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Petitioner: Messrs FAROOQUI ICE FACTORY, GAMBAT through Proprietor and 24 others VS Respondent: REVENUE OFFICER SEPCO (WAPDA), RANIPUR, DISTRICT KHAIRPUR and 14 others
Court Name: Sindh High Court Judge(s): Nisar Muhammad Shaikh, Riazat Ali Sahar Title:Messrs FAROOQUI ICE FACTORY, GAMBAT through Proprietor and 24 others
vs REVENUE OFFICER SEPCO (WAPDA), RANIPUR, DISTRICT KHAIRPUR and 14 others Case No.:Constitutional Petitions Nos.D-3184, D-3272 of 2011; D-782, D-818, D-1025, D- 1500, D-1540, D-1519, D-2221 of 2012, D-1973, D-2332 of 2013 and D-1070, D- 2202 and D-23 of 2012 Date of Judgment:2014-03-06 Reported As: PLD 2014 Sindh 443 Result: Petitions allowed Judgment ORDER ' RIAZAT ALI SAHAR, J.---Writ in the nature of Mandamus has been sought to be issued against electric supplier, namely, SEPCO, (to be referred to, hereinafter, as "the respondent") whose consumers are the writ petitioners, who use to carry out businesses by running Mills of various kinds and Filling Stations etc. And they are mainly aggrieved of surcharge/Fuel Price Adjustment, being charged from them in the electricity bills, issued to them. All the writ petitions, captioned above, throw the same grievance and, therefore, those have been heard together and are being decided by this consolidated handing down. 2. Case of the writ petitioners is that the respondent uses to supply electricity, which is prime source of their businesses and is consumed at large in their Mills etc. By lawful means and, in turn, they are charged by the respondent by means of monthly billing. They have raised the question of charges in the fashion of Fuel Price Adjustment, which have been required from them by the respondent to be paid in their current bills with respect to the previous months. It is, according to them, violative of Article 18 of the Constitution of Islamic Republic of Pakistan, 1973 as also well settled norms of administration of justice, in that, it puts heavy burden upon the petitioners, which amounts to depriving them of their fundamental right to carry out their businesses. They have, therefore, sought undone of the bills, issued to them, to the extent of charges of Fuel Price Adjustment.
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3. The respondent, contrarily, has disputed the averments of the writ petitions in its written statement by taking stance that levy of the Fuel Price Adjustment was legitimate. 4. Mr. Sarfraz A. Akhund and Mr. Mukesh Kumar Karara, counsel for the petitioners in some of the petitions, avowed that proviso to subsection (4) to Section 31 of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 (for short, "the Act, 1997") adjustment in the tariff on account of any variation in the fuel charges and/or the policy was to be made on monthly basis and not later than a period of seven days but, according to him, Fuel Price Adjustment was being charged vis-a-vis previous months and that this has been done by means of a Notification, which comes within the purview of word "retrospective" and the Notification cannot be given retrospective effect. He referred to Hashwani Hotels Limited v. Federation of Pakistan and others PLD 1997 SC 315, Government of Pakistan through Secretary, Ministry of Commerce, Pak. Secretariat, Islamabad v. Messrs Village Development Organization, VPO, Landrwan, District Lak Marwat 2005 SCMR 492 and Messrs Army Welfare Sugar Mills Limited and others v. Federation of Pakistan and others 1992 SCMR 1652. 5. It was next contended by them that Fuel Price Adjustment is being charged after passage of various months and that if there were any such charges, those ought to have been charged in the current bills of months of which is the Fuel Price Adjustment and if it was omitted by any reason, amended bills ought to have been issued. 6. Mr. Qurban All Malano and Mr. Shafqatullah Shaikh, counsel for petitioners in rest petitions, adopted the aforesaid arguments, made by Mr. Akhund and Mr. Karara. 7. Mr. David Lawrence, appearing on behalf of the respondent, raised enormous issues as to maintainability of these petitions, first of which was that in view of Section 39 of the Act, alternate remedy was available to the petitioners before NEPRA Authority, which they have omitted to avail with the result that writ petitions are not maintainable. He relied upon Messrs Farid Sons Limited Karachi and others v. Government of Pakistan through its Secretary, Ministry of Commerce, Karachi PLD 1961 SC 537 and Muhammad Abbasi v. SI-10, Bhara Kahu and 7 others PLD 2010 SC 969. The second objection was that a Division Bench of the Islamabad High Court has allowed Intra Court Appeal of electricity supplying companies, which was filed against the order of a Single Judge, allowing the petitions before him. He said that in view of the said decision, this Court cannot entertain the writ, which is hit by doctrine of "res subjudice". 8. He contended that the petitioners have failed to justify that the charges are retrospective in nature and that those were being charged under a legally issued Notification, which is subordinate to the Statute, which cannot be called in question in the present proceedings. He relied upon Commissioner of Income Tax and others v. Messrs Media Network and others PLD 2006 SC 787, Quaid-e-Azam's Mazar Management Board, Karachi v. Province of Sindh through Secretary, Housing and Town Planning Karachi and others PLD 2006 Karachi 536, ICC Textiles Limited through Authorized Representative and 31 others v. Water and Power Development Authority (WAPDA) WAPDA House, Lahore through Chairman and 15 others 2009 CLC 1343, Flying Board and Paper Products Limited and others v. Government of Pakistan through Secretary Cabinet Division and others 2010 SCMR 517 and Pakistan Flour Mills Association (Punjab Branch) through Vice Chairman v. Water and Power Development Authority (WAPDA) and others PLD 2013 Lahore 182. 9. He contended that Fuel Price Adjustment was being legally charged and it sometimes was debited and sometimes credited to the petitioners and other consumers by maintaining balance, which was beneficial to public. 10. Exercising his right to reply, Mr. Akhund referred to Article 199 of the Constitution and submitted that alternate remedy, available to the writ petitioners, was not efficacious and adequate, therefore, present petitions being covered by word "adequate", as used in Article 199 of the Constitution, are maintainable. He submitted that charging with respect to gone months have
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been assailed by the petitioners and not the onward charges. Referring to Section 31 (4) of the Act, he submitted that negative language, used in the legislature, comes under the parameters of mandatory nature and usage of positive language indicates the provisions being directory or recommendatory in nature. 11. We have examined the record in the light of arguments, made at the Bar and have also gone through the cited precedents. 12. We would like to advert to the issue of maintainability in the first place. Mr. David argued about redress of the grievance before the forum, created by the Act, which was an alternate remedy. In reply, Mr. Akhund tried to distinguish words "alternate" and "efficacious" and concluded that alternate but not efficacious remedy was available under the Act. We find that Section 39 of the Act, whereunder was the remedy, according to Mr. David, governs filing of complaints with the National Electric Power Regulatory Authority (to be called hereinafter as "the Authority") against licensee for contravention of any provisions of the Act or any order, rule, regulation, licence or instructions made or issued thereunder. On such complaints, action has to be taken by the Authority after affording an opportunity of being heard. It appears that any interested person including Provincial Government can file a written complaint with the Authority against a licensee for contravention of any provisions of the Act or any order, rule, regulation, licence or instructions whereas the decision as to tariff is taken by the Authority and not the licensee and, therefore, it is explicitly clear that no remedy was available to the writ petitioners under Section 39 of the Act with regard to their grievance, i.e. The determination of tariff. Nevertheless, we find that a remedy was available with writ petitioners and that A remedy was governed by Rule 3 of the National Electric Power Regulatory Authority (Tariff Standards and Procedure) Rules, 1998 (hereinafter referred to as "the Rules") which have been framed under the Act, that is to say, by filing a petition and the petition, as defined by clause (g) of Rule 2 of the Rules, means a petition made to the authority for the determination, modification or revision of tariff. Indeed, in the present controversy, what has been the issue is the tariff, which is covered by the clause (g) of Rule 2. Rule 3 speaks of filing of such petitions by licensee, consumer or person interested in the tariff before the Authority. Under Rule 4, there is procedure of admission of the petition and Rule 5 relates to publication and service of the notices. Intervention application can be filed and dealt with under Rule 6 and Rule 7 relates to reply and rejoinder. Participation by a person other than intervener is provided under Rule 8. Rule 9 talks of hearing. Rules 10 and 11 govern discovery of relevant documents and interrogatories respectively. Ruling may be passed by Authority under Rule 12. Rule 14 caters for tentative opinion and its mode. Recording of evidence is enunciated in Rule 15 whereas Rule 16 empowers the Authority to take the decision. 13. It follows from the study of the Rules that the mechanism, provided for proceedings of the petitions is lengthy having various characteristics of regular trial in the Court of law. 14. Mr. Akhund has submitted that the said remedy, though was alternate, was not efficacious. On the contrary, case of Messers Farid Sons (supra) was referred to by Mr. David to back his preliminary objection. In the said case, it was observed by the honourable Supreme Court of Pakistan as under: "The argument that since the appellants had availed of the alternative remedy by way of appeal provided under the Order itself, they could not invoke the writ jurisdiction of the High Court at the same time, does not appear to me to be a valid argument in the circumstances of the present case, although it is true that when an alternative remedy is available the writ jurisdiction should not be normally allowed to be invoked. In the present case, however, since the appellate authorities have failed to dispose of the appeals filed as long ago as the 17th of August, 1957, in spite of repeated reminders from the appellants, even up to this day, it cannot be now contended that the right of appeal given by the Order gave the appellants an equally expeditious alternative
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remedy so as to disentitle them from applying for the issuance of an appropriate writ in the High Court. ' As 1 have already held that the Chief Controller was authority exercising judicial functions, it is clear that a writ of certiorari can issue in this matter. I would, therefore, issue a writ of certiorari to quash the impugned order of suspension but would make it clear that this will not have the effect of automatically restoring the registrations of the appellants, for, it would still be open to the Chief Controller to deal with the matter in accordance with law and in the manner indicated hereinbefore." 15. In the aforesaid case, it was, as is clear from the above part of the Judgment, observed that alternate remedy is bar to invoke extraordinary constitutional jurisdiction of the High Court. Mr. David referred to Muhammad Abbasi's case, ibid as well. In that case, honourable Supreme Court was pleased to observe as follows: "7. It is bounden duty of the learned High Court to examine the question as to whether the alternate remedy is adequate and efficacious remedy by considering the merits of each case and further to dilate upon the question as to whether such remedy would be more efficacious, beneficial or it would cause hardship to the petitioner. In this regard reference can be made to the case-law enunciated in a Full Bench decision of the Lahore High Court wherein the tests to be applied to determine the adequacy of the relief have been clearly stated in the following terms: (i) If the relief available through the alternative remedy in its nature or extent is not what is necessary to give the requisite relief, the alternative remedy is not an "other adequate remedy" within the meaning of Article 199. (ii) If the relief available through the alternative remedy in its nature and extent, is what is necessary to give the requisite relief, the 'adequacy' of the alternative remedy must further be judged, with reference to a comparison of the speed, expense or convenience of obtaining that relief through the alternative remedy, with the speed, expense or convenience of obtaining it under Article 199. But in making this comparison those factors must not be taken into account which would themselves alter if the remedy under Article 199 were used as a substitute for the other remedy. (iii) In practice the following steps may be taken:- (a) Formulate the grievance in the given case, as a generalized category; (b) Formulate the relief that is necessary to redress that category of grievance; (c) See if the law has prescribed any remedy that can redress that category of grievance in that way and to the required extent; (d) If such a remedy is prescribed, the law contemplates that resort must be had to that remedy; (e) If it appears that the machinery established for the purposes of that remedy is not functioning properly, the correct step to take will be a step that is calculated to ensure, as far as lies in the power of the Court, that that machinery begins to function as it should. It would not be correct to take over the function of that machinery. If the function of another organ is taken over, that other organ will atrophy, and the organ that takes over, will break down under the strain; (f) If there is no other remedy that can redress that category of grievance in that way and to the required extent, or if there is such a remedy but conditions are attached to it which for a particular category of cases would neutralize or defeat it so as to deprive it of its substance, the Court should give the requisite relief under Article 199; (g) If there is such other remedy, but there is something so special in the circumstance of a given case that the other remedy which generally adequate, to the relief required for that category of grievance, is not adequate to the relief that is essential in the very special category to which that case belongs, the court should give the required relief under Article 199 Mehmood Ali Malik v.
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Province of West Pakistan (PLD 1963 Lahore 575. Majibur Rehman v. Province of East Pakistan (15 DLR (WP) 129)." 8. We have examined the petition on the touchstone of the criterion as mentioned hereinafter. It is worth mentioning that challan has already been submitted and cognizance taken by the learned Court and in this view of the matter the alternate as provided under section 249-A, Cr. P. C. Would be more efficacious, appropriate and beneficial." 16. It seems that the honourable Supreme Court, in the above case, had found the alternate remedy to be efficacious, appropriate and beneficial. In Ishrat & company v. Controller of Insurance,, Karachi 1984 CLC 216, a Division Bench of this Court had observed as under: "In our view, although the remedies provided by the proviso to section 44A (7) and under section 110 (1) (o) of the Insurance Act, 1938, are alternate remedies but in the circumstances of the present case they are not efficacious and speedy remedies. In any case this petition was admitted to regular hearing on 12th July, 1975 and the interim stay granted on 12th July, 1975 was confirmed by order, dated 29th July, 1975 with the consent the learned Deputy Attorney-General. If there was any objection to the maintainability of this petition, the same should have beef taken at the earliest opportunity. This was not done. In fact afte nearly 8 years a counter-affidavit has been filed. We are n( inclined to uphold the preliminary objection." 17. In Shabir Ahmed Shaikh v. Government of Balochistan and others 1988 CLC 2267, a Division Bench took the following view: "There can be no cavil to the proposition that if an adequate remedy is available to the petitioner by way of appeal or a suit etc. Which is also specific, prompt and efficacious, the extraordinary remedy by way of writ would not be competent. But there are circumstances under which the superior Courts of the country have exercised writ jurisdiction in cases where authorities have acted in excess of the jurisdiction or where the alternate remedy is not prompt or efficacious. The word 'adequate' appears to have been used in general sense which connotes not sufficiency but promptness in obtaining relief. In cases where relief sought for is neither convenient nor speedy or efficacious and order passed is in excess of jurisdiction, the superior Courts normally do not hesitate to exercise writ jurisdiction, if otherwise the facts and the circumstances of the case so required. In the instant case, it was the respondent No.1 who declined to approve the highest bid offered by the petitioner, and therefore, having resort to his authority by way of appeal would not have been efficacious and adequate remedy. The petitioner cannot be penalised to be asked to go before the authority in appeal who has already rejected his highest bid. Reliance, if necessary may be placed on the following authority: ' PLD 1967 SC page 294. The case of Syed Ali Abbas and others v. Vishan Singh and others: The relevant observations are hereby reproduced: "There had been in the relevant respect, an excess of jurisdiction and the affected party could not be panalised for not throwing ,themselves again on the mercy of the authorities who were responsible for such excess. The proper and indeed the only authority which possessed power to correct the legal wrong thus done was the High Court acting in its jurisdiction under Article 98 of the Constitution." 18. In view of principle, laid down in the above cases, we observe that the alternate remedy ought to be adequate, that is to say, promptitude may be there and if it is not so, High Court can issue appropriate writ. This being so, we observe that the writ petitions are maintainable, in that, the alternate remedy rests upon a lengthy procedure. 19. Second objection with regard to maintainability of the present writ petitions was that a Division Bench of the Islamabad High Court has decided the issue. It seems that numerous Petitions with the prayer akin to that before us, were filed before the Islamabad High Court and a Single Judge allowed them but against such order, appeals moved by the respondent found favour and the
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order was set aside by a Division Bench of the same High Court in an Intra Court Appeal. Relevant part of the Judgment is as follows: "53. Para No.3 of the decision of honourable Lahore High Court in Writ Petition No. 26524 of 2011, Pakistan Flour Mill Association v. WAPDA etc. Is reproduced for ready reference. "A number of petitions were withdrawn by the respective petitioners on different dates that Islamabad High Court on 24-10-2012 has accepted their petitions, however, the petitioners of petitions detailed in Annex-A argued their petitions on merits." 54. Such an aspect when highlighted with no plausible explanation furnished in this regard leads to view that respondents/petitioners by concealing such fact of the pendency of their writ petitions got the relief from the learned Single Judge in chamber while preferring writ petitions. Which their conduct cannot be encouraged, but same being considered as adverse on their part having not approached the Court with clean hands: Same also suffers from res subjudice. 55. The respondents/petitioners were enjoying stay obtained from honourable High Court, after its modification, they challenged it before the honourable Supreme Court seeking no relief, they turned towards this Court by filing two petitions and that too without mentioning the facts in their petitions. They continue to enjoy pendency till they got the decision from this Court (Islamabad High Court) in writ petitions. Therefore, we observe that findings of learned Single Judge in chamber might have been based on such misguidance rendered by the respondents/petitioners, which influenced the impugned decision pronounced. The other findings of the learned Single Judge in chambers are based upon retrospectivity, which in our view is not well founded as discussed above and are based upon a misguidance feature or improper assistance rendered, therefore, same cannot be supported. 56. Earlier issues raised in the writ petition have been severally called in question before the honourable High Court as mainly the respondents companies having their bases in Punjab and same were agitated up to the honourable Supreme Court and very core issue has already been decided with regard to the tariff, its time and monthly variation. The same cannot be permitted to be reactive on the basis of same observations." 20. It appears that the Islamabad High Court has observed that as the Lahore High Court was seized with the similar issue, entertaining it by the Single Judge of the said Court was hit by principle of res subjudice but we find that the Lahore High Court has decided the issue in the case of Pakistan Flour Mills Association(supra) and, therefore, principle of res subjudice does not have application hereto. We may observe that case before the Islamabad High Court was distinguishable from that before us as well for the reason that in Para 68 of the said Judgment, it was observed that "as far as the applicability of Fuel Adjustment Charges with retrospective effect is concerned, record does not reflect that the charges were made with retrospective effect and they were included in the bills as current charges" whereas in the present controversy, it is the case of the writ petitioners that the charges were retrospective in nature as they related to gone months. Even otherwise, for application of principle of res subjudice, it is necessary that there be same subject matter between the same parties or those claiming under the earlier proceedings pending in a Court of competent jurisdiction for being determined; nonetheless, it appears that present petitioners were not a party to the cases before the Lahore High Court or the Islamabad High Court nor do they claim under the parties therein. Therefore, question of res subjudice or res judicata is not there in the present petitions. 21. In our country, in the recent past, DISCOs, GENCOs and NTDC have been made the independent companies in the Power Wing of WAPDA. GENCOs sell thermal power to NTDC and NTDC sells the power in bulk to DISCOs. DISCOs also distribute electricity to their consumers and recover the purchase price, distribution cost, adjustment for reasonable transmission and distribution losses and some profit margin for growth.
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22. Apparently, the advent of the Act, 1997 was aimed at to cater for the regulation of generation, transmission and distribution of electric power. Under Section 3 thereof, National Electric Power Regulatory Authority has been established. Following are the functions of the Authority: "7. Powers and functions of the Authority. - (1) The Authority shall be exclusively responsible for regulating the provision of electric power services. (2) In particular and without prejudice to the generality of the foregoing power, only the Authority, but subject to the provisions of subsection (4), shall - (a) grant licenses for generation, transmission and distribution of electric power; (b) prescribe procedures and standards for investment programmes by generation, transmission and distribution companies; (c) prescribe and enforce performance standards for generation, transmission and distribution companies; (d) establish a uniform system of accounts by generation, transmission and distribution companies; (e) prescribe fees including fees for grant of licenses and renewal thereof; (f) prescribe fines for contravention of the provisions of this Act; and (g) perform any other function which is incidental or consequential to any of the aforesaid functions. (3) Notwithstanding the provisions of subsection (2) and without prejudice to the generality of the power conferred by subsection (1) the Authority shall- (a) determine tariff, rates, charges and other terms and conditions for supply' of electric power services by the generation, transmission and distribution companies and recommend to the ' Federal Government for notification; (b) review organizational affairs of generation, transmission and distribution companies to avoid any adverse effect on…
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