ISLAMABAD - The Supreme Court of Pakistan Monday set aside the Lahore High Court (LHC) judgment wherein it had barred the federation from collecting the fuel price adjustment (FPA), and quarter tariff adjustment (QTA) in electricity bills.
A three-judgment bench, headed by Chief Justice of Pakistan Justice Qazi Faez Isa and comprising Justice Amin ud Din and Justice Athar Minallah conducted hearing of the petitions of Faisalabad Electricity Supply Company Limited (FESCO), Gujranwala Electric Power Company Limit Lahore Electric Supply Company Limited (LESCO), Multan Electric Power Company Limited (MEPCO), Islamabad Electric Supply Company Limited (IESCO), and National Electric Power Regulatory Authority. The LHC on February 6, 2023 had declared that the FPA, QTA and change of status of tariff from industrial to commercial by the Nepra as illegal and without lawful authority.
Salman Akram Raja, who represented some of the consumers before the LHC, contended that since NEPRA was not constituted as per the amendment made in the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 on 1st December, 2021 therefore they had filed petitions before the LHC, adding the basic issue before the LHC was that of the constitution of the body (NEPRA). Raja told that since the appeal against the NEPRA order had to be filed in 30 days, but now as due to the LHC judgment they are rendered without remedy of no fault of them, therefore they should be allowed to file the appeals before the Tribunal.
The bench observed that the high court should have provided the remedy by determining the tariff.
Justice Minallah stated the court could have passed the order to complete the body and it was the authority of that body to determine the electricity rate, adding no court can go into the technical issues. The Chief Justice asked from the consumers’ counsel how his clients could say as the NEPRA was not properly constituted so they would not pay the electricity bills.
The attorney general contended that the petitions filed before the LHC were not maintainable as the petitioners had an adequate remedy provided under the law, and the Article 199 of the constitution stipulates that when the adequate remedy was available before a competent forum then that should have been availed. He stated that the petitioners can file the review petition against the order NEPRA order under Section 7 of the NEPRA Act, as well as by filing an appeal under Section 12A before the Appellate Tribunal and the decision of the Tribunal is appealable before the High Court.
The LHC in its verdict also directed the government to provide a maximum subsidy to the domestic consumers of 500 units per month and not demand extraordinary taxes having no nexus with the consumption of energy which may be recovered through other modes.
The court passed these directions in about three thousand petitions filed by domestic, industrial and commercial consumers against different charges collected through the electricity bills. The LHC also directed the government to explore the solar, hydel, nuclear and wind sources of producing electricity or arrange for cheap purchase of sources of electricity from other countries. The court also asked the government to explore the cheap modes of producing electricity and evolve mechanisms for its quick availability. The court asked the government to ensure the smooth supply of electricity based on demand and not unilaterally change the type of tariff from industrial to commercial without hearing from such consumers. The court also directed Nepra not to charge any exorbitant tariff beyond the paying capacity of the domestic consumers.
The court directed the Nepra to inform the consumers about the charges on monthly basis and the fuel price adjustment shall not go beyond 07 days and the Quarter Tariff Adjustment shall not go beyond the statutory period.
The court observed that imposition of various taxes which can be recovered otherwise, amounts to economic strangulation of the consumers. The court said the Nepra while deciding about the tariff must keep in mind that interaction between the consumer and the producer should not be excited by the fiduciary relationship for the simple reason that to earn huge profit the performance of the producing company must increase and not the price be increased.
Earlier, the Supreme Court, while announcing its reserved verdict on a petition against the LHC order seeking details of the apex court’s staff under the Right to Information (RTI) Act, directed the registrar to provide the information sought by the petitioner.
The verdict was announced by a three-member bench of the apex court headed by Chief Justice of Pakistan Justice Qazi Faez Isa and comprising Justice Amin Ud Din and Justice Athar Minallah. However, Justice Athar wrote additional note in this matter.
Petitioner Mukhtar Ahmed Ali had sought information about total sanctioned strength of the SC, vacancies, female staff, persons with disabilities, number of transgender, and the detail of regular and daily wagers in the apex court.
The court agreeing with the Attorney General for Pakistan (AGP) stated that the Right of Access to Information Act, 2017 clearly does not apply to the Supreme Court of Pakistan. Therefore, the appeal preferred by the petitioner before the Commission was not maintainable and to such extent the Single Judge of the Islamabad High Court had correctly determined the matter.
AGP Mansoor Usman Awan had submitted before the court that the Act applies only to public bodies as defined in its section 2(ix) and this definition does not include the Supreme Court. He had further stated that though the Act is applicable to ‘court, tribunal, commission or board under the Federal law’, the Supreme Court is established under the Constitution, and not under a Federal law, nor is the Supreme Court a public body of the Federal Government to which the Act does apply. Therefore, the Act was not applicable and the Commission did not have jurisdiction with regard to the Supreme Court.