ISLAMABAD - The Peshawar High Court has restrained Khyber-Pakhtunkhwa government from handing over 215 MW Asrit Kedam Hydropower Project to Korean South East Power Company in violation of rules and asked the government and Pakhtunkhwa Energy Development Organization to comment within fortnight.

A local company Yunus Brothers, who had received Letter of Intent (LOI) and conducted the feasibility study of the 215 MW Asrit Kedam Hydropower Project, has approached the court and challenged the decision of the KP government of handing over the project to Korean South East Power Company project in violation of the rule.

The petitioner pleaded that in anticipation of issuance of LOI for award of contract for establishment 215 MW Asrit Kedam Hydro Power Project to be located on the Swat river in District Swat KP, in April 2007, the Private Power Infrastructure Board (PPIB) issued LOI for the project to Yunus Brothers.

Following the LOI the petitioner conducted a feasibility study for establishing the project within one year instead of 24 months the date set by the PPIB.

However due to deadly flood in 2010 and later turbulent situation in Swat everything come to halt in region and it was not possible for the company to continue with the execution of the project.

After situation slightly improved in 2014, the Yunus brothers has signed a non binding MoU and the company had submitted feasibility stage tariff petition in 2016. However Nepra termed the feasibility conducted in 2008 outdated and asked the company to update the same.

Meanwhile the MoU expired and PPIB started pressurizing the company to either strike a deal with the Korean Company or the LOI will stand cancelled.

Despite the company spent a lot of finances over the feasibility study the PPIB issued cancellation to the company but it was challenged in the Sindh High Court which issued restraining order against the cancellation.

Meanwhile the Korean Company illegally entered into a MoU with Ministry of Energy, KP, and PEDO under KP Hydro Power Policy 2016, in June 2017.

Since the bankable feasibility of the project was done by the Yunus Brothers therefore under Hydropower Policy 2016 it was required to conduct an International Competitive Bidding(ICB).However in violation of the power policy, the KP government entered into impugn MoU wit Korean Company without ICB or advertising the project. After signing of the agreement the KP government approached the Ministry of Energy and PPIB to give the project to the KP government for awarding the same to the Korean company as a foreign state owned company on the basis of G to G arrangement.

The PPIB responded that though the power generation policy 2015 contains the provisions to entertain certain private sector projects based on bilateral agreement (G to G arrangements) but agreements with the state owned companies(either by GoP or foreign governments) don't fall in the purview of such provision. Beside the MoU was signed without the prior approval of the KP cabinet.

The petitioner pleaded that after failing in their illegal and nefarious design to award the project to the Korean company the KP government has covertly amended the Hydropower Policy 2016. Since the project was doll out in a non transparent and covert manner and signing the impugned MoU with Korean company is illegl, unlawaful, arbitrary, capricious, malafide, without jurisdiction and is violation of the petitioners right as guaranteed by the Constitution.

Since the KP government entered into agreement without any international bidding therefore the impugned MoU and all the subsequent action are in violation of Hydropower policy 2016 and the constitution of Pakistan.

The court was requested to declare the impugned MoU signed between the KP and Korean Company and handing over of the project to respondent are arbitrary, capricious, unreasonable, illegal, unlawful, without jurisdiction and void ab initio.

It was also pleaded to declare the impugned in the Hydro Policy 2016 being non-transparent, unfair and discouraging the concept of competitive bidding is ultra vires the constitution, without any lawful authority.

As in interim relief the Peshawar High Court ordered the respondents to restrain from handing over the project to the Korean Company and asked the KP government and PEDO to comment within fortnight.

 

 

FAWAD YOUSAFZAI