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Constitutional Petition No. 4 of 1985, decided on 28th April, 1985.

‑‑ S. 25‑Supply of electricity‑Supply of electricity under Tariff C‑2 subsequently changed to Tariff B‑3‑Consumers mentioned under Tariff C‑2 being creation of statute would have to be charged under said tariff whereas corporation being limited company regis tered with Registrar, Joint Stock Company, held, could not be deemed creation of statute‑Corporation being industrial organiza tion could be charged for bulk supply under Tariff B‑3‑Mere fact that entire capital of Corporation was subscribed by Government would not bring same at par with corporations which were creation of statute.

‑‑ S. 2 ( j )‑Mines Act (1V of 1923), S. 2 (f )‑Word "factory", connotation of‑Word "factory", held, was used in larger connota tion in Tariff B‑3 and would include industrial undertaking of every kind including mining operations‑Definition of word "mine" has been excluded from Factories Act because of being governed by Mining Act=Mining operations would, therefore, be deemed to be industrial activity‑‑Using of electricity supply for extraction of coal from mines is industrial activity chargeable under Tariff B‑3 for industrial supply.‑[Words and phrases].

‑Change of Tariff for bulk supply of electricity from Tariff C‑2 to Tariff B‑3, without notice to consumer, held, would be justifiable where previously such consumer was being charged under wrong tariff‑Rectification of mistake would not offend against principle of natural justice where same was rectified without notice to beneficiary.

‑‑Art. 199‑Constitutional jurisdiction, exercise of‑Obligations arising out of contract, held, could not be enforced through constitu tional jurisdiction of High Court.

Muhammad Aslam Chishti for Petitioner. Shakeel Ahmad for Respondents. Date of hearing : 22nd April, 1985.

.‑This petition filed by Pakistan Mineral Development Corporation, petitioner herein under Article 9 of the Provisional Constitution Order, 1981, challenges the order dated 26‑12‑1984 issued from the Office of Chairman, Area Electricity Board, Quetta respondent No. 2 herein.

2. The facts relevant for the purposes of this petition are that the petitioner is a company registered under the Companies Act but it is owned by Government of Pakistan. West Pakistan Industrial Develop ment Corporation was lessee of Sor Range and Degari Collieries, which after the dissolution of the said Corporation, were transferred to the petitioner vide order of the Federal Government dated 1‑7‑1974. The machinery installed in the said two collieries is operated by electricity supplied by Water and Power Development Authority respondent No. I herein, by an agreement which was executed by the respondent No. 1 with the said predecessor of the petitioner. According to the said agree ment of supply of electricity, the petitioner was treated under Tariff C‑2 of the 'Schedule of Tariffs issued by the respondent No. 1 and the said Tariff is for bulk supply. The petitioner was being charged under the said Schedule of Tariffs, i. e. C‑2, till June, 1984, but the bill for the period of July/August, 1984 was prepared by the Revenue Officer, WAPDA, Quetta, respondent No. 3 herein, under Tariff B‑3 instead of Tariff C‑2. Not only that, switch over from Tariff C‑2 to Tariff B‑3 was made retrospective with effect from July, 1981. The Tariff B‑3 is for industrial supply and the charges of supply of electricity are more higher than the charges for supply of electricity under Tariff C‑2. The peti tioner made representations to the respondents but was informed by them through the impugned order that the petitioner was being charged for Industrial supply.

3. The contention of the learned counsel for the petitioner is that the petitioner being a semi‑Government Organisation was liable to be charged for bulk supply under Tariff C‑2 and not as Industrial consumer under Tariff B‑3.

4. For the proper appreciation of the factual position of this case it would be pertinent to reproduce the definitions of the term "Bulk Supply" specified in Tariff C‑2 and the term "Industrial Supply" specified in Tariff B‑3.

"Bulk Supply," for the purpose of this Tariff means a supply given in bulk at one point to ;‑

(i) A Licensee (licensed under Part II of Electricity Act, 1910) for the purpose of further distribution and resale in his area supply.

and

a non‑licensee (permitted under Part III of the Electricity Act, 1910 to engage in the business of supplying energy) for the purpose of further distribution and resale in his area of supply.

(ii) P. A. F. at Wah only

(iii) Other consumers, e. g. Railways. M. E. S., P. A. F., Cantonment Boards and other Government and semi‑Government and other approved institutions having their own distribution facilities for the purpose of further distribution within their respective jurisdiction."

"Industrial Supply," for the purpose of this Tariff, means a supply for bona fide industrial purposes in factories and also for water pumps and tubewells operating on three phase 400 Volts, other than those meant for the irrigation or reclamation of agricultural land, and also includes supply for lamps and fans for the factory premises but not for the residential colony attached thereto."

5. The contention of the learned counsel for the petitioner is three fold ; firstly capital of the petitioner being entirely owned and subscribed by the Government of Pakistan, the petitioner was a semi‑Government Organization and like all other Government and semi‑Government Organizations mentioned in Tariff C‑2 was liable to be charged under the said Tariff ; secondly, the petitioner could not be charged for Industrial supply under Tariff B‑3 for the reason that such supply is for bona fide purpose in factories and a mine is not a factory ; and thirdly, it was urged by the learned counsel for the petitioner that the Tariff was changed with a retrospective effect without any notice or giving any opportunity of being heard to the petitioner.

6. In support of his first contention the learned counsel has sub mitted that the petitioner is a consumer like all other consumers specified in sub‑clause (iii) of clause 1 of the definition of Tariff C‑2. The other consumers according to this definition are Railways, M. E. S., P. A. F., Cantonment Boards and other Government and semi‑Government and other approved institutions. We have given our serious thought to this argument but we are not impressed by it. The reason is that the other consumers mentioned in this Tariff are the creation of Statutes. It has not been urged before us that the petitioner is the creation of a Statute. It is a limited company according to certificate of incorporation issued by the Registrar of Joint Stock Company Sind on 17‑6‑1974 (Annexure‑A'4 to the petition). The mere fact that the entire capital of the petitioner' has been subscribed by the Government would not bring it at par with Railways, M. E. S., P. A. F. or Cantonment Boards because the petitioner is an industrial organisation carrying on the business of extraction and development of minerals. Suffice it .to say that the other consumers mentioned in Tariff C‑2 are not industrial organizations.

7. In so far as the second point is concerned it was argued by Mr. Muhammad Aslam Chishti, learned counsel for the petitioner that mining operations have been specifically excluded from the term "factory" as defined in the Factories Act, 1934. His contention is that the term industrial supply specified in Tariff B‑3 shows supply for industrial purposes and factories and mining operations not being factories, the undertaking of the petitioner could not be assessed for industrial supply) under Tariff B‑3. No doubt the term "mining operations" has not been defined in Tariff B‑3 but we cannot import the definition of a factory,, specified in the Factories Act as the definition of a factory in the Schedule of Tariffs notified by the respondent No. 1. The word "Factory", .‑to our minds, has been used in its larger connotation in Tariff B‑3 and we are of the considered opinion that this word includes industrial under taking of every kind including mining operations. Even otherwise the. definition of the term "mine" has been excluded from the Factories Act for the reasons that there i3 a separate law governing mines and mining operations. The perusal of the Mines Act, 1923 would show that it virtually contains the same provisions as are made in the Factories Act, 1934 in respect of working conditions etc. in factories. This would show that mining operations is also industrial activity. This point becomes more clear when we scan letter dated 26‑12‑1984 of the respondent No. 2 which has been impugned in this petition. It shows that using of electricity supply for extraction of coal from mines is an industrial activity. This letter further specifies that all mining industries using electricity supply for mining purposes are being charged under Tariff B‑3 for industrial supply with no exception.

8. In so far as the third ground is concerned we have very seriously considered this aspect of the matter and we have come to the conclusion that this ground is also not available to the petitioner. The Schedule of Tariffs is modified from time to time by the respondent No. 1 and the latest Schedule of Tariff was enforced with effect from 1st November, 1981. It was also discovered by the respondents that the petitioner was being charged under a wrong Tariff. Hence a correction was made in order to charge the petitioner under an appropriate Tariff. It is, there fore, not a question of making any order against the petitioner without C notice to him. Even otherwise according to clause 18 of the agreement executed by the predecessor, of the petitioner in favour of respondent No. 1 it is clear that a consumer shall not be entitled to charge the Tariff under which be has agreed to be charged and the methods of charging for supply given to the consumer by the Department shall be those prescribed in the Schedule of Tariffs. The petitioner should have been charged for industrial supply but he was being erroneously charged for bulk supply. This mistake was rectified and we do not think if any principle of natural justice has been violated in the process of this rectification.

9. The learned counsel for the respondents has drawn our attention to clause 25 of the agreement relating to the determination of disputes. According to this clause if any difference or dispute arises between the Department and the consumer in respect of any matter connected with the supply which cannot be determined by the agreement, then the matter has to be determined in accordance with provisions of the Act or by reference to the Electric Inspector, and if still any difference or dispute arises, which cannot be determined as aforesaid, the decision of the Government shall be final and binding on all the parties to the difference or dispute. The learned counsel has argued that the matter of charges for supply is also a matter which is connected with the supply of electricity and so it is subject to the provisions of clause 25 of the agreement. The contention of the learned counsel is that the petitioner was bound to have recourse to the provisions of clause 25 and the present petition is mis construed. The learned counsel for the petitioner has contended that the charges for supply of electricity is not a matter connected with the supply and so it cannot be a subject‑matter of arbitration. We tend to agree with the learned counsel for the respondents for the reason that charges for consumption of electricity is a matter which is connected with the p supply of electricity and the above provisions of clause 25 of the agree ment are applicable in this matter. The petitioner should have contacted the Electric Inspector for resolving the dispute regarding the Tariff which was applicable in his case. This is an obligation arising out of the contract and cannot be enforced by means of a Constitutional Petition. On this score also the present petitioner cannot invoke the Constitutional jurisdiction of this Court.

The upshot of the above discussion is that we do not find any defect in the impugned order to attract the extraordinary jurisdiction of this Court. We would dismiss this petition with no order as to costs.

A. A. Petition dismissed.

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