Appeal No
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BEFORE THE ADVISORY BOARD, GOVT. OF THE PUNJAB, LAHORE.
Appeal No. 118-5/2002 MEPCO Ltd. Multan etc.
Vs.
Nisar Hussain
Appeal against order dated 4.10.2001, passed by Electric Inspector, Multan Region, Multan. Written statement on behalf of respondent.
Respectfully Sheweth: PRELIMINARY OBJECTIONS: 1.
That the appellant No. 1 was neither a party as defendant in petition before the Electric Inspector, Multan Region, Multan nor the said appellant applied to the learned forum to be added as party to the case showing that its interests would be seriously affected if not joined as a party. So, appellant No. 1 cannot join as party at this stage.
2.
That the appellant No. 1 has no cause of action, even no locus standi, so the appeal is not competent to the extent of appellant No. 1.
ON FACTS: The parawise replies are given as under: 1.
That contents of para No. 1 are not correct. The respondent is not a consumer of appellant No. 1, at present. The MEPCO Ltd. Multan was incorporated on 14.5.1998 and allowed to commence its business on 9/10-6-1998, under the Companies Ordinance, 1984. (Copies of relevant certificates issued by the Registrar of Companies are Annexes “A & B”).
2.
That contents of para No. 2 are not admitted. The M & T Division and Operation Division are sister formations of MEPCO. The checking result of M & T may be an internal matter of MEPCO, but have no value or authenticity in the eyes of law. This unilateral checking without prior notice was challenged in the Hon’ble Lahore High Court, Bench at Multan. Thereafter, it was directed to the Electric Inspector, Multan for adjudication.
3.
That contents of para No. 3 are not correct, hence not admitted. The detection bill was issued arbitrarily and notice was just a formality otherwise, the appellant miserably failed to accept the offer of respondent with reference to that notice, for installation of check meter to determine the factual position or get the meter checked by an impartial agency. The appellants stated that checking result of M & T is correct and final. As a matter of fact, the checking without prior notice was in violation of laws. The controversial issue was referred to appropriate forums for seeking justice, as the meter was functioning correctly and not slow.
4.
That the contents of para No. 4 are not admitted. However, the case was before the learned Electric Inspector, Multan for adjudication and any arbitrary and unilateral action of appellants before the decision of the Electric Inspector, Multan was against the law and natural justice. It is on record that the appellants had been charging so-called slowness continuously.
5.
That the contents of para No. 5 need no comments.
6.
That the contents of para No. 6 are admitted but, subject to findings and final decision by the learned Electric Inspector, Multan.
7.
That contents of para No. 7 are not correct. The meter did not remain slow throughout the previous months. The meter was being checked by the appellant No. 5, regularly every month. Besides this regular checking, the meter was also checked
from time to time by different checking teams, but no discrepancy was ever pointed out prior to 26.5.2000. This checking was actually wrong and illegal as it was just a revengeful act. It is specifically pointed out that the appellant No. 5 checked the meter on 4.7.2001, the MDI was 40 K.W. Again, he checked reading on 5.8.2001, MDI was 40 K.W., and when checked by representative of the Electric Inspector, Multan on 7.8.2001, the M.D.I. was 20 K.W. and meter was 66% slow. It clearly shows that the meter became 66% slow by developing some defect between 5.8.2001 to 7.8.2001 and not before. 8.
That the reply to para No. 8 has already been given in para No. 4 above.
9.
That the para No. 9 needs no comments.
10.
That the reply to para No. 10 is submitted that order dated 4.10.2001 is absolutely correct, valid in the eyes of law, within legal jurisdiction and lawful authority. Hence, replies to sub-paras are given below accordingly: A)
The appellants did not serve any notice before checking the meter. The appellants violated the express provision of law. A person violating the law cannot claim any right/remedy under the same law. However, the respondent’s case is a different one as it was referred to learned Electric Inspector, Multan under the directions of Hon’ble Lahore High Court, Multan Bench, Multan, so the condition of serving prior notice by respondent (consumer) to appellant does not apply in this case.
B)
That the meter of respondent was not found slow on all occasions. It was checked by M & T along-with appellant No. 3 & 5 on 9.6.1999 and found within B.S.S. The checking of meter on 26.5.2000 was malafide and cannot be relied upon and also challenged by respondent. Later on, the appellants (specially appellant No. 5) created hindrance intentionally and did
not co-operate in checking the meter by the learned forum and used to pressurise respondent for giving undertaking for changing the C.T.S. but the respondent always refused as the case was subjudice before the learned Electric Inspector, Multan. It is on the record that this matter was delayed for a considerable long period till 8.7.2001, when the checking was carried out by the learned forum (Electric Inspector, Multan). C)
That the contents of sub-para (c) are not correct. The appellants have determined period from 9/99, whereas there is a break between the two seasons. The meter had been checked regularly by appellant No. 5 and he found no discrepancy before 26.5.2000. Moreover, M.D.I. cannot be considered the only factor to determine slowness of meter. In the respondent’s case, the drop in M.D.I. was due to decrease in load as already explained in detail before the Electric Inspector and it is case of appropriate load management by technical expert.
D)
That the learned Electric Inspector, Multan has rightly determined the charging period in the light of decision by the Hon’ble WAPDA Mohtasib in complaint No. L/325/91 (R) and L/335/91 (R) in L/7535/90 and previous decision announced by the learned Electric Inspector, Multan in the light of above referred decision. (Copy is attached as Annex “C”).
E)
That the order dated 4.10.2001 is correct, legal, within four-corners of law.
F)
That this sub-para needs careful consideration .
i)
The respondent is not consumer of appellant No. 1 at present. As already pointed out in preliminary objections, MEPCO Ltd. Multan incorporated and commenced its business under Companies Ordinance, 1984 in May/June 1998. MEPCO Ltd. Multan acquired/took over all properties, liabilities and rights
of the administrative division of WAPDA, formerly known as the Multan Area Electricity Board (AEB) Multan, pursuant to the Pakistan Water and Power Development Authority Act of 1958 (as amended) etc. (Copy of pages 1 & 6 of M.O.A. are Annexes “D & E”). ii)
A copy of novation of Electricity supply agreement is annexed as (F). The contents of this agreement proves that MEPCO & WAPDA are two different bodies i.e. different legal persons in the eyes of law. Apparently, there is no relation between the two.
iii)
Even if, just for the sake of arguments, the appellant No. 1 is considered to be a party, then the objection should have been raised at the earliest opportunity, at least, before the learned Electric Inspector, Multan Bench, Multan. So, this cannot be stressed or agitated in this appeal now. Inference has been drawn relying on case reported in PLD 1987 (Pesh) 62. In the humble opinion of respondent, even if such right existed, will be considered as waived off.
iv)
So far the question of dismissing the application of respondent (applicant) or remanding or referring back the dispute to learned Electric Inspector, Multan for making fresh decision is concerned, it is submitted that appellants (defendants) having not raised plea of misjoinder or non-joinder of parties in the written statement could not raise the same before appellate court. No decree would be reversed in appeal on account of any misjoinder of parties. Any decision which is correct on merits and within jurisdiction of court making it, would not be upset by appellate court merely on grounds of technicalities or immaterial defects. No suit would be defeated by reason of
misjoinder or non-joinder of parties. Reliance has been made on case law 1991 CLC 1801. v)
The case law 1996 CLC 172 referred by appellants is not relevant to the respondent’s case as it is absolutely different and not identical to the facts of the case before this Hon’ble Board. It is, therefore, humbly and respectfully prayed that the order dated 4.10.2000 passed by the learned Electric Inspector, Multan may very kindly be up-held declaring the same as legal, justified, within jurisdiction and within lawful authority rejecting the appeal with costs throughout. Humble Respondent
Dated: 13.4.2002 Through: M. Ashraf Nadeem Sabri, Advocate High Court, 28-District Courts, Multan.
Appeal No. 118-5/2002 MEPCO Ltd. Multan etc.
Vs.
Nisar Hussain
Appeal against order dated 4.10.2001, passed by Electric Inspector, Multan Region, Multan. Written statement on behalf of respondent.
Respectfully Sheweth: PRELIMINARY OBJECTIONS: 1.
That the appellant No. 1 was neither a party as defendant in petition before the Electric Inspector, Multan Region, Multan nor the said appellant applied to the learned forum to be added as party to the case showing that its interests would be seriously affected if not joined as a party. So, appellant No. 1 cannot join as party at this stage.
2.
That the appellant No. 1 has no cause of action, even no locus standi, so the appeal is not competent to the extent of appellant No. 1.
ON FACTS: The parawise replies are given as under: 1.
That contents of para No. 1 are not correct. The respondent is not a consumer of appellant No. 1, at present. The MEPCO Ltd. Multan was incorporated on 14.5.1998 and allowed to commence its business on 9/10-6-1998, under the Companies Ordinance, 1984. (Copies of relevant certificates issued by the Registrar of Companies are Annexes “A & B”).
2.
That contents of para No. 2 are not admitted. The M & T Division and Operation Division are sister formations of MEPCO. The checking result of M & T may be an internal matter of MEPCO, but have no value or authenticity in the eyes of law. This unilateral checking without prior notice was challenged in the Hon’ble Lahore High Court, Bench at Multan. Thereafter, it was directed to the Electric Inspector, Multan for adjudication.
3.
That contents of para No. 3 are not correct, hence not admitted. The detection bill was issued arbitrarily and notice was just a formality otherwise, the appellant miserably failed to accept the offer of respondent with reference to that notice, for installation of check meter to determine the factual position or get the meter checked by an impartial agency. The appellants stated that checking result of M & T is correct and final. As a matter of fact, the checking without prior notice was in violation of laws. The controversial issue was referred to appropriate forums for seeking justice, as the meter was functioning correctly and not slow.
4.
That the contents of para No. 4 are not admitted. However, the case was before the learned Electric Inspector, Multan for adjudication and any arbitrary and unilateral action of appellants before the decision of the Electric Inspector, Multan was against the law and natural justice. It is on record that the appellants had been charging so-called slowness continuously.
5.
That the contents of para No. 5 need no comments.
6.
That the contents of para No. 6 are admitted but, subject to findings and final decision by the learned Electric Inspector, Multan.
7.
That contents of para No. 7 are not correct. The meter did not remain slow throughout the previous months. The meter was being checked by the appellant No. 5, regularly every month. Besides this regular checking, the meter was also checked
from time to time by different checking teams, but no discrepancy was ever pointed out prior to 26.5.2000. This checking was actually wrong and illegal as it was just a revengeful act. It is specifically pointed out that the appellant No. 5 checked the meter on 4.7.2001, the MDI was 40 K.W. Again, he checked reading on 5.8.2001, MDI was 40 K.W., and when checked by representative of the Electric Inspector, Multan on 7.8.2001, the M.D.I. was 20 K.W. and meter was 66% slow. It clearly shows that the meter became 66% slow by developing some defect between 5.8.2001 to 7.8.2001 and not before. 8.
That the reply to para No. 8 has already been given in para No. 4 above.
9.
That the para No. 9 needs no comments.
10.
That the reply to para No. 10 is submitted that order dated 4.10.2001 is absolutely correct, valid in the eyes of law, within legal jurisdiction and lawful authority. Hence, replies to sub-paras are given below accordingly: A)
The appellants did not serve any notice before checking the meter. The appellants violated the express provision of law. A person violating the law cannot claim any right/remedy under the same law. However, the respondent’s case is a different one as it was referred to learned Electric Inspector, Multan under the directions of Hon’ble Lahore High Court, Multan Bench, Multan, so the condition of serving prior notice by respondent (consumer) to appellant does not apply in this case.
B)
That the meter of respondent was not found slow on all occasions. It was checked by M & T along-with appellant No. 3 & 5 on 9.6.1999 and found within B.S.S. The checking of meter on 26.5.2000 was malafide and cannot be relied upon and also challenged by respondent. Later on, the appellants (specially appellant No. 5) created hindrance intentionally and did
not co-operate in checking the meter by the learned forum and used to pressurise respondent for giving undertaking for changing the C.T.S. but the respondent always refused as the case was subjudice before the learned Electric Inspector, Multan. It is on the record that this matter was delayed for a considerable long period till 8.7.2001, when the checking was carried out by the learned forum (Electric Inspector, Multan). C)
That the contents of sub-para (c) are not correct. The appellants have determined period from 9/99, whereas there is a break between the two seasons. The meter had been checked regularly by appellant No. 5 and he found no discrepancy before 26.5.2000. Moreover, M.D.I. cannot be considered the only factor to determine slowness of meter. In the respondent’s case, the drop in M.D.I. was due to decrease in load as already explained in detail before the Electric Inspector and it is case of appropriate load management by technical expert.
D)
That the learned Electric Inspector, Multan has rightly determined the charging period in the light of decision by the Hon’ble WAPDA Mohtasib in complaint No. L/325/91 (R) and L/335/91 (R) in L/7535/90 and previous decision announced by the learned Electric Inspector, Multan in the light of above referred decision. (Copy is attached as Annex “C”).
E)
That the order dated 4.10.2001 is correct, legal, within four-corners of law.
F)
That this sub-para needs careful consideration .
i)
The respondent is not consumer of appellant No. 1 at present. As already pointed out in preliminary objections, MEPCO Ltd. Multan incorporated and commenced its business under Companies Ordinance, 1984 in May/June 1998. MEPCO Ltd. Multan acquired/took over all properties, liabilities and rights
of the administrative division of WAPDA, formerly known as the Multan Area Electricity Board (AEB) Multan, pursuant to the Pakistan Water and Power Development Authority Act of 1958 (as amended) etc. (Copy of pages 1 & 6 of M.O.A. are Annexes “D & E”). ii)
A copy of novation of Electricity supply agreement is annexed as (F). The contents of this agreement proves that MEPCO & WAPDA are two different bodies i.e. different legal persons in the eyes of law. Apparently, there is no relation between the two.
iii)
Even if, just for the sake of arguments, the appellant No. 1 is considered to be a party, then the objection should have been raised at the earliest opportunity, at least, before the learned Electric Inspector, Multan Bench, Multan. So, this cannot be stressed or agitated in this appeal now. Inference has been drawn relying on case reported in PLD 1987 (Pesh) 62. In the humble opinion of respondent, even if such right existed, will be considered as waived off.
iv)
So far the question of dismissing the application of respondent (applicant) or remanding or referring back the dispute to learned Electric Inspector, Multan for making fresh decision is concerned, it is submitted that appellants (defendants) having not raised plea of misjoinder or non-joinder of parties in the written statement could not raise the same before appellate court. No decree would be reversed in appeal on account of any misjoinder of parties. Any decision which is correct on merits and within jurisdiction of court making it, would not be upset by appellate court merely on grounds of technicalities or immaterial defects. No suit would be defeated by reason of
misjoinder or non-joinder of parties. Reliance has been made on case law 1991 CLC 1801. v)
The case law 1996 CLC 172 referred by appellants is not relevant to the respondent’s case as it is absolutely different and not identical to the facts of the case before this Hon’ble Board. It is, therefore, humbly and respectfully prayed that the order dated 4.10.2000 passed by the learned Electric Inspector, Multan may very kindly be up-held declaring the same as legal, justified, within jurisdiction and within lawful authority rejecting the appeal with costs throughout. Humble Respondent
Dated: 13.4.2002 Through: M. Ashraf Nadeem Sabri, Advocate High Court, 28-District Courts, Multan.
