 54-C of the Electricity Act. The issue
is decided against the defendants."

9. In order to properly understand the point in issue, it would be beneficial to

reproduce the provisions of Section 54-C, which reads as under:--

"54C-(1) Where a licensee gives a notice referred to in subsection (1) of section

24 or discontinuous supply of energy to a premises under the provisions of this
Act no court shall make an order prohibiting the licensee from discontinuing
supply of energy to the premises, and any such order made before the
commencement of the Electricity (Amendment) Ordinance, 1979, shall cease to
have effect:

Provided that nothing contained herein shall apply to a case in which the
plaintiff, applicant or appellant, within a period of thirty days of the aforesaid
date of at the time of filing the suit, application or appeal, as the case may be,
deposits with the court the amount assessed against him by the licensee and all
further charges of the licensee as and when they become due; and in the event
of his failing to do so, any order prohibiting the licensee from discontinuing the
supply of energy to the premises or requiring him to restore the supply of
energy to the premises or requiring him to restore the supply of energy to the
premises, if already made, shall cease to have effect.

(2) Where an amount has been deposited under subsection (1), the court shall
direct it to be deposited in a scheduled bank in the name of the licensee on an
undertaking being furnished by the licensee to the effect that in case the suit or
appeal is decided against him, he shall repay the said amount to the plaintiff or
appellant, as the case may be, with such reasonable return as the court may
determine."

It seems from the above reproduced text of Section 54-C that the same applies
to a situation, where a notice under Sub-section (1) of Section 54-C of the Act, is
issued by the licencee to a consumer or the supply of energy is discontinued
under the provisions of the Act, but here in this case, the dispute is somewhat
different, in that the licencee had issued a detection bill to the
consumer/respondent/plaintiff on account of theft of electricity by way of
tampering with the meter, thus, the said notice was issued pursuant to the
provisions of Section 26-A of the Act and mechanism for resolution of such a
dispute has been given in Subsection (6) of Section 26 of the Act, which reads as
under:--

(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 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 and opportunity of
being heard, and where the meter, maximum demand indicator or other
measuring apparatus has, in the opinion of an 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 of the consumer declines to accept the decision or the Electric
Inspector, the matter shall be referred to the Provincial Government whose
decision shall be final:

Provided that, before either a licensee or a consumer applies to the Electric

Inspector under this subsection, he shall give to the other party not less than
seven days' notice of this intention to do so.

Here in this case, the dispute was as to whether the meter installed at the
premises of the respondent/plaintiff was or was not correct and thus, the meter
was liable to be referred to Electric Inspector. So has been held by the Apex
Court in the case titled "WAPDA and others v. Messrs Kamal Food (Pvt.) Ltd.
Okara and others" (PLD 2012 Supreme Court 371), the relevant portion whereof
reads as under:--

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
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."

10. Keeping in view the above dictum laid down by the Apex Court and circumstances
of the instant case, it is quite clear that the learned trial court as also the learned first
appellate court have failed to consider the objection raised by the petitioners with
regard to the maintainability of the suit, thus, the suit was not maintainable and was
liable to be dismissed on that score, but the learned trial court illegally assumed the
jurisdiction in the matter and passed the impugned judgment and decree without
having any lawful authority. Same illegality was perpetuated by the learned first
appellate court. The impugned judgment and decree, therefore, cannot sustain under
the law, which is hereby set aside by allowing the instant petition.