2017 PLP 160 (CLCN)

ALI AKBAR QURESHI, J.

This consolidated judgment shall decide instant petition along with petitions mentioned in Schedule A to this judgment, as common question of law and facts arise in these petitions.

2. The petitioners, who are manufacturers of different items of textile are industrial consumers of the respondent electricity distribution company and are required to be charged as per latest electricity tariff as determined by the respondent-NEPRA, through this Constitutional petition have prayed as under: "In view of the above, it is respectfully prayed as under: 1- The impugned acts of omission and commission on the part of Respondents for the issuance of impugned decision (09-06-2015) and notification (10-06-2015), may very kindly be set aside while declaring the same illegal, unlawful and void ab initio. 2- The Respondent may very kindly be directed to continue billing its consumers as well as the Petitioners on the basis of tariff as determined for FY 2014-15 on 27-03-2015 and may very kindly be restrained from raising the billing demand on the basis of the previously determined higher tariff or revised schedule; 3- The Respondents may very kindly be directed to refund/adjust the excessively recovered amounts from the Petitioner/Consumers since 01-7-2014 on the basis of previous years' higher tariff as under the law the above determined reduced tariff for FY 2014-15 becomes applicable from the 1st day of the Financial Year i. e. from 01-07-2014 till 30-06-2015; 4- Any other relief deemed appropriate in the peculiar circumstances of the case may also be very kindly afforded to the petitioners."

3. Concisely, the facts as stated by the petitioners are that, the respondent electricity distribution company (MEPCO) filed, as submitted by the petitioners, deliberately belated tariff petition seeking the consumer end tariff determination for the financial year 2014-2015 on 15.09.2014 to the National Electric Power Regulatory Authority (hereinafter called "NEPRA") under section 31(4) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 (NEPRA Act, 1997). On the petition filed by the respondent-MEPCO, the NEPRA authorities after due deliberation, determined the consumer end tariff by reducing the electricity tariff by a margin of at least Rs.2.00 per unit for every consumer category including domestic, commercial and industrial. After determining the consumer end tariff on the request of the respondent-MEPCO, the same was intimated to the federal government for the purpose of issuance of above required mandatory notification under section 31(4) of the Act ibid vide its letter No.NEPRA/TRF-283/MEPCO-2014/4264-4266 on 27.03.2015. The respondent-federal government after receiving the intimation sent by the respondent-NEPRA, filed a petition on 21.05.2015 under section 31(4) of the Act ibid to reconsider the decision to determine the consumer end tariff by the respondent-NEPRA vide order dated 27.03.2015, whereby the NEPRA reduced the consumer end tariff by Rs.2.00 per unit. The request of the respondent-federal government to reconsider the determination, was considered by the NEPRA and finally levied/imposed two additional surcharges namely, Tariff Realization Surcharge and Financing Cost Surcharge amounting to Rs.2.00 per unit and it was included in the schedule of same tariff determined by the respondent-NEPRA on 27.03.2015. In fact these two surcharges were imposed in addition to the earlier reduction in tariff of Rs.2.00 in the same tariff.

4. The respondent-NEPRA, as per the law, intimated the decision made after reconsideration to the federal government through a letter No.NEPRA/TRF-100/8883-8885 dated 09.06.2015 for issuing the notification in the official gazette, astonishingly, the federal government notified the same and issued the same in the official gazette on the next day i.e. 10.06.2015.

5. Learned counsel for the petitioners submit, that the mala fide on the part of the government appears from its conduct which is malicious and not expected from the State, that the respondent-federal government did not notify the determination of the consumer end tariff of the NEPRA whereby the benefit of Rs.2 per unit was given to the public at large even after passing a considerable time of about one year, whereas the determination made by the respondent NEPRA on the reconsideration petition of the federal government, imposed surcharge amounting to Rs.2.00 per unit in addition to the earlier tariff, notified the same on the very next day.

6. The arguments advanced by the learned counsel for the petitioners have substance keeping in view the facts of the case and the conduct of the State (federal government). This mala fide of the respondent-federal government even noticed by the NEPRA and the NEPRA authorities could not restrain themselves to say in the letter dated 09.06.2015, whereby the federal government was intimated about the decision taken by the NEPRA on the request of the federal government to reconsider the determination earlier made on 27.03.2015, The relevant portion of paragraph No.7 is reproduced as under: "xvii) that whenever a relief is given by NEPRA in reduction of tariff, the same is avoided to be given to the consumers by Govt. of Pakistan the tariff for FY 2014-15 is not being notified for which writ petitions have been filed and as an interim relief, it is ordered that DISCO should recalculate the bill of the petitioner as per rates determined by the NEPRA." The respondent-NEPRA while reconsidering the earlier determination of consumer end tariff on 27.03.2015., finally observed in paragraph No.11 of the above-referred decision as under:

11. Since the NEPRA's determined tariff will remain unchanged and while indicating the amount of surcharges and subsidy in separate columns the same is to be referred back to Government of Pakistan for notification in the official gazette. In view thereof the subject request is accepted and the amount of subsidy and surcharges as indicated by the Federal Government in the Annexures attached with the reconsideration request are allowed to be indicated in the already intimated schedule of tariff as per Annexure-III of the annual tariff determinations. Accordingly, the Schedule of Tariffs (Annexure-III) for Ex-WAPDA DISCOs for the Financial Year 2014-15 are modified and are replaced with Annexures A-1 to A-10 for IESCO, LESCO, GEPCO, FESCO, MEPCO, PESCO, SEPCO, HESCO, OESCO and TESCO respectively. The revised schedule of tariff is being intimated to the Federal Government for notification in the official Gazette in terms of section 31(4) of NEPRA Act. The other Terms and Conditions already intimated would remain the same. The recovery of any of the surcharges from the consumers by the DISCOs shall be subject to the orders of the Courts, if any, notwithstanding this decision." Learned counsel for the petitioners during the course of arguments have submitted, that provisions of section 31(5) of the Act ibid, whereby the tariff was reconsidered and re-determined on the request of the federal government has been declared ultra vires on 29.05.2015. Reliance is placed on a reported case cited as Flying Cement Company v. Federation of Pakistan and others (2015 PTD 1945). Further submit, that as on 29.05.2015, the aforesaid provision of law was not part of the statute, therefore, the respondent-NEPRA had no jurisdiction or authority to consider the request of the federal government to reconsider/re-determine the tariff, which had already been determined on 27.03.2015, therefore, all the proceedings in this connection are without lawful authority and unlawful.

7. Learned counsel appearing on behalf of the respondents in different writ petitions informed, that the aforesaid judgment reported as (2015 PTD 1945) was challenged before the Hon'ble Supreme Court of Pakistan in C.P.S.L.A. No.1078 of 2015, wherein earlier the leave was granted and subsequently, on the application of the federal government, the aforesaid reported judgment has been suspended on 09.06.2015. The learned counsel for the respondents finally submitted, that since the judgment passed by this Court, whereby the provision of section 31(5) of Act ibid was declared ultra vires, has been suspended, therefore, the prayer made by the petitioners for the implementation of the order passed by the NEPRA cannot be made.

8. In response thereof, the learned counsel for the petitioners vehemently submitted, that the additional surcharges imposed by the respondent-NEPRA on the request of the federal government were not subject matter of the afore-referred reported judgment, as in the instant case, the respondent-NEPRA imposed the surcharges by re-determining the earlier tariff, namely, Tariff Realization and Financing Cost surcharges @ Rs.2.00 per unit whereas the tariffs namely Equalization Surcharge, Debt Servicing Surcharge, Universal Obligation Fund Surcharge and Neelum Jhelum Surcharge were subject matter of the afore- refferred reported judgment, therefore, the prayer made by the petitioners can be allowed by ordering the respondent-federal government to notify in the official gazette the benefit given to the public at large.

9. The record of the case and the judgments referred by the parties were examined from where it is found, that it is correct, the surcharges imposed were not subject matter of the afore-referred reported judgment but in any case, the afore-referred reported judgment has been suspended by the Hon'ble Supreme Court of Pakistan, therefore, it is to be seen as to whether any direction, in these circumstances, can be given to the federal government to notify the consumer end tariff determined by the respondent-NEPRA on 27.03.2015.

10. Learned counsel for the petitioners have relied upon the judgments cited as Ejaz Rasool v. Member National Industrial Relations Commission and 5 others (2014 PLC 288), Mst. Meeran Bibi (Ameer Bibi) and 4 others v. Manager Zarai Taraqiati Bank Limited, Phool Nagar District Kasur and 2 others (2012 CLD 2029) and Collector of Sales Tax and Federal Excise v. Messrs Wyeth Pakistan Limited (2009 YLR 2096). The learned counsel for the petitioners submit, that in the aforesaid judgments, this Court has declared, that the leave granting order or the suspension of the order by the Hon'ble Supreme Court of Pakistan does not decide the principle of law, therefore, on this ground, the implementation of the order passed by the respondent-NEPRA cannot be denied.

11. In a judgment cited as (2014 PLC 288), this Court has decided, that in case the judgment is in rem, on the basis of suspension order passed by the Hon'ble Supreme Court of Pakistan, the judgment passed by the High Court would remain in the field and binding unless set aside or modified by the Hon'ble Supreme Court of Pakistan finally. While delivering the afore-referred judgment, the learned Judge has relied upon plethora of judgments wherein it is held, that in case of grant of special leave to appeal if ultimately the appeal is accepted, that interim relief merges into the final decision given by the Court and on the other hand, if the appeal is rejected, then the interim relief granted earlier would automatically be disappeared, therefore, the interim relief given at the time of grant of special leave to appeal cannot be termed as Final [referred Maj. Gen. (Retd.) Mian Ghulam Jilani v. The Federal Government through the Secretary Government of Pakistan, Interior Division, Islamabad (PLD 1975 Lahore 65)]. The learned Division Bench of Sindh High Court while delivering the judgment reported as 2009 YLR 2006 has observed, that in the case of suspension of an order by the Hon'ble Supreme Court of Pakistan of a judgment passed by the High Court would not have a binding effect because it did not decide a point of law as enunciated in Article 189 of the Constitution of Islamic Republic of Pakistan, 1973.

12. There is another aspect of the case which has earlier been discussed, that the determination of the consumer end tariff by the respondent-NEPRA on 27.03.2015, despite intimation, has not been gazetted officially till today as claimed by the petitioners and the federal government lingered on the matter deliberately to deprive the petitioners from the benefit granted under the law and on the other hand, the tariff, whereby Rs.2.00 per unit were imposed by the NEPRA on the request of the federal government, was notified in the official Gazette on the very next day. Since the petitioners are individually making the prayer for the implementation of the decision made by the respondent-NEPRA, therefore, the respondent-federal government/State cannot be absolved from its mandatory duty and obligation to give the same treatment of the orders passed by the respondent-NEPRA.

13. In view of the above, the respondent-federal government is directed to decide the grievance of the petitioners in the light of observation made above and the judgments referred by the learned counsel for the petitioners, within a period of 30 days after receipt of certified copy of this judgment.

14. With the above observation, the writ petition along with the connected petitions stand disposed of. No order as to cost. ZC/R-13/L Order accordingly.