PLJ
2010 Peshawar 134 (DB)
Present:
Attaullah Khan and Muhammad Safdar
Khan Sikandari, JJ.
PESCO
through Chief Executive Peshawar and 5 others--Petitioners
versus
SHAH
JAHAN KUNDI and 3 others--Respondents
W.P.
No. 180 of 2006, decided on 25.3.2010.
Electricity
Act, 1910 (IX of 1910)--
----S.
26(6)--Constitution of Pakistan, 1973, Art. 199--Constitutional
petition--Order of electric inspector to Govt.--Challenged on the ground of
jurisdiction through writ petitions--Question of--Whether decision made by
Electric Inspector was in accordance with law--Validity--Electric Inspector
could only entertain and decide the matter u/S. 26(6) of Electricity Act,
relating the meter correctness and consequent determination thereto and no
other dispute--Order of appellate authority who once accepted the appeal and
then by subsequent order dismissed it--Electric Inspector had trespassed his
domain by exercising jurisdiction not vested in him--Petition were allowed. [P. 136] A & B
PLJ
2002 Lah. 757, ref.
Mr. Arif Rahim Ustrana,
Advocate for Petitioners.
Mr. Rustam Khan Kundi, Advocate for
Respondents.
Date
of hearing: 17.3.2010.
Judgment
Attaullah Khan, J.--Through this single
Judgment we intend to dispose of Writ Petitions Bearing No. 180 of 2006 and No.
10 of 2007, which relates to one and the same matter.
2. We have heard both the learned counsel for
the parties and have also gone through the record.
3. Brief facts are that a civil suit was filed
by Shah Jehan petitioner in the Civil Court for declaration and permanent
injunction, which was decreed in his favour on
20.02.2004. Both the parties assailed the said Judgment before learned District
Judge but he did not entertain the same on the ground of jurisdiction and both
the parties were directed to approach the proper forum.
4. Again both the parties impugned the Judgment
of learned District Judge through Regular First Appeal No. 8/2004
and Civil Revision No. 381/2004 before this Court. After hearing the
parties, this Court vide Judgment dated 22.11.2005 returned both the matters to
the petitioners for its presentation to the Electric Inspector in accordance
with Section 26 of the Electricity Act, 1910.
5. The petitioner Shah Jehan
moved the Electric Inspector to Govt: of NWFP through
submitting complaint. The said complaint was decided by the said forum on
19.05.2006 by partially accepting it. The said Judgment was again assailed
through an appeal by petitioner Shah Jehan before
Secretary to Govt: of NWFP, Irrigation & Power
Department, who vide his order dated 04.07.2006 upheld the order of Electric
Inspector to Govt: of NWFP. Later on through order
dated 18.07.2006, the earlier order was amended and the words (the appeal is
accepted), was substituted by words, "the appeal is not accepted".
6. All the above orders i.e
Electric Inspector to Govt: NWFP and order passed by
Secretary to Govt: NWFP, Irrigation & Power
Department have been challenged through these two writ petitions.
7. Both the learned counsel contended that both
the orders are illegal because the Electric Inspector has exceeded his
jurisdiction.
8. We may refer to Section 26 (2) of the
Electricity Act, 1910, the said section is reproduced as below:--
"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 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 the Proyincial
Government whose decision shall be final:
Provided
that, before either a licensee or a consumer applied to the Electric Inspector
under this sub-section he shall give to the other party not less than seven
days' notice of this intention no to do"
9. The above provision of law shows that any
dispute between the parties regarding meter shall be adjudicated upon by
Electric Inspector within a period of ninety days. The matter to be decided by
Electric Inspector under this section is regarding as to whether any meter,
maximum demand indicator or other measuring apparatus is or is not correct. So
the Electric Inspector cannot go beyond the above limits.
10. We have to find out as to whether the
decision made by Electric Inspector in his order dated 9.05.2006 is in
accordance with sub-section (6) of Section 26 of the Electricity Act, 1910 or
not. The last Para of the impugned order shows that he has given findings in
this matter which hardly touches the issue within his jurisdiction. The
Electric Inspector could only entertain and decide the matter under Section 26
(6) of Electricity Act, 1910, relating the meter correctness and consequent
determination thereto and no other dispute. Reference may be given to PLJ 2002 Lahore 757.
11. Similar is the fate of the order of appellate
authority who once accepted the appeal and then by
subsequent order dismissed it. The order of the appellate authority is also
illegal because while altering/modifying his earlier order he failed to provide
opportunity of hearing to the aggrieved party. Thus the Electric Inspector has trespassed his domain by exercising jurisdiction not vested
in him.
12. The upshot of our above discussion is that
both the writ petitions are allowed with direction to Electric Inspector to
process the complaint of complainant strictly in accordance with the law.
(R.A.) Petitions
allowed.
