2026 PLP 645 (SCMR)

QAZI FAEZ ISA, CJ.

These 1,198 petitions for leave to appeal (C.P.L.As.), assail the judgment dated 6 February 2023 of a learned Single Judge of the Lahore High Court, Lahore whereby a large number of writ petitions were decided.

2. The petitioners (respondents before the High Court) are represented by the following learned counsel: Mr. Waqar Ahmed Sheikh represents Faisalabad Electric Supply Company Limited ('FESCO') in 149 petitions, Mr. Munawar-us-Salam represents Lahore Electric Supply Company Limited ('LESCO') in 624 petitions, Malik Muhammad Rafique Rajwana represents Multan Electric Power Company Limited ('MEPCO') in 29 petitions, Mr. Aurangzeb Mirza represents Gujranwala Electric Power Company Limited ('GEPCO') in 169 petitions, Mr. Salman Mansoor represents Gujranwala Electric Power Company Limited ('GEPCO') in 149 petitions, Mr. Faisal Bin Khurshid represents Islamabad Electric Supply Company Limited ('IESCO') in 4 petitions and Mr. Umer Aslam Khan represents National Electric Power Regulatory Authority ('NEPRA') in C.P.L.A. No. 1233/2023. The Federation is represented by Mr. Mansoor Usman Awan, the learned Attorney General for Pakistan ('AG').

3. The above mentioned counsel and learned AG state that writ petitions filed before the Lahore High Court were not maintainable because the petitioners therein had adequate remedies and Article 199 of the Constitution of the Islamic Republic of Pakistan ('the Constitution') stipulates that where adequate remedies are available the same should be availed of. In this regard they submit that the petitioners could have sought a review of NEPRA's orders under section 7(2)(g) of The Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 ('the Act'). In addition they could file appeals under section 12G of the Act before the Appellate Tribunal. And, that the decision of the Appellate Tribunal could further be appealed before the High Court under section 12G(6) of the Act. Reliance was also placed upon the cases of Peshawar Electricity Supply Co. Ltd v. SS Ploypropylene (Pvt.) Ltd (PLD 2023 Supreme Court 316) and National Electric Power Regulatory Authority v. Faisalabad Electric Supply Co. Ltd. (2016 SCMR 550), which were decisions by three-member benches of this Court. However, the learned Judge by disregarding both the law and the decisions of this Court, which were binding on him under Article 189 of the Constitution, not only entertained the said writ petitions but also passed directions, terming them as Relief, which was not within the High Court's jurisdictional competence under Article 199 of the Constitution, and many of the Reliefs had not even been asked for by the petitioners. It is submitted that the learned Judge assumed the powers of the regulator (NEPRA) and also those of the Federal government and Parliament. Therefore, the impugned judgment is completely unsustainable being contrary to the law and the Constitution.

4. The learned counsel representing the private respondents, the consumers of electricity ('the consumers'), were asked whether any of them challenge the maintainability of these C.P.L.As., as an intra-court appeal was not filed (noted in our order dated 2 October 2023) and they in unison stated that they did not. In any event since the Act provided for a review by NEPRA, an appeal before the Appellate Tribunal and another appeal before the High Court, therefore, intra-court appeal did not lie.

5. The learned counsel representing the consumers state that at the relevant time NEPRA was not properly constituted in terms of the amendments which were made to the Act on 1 December 2021, and they cannot be faulted if the learned Judge of the High Court, Mr. Justice Ali Baqar Najafi, proceeded to decide the petitions instead of restricting himself to simply directing that NEPRA be properly constituted. They further state that many of the observations made in the impugned judgment were uncalled for and some of the reliefs were beyond the High Court's constitutional jurisdiction, but they should not be made to suffer for the act of the Court.

6. Learned Attorney-General submits that he does not accept the contention as put forward by the learned counsel for the consumers that NEPRA was not properly constituted. He alternatively submits that, if for the sake of argument it be accepted that NEPRA was not properly constituted even then its orders are to be given effect to.

7. Civil Misc. Application No.8863 of 2023 in CPLA Nil/2023: Through this application learned AG has requested for permission to file CPLA. Permission is granted and office to number the un-numbered CPLA.

8. After having heard this matter and having come to the conclusion that the writ petitions filed by the consumers before the High Court were not maintainable, we provided an opportunity to counsel to propose a solution. They have agreed for the disposal of these C.P.L.As. in the following terms: (1) The Impugned judgment dated 6 February 2023 is set-aside. (2) The consumers may prefer appeals before the Appellate Tribunal by Wednesday, 1 November 2023 and may take all permissible factual and legal grounds therein with regard to the Fuel Price Adjustment and Quarterly Tariff Adjustment. (3) The Appellate Tribunal should fix the appeals, if any, filed before it for hearing on Monday, 13 November 2023 or on any other date soon thereafter as is convenient to it. (4) The Appellate Tribunal shall decide the above-mentioned appeals expeditiously and no later than the prescribed statutory period. If for whatever reason a particular consumer or counsel representing the consumer is not available alternate arrangements shall be made and requests for adjournment shall not be entertained. (5) The consumers shall pay future amounts that become due as per their bills, however, the same will be subject to the outcome of the decision in the said appeals, and the arrears claimed by the concerned electricity distribution company (DISCO) from the respondent-customers shall remain in abeyance till the decision of the Appellate Tribunal and be subject thereto.

9. C.P.L.A. No.729-L of 2023 (arising out of Writ Petition No.48204 of 2022): Learned Mr. Salman Akram Raja states that the dispute in this petition is with regard to zero-rated tariff, the benefit whereof was extended to those customers who were exporters, but it was unilaterally changed. And, that this was altogether a different dispute and the said petition should not have been fixed with the other petitions, but should have been clubbed with Writ Petition No.38587/2022 and other similar petitions, involving the same question, which we are told are still pending. The learned counsel for the petitioners and learned AG do not object to the proposal. Accordingly, the impugned judgment with regard to Writ Petition No.48204/2022 is set-aside and Writ Petition No.48204/2022 stands revived and it shall be fixed by the Registrar of the Lahore High Court for hearing along with Writ Petition No.38587/2022 and other similar petitions.

10. We are informed that some others had also filed writ petitions before the Lahore High Court which were decided by relying upon the impugned judgment but orders/judgments therein have not as yet been assailed before this Court, and as all relevant parties are before this Court, therefore, those cases should be treated in the same manner. Accordingly, since the impugned judgment on the basis of which the said orders/judgments were passed has been set aside, it is ordered that all those who had filed writ petitions before the High Court, which were decided by placing reliance on the impugned judgment will also be attended to as mentioned above in paragraph 8.

11. C.P.L.As. Nos.1676, 1558 and 1232-L of 2023: Learned Mr. Adnan Tariq, Advocate High Court has filed CMA No.8311 of 2023 and requested for grant of permission to appear and argue the titled case. Permission is granted. He states that these three CPLAs pertain to cold storages in respect whereof the tariff was changed from industrial to commercial, which was assailed before NEPRA pursuant to the impugned judgment and NEPRA has heard the cases and has reserved its decision, therefore, the remand of the matter to NEPRA should not be disturbed. Learned counsel for the concerned DISCO and NEPRA state that they have no objection provided NEPRA decides the same independently without being influenced by anything observed in the impugned judgment. Accordingly, NEPRA is directed to decide the same in accordance with the law, and without in any manner being influenced by anything stated in the impugned judgment.

12. All these petitions are converted into appeals and allowed in the aforesaid terms. UN/F-2/SC Appeals allowed.