2015 PLP 1004 (MLD)

SHAHID KARIM, J.

A challenge has been laid in this petition to the determination dated 6-2-2014 by National Electric Power Regulatory Authority (the Authority) in respect of the Annual Tariff Petition for financial year 2013-14 of the petitioner. There is a further challenge to the order dated 16-6-2014 made by the Authority on Motion for Leave to Review against the order dated 6-2-2014. Though the original determination as well as the review determination have been challenged in this petition, in fact the original determination has merged into the review determination made on 16-6-2014 and this is the order which will be considered as having been impugned before this Court. There is a cluster of grounds on which the said decisions of the respondent Authority have been challenged however, I will consider and determine a threshold objection taken to the order passed in review dated 16-6-2014.

2. The learned counsel for the petitioner submits that the order which is at page 314 of this petition has been passed by three members of the Authority while Rule 16(6) of the NEPRA (Tariff Standards and Procedure) Rules, 1998 requires the Motion for Leave to Review to be determined by the "full strength of the Authority". He further submits that though there is a requirement of quorum in terms of S.3 of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 (the Act of 1997) in the case of hearing on a Motion for Leave to Review, it has to be by the full strength of the Authority.

3. Learned counsel for the respondent does not dispute the fact that the Authority was not complete at the time of the passing of this impugned decision. He also concedes that the order has been passed by only three members of the Authority and the 'full strength' of the Authority is five members including the Chairman.

4. For facility of reference, the relevant Rule is reproduced as under: -

16. Decisions, etc., by the Authority.

(1) All orders, determinations and decisions of the Authority shall be taken in writing. (2) . (3) . (4) . (5) . (6) Within ten days of service of a final order, determination or decision of the Authority, a party may file a motion for leave for review by the full strength of the Authority of such final order, determination or decision, as the case be. (7) A motion for leave for review shall specify the grounds on which review is sought by the party. Parties to the proceedings shall be afforded a reasonable opportunity, orally or in writing as deemed fit by the Authority, to respond to a motion for leave for review. (8) The Authority shall act upon a motion for leave for review within ten days of receipts of such motion unless it gives notice to the parties, in writing that a longer period of time will be required and specifies the additional length of time necessary to consider the motion. (9) The Authority may refuse leave for review if it considers that the review would not result in the withdrawal or modification of the final order, determination or decision. (10) The Authority may grant leave for review on such conditions as deemed appropriate by the Authority including, without limitation, the conditions pertaining to any limits on time or additional evidence proposed to be presented in review.

5. It is clear from a perusal of the Rule 16(6) that the law mandates for the hearing of a Motion for Leave to Review to be heard by the 'full strength' of the Authority. The term 'full strength' of the Authority does not present a complicated issue of construction of statute. It simply means that the said proceedings shall be taken and decided by all the members of the Authority sitting together and deciding such review. There is no cavil with the proposition that in the instant case the law does not even refer to a quorum but without equivocation requires the hearing by the 'full strength' of the Authority. It is settled as a basic canon of interpretation that if the intent of the legislature can be clearly gleaned then it must be given effect to without demur. In this case, there can be no two opinions on the requirement of the law and the meaning of the term 'full strength'. A dictionary meaning given to the term shall suffice. In Oxford Advanced Learner's Dictionary, 8th Edition, it is described thus: "5 [ usually before noun ] complete; with nothing missing". and strength as: "10 [ uncountable ] the number of people in a group, a team or an organization".

6. There also seems to be a purpose for laying it as a condition that the Motion for Leave to Review be heard by the full strength of the Authority. And that seems to be that such a review is in the nature of an appeal and, therefore, the hearing should be by a complete strength of members sitting and deciding the review. This will lend due process to the entire procedure.

7. In view of what has been said above, the order of the Authority dated 16-6-2014 passed on a Motion for Leave to Review made against the petitioner, is set aside and the case is remanded to the Authority for decision afresh in the light of the observations made in this order. In view of the above, the instant petition is accepted. KMZ/F-3/L Petition allowed.