1997 PLP 1370 (SCMR)

SAJJAD ALI SHAH, C.J.‑‑‑In this bunch of 74 petitions, leave is sought to file appeals against common judgment dated 2‑10‑1995 of the Division Bench of the Peshawar High Court whereby the writ petitions filed by the petitioners before us have been dismissed.

2. It is submitted before us that in the area of Gadoon, previously poppy was cultivated, which is used in the manufacture of contraband intoxicants and drugs and in order to stop that an Industrial Estate was allowed by the Government to be set up with a number of incentives to the industrialists including concessionary electric rates, which is in dispute. Vide office order dated 3‑6‑1987, Government declared that the industries established at Gadoon shall be liable to pay only 50 % of the WAPDA Electricity Tariffs and Fuel Adjustment surcharge. However, the industries were still at the stage of infancy when the benefit of 50 % concession in the payment of surcharge, additional surcharge and fuel adjustment surcharge was withdrawn requiring the consumers to pay at the rate of 84.5 % . In doing so, the WAPDA has unilaterally declared some industries (Steel and Plastic) to be in the negative list to pay at the rate of 84.5%, and the other industries in the positive list with 50% concessionary basic rates to be availed up to June 1997. Consequently, the industrialists/consumers of both the lists mentioned above feeling aggrieved approached the Peshawar High Court with writ petitions, which are dismissed. There is third category of consumers outside Gadoon area and they have challenged levy of additional surcharge on the ground that it is a tax and cannot be recovered by WAPDA They filed writ petitions which have been dismissed by the same judgment which is impugned in these petitions.

3. It is submitted before us on behalf of the petitioners that numerous very important legal points were raised in the High Court including interpretation of several provisions of the Constitution challenging the action of WAPDA on the grounds that it was violative of the Constitution and the law which empowered the Provincial Government to levy tax on consumption of electricity within the province as contemplated under Article 157 of the Constitution, but their petitions have been dismissed. on the grounds, inter alia, that the Provincial Government of N.‑W.F.P. was not made party in the proceedings by the petitioners before the High Court.

4. It is further contended before us that section 25 of the WAPDA Act, 1958 is liable to be struck down as being inconsistent with Article 157 of the Constitution and for resolution of the controversy this Court will have to examine in detail for the purpose of interpretation Articles 153, 154, 161 and 149 of the Constitution. Further, Entry Nos. 3 and 4 of Part II of the Federal Legislative List and Entry No.34 of the Concurrent Legislative List, which relate to the subject of electricity, are to be examined alongwith Article 157 of the Constitution.

5. It is contended that there is breach of Doctrine of Promissory Estoppel and in that connection grievance is made that fundamental rights of the petitioners as contemplated under Articles 18, 23 and 24 have been violated. Reliance is also placed on the Legitimate Expectations and contention is raised whether the additional surcharge is tariff or additional charge arising from default.

6. On the other hand Mr. Fakhruddin G. Ibrahim, learned Senior Advocate Supreme Court appearing for the respondents, has submitted that the action of WAPDA is valid as is contemplated within the framework of the WAPDA Act, hence question of interpretation of provisions of the Constitution mentioned above is not relevant for the purpose as is held in the judgment. It is further submitted by the learned counsel that basically he is fully supporting the impugned judgment but since it is a question of public importance as interest of a large number of consumers on the one hand and that of recovery of public revenue on the other hand is involved, he would not oppose grant of leave.

7. Leave is granted to examine the contentions noted above. So far the interim relief is concerned, we direct that the admitted amount may be paid in cash and for disputed amount consumers shall file Surety Bonds to the satisfaction of the WAPDA Authorities. Keeping in view the importance and urgency of this matter, we further direct that the appeals may be fixed for hearing before a larger Bench of 5 Judges when such Bench is available. A.A./G‑564/S ???????????????????????????????????????????????????????????????????????????????????? Leave granted.