Order Sheet
IN THE HIGH COURT OF SINDH KARACHI
Suit No. 485 of 2012
___________________________________________________________
Date Order with signature of Judge
For hearing of C.M.A. No.11594/2012 (U/Ss. 94 & 151 CPC) :
Dates of hearing : 10.12.2012, 10.01.2013 & 01.04.2013.
Mr. Arshad Mohsin Tayebally, advocate for the plaintiff.
Mr. Abid Shahid Zuberi, advocate for defendant No.1.
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ORDER ON C.M.A. No. 11594 / 2012
Nadeem Akhtar, J. – Through this application, the plaintiff has prayed for a direction against defendant No.1 Karachi Electric Supply Company Limited (“KESC”) to restore the electricity supply of the plaintiff through its meters having Consumer Nos.BH-000781, BL-000307 and BL-002348. The plaintiff claims that defendant No.1 is liable to restore its electricity supply in view of the judgment delivered on 05.09.2012 by a learned Division Bench of this Court in High Court Appeal No. 97 of 2012, and to implement the mandatory injunction for restoration granted in favour of the plaintiff through the aforesaid judgment. The issue involved in the instant application is a short one, but in order to decide the same and to understand and appreciate the respective contentions of both the parties, it is necessary to discuss the circumstances in which the instant application has been filed by the plaintiff.
2. This Suit for declaration, mandatory injunction and damages was filed by the plaintiff on 10.05.2012 against KESC praying inter alia that the notices dated 17.02.2012 issued by KESC, and any notices issued pursuant to the order dated 17.04.2012 passed in Suit No.329/2012, including the notices dated 19.04.2012, be declared as illegal, ultra vires and void ab initio ; to declare that KESC has no right in law to prevent the plaintiff from using the KESC power connection as a backup supply so long as the plaintiff continues paying the Fixed Charges in its electricity bills ; Clause 8.1 of the Consumer Service Manual (“CSM”) be declared as illegal, ultra vires and void ab initio ; KESC be permanently restrained from carrying on with its illegal failure to supply electricity to the plaintiff despite regularly receiving all electricity bills from the plaintiff ; and, damages to the tune of Rupees 100.000 million. Defendant No.2 National Electric Power Regulatory Authority (“NEPRA”) was cited as a pro forma defendant.
3. The case of the plaintiff in this Suit is that the plaintiff was receiving electricity from KESC at its three factories situated in the Korangi Industrial Area, Karachi, which are fully described in the plaint. The consumer numbers of the plaintiff in respect of its said three factories are also disclosed in the plaint. The plaintiff has stated in the plaint that it had entered into contracts with KESC, whereby KESC was required to provide specified ‘Sanctioned Load’ for each of the factories of the plaintiff, which was the total power that KESC was liable to provide to the plaintiff. According to the plaintiff, as KESC repeatedly failed in providing a steady supply of power to the plaintiff’s factories, the plaintiff was compelled to set up and run its own backup electricity generators, exclusively for its own use, in order to meet its day to day requirements of electricity. The plaintiff has averred that all electricity bills were being paid consistently and without fail. On 17.02.2012, the plaintiff received notices from KESC informing the plaintiff that the KESC’s staff would visit the factories of the plaintiff to ascertain whether any captive power plants were on site, and whether the Sanctioned Load was in fact being utilized. Through the said notices, the plaintiff was notified by KESC that in case anything contrary was discovered, KESC would be entitled to disconnect the power supply. The notices were replied by the plaintiff explaining its stance that the plaintiff was not in default, and captive power was being used as the last resort as KESC had failed to provide regular and reliable power supply. The plaintiff also sent a letter to NEPRA on 09.03.2012, wherein the above position was explained. It has been averred by the plaintiff that on 20.03.2012, the electricity power of two of its factories was disconnected by KESC before the inspection of all the factories could be completed, which in fact was not conducted by KESC till mid-April, about three weeks after the disconnection. On 19.04.2012, KESC ultimately issued Show Cause Notices in respect of all three factories, wherein it was stated that the hearing would take place on 20.04.2012. Despite the facts that the electricity supply of the third factory of the plaintiff had not been disconnected and the hearing of the Show Cause Notices had not taken place, the electricity supply of the third factory was also disconnected by KESC on 20.04.2012.
4. In the above background, this Suit was filed by the plaintiff with the prayers mentioned above. An injunction application bearing CMA No. 4605/2012 was also filed by the plaintiff, praying that KESC should be restrained from carrying on with its illegal failure to supply electricity to the plaintiff. Defendant No.1 strongly contested this application, which in fact was an application for the grant of mandatory injunction for restoration of the plaintiff’s electricity supply to its factories. The said application was dismissed vide detailed order passed in this Suit on 18.06.2012. The plaintiff assailed the said order of dismissal through High Court Appeal No.97/2012.
5. Prior to the filing of the instant Suit, a number of Suits were filed before this Court against KESC by different consumers whose electricity supply had been disconnected by KESC, and also to whom notices had been issued by KESC. All the said consumers / plaintiffs also filed in their Suits applications for injunction and restoration of their electricity supply, which were heard and disposed of through a detailed common order dated 17.04.2012 passed by a learned Single Judge of this Court. Against the said common order dated 17.04.2012, High Court Appeal Nos. 54/2012, 55/2012, 63/2012, 64/2012, 65/2012, 66/2012, 67/2012, 72/2012, 73/2012 and 74/2012 were filed before this Court by the said consumers / plaintiffs. All the above mentioned appeals filed against the above mentioned order dated 17.04.2012 and High Court Appeal No.97/2012 filed by the plaintiff herein against the order dated 18.06.2012 passed in this Suit, were clubbed together and were disposed of by a learned Division Bench of this Court through a detailed common judgment delivered on 05.09.2012. All the above mentioned appeals filed by the other consumers were dismissed, but in the plaintiff’s High Court Appeal No.97/2012, the impugned order dated 18.06.2012 passed in this Suit was modified by the learned Division Bench in terms of paragraph 31 of the order dated 17.04.2012 impugned in High Court Appeal No.55/2012. The operative part of the judgment delivered on 05.09.2012 by the learned Division Bench in all the appeals, including the plaintiff’s appeal, and paragraph 31 of the order dated 17.04.2012 (impugned in all the other appeals) passed by the learned Single Judge in leading Suit No.329/2012, are reproduced below for convenience and ready reference :
Operative part of the judgment delivered
on 05.09.2012 by the learned Division Bench
“ 18. Result of the above discussion is that these High Court Appeals are dismissed. However, in H.C.A. No.97/2012 the impugned order is modified in terms that has been used in para 31 of the impugned order in H.C.A. No.55/2012.”
Paragraph 31 of the order dated 17.04.2012 passed
by the learned Single Judge in leading Suit No.329/2012
“ 31. In view of what has been stated in the foregoing, I conclude that the plaintiffs have made out a case for interim injunctive relief and the equities lie in their favour. At the same time however, such relief ought not to stand in the way of KESC making a proper determination of the facts in accordance with law, and then taking, if so warranted, appropriate action by exercising the powers vested in it under the CSM. Accordingly, I dispose of the applications under consideration in the following terms:
a. Subject to what is stated below, the electricity connections of those plaintiffs who are enjoying supply of power, whether on account of Court orders or otherwise, shall not be discontinued or disconnected.
b. Subject to what is stated below, the electricity supply of those plaintiffs who are not being supplied power shall be restored within seven days from (but excluding) today.
c. Nothing in (a) or (b) above shall prevent KESC from making a proper determination in accordance with the law as explained herein above as to whether any plaintiff is utilizing its sanctioned load for standby purposes.
d. If in the case of any plaintiff it is determined in terms of (c) that it is utilizing the sanctioned load for standby purposes then its electricity supply may be discontinued in accordance with law and subject to what is stated below, or KESC may decrease or reduce its sanctioned load by such reasonable amount as may be appropriate.
e. If any exercise in terms of (c) is initiated within seven days from (but excluding) today in relation to a plaintiff to whom (b) applies, then its electricity supply need not be restored in terms as therein stated until the exercise is concluded but it is clarified that if such exercise is initiated after more than seven days from (but excluding) today, the electricity supply must be restored, and such plaintiff shall be deemed to be a plaintiff to which (a) applies.
f. If any exercise in terms of (c) is initiated, and any party, whether KESC or a plaintiff, is of the view that such exercise is being unnecessarily or unreasonably delayed, obstructed, prolonged or prevented, it may apply for such directions as the Court deems appropriate, which may include a modification, in whole or in part, of any directions contained in this para 31.
g. If any exercise in terms of (c) ends in a determination adverse to a plaintiff whether in whole or in part, then that plaintiff will be entitled to its remedies in accordance with law, and if it is a plaintiff who is being supplied power, no action in terms of (d) shall be taken against it for a period of seven days from (but excluding) the date of communication of the determination.
h. Nothing herein shall prevent or disentitle any plaintiff from executing the Undertaking at any time and if it does so, then the Undertaking shall apply in its own terms to both the plaintiff and KESC.”
6. Mr. Arshad Mohsin Tayebally, the learned counsel for the plaintiff, submitted that the order dated 18.06.2012 passed in this Suit dismissing the plaintiff’s application for restoration of its electricity supply, was modified by the learned Division Bench so as to conform to the consolidated order dated 17.04.2012 passed by the learned Single Judge of this Court, whereby mandatory injunction was granted to other consumers / plaintiffs for restoration of their electricity supply in terms of paragraph 31 of the said order. He submitted that, by virtue of such modification, the plaintiff’s earlier application (CMA No.4604/2012 which was dismissed vide order dated 18.06.2012), also stood allowed in terms of paragraph 31 of the said order dated 17.04.2012, wherein the learned Single Judge had held that “….. I conclude that the Plaintiffs have made out a case for interim injunctive relief and equities lie in their favor. ……”. By specifically referring to sub-paragraphs (b) and (e) of paragraph 31 of the said order dated 17.04.2012, the learned counsel submitted that as per the said sub-paragraph (b), the electricity supply of the plaintiff was to be restored by KESC within seven days subject to the said sub-paragraph (e) ; and, as per the said sub-paragraph (e), if KESC had initiated the exercise of determination within seven days, then KESC would not have been required to restore the plaintiff’s electricity supply ; but, if KESC did not initiate the exercise of determination within seven days, then the electricity supply of the plaintiff ought to have been restored by KESC. It was urged that, in view of the learned Division Bench’s judgment dated 05.09.2012, KESC was required to initiate the exercise of determination within seven days from the date of the said judgment (05.09.2012), but KESC did not initiate any such exercise, and the seven days’ period ordered by the learned Division Bench ended on 12.09.2012. It was further urged that, in view of the KESC’s failure in initiating the exercise of determination within the seven days’ period ordered by the learned Division Bench, KESC was required to restore the plaintiff’s electricity supply on or before 12.09.2012 in terms of the said sub-paragraph (e) of paragraph 31 of the order dated 17.04.2012. It was prayed on behalf of the plaintiff that, since KESC did not comply with the directions given by the learned Division Bench in its judgment dated 05.09.2012, the present application be allowed by directing KESC to restore the electricity supply of the plaintiff.
7. On the other hand, this application was vehemently opposed by Mr. Abid Shahid Zuberi, the learned counsel for defendant No.1 / KESC. At the outset, he challenged the maintainability of the present application by submitting that the plaintiff has impugned the learned Division Bench’s judgment dated 05.09.2012 by filing CPLA No.1687/2012 before the Hon’ble Supreme Court in October 2012, wherein the plaintiff has also filed an application for restoration of its electricity connections, on which notice has been ordered to be issued. The learned counsel submitted that the application in hand is not maintainable ; firstly, as the matter of restoration of the plaintiff’s electricity is subjudice before the Hon’ble Supreme Court ; and secondly, the plaintiff cannot rely upon the learned Division Bench’s judgment dated 05.09.2012 and cannot approbate and reprobate, as the plaintiff has sought implementation of the learned Division Bench’s judgment dated 05.09.2012 on the one hand, and on the other hand, the same judgment has been impugned by the plaintiff before the Hon’ble Supreme Court. In support of his first submission regarding pendency of the plaintiff’s CPLA before the Hon’ble Supreme Court, the learned counsel relied upon the cases of Tariq Mohsin Siddiqui and 2 others V/S The State through National Accountability Bureau, 2005 MLD 1827, and, Al-Rehman Falahi Society through General Secretary V/S Government of Sindh through Secretary, House and Town Planning, Karachi, and another, PLD 2006 Karachi 14. In support of the other submission made by the learned counsel regarding approbation and reprobation, he relied upon the cases of Attaullah V/S Abdur Razzaq, PLD 2002 Supreme Court 534, Amin-ud-din Khan V/S Water and Power Development Authority, through Chairman and 3 others, 2003 YLR 991, and, Sheikh Ahmad and 2 others V/S Muhammad Sabir and another, 2003 YLR 1689.
8. Responding to the submissions made by the learned counsel for the plaintiff, Mr. Abid Shahid Zuberi submitted that, in compliance of the judgment delivered on 05.09.2012 by the learned Division Bench, KESC extended the benefit of the order dated 17.04.2012 to all its consumers, including the present plaintiff, by reinitiating the process as contemplated by paragraph 31 of the said order dated 17.04.2012. In support of this submission, the learned counsel relied upon the inspection notices dated 17.04.2012 issued to the plaintiff for determination of the actual load, Show Cause / Disconnection Notices dated 20.04.2012 issued to the plaintiff, the minutes of the meeting held on 24.04.2012 when the plaintiff was personally heard, and the Final Disconnection Notices dated 07.12.2012 issued to the plaintiff. After referring to the above notices and minutes, the learned counsel submitted that determinations were made by KESC on 07.12.2012 in respect of all the consumer numbers of the plaintiff ; and, it was determined by KESC that the plaintiff was utilizing its electricity connections on standby. He further submitted that, since the process contemplated by the order dated 17.04.2012 had been initiated and completed, KESC was neither bound to issue fresh notices to the plaintiff, nor was it bound to restore the plaintiff’s electricity.
9. Rebutting the submissions made on behalf of KESC, Mr. Arshad Mohsin Tayebally, the learned counsel for the plaintiff, reiterated that KESC failed in complying with the learned Division Bench’s judgment dated 05.09.2012, as neither any notice for determination was issued to the plaintiff by KESC within seven days from 05.09.2012 nor was the exercise of determination initiated by KESC by the said date. He submitted that the plaintiff is seeking implementation of the judgment dated 05.09.2012 delivered by the learned Division Bench, and KESC is also relying on the same judgment as KESC has claimed that it had acted upon the same. He further submitted that all the notices issued to the plaintiff by KESC prior to the learned Division Bench’s judgment dated 05.09.2012, were not issued as contemplated by paragraph 31 of the order dated 17.04.2012, as the said paragraph 31 was made applicable to the plaintiff on 05.09.2012 by the learned Division Bench. Regarding the CPLA and the application for restoration of electricity supply filed therein by the plaintiff before the Hon’ble Supreme Court, the learned counsel submitted that, despite the above, the application in hand is maintainable and the plaintiff is entitled to the relief prayed for therein as the plaintiff has not impugned before the Hon’ble Supreme Court the modification of the order dated 18.06.2012 ; but has filed the CPLA as the plaintiff’s appeal was not allowed by the learned Division Bench in terms of the prayer made by the plaintiff in its appeal. He further submitted that no restraining order is operating in the plaintiff’s CPLA restraining any of the parties to seek relief in the present Suit.
10. Since the learned counsel for KESC has challenged the maintainability of the present application, I propose to decide this question first. The present application for restoration of electricity connections has not been filed by the plaintiff in the circumstances in which it had filed the earlier application (CMA No. 4605/2012) which was dismissed vide order dated 18.06.2012. It is to be noted that the present application has been filed by the plaintiff after passing of the judgment dated 05.09.2012 in the plaintiff’s High Court Appeal No.97/2012, whereby paragraph 31 of the order dated 17.04.2012 was made applicable to the plaintiff on 05.09.2012. Thus, in my humble opinion, the present application has been filed by the plaintiff in view of the developments and subsequent events that took place after the learned Division Bench’s judgment dated 05.09.2012, which were not in existence when the first application was filed by the plaintiff or when the same was dismissed. The CPLA filed by the plaintiff before the Hon’ble Supreme Court arises out of the plaintiff’s earlier application (CMA No. 4605/2012), and is the continuation thereof. The question that is subjudice before the Hon’ble Supreme Court is admittedly the question of restoration of the plaintiff’s electricity connections with reference to the plaintiff’s said earlier application, and not with regard as to whether the plaintiff’s electricity connections are liable to be restored or not in pursuance of the learned Division Bench’s judgment dated 05.09.2012 ; or as to whether the directions given by the learned Division Bench for initiating the exercise of determination within seven days from 05.09.2012, have been complied with or not by KESC. This shows that the questions about the implementation of the learned Division Bench’s judgment dated 05.09.2012, that is, the applicability of paragraph 31 of the order dated 17.04.2012 to the plaintiff’s case, and initiation of the exercise of determination within seven days from 05.09.2012 in respect of the plaintiff’s connections, are not subjudice before the Hon’ble Supreme Court. The cases cited and relied upon by the learned counsel for KESC, being clearly distinguishable, are thus not applicable in the facts and circumstances of the application in hand. I, therefore, hold that the present application is maintainable.
11. There is one more aspect regarding the maintainability of the present application. A perusal of paragraph 31 of the order dated 17.04.2012 shows that the learned Single Judge had concluded therein that the plaintiffs (consumers of KESC) had made out a case for interim injunctive relief, and the equities lay in their favour. In order to ensure that such relief should not stand in the way of KESC, KESC was set at liberty to make proper determination of the facts in accordance with law, and then to take appropriate action, if so warranted, by exercising powers vested in it under the CSM. The said paragraph 31 deals with both the situations prevailing at the time of passing the said order dated 17.04.2012, that is, the consumers who were enjoying the power supply, and the consumers whose power supply had been disconnected. The process with a specific time frame for making proper determination by KESC in accordance with law is also provided in the said paragraph 31. In paragraph 31(f), it is specifically mentioned that if any exercise (of proper determination) in terms of paragraph 31(c) is initiated, and any party, whether KESC or a plaintiff (consumer), is of the view that such exercise is being unnecessarily or unreasonably delayed, obstructed, prolonged or prevented, it may apply for such directions as the Court may deems appropriate, which may include a modification, in whole or in part, of any directions contained in paragraph 31. It is the case of the plaintiff that the proper exercise of determination was not initiated by KESC within the seven days’ time frame stipulated in paragraph 31(e). Thus, in my humble opinion, the present application is maintainable also in view of paragraph 31(f) of the order dated 17.04.2012.
12. I shall now proceed to deal with the merits of the present application. The judgment dated 05.09.2012 delivered by the learned Division Bench, by which paragraph 31 of the order dated 17.04.2012 was made applicable to the plaintiff, has admittedly not been challenged by KESC. In fact, the said order dated 17.04.2012 has also not been challenged by KESC. Vide paragraph 31(e) of the said order dated 17.04.2012, KESC was not obliged to restore the electricity supply if the exercise of “proper determination in accordance with the law” in relation to the plaintiff who was not being supplied with power, had been initiated by KESC within seven days as stipulated in the said order. In the said paragraph 31(e), it was specifically clarified that if such exercise was initiated after more than the said period of seven days, the electricity supply “must be restored”, and such plaintiff shall be deemed to be a plaintiff to whom paragraph 31(a) was applicable, that is, such plaintiffs who were enjoying supply of power, whether on account of Court orders or otherwise, and whose electricity connections were not to be discontinued or disconnected. The seven days’ period stipulated in paragraph 31(e) for implementation of the conditions and the process contemplated by the order dated 17.04.2012, was to commence from the date of the said order. The learned counsel for KESC did not dispute that the said conditions and / or process were made applicable to the plaintiff on 05.09.2012 by the learned Division Bench. It was his contention that the learned Division Bench’s judgment dated 05.09.2012 was complied with by KESC by extending the benefit of paragraph 31 of the order dated 17.04.2012 to the plaintiff, and by making the determinations in respect of the plaintiff. Thus, it is not disputed that the exercise of determination in respect of the plaintiff was to be commenced by KESC within seven days from 05.09.2012. It is an admitted position that the inspection notices dated 17.04.2012 for determination of the actual load, and the Show Cause / Disconnection Notices dated 20.04.2012 were issued to the plaintiff much prior to 05.09.2012 ; and, the meeting, held on 24.04.2012 for hearing the plaintiff, was also held much prior to 05.09.2012. It is also an admitted position that the purported determinations in respect of the plaintiff were made by KESC on 07.12.2012 on the basis of the above mentioned notices and meeting ; and, no fresh notice for such purpose was issued by KESC to the plaintiff after 05.09.2012 and / or within seven days from the said date. Even the Final Disconnection Notices were issued by KESC on 07.12.2012, that is, after more than three months from 05.09.2012. In view of the above undisputed position, it is my considered opinion that the purported determinations made on 07.12.2012 by KESC in respect of the plaintiff’s connections, were not made as contemplated by the order dated 17.04.2012 and as ordered by the learned Division Bench on 05.09.2012.
12. Since KESC did not initiate the exercise of determination within seven days from 05.09.2012, it was bound to restore the electricity connections of the plaintiff after the expiration of the said period of seven days from 05.09.2012 in terms of paragraph 31(e) of the order dated 17.04.2012, as the present plaintiff became entitled forthwith to the enjoyment and continuance of the supply of power in terms of paragraph 31(a) of the said order dated 17.04.2012. For the forgoing reasons, CMA No.11594 of 2012 is allowed as prayed.
J U D G E
*Suit 485-12 KESC New.doc/Orders Single/Court Work/Desktop/ARK*