P L D 2001 Lahore 501 (PLP)

5. It is the case of the petitioner that in consequence of the enactment of the National Electric Power Regulatory Authority Act, the petitioner submitted the application to the Authority for grant of a generation licence and a second tier supply authorization as well as for a distribution licence which applications were pending with the National Electric Power Regulatory Authority since long.

6. The following statements have been made in paras. 15 and 16 of the petition: "That at the time of submission of its applications for grant of generation licence and second tier supply authorization and/or distribution licence to supply electric power, the petitioner submitted an application to NEPRA for an injunction restraining, inter alia, respondents NO. I and 2 from interfering in or obstructing the petitioner in its business of generating and/or distributing electric power. The said application for injunction dated May 20, 2000 is attached herewith as Annexure 'J'. Respondents Nos. l and 2 gave an undertaking to NEPRA in terms of which they undertook not to interfere in or obstruct the petitioner in the terms prayed for until final decision by NEPRA. That in addition; the Chief Executive of Pakistan, in exercise of the executive authority of the Government of Pakistan issued instructions to, inter alia, respondents Nos. 1, 2 and 8 to maintain the status quo and not to interfere in or obstruct, inter alia; the petitioner in any of its business operations pertaining to the generation and distribution of electric power until final decision by, NEPRA. The said instructions are contained in letters reference No.U.0.1 (43D5)D‑3)/2000 dated September 28, 2000 and U.O.A.4/22/2000‑ADMIN‑II, dated September 29, 2000. The aforementioned letters are not in possession of the petitioner but are in possession of respondent No.7.

7. The grievance arose to the petitioner when WAPDA asked the petitioner to shut down its Feeder in the interest of safety. However; after the feeder was shut down, the WAPDA proceeded to supply electric power to the customers of the petitioner and had thus taken over the business of the petitioner.

8. Whereas, the case of WAPDA was that the licence granted to the petitioner was for generation of electricity and for supply of electricity within a closed area from where it could not supply electricity to the rest of the customers outside those premises. However, according to the petitioner, it had been granted a licence both for generation and for supplying electricity within the areas as were reflected in a map which is a part of an Annexure to the licence already granted. This map is placed at page 70 of the case file but as this was a photocopy and was not properly attested this was assailed.

9. Briefly speaking the position now which emerges is that the petitioner was granted a licence for generation and distribution of electricity by the Government of the Punjab. The question as to the area where this supply could be made is a question of factual inquiry. However, the petitioner has applied to NEPRA under the new enactment for permission of generating and supplying electricity. The NEPRA has not decided the applications so far and in the meanwhile, WAPDA and the petitioner are disputing with each other on their locus standi for supplying electricity to some consumers said to be the consumers of the petitioner whereas, WAPDA justifies its own acts.

10. It appears that NEPRA was created for ameliorating the existing generation and supply of electricity and has been given vast powers in this connection. Some of these powers were previously enjoyed by the Irrigation Department of the Government of the Punjab under the Electricity Act of 1910. It also appears that one of the purposes of the law was to attract private sector to invest in generation of electricity and also its distribution. Because WAPDA was not sufficiently and effectively coping with the needs of generation of electricity and handling supply in the areas in which it had a monopoly: It seems, therefore, that on the basis of the incentives which were given to the private sector, the present petitioner had come forward making huge investment in this area. But now has landed into trouble in view of its confrontation with WAPDA and the matter has to be resolved without delay. 'Otherwise, this will discourage the private sector in making investment in this area and this would resultantly defeat the economic policies of the Government aimed at boosting economic activity in the country for increasing the wealth of the people and for ending the inertia.

11. It is for Government agencies like NEPRA to have clear‑cut policies and an apparatus for attending to such disputes so that disputes were quickly resolved and the economic activity is saved from suffering. But unfortunately what we see in this case is nothing but inertia and inaction on the part of the authority itself, who could not decide the fate of the applications submitted by the petitioner since long. Incidentally, it may be mentioned that delay in the disposal of such matters constitutes "mal a administration" which is itself actionable in law. As a result of the delay, parties are in litigation, which is itself detrimental to the incentives which the Government is offering to the private sector and is against the rationale behind the creation of NEPRA.

12. This Court, therefore, agrees with the parties that the matter be referred to NEPRA with directions that it may by using all the powers which it has under the Act resolved this dispute while deciding the fate of the applications submitted by the petitioner after giving the petitioner hearing and within a period of four weeks from today while summoning the parties immediately for this purpose.

13. The allegation of the petitioner is that WAPDA has un-authorizedly taken over its business although it has a licence, which also specifies an area for the purposes of supply/distribution of electricity. Of course, this is controverted by WAPDA. Anyway since NEPRA has now to do some fact findings as well and, in case NEPRA comes to the conclusion that WAPDA was on the wrong side as has been alleged in the petition and thereby loss had been caused to the petitioner, it will be a fit case for NEPRA to calculate such a loss and ask WAPDA to pay compensation to the petitioner in accordance with law and in the interest of justice and the rule of law. Otherwise, the petitioner shall be entitled to recover its loss in accordance with law and on the basis of the decision of NEPRA.

14. Before this Court, WAPDA did make a commitment that it shall not interfere in the generation of electricity at the end of the petitioner and will also not hamper the existing distribution i.e. before this dispute arose. WAPDA shall remain steadfast to this undertaking until NEPRA decides the whole issue as aforementioned.

15. Copy of this order alongwith copy of the writ petition be immediately sent to the Chairman, NEPRA by the Deputy Registrar (J) of this Court for giving effect to the order made by this Court. The Chairman shall ensure furnishing a compliance report to this Court through its Deputy Registrar (J) which should reach this Court by 2nd August, 2001. ,

16. Disposed of accordingly. Copy Dasti. M.B.A./M‑631/L Order accordingly.