P L D 2014 Lahore 623 (PLP)

UMAR ATA BANDIAL, C J.

This order shall also dispose of W.Ps. Nos. 6579-2010, 29543-2011 and 10561-201 2 involving common questions of law and fact.

2. The Joint Secretary, Ministry of Water and Power has entered appearance and assisted the Court on the points noted in the order dated 8-5-2014. These points concern non-enforcement of CCI decision regarding wrongful power supply of 650-MW to K-Electric (KESC). With respect to the audit of payments of Rs.480.0 million made by the Federal Government to IPPs and their fuel suppliers in July, 2013, the audit report is not ready but is statedly being released in the next week. Theft of electricity is admitted to be a serious menace. Heavy line losses are also admitted; these are to some extent a garb for theft. The Federal Government is taking serious measures to curb theft by taking action against consumers as well as public functionaries.

3. The said statements indicate responsiveness but nevertheless amounts to an admission of inefficiency in the management of the power distribution system. Although so claimed, however, it is not apparent that the rules for transparency in appointments of the functionaries on the Boards of Directors (BODs) and as Chief Executives of the DISCOs have been implemented as ordered by the Hon'ble Supreme Court in several cases including Kh. Muhammad Asif v. Federation of Pakistan etc (2013 SCMR 1205) and Muhammad Yaseen v. Federation of Pakistan through Secretary Establishment Division, Islamabad and others (PLD 2012 SC 132) and by this Court in Engineer Ghazanfar Ali Khan and others v. F.O.P and others (PLD 2014 Lahore 375).

4. It is acknowledged that the rationing option of giving single phase power supply to willing consumers on the promise of diminished or no load shedding has not been explored by the government. It is accepted that single phase power supply can provide relief to low end consumers who lack means to arrange private sources of power supply. Single phase power supply can be delivered to opting consumers by installing a relevant metering system. It is conceded that sound power supply rationing options should classify power consumers on the basis of need and capacity.

5. It is informed that actually wasteful consumption of power takes place in the commercial and industrial sectors. Also that throughout the civilized world, commercial activity past 6-00 p.m is rare. No efforts have been made to encourage early hours in the morning for retail business or avoidance of post daylight public functions. Role modelling or rethinking has not been resorted. Equally no incentives have been offered to prevent nor penalties imposed to curb use of inefficient and high consumption industrial machinery.

6. In so far as the legal paradigm about load shedding is concerned, the Court takes the uncontrolled persistence of such condition to indicate a lack of intensity, planning and commitment by government to address the situation. This includes its failure to implement applicable rules for the appointment of key decision makers in the public power sector, the omission to establish and enforce standard guidelines for procurement and maintenance of hardware, lack of regulation, classification and vision to curb wasteful consumption of electricity and to equitably ration and distribute the energy shortage.

7. The foregoing observations are without prejudice to improvement in power generation in the grid system, coercive steps taken to curtail theft, obtain payment of power bills and curbing unauthorized pilferage of electricity. Nevertheless, 10 to 12 hours of load shedding every day during extreme summer weather shows that the said steps are either ineffective or not sufficient. More needs to be done.

8. In terms of law, the most obvious starting point for redressing the situation is to ensure meritorious appointments in accordance with law to the posts of Member BODs and Chief Executives of power sector companies. Merit should bring competence, capacity and vision in management policy. Secondly, it is clear that rampant load shedding is an immediate and present problem that affects right to life and quality of life of a citizen. Such a problem requires present, current and short term solutions. Reliance on long term relief like increase in power generation capability in the grid system is not sufficient. Short term measures lie on the consumption side of the power supply matrix. These may offer present and appropriate remedies. More particularly a power supply rationing system that classifies its consumers to attend the needy and shun the wasteful must be devised. Such rationing should encourage best practices, conducive life styles and role modelling for suitable consumption patterns. Such steps would reveal whether the present day system of load shedding is a rational, relevant and efficient means of distributing/allocating energy shortage. The propriety of load shedding as a rationing measure therefore deserves legal scrutiny. The respondents have not formulated their insight or justification for its adoption about its estimated cost, injury or loss impact on different segments of the economy and society.

9. The present state of comprehension of and conclusion by the respondents about the necessary extent and effects of load shedding is unhelpful in addressing the Court's concern that a reasonable right to life and to livelihood of power consumers is being restricted especially at the lower end of the scale because of their inability to access alternate sources of power supply. However, the criteria for devising and implementing suitable modes to ration power supply to consumers in the present situation of power shortage are objective conditions that are amenable to judicial scrutiny.

10. The legal criteria for ascertaining the appropriate mode of rationing to be adopted in the present case is a refined point hitherto unaddressed by the Court. The parties need to prepare themselves about the same. Therefore it is appropriate that fresh proceedings be undertaken thereon. Public inconvenience with load shedding rises dramatically during the month of Ramadan. The parties to this lis may collect the legal material on the point of legally recognized rationing criteria and bring the same for adjudication to be made in accordance with law and public interest about the validity and propriety of the respondents' resort to load shedding as the sole rationing instrument for the present day power shortage.

11. This petition is disposed of in the above terms. MWA/J-12/L Order accordingly.