Haji Akbar Hayat vs WAPDA etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, BANNU BENCH

(Judicial Department)

CR No. 29-B of 2013

JUDGMENT

Date of hearing : 15.06.2015

Appellant-Petitioner: Haji Akbar Hayat by Hafiz Muhammad Hanif, Advocate.

Respondent : PESCO by Umarzad Shah Bukhari, Advocate.

MUHAMMAD YOUNIS THAHEEM, J.- This judgment is directed to dispose of the Civil Revision Petition against the judgment and decree of the learned Appellate Court of District Judge, Bannu dated 10.10.2012 vide which the appeal of the plaintiff /petitioner against the judgment and decree of the learned trial court of Civil Judge-III, Bannu dated 21.03.2012 was dismissed.

2.Brief facts of the case according to plaint are that the petitioner/plaintiff got electricity connection for PVC pipe factory through Account No.6615-

05189007; that the fine for the month of June, 2006 amounting to Rs.45942/- and for the month of September, 2008 worth Rs. 1,28,443/- are illegal, based on malafide, without notice and ineffective upon the rights of petitioner/plaintiff and prayed for its cancellation.

3.The respondents/defendants submitted their written statement wherein they raised legal as well as factual objections. From divergent pleadings of the parties, the learned trial Court framed issues and both the parties led their respective evidence. The learned trial court after recording of evidence heard the arguments and dismissed the suit vide its judgment and decree dated 21.03.2012.

4.The present petitioner/plaintiff aggrieved from the judgment and decree of the learned trial Court preferred an appeal before the appellate Court of learned District Judge, Bannu but the same was lastly

dismissed vide impugned judgment and decree by the learned appellate Court of District Judge, Bannu

5.Arguments of both the learned counsel heard and record perused.

6.The record reveals that present petitioner instituted suit being consumer of electricity against the Chief Executive PESCO Khyber Pakhtunkhwa, Peshawar and others bearing Account No. 6615- 05189007. The respondents charged the petitioner/ plaintiff by imposing fine for the month of June, 2006 worth Rs. 45942/- and for the month of December, 2008 worth Rs. 1,28,443/-. The petitioner/ plaintiff challenged the detection bills illegal, void, based on malafide, without notice and are liable to be set aside.

The present respondents/defendants filed their written statement wherein they admitted that the impugned detection bills and fine was imposed upon the report of Meter Testing Laboratory with the allegations that the

plaintiff/petitioner has not paid the bills for the consumed unites before the month of June, 2006 due upon the petitioner/plaintiff worth Rs.76971/-.

7.After perusal of record it reveals that PW-1, commercial assistant appeared and got recorded his statement who brought on record electricity bills with effect from the month of January, 2005 till December 2010 and stated that for the above period amount payable by plaintiff is still due and not paid Worth Rs.

287257/- and in this respect record is placed on judicial file as EX.PW1/1. This witness during cross examination stated that disputed amount includes the amount of consumed units and the amount of fine.

However, in the month of April 2009 Rs.39673/- was given as credit to the petitioner. He during cross examination further stated that the load of 17 KW for his factory was approved. The present petitioner appeared as PW-2 who stated that respondents had imposed fine in the month of June, 2006 Rs. 45942/-

and another fine for the month of September, 2008 worth Rs. 1,28,443/-. Both these fines are illegal, without justification and without any notice. He produced copy of detection bill for the month of June, 2006 as EX.PW2/1 and for the month of September, 2008 as EX.PW2/3. Plaintiff/petitioner during cross examination stated that he has instituted the suit for setting aside of fine Rs. 174385/- and further stated that if there is any amount due on him which is just and genuine, he is ready to pay the same. The record reveals that defendants/respondents produced only the record clerk of M&T Laboratory WAPDA, Bannu who produced test result No.1306-10 dated 25.5.2006 which is impugned herein and is EX.DW2/1. During cross examination DW-2 admitted that meter was not checked and tested in his presence. He during cross examination further admitted that before testing and checking this meter, no notice was served upon the consumer i.e. petitioner/ plaintiff, therefore, it is

correct that this meter was checked and tested in absence of petitioner. Another witness record clerk Sub–Division PESCO Bannu appeared as DW-3 who also brought on record M&T Laboratory report vide letter No.1306-10 dated 25.5.2006, which shows the following result:

“Meter externally shunted and meter damaged.”

Upon above report the plaintiff/petitioner was charged with 3723 unites as fine. DW-3 further produced letter No.4422 dated 01.09.2008 from M&T Laboratory which is EX.DW3/1, showing result “meter tampered and found reversed”. This record of M&T vide letter No.1306 and 4422 was not produced in original but its photostate copies were produced. During cross examination DW-3 admitted that EX.DW3/1 is photostate and the photostate shows the signature of SDO Sub-Division Office, PESCO, Bannu. The entire record reveals that this SDO and other concerned

persons of M&T Lab did not appear in the Court to verify their reports. The learned counsel for respondents/WAPDA was put a query as to whether result of meter testing laboratory in law having any presumption of truth especially in event of non-serving of notice upon consumer and by not producing the persons who had allegedly conducted the test of the electricity meter of the consumer. The learned counsel for the respondents failed to produce any law or legal basis for believing that the report of M&T is a conclusive proof and can be relied upon like FSL report of Peshawar or Lahore. Wisdom is derived in this behalf from case titled “Chairman WAPDA Vs. Ghulam Sabir” cited as (PLJ 2009 Peshawar 156) wherein it is held:

“This is the cardinal principle of law that before taking any action against any person, a notice must be given to him as envisaged under Section 20 of the Electricity Act and any action taken at the back of the consumer and without notice to him, will be violative of the principle of natural justice.”

In the same judgment it was further held:

“The issuance of a notice is the vested right of a person or at least at the time of removing the meter, respectables from the locality ought to be associated with the proceedings. Checking of the meter without notice to the consumer is violative of the principle of natural justice and is illegal.”

8.The entire record reveals that no notice before removing the meter from the factory of petitioner was served upon him nor any respectable persons of the locality were associated with the proceedings of removing and checking of disputed meter. In the instant case concerned SDO WAPDA and the officials who tested the “unilaterally removed meter” were not produced as witness by WAPDA i.e. respondents before the learned trial Court to verify the alleged M&T Laboratory results.

9.In view of above the concurrent findings of the two courts below are not based on correct appreciation of evidence and law. Both the courts below have misread and non-read the evidence, hence

judgments and decrees of both the courts below are set aside and suit of the petitioner/plaintiff is decreed to the extent that petitioner will pay bills of electricity for the unites which he has consumed, if not yet paid and the impugned detection bills for the month of June, 2006 and September, 2008 are declared null and void and are set aside.

Announced.

JUDGE