Mepco vs M/S Fazal Cloth Mills Ltd etc.

Stereo H C J D A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT, MULTAN BENCH,

MULTAN

JUDICIAL DEPARTMENT

Case No. Writ Petition No.16328/2015

MEPCO Chief Executive Officer, etc.

(Petitioners)

versus

M/s Fazal Cloth Mills Ltd. etc.

(Respondents)

JUDGMENT

Date of Hearing 08.02.2022

Petitioners represented Mr. Abdul Razaq Raja, Advocate, by:

Respondent No.1 Malik M. Tariq Rajwana, Advocate, represented by

Malik Altaf Hussain Raan, Respondent No.2 Assistant Advocate-General, represented by Punjab.

Mr. Sagheer Ahmad Bhatti, Respondent No.3 Assistant Attorney-General for represented by Pakistan.

ABID AZIZ SHEIKH, J.:- In this writ petition, the petitioners have challenged the order dated 20.03.2015, passed by respondent No.2 (Electric Inspector/Provincial office of Inspection) and order dated 08.09.2015, passed by respondent No.3 (National Electric Power Regulatory Authority) (NEPRA).

2.Relevant facts are that respondent No.1 is an industrial consumer of the petitioners/MEPCO. Respondent No.1 claimed refund of Rs.59,57,876/- due to difference of billing from Peak to Peak-off hours

units for the months of January, 2013 to June, 2013, vide application dated 17.08.2013. The petitioners, however, only refunded Rs.21,29,653/- and respondent No.1 being aggrieved filed an application dated 10.12.2014 before respondent No.2. The said application was partially allowed on 23.05.2015 and the petitioners were directed to adjust all debts, credits and payments already made by the consumer/respondent No.1. The petitioners being aggrieved of order dated 20.03.2015 filed an appeal before respondent No.3, however, the said appeal was dismissed being barred by time vide impugned order dated 08.09.2015, hence this Constitutional petition.

3.Learned counsel for the petitioners submits that respondent No.3 was bound to decide the appeal on merits, rather dismissing the same on the ground of limitation. He placed reliance on the case of Bashir Ahmad versus Inayat Ullah and another (1998 CLC 590). He further submits that an application under Section 5 of the Limitation Act, 1908 (Limitation Act) was maintainable and the delay was also explained in the said application but the same was not considered.

4.Learned counsel for contesting respondent No.1, on the other hand, supported the impugned orders.

5.Arguments heard. It is an admitted position on record that against the order passed by respondent No.2, right of appeal is provided to respondent No.3 under Section 38(3) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 (Act). For convenience, Section 38(3) of the Act at the relevant time is reproduced hereunder:-

“38(3) Provincial offices of inspection. — Any person aggrieved by any decision or order of the Provincial Office of Inspection may, within thirty days of the receipt of the order, prefer an appeal to the Authority in the prescribed manner and the Authority shall decide such appeal within sixty days.”

(However, word “prescribed” was substituted with word “specified” through Amendment Act of 2018)

6.From plain reading of the above Section 38(3) of the Act, it is manifest that against the order passed by Provincial office of Inspection (POI), an appeal can be filed before the Authority within a period of thirty(30) days of the receipt of order. The Authority as defined under Section 2(1) of the Act is NEPRA. In the present case, the order of PoI was passed on 20.03.2015 and the appeal was filed before the Authority on 11.05.2015, after fifty-three(53) days of the announcement of the order, therefore, the appeal being beyond period of thirty(30) days, prescribed under Section 38(3) of the Act, was grossly barred by time.

7.Learned counsel for the petitioners vehemently argued that as petitioners had filed an application under Section 5 of the Limitation Act before respondent No.3, therefore, delay was liable to be condoned. To examine this legal question, it is necessary to reproduce Section 29 of the Limitation Act as under:-

“29. Savings.___ [(1) Nothing in this Act shall affect section 25 of the Contract Act, 1872.

(2)Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law:

(a)the provisions contained in section 4, sections 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and

(b)the remaining provisions of this Act shall not apply.] (3)] Nothing in this Act shall apply to suits under the Divorce Act (IV of

8.A bare reading of above provision shows that where any special or local law prescribes for any suit, appeal or application, a period of limitation different from the period prescribed under the Limitation Act, then period prescribed in special or local law will prevail. Further in term of Section 29 ibid only the provisions of Sections 4, 9 to 18 and 22 shall apply in so far as they are not expressly excluded by such

special or local law and the remaining provisions including Section 5 of the Limitation shall not apply.

9.The expression “local or special law” has not been defined in the Limitation Act but according to Black’s Law Dictionary, “local law” means a law, which operates over a particular locality instead of whole territory, while the expression “special law” means a law made for individual cases and include law operating upon a selected class, rather than the public at large. The perusal of the Act shows that its provisions are to provide for Regulatory, Generation, Transmission and Distribution of Electric Power and matters connected therewith and incidental thereto to selected class of persons mentioned in the Act. Therefore, for all intent and purposes, the Act is a special law, hence the provision of Section 5 of the Limitation Act shall not apply, in view of Section 29(2)(b) of the Limitation Act, to condone the delay beyond the period of limitation of thirty(30) days prescribed under Section 38(3) of the Act. In this regard reliance is placed on the judgments passed by the Hon’ble Supreme Court of Pakistan in the cases of “Allah Dino and other versus Muhammad Shah and others” (2001 SCMR 286), “Rahim Jan versus Securities Exchange Commission of Pakistan and others” (2002 CLD 1464), “City District Government, Lahore through District Coordination Officer, Lahore versus Mian Muhammad Saeed Amin” (2006 SCMR 676), “Chairman, District Evacuee Trust Committee, Rawalpindi versus Sharif Ahmad and others” (PLD 1991 Supreme Court 246), “The State versus Zahid Hussain” (1990 SCMR 164), “Ali Muhammad and another versus Fazal Hussain and others” (1983 SCMR 1239), “Abdul Ghaffar and others versus Mst. Mumtaz” (PLD 1982 Supreme Court 88) and “Ahsan Ali and others versus District Judge and others” (P L D 1969 Supreme Court 167).

10.The same view was also expressed by this Court in the cases of “Shehzad Ali Shah versus Special Judge Rent, Lahore and others” (PLD 2020 Lahore 354), “Khawaja Muhammad Ahmad versus

Muhammad Ayyub and others” (2019 P.Cr.L.J 1010), “State (NAB) versus Muhammad Aslam Bajwa and others” (2016 P.Cr.L.J 1189), “The State Versus Said Raheem and others” (PLD 2016 Lahore 560), “Aamir Iqbal Khan versus Muhammad Yaqoob Jaura and others” (2017 P.Cr.L.J 1543) and “Mohammad Khalid Naeem versus Habib Bank Limited” (2018 CLD 1027).

11.The case of Bashir Ahmad (supra) relied upon by the learned counsel for the petitioner is distinguishable, as in said case, the appeal being found to be within time, the period of limitation was condoned and the legal proposition involved herein was not even discussed in the said judgment.

12.Notwithstanding the fact that the application under Section 5 of the Limitation Act was not maintainable, but even perusal of the said application shows that no sufficient cause whatsoever has been pleaded for condoning the delay in filing of appeal before respondent No.3. The Hon’ble Supreme Court of Pakistan in judgments reported as LAL KHAN through legal heirs v. MUHAMMAD YOUSAF through Legal Heirs (PLD 2011 Supreme Court 657), Qaiser Mushtaq Ahmad v. Controller of Examination and others (PLD 2011 Supreme Court 174) and MUHAMMAD AMJAD versus SENIOR SUPERINTENDENT OF POLICE (OPERATIONS), LAHORE and others (2010 PLC (CS) 838) has held that each and every day consumed beyond the period of limitation has to be explained, which the petitioners have miserably failed to do.

13.It is also well settled that even a void order has to be assailed within the period of limitation prescribed under the law. Reliance in this regard can be placed on Ghulam Hussain Ramzan Ali v. Collector of Customs (Preventive), Karachi (2015 PTD 107), Ghulam Hussain Ramzan Ali v. Collector of Customs (Preventive), Karachi. (2014 SCMR 1594), Gen. (R) Parvez Musharraf v. Nadeem Ahmed (Advocate) and another (PLD 2014 SC 585) and Messrs Blue Star

Spinning Mills Ltd. v. Collector of Sales Tax and others (2013 SCMR

14.No doubt, petitioner/MEPCO is a government owned and controlled distribution Company. However, as per law settled by the Hon’ble Supreme Court, no preferential treatment can be given to the government in cases filed beyond the period of limitation. Reliance is placed on KHUDA BAKHSH and others versus MUZAFFAR through L.Rs and others (2007 SCMR 1032) and GOVERNMENT OF PAKISTAN through Ministry of Works and another versus Messrs

MALBROW BUILDERS, CONTRACTOR, SIALKOT (2006 SCMR

15.In view of above discussion, no illegality or infirmity is found in the impugned orders, therefore, this writ petition is dismissed.

(ABID AZIZ SHEIKH)

JUDGE

APPROVED FOR REPORTING.

JUDGE

M.Sajid.