ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

C. P. No. D – 147 of 2004

Date of hearing

Order with signature of Judge

Hearing of case (priority)

1. For hearing of CMA 324/2004 (S/A)

2. For hearing of main case

14.05.2019

Mr. Bhajan Das Tejwani assisted by Mr. Manoj Kumar Tejwani, Advocates for the petitioner.

Mr. Rehan Khan Durrani, Advocate for respondents/ SEPCO Sukkur.

.-.-.-.-.-.-.-.-.-.-

The petitioner has impugned a detection bill available at page 39 (Annexure ‘D’). The grievances as raised by the respondents at the time of issuing the detection bill were that they were malfunctioning and discrepancies in the meter and perhaps the illegal extraction was being made by the petitioner. Aggrieved of it, surveillance team of the respondents inspected the premises, removed the meter got it tested in their lab and issued them a detection bill which is impugned here.

Mr. Bhajan Das Tejwani learned counsel for petitioner while relying on Section 26 (6) of the Electricity Act,1910 submits that since the respondents has raised serious allegations of the nature as mentioned above, they cannot be a judge of their own cause by imposing the allegations as also by issuing a detection bill. It either ought to have been referred to a Electric Inspector for a fair and transparent adjudication or the Electric Inspector should have been looped in the lab test performed by the respondents unilaterally. They claimed to have removed the meter without associating Electric Inspector or impartial witnesses, which Electric Inspector in the present circumstances is the authority to adjudicate the allegations. On 18.02.2004 on the first date of hearing in response to the contentions raised, this petition was admitted for regular hearing and notices were issued to the respondents while in the meantime no adverse action was ordered to be taken. It is now almost 15 years have passed that the matter is still pending.

We have heard learned counsel and perused material available on record.

Sub-section (6) of Section 26 of Electricity Act, 1910 provides that when any difference or dispute arises between a licensee (SEPCO) and a consumer ( A. Khan Oil Mills) 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. In terms of this first part of Order 26 Rule 6, it appears that the respondents were aggrieved of the functioning of the meter, measuring apparatus and maximum demand indictor etc, hence instead of becoming a Judge of his own cause or it ought to have been referred by SEPCO to the Electric Inspector before the meter could have been removed or sent for a lab test. As observed the meter was neither removed in presence of Electric Inspector or impartial witnesses nor the tests were performed in presence of the Electric Inspector. Even the petitioner was not issued any notice while the tests in respect of meter were performed in the private lab of respondents.

This is a very painful learn that these actions of SEPCO might have spoiled a good case. We are not accusing petitioner as to whether the allegations were correct or incorrect but atleast the action of the respondents have demolished their own case.

Thus in view of Section 26 of Rule 6 of Electricity Act, 1910 and in view of the judgment reported in PLD 2012 Supreme Court 371 in the case of Water and Power Development Authority and others v. Messrs Kamal Food (Pvt) Limited Okara and others, we do not approve the action of the SEPCO / respondents that they should not have acted as a judge in its own cause while removing the meter in response to the allegations which are covered under section 26 of Rule 6 of the Electricity Act, 1910 and hence the entire action and the structure build thereon must collapse. The detection bill as such has become disputed in view of the above. The petitioner as such is entitled for such declaration that the action of respondents in issuing detection bill is not lawful in terms of Section 26 of Rule 6 of the Electricity Act, 1910.

While we grant such declaration, we are mindful that the dispute in terms of allegations was not referred to the Electric Inspector in whose jurisdiction such issues are required to be tried. While observing as above, we deem it appropriate to refer it to Electric Inspector for adjudication in accordance with law. The petitioner and the respondents may assist the Electric Inspector in reaching to a just and fair conclusion regarding the consumption of energy at the relevant time. We are also mindful of the facts that the measuring apparatus may not be available and if available it might not be of any help since 15 years have passed and it remained in the custody of SEPCO. The Electric Inspector, however, may use other means and resources to reach to a fair and just conclusion including but not limited to a past history of consumption of the energy prior to the issuance of the detection bill and also to consider use of generator in case the payment was being made against the use of the generator with the permission of the Electric Inspector. It is expected that since the matter is being referred to the Electric Inspector, he may come up with a lawful conclusion in accordance with law, preferably within three months. The amount deposited by the petitioner in these proceedings shall be subjected to the outcome of the proceedings before the Electric Inspector in the above terms.

The petition stands disposed of.

J U D G E

Irfan /PA