Legal Character of an Electric Inspector is not that of Court

 PLJ 2007 Lahore 10

[Multan Bench Multan]

Present: Fazal-e-Miran Chauhan, J.

PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY through its EXECUTIVE ENGINEER, MEPCO LTD.,

MULTAN--Petitioner

versus

M/s. HUSNAIN INDUSTRIES (PVT.) LTD. through the M.D., MULTAN and 4 others--Respondents

W.P. No. 436 of 2005, decided on 13.6.2005.

(i)  Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 (I of 1983)--

----Arts. 9(1), 10(3)--Constitution of Pakistan (1973), Art. 199--Jurisdiction of the Wafaqi Mohtasib--Constitutional petition--Objection that since the matter was subjudice before the Electric Inspector, jurisdiction of Wafaqi Mohtasib is barred/ousted under proviso A of S. 9(i) of Ordinance, 1983, was laid down--Held: No reference was pending before any Court of competent jurisdiction, Judicial Tribunal or Board."           [P. 14] A

 

(ii)               Electricity Act, 1910 (IX of 1910)—

 

 

----S. 36--Constitution of Pakistan (1973), Art. 199--Legal character of an Electric Inspector--Under the Electricity Act, 1910, the legal character of an Electric Inspector is not that of Court--He does not act as a Court under the Arbitration Act the role assigned to the electric inspector is to determine the dispute under the Electricity Act.     [P. 14] B

 

 

 

(iii)             Electricity Act, 1910 (IX of 1910)—

 

 

----Ss. 36 & 52--Constitution of Pakistan, 1973 Art. 199--Arbitration Act, 1940, S. 52--Under Section 52 of the Electricity Act or the same has already been decided by him.          [P. 14] C

 

(iv)              Constitution of Pakistan, 1973—

 

 

----Art. 199--Establishment of Office Wafaqi Mohtasib (Ombudsman) Order (I of 1983), Art. 32--Constitutional petition--Maintainability--Principle of laches and gross negligence--Alternate adequate remedy--It is declared that Writ Petition is hit by principles of laches--Petition dismissed.

            [P. 15] D

1974 SCMR 82; 1974 SCMR 38; PLD 2003 SC 123 & PLD 2004 SC 127 ref.

Mr. Muhammad Ashraf Sh., Advocate for Petitioners.

Malik Muhammad Latif Khokhar, Advocate for Respondent No. 1.

Ch. Saghir Ahmad, Standing Counsel with Haq Nawaz, Asstt. Wafaqi Mohtasib, Regional Office, Multan and Muhammad Sabir, Electric Inspector, Multan.

Date of hearing: 17.5.2005.

Order

Through this writ petition the petitioner has challenged the order dated 24.6.1998 passed by the Electric Inspector, Multan Region and order dated 20.2.1999 passed by the learned Advisory Board Govt. of Punjab, Irrigation and Power Department by which the application of the Respondent No. 1 consumer has been concurrently allowed and uphold.

2.  Brief facts of the case are that Respondent No. 1 is the consumer of petitioner (Wapda) running a Ghee Mills by using allotted Account No. 5121-959200 B-2 with sanctioned load fo 209 KW. All electric energy consumption bills were paid regularly and no arrear whatsoever was outstanding aginst the respondent. In the month of September, 1996, the Revenue Officer (P), WAPDA, Mumtazabad, Division, Multan issued electricty bill amounting to Rs. 604607/- against consumption of units of 5391 to the Respondent No. 1. Respondent No. 1 approached E.D.O. (L) WAPDA Mumtazabad Sub-divisions, Multan to enquire about the issuance of such excessive bill of Rs. 6,04,507/-. Respondent was informed that in the month of August, 1996, a Surveillance Team checked the meter of the Ghee Mills and found the meter slow @ 56.86%. The respondent challenged the report of the Surveillance Team, but he was directed to first deposit the disputed bill and then his grievance will be looked into by the petitioner, failing which his meter may be disconnected. Left with no option, the Respondent No. 1 deposited the disputed amount in favour of the petitioner and also requested to re-check the meter in presence of the respondent. As a result thereof, the working of the meter was found in-different and slowness was charged for the period May, 1996 to September 1996 and was found accurate during October, November, December 1996. As the behaviour of the meter was changed the metering equipment was ordered to be replaced and respondent consumer was allowed a refund of Rs. 5,97,181/- in the term of report of Surveillance Team. Being dissatisfied with the report, the Respondent No. 1 preferred an application, and under Section 26(2) Electricity Act, 1910 before Electric Inspector, Multan Division, Multan Respondent No. 2.

3.  The Electric Inspector after soughting reply, and record from the petitioner, hearing both the parties, and going through documentary evidence of both parties by his a very detail and elaborated order, declared that SDO of the petitioner played a drama of losses MLJ reading, just to cover up their losses and prove slowness. Meter of the respondent was not found to be slow in the said period. He directed the petitioner to refund the payment received as detection bill and also to serve Respondent No. 1 with bill for the month of September, 1996 as reading recorded by the KW meter actually and with actual multiplying factor.

4.  The petitioner preferred appeal before Respondent No. 3 (Advisory Board, Govt. of Punjab etc.) The respondentBoard dismissed the appeal of the petitioner, and decision of the Electric Inspector was upheld by order dated 20.2.1999. After 20.2.1999 petitioner filed this writ petition on 29.12.2004 challenging the order dated 24.6.1998.

5.  It is argued by the learned counsel for the petitioner that respondent paid the electricity bill, raised in view of the decision of the accredited authority of the department conveyed dated 8.8.1996 without any protest. The checking was carried out in presence of consumer, who also participate in test check but he refused to sign the report. Thereafter respondent was estopped to assail the same before Electric Inspector, request of consumer/respondent when acceded to recheck of meter by detective staff, there was no bonafide and lawful excuse to agitate the verdict of the 2nd report dated 24.12.1996. It is further argued that Respondent No. 2 (Electric Inspector) had no jurisdiction to determine the dispute. It was only Civil Court which has the jurisdiction to entertain and decide dispute involving monitory matter. Respondents Nos. 2, 3 did not adopt the procedure and decided the matter simply on the basis of the reports submitted, without checking the metering equipment. The law prescribes that, the thing to be done in accordance with the manner envisaged by law. The proceedings conducted by Respondent No. 2 are violative of Section 2.6(6) of Act of LX 1910. It was mandatory for Respondents Nos. 2 and 3 to convey the decision to licensee but they failed to convey the decision. The petitioner came to know when he received notice from the office of Wafaqi Mohtisab for implementation of the decision of the Respondents Nos. 2, 3. That without approaching the Civil Courts by filing suit for recovery and by affixing Court fee of Rs. 15,000/-, the consumer is not entitled to recover the amount. The consumer moved Respondent No. 4 illegally for recovery of alleged claim. Even otherwise Respondent No. 4 has no jurisdiction to take cognizance in the matter, which remains pending before the competent forum under the Electricity Act, 1910. There is further remedy under the law after decision of Electricity Act 1910, Respondent No. 4 is not the executing agency. There is a limitation imposed u/s 10(3) of Order 1 of 1983. Any claim beyond three months is not sustainable. The claim of the Respondent No. 1 is four year old and was barred by law and was to be subjudice before proper forum. That under Article 9 of the Wafaqi Mohtasib (Ombudsman) Order (PO 1 of 1983) matter pending before same Court or tribunal etc, were kept out of the jurisdiction of Ombudsman under Article 10(1) of Order 1 of 1983. The complaint of a person is competent and not that of a company, even otherwise respondent is estopped by his own conduct after the elapse of 6 years.

6.  On the other hand, learned counsel for the Respondent No. 1 argues that both decisions dated 24.6.1998 of the Electric Inspector and that of the Advisory Board dated 20.2.1999 are being challenged after elapse of almost 5 years is hit by principal of laches. That the Electric Inspector and Advisory Board decided the matter after hearing both the parties, the Advisory Board rejected the appeal filed by the petitioner holding that Respondent No. 1 was entitled to be refund of Rs. 6,04,607/- charged as an amount of 56.86% slowness of the meter for the month of May 1996 to September 1996, because in the opinion of the committee the meter was defective during May 1996 to September 1996, and the same became correct and was declared not slow from October 1996 onward.

7.  The Advisory Board rightly declared that the meter remains accurate during May 1996 to 31.12.1996, and the checking made by the petitioner/appellant in August 1996 declaring the meter to be slow to the extent of 56% was not correct, and decision of Electric Inspector dated 24.6.1998 was upheld and appeal of WAPDA was rejected on 20.2.1999. The petitioner remains silent and no remedy by way of filing writ was availed against the order of Electric Inspector and of Advisory Board Act, which attained finality. Now this writ petition, filed, challenging the order of Respondent No. 2 & 3 is hit by laches. The delay has not been explained. The impugned order passed by the competent authority was perfectly legal and had been passed in lawful exercise of authority and jurisdiction, and does suffered from any infirmity either in law and equity. High Court shall decline to interfere with such order in exercise of extra ordinary constitutional jurisdiction. He further argues that petitioner is guilty of gross negligence and laches is not entitled to the equitable relief. One, who seeks equity, must show that equities lean in his favour. The explanation, given in the application for condonation of delay is not explanatory. "And does not warrant condonation of delay. The explanation put forth does not inspire confidence. As has been held in L.H. Shaikh vs. General Manager, Karachi Telecommunication Region and others (1974 SCMR 82). Misplacement of file in the office of the petitioner is not supported by any document showing that any action was taken against such official held responsible for such misplacement. The Government is in no better position, then other, litigant is such matter. In civil matter, delay in filing appeal or petition, save in exceptional cases, shall not be lightly condoned, as a valuable right had accrued to the other party, who cannot be deprived of that except for very substantial reason. To make department of Govt. exception to this rule would be placing premium on negligence and want of proper diligence in public officer. As has been held in Chief Settlement and Rehabilitation Commissioner and another vs. Ghulam Ghaus etc. (1974 SCMR 38) and Member (S&R)/Chief Settlement Commissioner, Board of Revenue, Punjab, Lahore vs. Syed Ashfaque Ali and others (PLD 2003 SC 123). It is further argued that an alternate adequate remedy by way of filing of representation to the President under Article 32 of the Establishment of Wafaqi Mohtasib (Ombudsman) Ordinance I of 1983 is available to the petitioner. The writ petition is pre-mature and the same may dismissed on this score only. Reliance is placed on Pakistan Railway vs. Abdul Barik Khan and others (PLD 2004 SC 127).

8.  I have heard the learned counsel for the parties at the limine stage. The argument advanced by the learned counsel for the petitioner mainly revolves around the jurisdiction of the Wafaqi Mohtasib. It is argued that, since the matter was subjudice before the Electric Inspector, the jurisdiction of Wafaqi Mohtasib is barred/ousted under proviso A of sub-section (1) of Section 9 of Ordinance 1 of 1983.

9.  Proviso A of sub-section (1) of Section 9 laid down that:

"Mohtisab shall not have any jurisdiction to investigate or inquires into any mark which is, a; are subjudice before a Court of competent jurisdiction or judicial tribunal or Board in Pakistan on the date of the receipt of the complaint, reference or motion by him".

From the bare perusal of the above proviso-A it is clear that jurisdiction to investigate or inquire into any matter is barred only when the dispute referred through the complaint, reference or motion to the Wafaqi Mohtisab the same is pending adjudication before a Court/Judicial Tribunal or Board. Here in the present case, the dispute was referred to the Electric Inspector, whose decision was not being implemented by the petitioner, respondent moved a complaint to the Wafaqi Mohtisab on 9.8.2004. On this date, when the complaint was filed no reference was pending before any Court of competent jurisdiction, Judicial Tribunal or Board.

10.  Under Section 36 of the Act 1910 the Federal Government may by notification in official Gazette, appoint duly qualified person to be Electric Inspector or Provincial Government may, by notification in official Gazette, appoint duly qualified person to be Electric Inspectors within such area as may be assigned to them respectively. The Electric Inspector has been assigned an important role so far as determination of dispute arising under the Act, 1910. In deciding the case under the Electricity Act, 1910, the legal character of an Electric Inspector is not that of Court. He does not act as a Court under the Arbitration Act. The role assigned to the Electric Inspector is to determine the dispute under the Electricity Act.

11.  Under Section 52 of the Arbitration Act where any matter is by or under this act directed to be determined by arbitration, the matter is referred to the Arbitrator nominated by the Provincial Government in this behalf. Its means that the appointment of Electric Inspector under the Electricity Act, (under Section 36) is not that of an Arbitrator. Meaning thereby, the Electric Inspector so nominated by the Federal Government or Provincial Government does not act as a Court or an Arbitrator. Thus, the proceedings pending before Electric Inspector are not proceedings pending before a Court or Tribunal creating bar on the jurisdiction of Ombudsman conferred under Article 9 of the Ombudsman Ordinance, 1983. Thus, the objection raised had no force that Ombudsman has no jurisdiction to entertain the complaint/reference, where the matter was pending before the Electric Inspector or the same has already decided by him.

12.  Conversely, learned counsel for the respondent argued that the Writ Petition filed by the petitioner is premature, the decision of the Electric Inspector for he refund of excess amount received by the petitioner was upheld by the Advisory Board on the appeal filed by the petitioner. Thereafter, the petitioner kept silent and never agitated the dispute before any Court of competent jurisdiction. Through this writ petition, the petitioner has challenge the order of Ombudsman by which the petitioner is directed to comply with the orders the Electric Inspector dated 24.6.1998 confirmed by the Advisory Board on 20.2.1999. If the petitioner feels aggrieved of the orders of Ombudsman he had a remedy under Section 32 of the Wafaqi Mohtisab Ombudsman Ordinance, 1983 to make a representation to the President of Pakistan. Here in this case the petitioner without availing the remedy available under the law has filed the writ petition challenging the jurisdiction of Ombudsman to decide the complaint filed by the respondents. Hence, the writ petition be dismissed being premature.

13.  He further argues that the petitioner who is guilty of gross negligence and laches is not entitled to equitable relief. One, who seeks equity must show that equity leans in his favour. In the present case, the order of Electric Inspector dated 24.6.1998 directed refund of amount received illegal by the petitioner was upheld by the Board by dismissing the appeal of petitioner on 20.2.1999 and after elapse of more than 4 years the present writ petition has been filed which hopelessly time barred and is hit by laches.

14.  The explanation given in the application for condonation of delay is not self-explanatory and does not inspire confidence. The misplacement of file in the office of the petitioner is not supported by any evidence showing the bona fides of the petitioner. The Government is not in a better position then the ordinary litigants in such matter. Since, no plausible explanation has been given for not filing the writ petition within the reasonable time. It is declared that writ petition is hit by principle of laches.

15.  For what has been discussed above, the writ petition is dismissed in limine being not maintainable.

(Mehmood Ahmed Alvari)    Petition dismissed.