MUHAMMAD QAIM JAN KHAN, J.---The Constitutional petition in hand is directed against the notices issued by respondents Nos.3 to 6 addressed to the petitioner to stop self-power generation. These notices are dated 23-10-1999 (Annexure-E) and 30-10-1999 (Annexure-F).
2. Short facts of the case are that the petitioner is a limited liability company registered under the Companies Ordinance, 1984 having its mills at 200-201, Gadoon Amazai Industrial Estate, District Swabi and its registered officer at APTMA House, Tehkal Payan, Jamrud Road, Peshawar.
3. That due to shortage of electric power in the country, it has been consistent policy of Federal Government to provide fiscal incentives for setting up power generation plants within industrial undertakings. In, this behalf, respondent No.2 has issued various notifications. In order to meet growing demand of electricity, power generation was repeatedly encouraged in private sector and S.R.O. No.279(I)/94 dated 2-4-1994 was issued vide which exemption from whole of the customs duty and sales tax on the import of machinery and equipment has been provided for setting up, balancing modernization and expansion of power generation projects. That in order to improve the efficiency and availability of electric power services, including by mobilizing, generation, transmission as well as distribution of electric power through private ownership etc., the President of Pakistan promulgated Pakistan Electric Power Regulatory Authority Ordinance, 1996. Under sections 7 and 15 of the Act of 1997 which replaced the above-mentioned Ordinance, the exclusive power to issue licences for generation, transmission and distribution of electric power rests with respect No.7 which is called National Electric Power Regulatory Authority constituted under the Act of 1997. The petitioner had a sanctioned load capacity of 4800 KW which was not sufficient for running the mills and as with the passage of time, the energy requirements of the petitioner kept on increasing, so the petitioner approached respondents Nos.4 to 6 and requested for enhancement of the load for requirements of the petitioner-mills. The matter was dragged for some time and finally the petitioner was asked to deposit huge sum of rupees fifty millions with respondent No.3 which in fact was a means to deter the petitioner from asking the enhanced load requirements. It is very strange that, on the one hand, respondents Nos.3 to 6 were suppressing the application of the petitioner for enhanced load requirements while on the other hand, the Federation continued to encourage the self-power generation of electricity by the industrial consumers. The petitioner being disappointed from respondents Nos.3 to 6, in the light of the incentives for self-generation coupled with urgency to meet the increased load requirements opted to install 4 generators for prime operation besides operating the other available standby generator sets to meet the power requirements in the event of power failures. After commissioning the said generators, the petitioners applied to respondent No.7 for the grant of licence for self- generation electric power. In reply, respondent No.7 maintained that the licensing (Generation)
Rules had not been approved and notified by the Federal Government and advised the petitioner to apply for the grant of Licence after the said rules are approved and notified. So the petitioner kept on self-generation as per requirements of its mills, hence the petitioner reduced the consumption of power supplied by respondents Nos.3 to 6. However, the petitioner had all along been paying the fixed charges applicable on the sanctioned load of electricity supplied by the respondents.
4. The petitioner was surprised to receive letter No.19346-49 dated 23-10-1999 from respondent No.6 wherein the petitioner had been directed to stop self-generation. No reason whatsoever was given for such a drastic action except that the same was not allowed by the highups/PESCO.
Similarly on 30-10-1999, the petitioner received another letter/notice wherein petitioner had once again been directed to stop the power generation for the reason being that the same was not allowed by PESCO. Another notice was issued on13-3-2000 by the respondent. So the petitioner approached the respondents and explained that the demand raised by them is illegal and that the petitioner has already approached respondent No.7 for the licence and since respondent No.7 is not issuing licence to any company for the time-being, so it could not be procured. Even then respondents Nos.3 to 6 are bent upon stopping the petitioner from self-generation of electricity.
Hence this petition.
5. Counsel for the petitioner argued that he has vested- right to generate electricity according to his own capacity as he is not selling electricity to anyone and using it himself and that respondents Nos.3 to 6 have got no sanction or power to stop the petitioner from self-generation. Further argued that under the law even respondents Nos.3 to 6 do not have any licence from respondent No.7 to generate or supply electric supply and petitioner fails to understand under what law respondent Nos.3 to 6 are questioning the authority of the petitioner to generate the electricity.
Learned counsel argued that under sections 7 and 15 of the Act, 1997, the jurisdiction to issue licence for self-generation has been conferred exclusively on respondent No.7 (NEPRA) and he has approached the said. Authority and according to respondent No.7, the Licence shall be granted after the approval and promulgation of Licensing (Generation) Rules. Until the said rules are promulgated, respondent No.7 has tacitly allowed the self-generation throughout the country.
6. Counsel for respondents Nos.3 to 6, on the other hand, argued that self-generation is not allowed and that they are the sole authority for granting the licence of self-generation. Further argued that respondents Nos.3 to 6 have spent huge amount on the maintenance of grid station and poles etc., and in the event the petitioner is allowed, respondents will suffer huge losses.
7. We have heard the learned counsel for petitioner and respondents Nos.3 to 6 at length. We have also scrutinized the available record and the comments of respondents Nos.3 to 6 and respondent No.7.
8. WAPDA itself is a licensee for generation of power. The learned counsel appearing for WAPDA was unable to support the impugned notices by any law, rules or regulations. WAPDA thus has no authority to stop any concern from self-generation of power. It is the National Electric Power Regulatory Authority (NEPRA) which is empowered under sections 7 and 15 of NEPRA Act, 1997 to issue licences for generation of power. NEPRA has never objected to the self-generation by the petitioner. In a letter addressed by NEPRA dated 26-6-2000 to the Ministry of Water and Power, copy of which has been produced by the learned counsel for the petitioner and placed on file, it has been clarified that small power producters who have installed power plants for their own use do no require licence under the NEPRA Act. The producers of power who sell it alone are required to obtain a licence. Thus according to these instructions the petitioner did not even require a licence from NEPRA.
9. In view of the above we hold that WAPDA had no authority to issue the impugned notices to the petitioner to close the self-power generation. We, therefore, allow this petition and strike down the impugned notices as illegal and issued without lawful authority. There shall be no order as to costs.