MAULVI ANWARUL HAQ, J.---The admitted facts of this case are that the respondent No.3 filed an application on 26-6-2003 before the respondent No.1 for determination of tariffs. The public notices were issued and in response the petitioner also intervened with some suggestions. After considering the matter, the respondent No.1 made its determination and sent the case to the Federal Government for notification. The respondent No.3 filed a review application which was also decided and the final determination was sent to the Federal Government for notification. This matter was also decided after hearing several interveners including the petitioner vide decision Annexure "E" (pages 43 to 65 of the paper book).
2. The grievance being made out in this writ petition is that a notification is not being published by the Federal Government as required by the law under which the respondent No.1 has been established. The respondent No.1, Federal Government as well as respondent No.3 have filed their replies.
3. Learned counsel for the petitioner contends that the respondent No.1 having been established under the authority of a law and having acted within the said authority to the benefit of, amongst others, the petitioner, they have a right to bring their grievance to the Court in the matter of inaction upon the part of Federal Government to do as it is required by law to do so i.e. To notify the tariff determined by the respondent No.1 in accordance with law. Learned counsel has taken me through the several provisions of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 (Act XL of 1997), (hereinafter to be referred to as the said Act). Learned Standing Counsel for Pakistan finds it difficult to oppose the prayer being made in this writ petition but refers to some financial implications involved in the matter to be borne by the Federal Government in the Finance Ministry. Learned counsel for respondent No.1, of course, supports the writ petition inasmuch as it calls upon the Federal Government to act in accordance with law. The learned counsel for respondent No.3 (MEPCO) opposes the writ petition not with reference to any defect in the determination made by the respondent No.1 but on the ground that the petitioner has no locus standi to file the writ petition. He relies on the case of Pakistan Institute of Human Rights through Muhammad Iftikhar Hussain Rajput v. The State through Chairman, Chief Minister's Task Force and others 2005 YLR 774.
14. I have given some thought to the respective contentions of the learned counsel for the parties and the learned Law Officer. Now the respondent No.1 i.e. National Electric Power Regulatory Authority (commonly known as NEPRA) has been established under section 3 of the said Act, 1997. I may note here that the said Act has been enacted to provide fur the regulation of generation, transmission and distribution of electric power and matters connected therewith and incidental thereto. Now the Chairman of the respondent No.1 is appointed by the Federal Government and proviso to section 3(1) prefers that the Chairman shall preferably be a person who is or has been a Judge of a High Court or the Supreme Court of Pakistan. There are four Members representing each of the Provinces of the country. The meetings are to be held in accordance with section 5, the prescribed quorum being three while section 6 requires that all orders, determinations and decisions of the Authority shall be taken in writing and shall identify the determination of the Chairman and each member. Section 7(1) lays down in absolutely unambiguous terms that the respondent No.1 shall be exclusively responsible for regulating the provision of electric power services. Under section 7(3)(a) the respondent No.1 shall 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. Section 7(6) enjoins upon the respondent No.1 that in performing its functions under the said Act, it shall, as far as practicable, protect the interest of consumers and companies providing electric power services in accordance with guidelines, not inconsistent with the provisions of the said Act, to be laid down by the Federal Government.
5. Now section 31 of the said Act deals with the tariffs and I deem it appropriate to reproduce the said provision hereunder:-- "31. Tariffs.--- (1) As soon as may be, but not later than six months from the commencement of this Act, the Authority shall determine and prescribe procedure sand standards for determination, modification or revision of rates, charges and terms and conditions for generation of electric power, transmission, inter-connection, distribution services and power sales to consumers by licensees and until such procedures and standards are prescribed, the Authority shall determine, modify or revise such rates, charges and terms and conditions in accordance with the directions issued by the Federal Government.
(2) The Authority while determining the standards referred to in subsection (1) shall:--
(a) protect consumers against monopolistic and oligopolistic prices;
(b) keeping view the research, development and capital investment programme costs of licence;
(c) encourage efficiency in licensees operations and quality of service;
(d) encourage economic efficiency in the electric power industry;
(e) keep in view the economic and social policy objectives of the Federal Government; and
(f) determine tariff so as to eliminate .Exploitation and minimize economic distortions.
(3) The procedures established under subsection (1) shall include:--
(a) time frame for decisions by the Authority on tariff applications;
(b) opportunity for consumers and other interested parties to participate meaningfully in the tariff approval process; and
(c) protection for refund, if any, to consumers while tariff decisions are pending.
(4) Notification of the Authority's approved tariff, rates, charges and other terms and conditions for the supply of electric power services by generation, transmission and distribution companies shall be made, in the official Gazette by the Federal Government upon intimation by the Authority: Provided that the Federal Government may, as soon as may be, but not later than fifteen days of receipt of the Authority's intimation, require the Authority to reconsider its determination of such tariff, rates, charges and other terms and conditions. Whereupon, the Authority shall, within fifteen days, determine these anew after reconsideration and intimate the same to the Federal Government."
6. Now, admittedly, the respondent No.3 filed a tariff petition on 26-6-2003. This petition is a detailed document and is Annexure "A" to this writ petition. Amongst others, the petitioners also filed its submissions which are Annexure "B". Vide letter, dated 2-7-2004 A (Annexure "C") the respondent informed the petitioner that a determination has been made and has been sent to the Federal Government for notification in the official Gazette. A copy of the determination was also sent. A review motion was filed by the respondent No.3 on 13-7-2004, the same was considered and a determination was made. Vide letter dated 12-11-2004 the petitioner was A informed by the respondent No.1 that a final order has been passed and communicated to the Federal Government vide letter dated 22-10-2004 (Annexure "E"). This letter is at page 41 of the paper book and decision is at pages 42 to 65 of the paper book.
7. Now under section 31(4), noted above, the Federal Government is required to make a notification in the official Gazette upon intimation by the Authority of the tariff, rates, charges and other terms and conditions of the supply of electric power services as approved.
8. Now the proviso to subsection (4) of section 31 of the said Act, vests the Federal Government with a power to require the respondent No.1 to reconsider its determination of such tariff, rates, charges and other terms and conditions. However, this power is to be exercised within 15 days of the receipt of the intimation. In case the Federal Government so requires, the respondent No.1 is then to make a determination after reconsideration and to intimate the same to the Federal Government within 15 days of the said requisition. It is a fact admitted on all hands that no such requisition was made by the Federal Government within or even after 15 days of the receipt of the intimation of the determination made by the respondent No.1.
9. To my mind upon a plain reading of the said section 31 and the other relevant provisions of the said Act, already stated above, the Federal Government is bound by said law to notify the determination of the tariff as intimated by the respondent No.1 unless and until, of course, it considers it appropriate to make a requisition upon the respondent No.1 to reconsider the matter which is not the case in hand.
10. Now coming to the only objection raised on behalf of respondent No.3 to this writ petition i.e. The locus standi of the petitioner to file the same, I have already noted above that the petitioner was called upon to file its submissions and was duly intimated of the determination made by the respondent No.1. I may further refer here to section 31(3)(b) of the said Act which lays down that an opportunity is to be provided to customers and other interested parties to participate meaningfully in tariff approval process. There is no denial that the petitioner is a body of such customers. The objection is, therefore, rejected. So far as the said judgment in the case of Pakistan Human Rights is concerned, no personal injury was shown and the petition was filed to be pro bono publico which is not the case here.
11. The writ petition accordingly is allowed and the respondents Nos.2 and 4 are directed to issue a notification in terms of section 31(4) of the said Act of 1997 as per the determinations intimated by the respondent No.1 in the matter of the tariff petition and then review motion filed by respondent No.3. The needful to be done within 15 days under intimation to the Deputy Registrar (Judicial) of this Court. No orders as to costs.