ASSISTANT AUDIT OFFICER, LOCAL AUDIT PARTY, PESHAWAR Versus RAB NAWAZ
ABDUL LATIF KHAN, J.--- Through the instant petition, the petitioners have called in question the judgment and decree dated 31.03.2010 of the learned District Judge, Tank vide which he accepted the appeal of respondent and set aside the judgment and decree dated 21.12.2009 of learned trial Court vide which the suit of the respondent was dismissed.
2. Briefly stated facts leading to the instant revision petition are that the respondent/plaintiff filed a suit for declaration to the effect that the audit note No.49 dated 16.2.2006, in respect of the meter of the respondent/plaintiff bearing No.6641-000020034 for payment of Rs.49,990/- as fixed charges on the disputed amount of Rs.2,96,445/- is wrong, illegal and the respondent/plaintiff is not liable for its payment. The respondent/plaintiff claims that Rs.2,96,445/-are disputed in other suit filed by him against the petitioners/defendants and the instant suit is the result of the disputed audit note for payment of Rs.49,990/-as fixed charged on the already disputed amount of Rs.2,96,445/- of the previous suit. The petitioners/defendants appeared before the learned trial court and filed their written statement. The learned trial court after framing issues, recorded evidence of the parties and hearing arguments of the learned counsel for the parties, dismissed the suit of the respondent/plaintiff vide judgment and decree dated 23.12.2009. Appeal preferred by the respondent/plaintiff against the judgment and decree of the learned trial court was allowed, the impugned judgment and decree of the learned trial court was set aside on 31.3.2010, hence the present revision petition.
3. Learned counsel for the petitioner argued that the impugned judgment and decree of the learned appellate court is against law, facts and based on misinterpretation of record available on the file. He contended that the evidence has not been discussed in the light of issues framed from the pleadings of the parties. He contended that the learned appellate court has misread the evidence and wrongly reversed the judgment and decree of the learned trial court.
4. As against that, the learned counsel for the respondent on his turn, defended the impugned judgment and decree of the learned appellate court on almost the same grounds as mentioned therein. He further contended that the learned trial court has wrongly held about the jurisdiction of court.
5. I have heard the arguments of the learned counsel for the parties and perused the record with their valuable assistance.
6. The official of the PESCO brought audit note No.49 dated 16.2.2006 Ex:PW1/2 as deposed in cross-examination by PW-1 that the respondent/plaintiff was charged by XEN M&T that his meter was 33% slow and detection bill amounting to Rs.49,990/- was sent to the respondent/plaintiff. PW-2, Muhammad Hanif special attorney for the respondent/plaintiff stated that in the year 2006 vide audit note of fixed charges of Rs.49,990/- were imposed, which were totally wrong. There is no proof that the team of XEN M&T checked the meter of the respondent/plaintiff as he was not associated with the process of checking. No notice was served to this effect upon the respondent/plaintiff and slow meter charges leveled against him was passed in his absence. The XEN M&T and other concerned officials were not examined in the learned trial court in support of the report made by them. The burden of proof heavily lies upon the petitioners/respondents. The sole witness appeared on behalf of the petitioners was unable to explain as to how the audit reports were issued two times against the respondent/plaintiff. He was also unable to stay that on what basis the audit report was prepared. He stated that the detail would be available in the office. He admitted that at the time of alleged checking no person was present. He admitted that he has not inspected the ice factory of the respondent/plaintiff for the load or meter checking. He admitted in cross-examination that the meter was not sent to the laboratory for checking. He admitted that the meter is till installed in the ice factory owned by the respondent/plaintiff. He admitted that he was not the member of XEN M&T allegedly inspected the premises of the respondent/plaintiff. He was handicapped to mention the date, time, month and year of the allegedly checking of XEN M&T. He candidly accepted that he is unable to verify the slowness of the meter to the extent of 33% as alleged by team of XEN M&T. He admitted that the respondent/plaintiff has moved an application to this effect which is not in his possession at the time of his deposition in the court. He admitted that the meter of the respondent/plaintiff is seasonal and confined to the ice making season i.e. 3/4 months per year. He admitted that he is not in possession of any original record and has deposed from the copies available with him.
7. In the instant case detection bill has been challenged by the respondent/plaintiff Rab Nawaz as illegal, based on malice and the result of so-called inspection team of XEN M&T regarding which the jurisdiction of Electricity Inspector is not attracted as the same falls under section 26(6) of the Electricity Act, 1910. However, where dispute regarding the detection bill based upon unauthorized abstraction and the authority itself not following the procedure given under the law could not compel the consumer to abide by respective provision and in such eventuality the matter could only be resolved by the civil court as exclusive jurisdiction in this regard vests in Civil Court and the plea of jurisdiction is totally misconceived. Sections 24, 26-A and 54-C are reproduced below:-
"24. Discontinuance of supply to consumer neglecting to pay charge. (1) Where consumer neglects to pay any charge for energy or any sum, other than a charge for energy, assessed against him by a licensee in respect of supply of energy to his premises, the licensee may after giving not less than seven clear days' notice in writing to such consumer and without prejudice to his right to recover such charge or other sum by suit or otherwise, cut off the supply and for that purpose cut or disconnect any electric supply-line or other works, being the property of the licensee, through which energy may be supplied to such premises or to any other sum, together with any expenses incurred by him in cutting off and reconnecting the supply and the minimum charges on account of continued reservation of supply during the period of such discontinuance, are paid, but no longer .
(2) Where any difference or dispute as to any matter connected with any charge or other sum included in the bill of a licensee has been referred by a consumer under this Act to an Electric Inspector before the notice as aforesaid has been given by the licensee, the licensee, shall not exercise the powers conferred by subsection (1) until the Inspector has given his decision:
Provided that the prohibition contained in this subsection shall not apply in any case in which the licensee has made a request in writing to the consumer for a deposit with the licensee of the undisputed charges and other sums and with the Electric Inspector of fifty percent of the disputed charges and other sums and for the deposit with the licensee of further charges for supply of energy, as they accrue, and the consumer has failed to comply with such request within a period of fifteen days from the date of such request or as the case may be, from the date of receipt of bills or in respect of further charges for supply of energy.
26A. 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 connected, 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 hours during any period;
(b) Consumer's maximum consumption of energy in kilowatt hours during any period ;
(c) Consumer's load factor ;
(d) The power 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.
54-C. Bar of Jurisdiction. (1) Where a licensee gives a notice referred to in subsection (1) of section 24 or discontinues 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, or requiring him to restore supply of energy to such 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 or 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, 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 to the effect that in the 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. "
8. The august Supreme Court in Multan Electric Power Company Ltd through Chief Executive and others v. Muhammad Ashiq and others PLD 2006 Supreme Court 328 held that:-
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10. Section 26-A of Act No.IX of 1910 authorizes a licensee to charge for illegal abstraction of energy. Section 26(6) of the Act IX of 1910 contemplates the disputes which could be adjusted upon by an Electric Inspector. It will be appropriate to reproduce the said provision .
" 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 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, has 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 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 his intention so to do. "
The question as to the scope of sections 26-A and 26(6) of Act No.IX of 1910, in a case of theft of energy came under examination of a learned Full Bench of the Lahore High Court in Water and Power Development Authority and others v. Mian Muhammad Riaz and another PLD 1995 Lahore 56 and it was held as follows :-
"The jurisdiction of the Electric Inspector is the provision of section 26(6) with reference to the meter or the maximum demand indicator or the measuring apparatus, supplied for ascertaining the supply of energy consumed at the premises. The amount of the bill for dishonest abstraction and the method adopted, would not be challengeable in contemplation of section 26-A before the Electric Inspector as the consumer who wishes to challenge the same will have to seek his remedy under the general civil law by initiating appropriate proceedings before the Civil Court of plenary jurisdiction. The Electric Inspector by straining the language cannot assume the jurisdiction which the legislature has not conferred on him and in its wisdom has left the parties to avail of the remedy under the General law from the judicial forum itself which forum having the plenary jurisdiction is best suited to decide the question after holding proper enquiry and on the basis of property evidence. "
9. The bar of jurisdiction of Civil Court as laid down in section 54-C, was brought on the statute book vide amendment, in cases where licensee referred in section 24-A discontinuance of the supply to the premises of Consumer under the provision of this Act. Preparation of detection bill and dishonest abstraction of energy in violation of section 26(A) of the Electricity Act, does fall within the ambit of jurisdiction of the Civil Court because the licensee itself avoided to follow the law. Reliance is placed on Imran Nazir's case PLD 2001 Lahore 31, which is reproduced as under.
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25. Nothing has been stated by WAPDA whether it followed the provisions of section 26-A aforementioned for preparing the detection bill and justifying the amount. Prima facie, it appears to be an arbitrary formulation and shall be taken with skepticism until the methodology prescribed by section 26-A for this purpose is established to have been followed .
26. It is after a bill is so determined under section 26-A of the Electricity Act and served upon the petitioner that an action for neglect to pay the charge for energy or any other sum, a licensee can serve him with a seven days' clear notice. And upon his failure, can disconnect his premises thereafter. Likewise, in respect of meters, whereas, the licensee has access and liberty to inspect but it cannot, in view of the proviso to section 4, take off or remove such meters if a dispute regarding the correctness or otherwise of the meter has been determined as provided in section 26 of the Electricity Act afore-mentioned. The purpose of giving notice as required under section 24 of the Electricity Act is, therefore, meant to enable a consumer to raise a dispute with the Electric Inspector .
27. The provisions of section 54-C as was thought by the learned District Judge, were only to become operative and jurisdiction of the Civil Court until the consumer deposited the amount of detection bill, could only be barred if the licensee itself had followed the law not otherwise. Suppposing a bill with an astronomical amount is sent to a consumer as a detection bill based on mala fides and contrary to the provisions of section 26-A of the Electricity Act, will this condition as envisaged in section 54-A, apply? The Answer is no, because a consumer is only liable to pay what has been correctly and scientifically determined against him under the provisions of section 26-A and not based on mere sweet will of a local formation ".
10. As no notice was served upon the plaintiff nor he was given chance to associate with the team of XEN M&T during the alleged checking of the meter for which he was entitled as no one should be a judge of his own cause under section 20 of the Electricity Act, 1910. Reliance is placed on 2009 YLR 688 (Peshawar), which reproduced as below:-
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7. Admittedly the alleged checking of the meter was carried out at the back of the respondent. He was neither given a notice nor he was associated with the alleged checking of the meter. Under the law, the respondent was entitled to have been associated with the checking of the meter as nobody should be a judge of his own cause under section 20 of the Electricity Act. The owner of the premises is entitled to a notice before checking the same which is lacking in the instant case and any action taken by the WAPDA functionaries, in the absence of consumer and in violation of section 20 of the Electricity Act, will be illegal and without jurisdiction according to the dictum handed down in the case of Mian Muhammad Munir v. WAPDA and others (1983 CLC 211 Lahore) and WAPDA through its Chairman WAPDA House Lahore and others v. Mian Shaukat Hayat 2003 CLC 1574 ".
11. Same view was taken in Colony Textile Mills Ltd. Multan through Factory Manager v. Chief Executive, Multan Electricity Power Company Ltd (MEPCO), Multan and 2 others 2004 SCMR 1979 held that:-
" 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 ."
It was further held ;
" 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 empowered 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. In the light of above, the principle annunciated by their lordship of august Supreme Court of Pakistan is that in case of theft of electricity or illegal abstraction of energy, the Electric Inspector has no jurisdiction to adjudicate a dispute and the jurisdiction lies exclusively with Civil Court who could resolve the controversy after proper appreciation of evidence produced by the parties.
13. In the instant case the evidence as discussed above clearly suggests that the detection bill has been made without any authority, in contravention of the said procedure and in violation of natural justice, which is to be annulled, with special reference the admission made by a solitary witness produced by the petitioners/defendants who candidly admitted the stance of the respondent/plaintiff in his cross-examination in unequivocal manner.
14. For the foregoing reasons, the present revision petition being without any substance, is hereby dismissed.
MH/427/P Revision dismisse