P L D 2017 Lahore 784 (PLP)

MAIN CASE AND C.M. No.261 of 2017. SHAMS MEHMOOD MIRZA, J.

This writ petition as well as other connected writ petitions seeks a direction from this Court to the Federal Government to immediately notify the Tariff determined by National Electric Power Regulatory Authority (NEPRA) for the financial year 2015-2016 in respect of Multan Electric Power Company (MEPCO). It is stated that NEPRA determined the Tariff for the financial year 2015-2016 .on 29.02.2016 against which an application for leave to review under Rule 16(6) of NEPRA Tariff (Standard and Procedure) Rules, 1998 was filed by MEPCO. The said application was decided on 11.05.2016. In the meantime, the petitioner filed Writ Petition No.4209 of 2016 which was disposed of on 23.04.2016 with a direction to NEPRA to decide the review application which had in the meantime been filed by the Federal Government. The application filed by the Federal Government was also decided on 01.07.2016 but the Tariff determined by NEPRA has till date has not been notified by the Federal Government in terms of 314 of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 (NEPRA Act), hence this writ petition.

2. Learned counsel appearing on behalf of the Federal Government and MEPCO submitted that the determination made by NEPRA on 11.05.2016 has been challenged before the learned Islamabad High Court through Writ Petition No.2727 of 2016 titled Multan Electric Power Company Limited v. NEPRA and others in which status quo has been ordered to be maintained. It was thus stated that the tariff determined by NEPRA for the financial year 2015-2016 could not be notified by the Federal Government. The attention of this Court was also drawn to order dated 09.11.2016 passed by learned Single Bench of this Court at its Principal seat whereby similar writ petitions were disposed of awaiting the decision of the learned Islamabad High Court.

3. Learned counsel for the petitioners have no objection if this writ petition as well as other connected writ petitions are disposed of provided MEPCO is directed to continue sending electricity bills based on the basis of Tariff determined by it for the financial year 2015-2016 pending decision by the learned Islamabad High Court. This stance of the learned counsel for the petitioner is contested by the learned counsel appearing on behalf of Federation of Pakistan as well as MEPCO who submit that this Court has no jurisdiction to pass such an order for making MEPCO liable to send electricity bills based on the Tariff determined by NEPRA for the financial year 2015-2016.

4. Arguments heard.

5. Section 31(4) of the NEPRA Act reads as under: Notification of the Authority's approved tariff, rates, charges, and other terms and conditions for the supply of electric power services by generation, transmission and distribution companies shall be made, in the official Gazette, by the Federal Government upon intimation by the Authority. Rule 18(2) of National Electric Power Regulatory Authority (Tariff Standards and Procedure) Rules, 1998 is relevant to the controversy and stipulates that "A tariff determined by the Authority shall not become effective until such time it is published in the official Gazette in accordance with subsection (4) of section 31 of the Act". Similarly, the Guidelines for determination of Consumer end Tariff issued by NEPRA in terms of section 7(2)(i) of NEPRA Act read with Rule 3(2)(g) of National Electric Power Regulatory Authority (Tariff Standards and Procedure) Rules, 1998 also touch upon the issue where a new tariff determined by NEPRA has not yet been notified. Clause 30 of the said Guidelines reads as under: The Schedule of Tariff, once notified, shall remain effective until superseded by the new Schedule of Tariff notified by the Government of Pakistan.

6. The above provisions clearly demonstrate that the schedule of Tariff only becomes effective once it is notified and that till such time a new Tariff is notified the old schedule of Tariff shall remain effective. There is, therefore, no doubt that pending notification of schedule of Tariff by the Federal government for 2015-2016, MEPCO is obliged under the law to charge electricity bills from its consumer based on the schedule of Tariff notified for the financial year 2014-2015. This proposition has also affirmed by a learned Bench of this Court in judgment dated 02.09.2015 passed in Writ Petition No.25437 of 2015 titled Hameed Steel and others v. LESCO and others Although the petitioners were being granted stay orders in respect of the electricity bills for each month since the institution of this writ petition, it is clear that the applications filed in this regard were not contested and that the orders passed thereunder granting interim relief were against the NEPRA Act and the Rules and Policy framed thereunder as noted above.

7. In view of the above discussion, this writ petition is disposed of with permission to the petitioner to file a fresh writ petition in case the Federal Government fails in issuing the requisite notification after the decision of or vacation of stay by the learned Islamabad High Court, as the case may be, in the writ petition filed by the MEPCO. Till such time the decision is announced by the learned Islamabad High Court as mentioned above, MEPCO shall be at liberty to charge electricity bills from the petitioners on the basis of schedule of tariff notified for the financial year 2014-2015. MEPCO shall, however, not charge in lump sum the amounts of the previous bills in respect of which stay order was issued to the petitioner in this writ petition and in connected writ petitions but shall recover the same in installments. KMZ/R-15/L Order accordingly.