FLYING CEMENT CO. LTD. and otherss vs GOVERNMENT OF PAKISTAN through

SHUJAAT ALI KHAN, J.---Through this consolidated judgment I intend to decide this petition as well as those mentioned in Schedules-B and C having commonality of facts and law viz. In the petitions mentioned in Schedule-B, the petitioners have challenged the imposition of Surcharge and its subsequent enhancement through Notifications dated 15-3-2011 and 6-5-2011, respectively, whereas in the petitions mentioned in Schedule-C (including the instant petition), the petitioners have assailed the levy of Equalization Surcharge through Notification dated 5-8-2013.

2. Briefly, the facts, forming factual canvass of these petitions, are that the Government of Pakistan, Ministry of Water and Power, through Notification dated 15-3-2011, levied Surcharge on electricity at the rate of 2%. By virtue of Notification dated 6-5-2011 the rate of said Surcharge was enhanced from 2% to 4%. Later on, the Government withdrew the Surcharge in question vide Notification dated 16-5-2012. However, through Notification dated 5-8-2013, the Government again levied Surcharge known as "Equalization Surcharge(EQ Surcharge) but subsequently withdrew the same through Notification dated 11-10-2013. Aggrieved by the imposition/enhancement of Surcharge in dispute, the petitioners have preferred these petitions.

3. During the course of hearing, I have observed that despite repeated calls, in certain cases neither the petitioners nor their learned counsel are in attendance. Further, there is no intimation regarding petitioners or their counsel's engagement elsewhere despite the fact that names of the learned counsel for the parties have duly been reflected in the cause list. In this situation, such petitions can conveniently be dismissed due to non-prosecution, however, as all the petitions have not only been clubbed together but the question of law involved therein is also common, the same are being decided through this single judgment. Moreover, the decision of these matters cannot be lingered on for an indefinite period awaiting representation of some of the petitioners especially when learned counsel representing the petitioners, in major number of cases, are present before this Court.

4. The contentions urged by Mian Mehmood Rashid, Advocate for petitioners can be summed up in the words that no levy/surcharge can be imposed without determination by the National Electric Power Regulatory Authority "NEPRA", as envisaged under section 31(4) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 (hereinafter to be referred as the Act, 1997); that those consumers, irrespective of their category, who are not enjoying any kind of subsidy, are not liable to pay anything over and above the tariff determined by NEPRA; that imposition of impugned Surcharge amounts to compulsory extraction of money; that according to Article 157 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter to be referred as the Constitution) only the Provincial Government can impose any surcharge etc. On the distribution of the electricity within the Province; that section 31(5) of the Act, 1997 is ultra vires to the provisions of the Constitution; that the matter was not routed through the Council of Common Interest (C C I), as postulated under Article 154 of the Constitution, thus the imposition of impugned Surcharge is illegal; that certain other provisions of the Act, 1997 are also ultra vires to the Constitution; that tax/levy/surcharge cannot be imposed through a Finance Bill rather the matter is to be approved by both the Houses whereas impugned Surcharge has been imposed without such approval; that in National Power Tariff and Subsidy Policy Guidelines, 2014, it has been admitted that EQ Surcharge was imposed to recover the amount due on account of line losses or subsidy given to the consumers of other DISCOs, thus, the same is not justifiable; that discriminatory attitude of the government was overwhelmingly manifested when EQ Surcharge, imposed through Notification dated 5-8-2013, was confined to industrial consumers only and that to fill up the gap between the cost of electricity and the subsidy/line losses of inefficient Distribution Companies (DISCOs), the consumers of the DISCOs, which are performing their affairs in an efficient manner, have been over-burdened. In addition to his oral submissions, learned counsel has relied upon the cases reported as Human Rights Case No,14392 of 2013, (2014 SCMR 220), Engineer Zafar lqbal Jhagra v.

Federation of Pakistan and others (2013 PTD 1491), Alleged Corruption in Rental Power Plants and others (2012 SCMR 773), Pearl Continental Hotel and another v. Govt, of N.-W.F.P. And others (2010 PTD 2018), Pakistan through Secretary Finance and others v. Messrs Lucky Cement and another (2007 SCMR 1367), Wattan Party through President v. Federation of Pakistan and others (PLD 2006 SC 697), Caltex Oil (Pakistan) Ltd. v. Collector, Central Excise and Sales Tax and others (2005 PTD 480), The Province of Punjab and another v. National Industrial Cooperative Credit Corporation and another (2000 SCMR 567), Collector of Customs and others v. Sheikh Spinning Mills (1999 SCMR 1402), Gatron (Industries) Limited v. Govt. Of Pakistan and others (1999 SCMR 1072), Aftab Shahban Mirani v. President of Pakistan and others (1998 SCMR 1863), Messrs Elahi Cotton Mills Ltd. And others v. Federation of Pakistan (PLD 1997 SC 582), Gadoon Textile Mills and 814 others v. WAPDA and others (1997 SCMR 641), Govt. Of Balochistan v. Azizullah Memon and 16 others (PLD 1993 SC 341), Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473), Pakistan through Secretary Cabinet Division and others v. Nawabzada Muhammad Umar Khan and others (1992 SCMR 2450), Pakistan Industrial Development Corporation v. Pakistan through Secretary Ministry of Finance (1992 SCMR 891), Haji Abdullah Khan and others v. Nisar Muhammad Khan and others (PLD 1965 SC 690), Abdul Latif v. Govt. Of West Pakistan and others (PLD 1962 SC 384), Messrs Shahbaz Garments (Pvt.) Ltd. And others v. Pakistan through Secretary Ministry of Finance and others (PLD 2013 Sindh 449), Messrs Azgard Nine. Ltd. v. Pakistan through Secretary and others (PLD 2013 Lah. 282), Syed Feroze Shah Ghillani and others v. Federation of Pakistan and others (PLD 2013 Lah. 659), Exide Pakistan Ltd. Cantonment Board Clifton and another (2012 CLC 1124), Sanofi Aventis Pakistan Ltd. And others v. Province of Sindh and 2 others (PLD 2009 Karachi 69), ICC Textiles Ltd.

And 31 others v. WAPDA and 15 others (2009 CLC 1343), Dawood Hercules v. Collector of Sales Tax (2007 PTD 1161), Rashid ur Rehman v. Mian IOW Hassain (PLD 2005 Lah. 416), Standard Chartered Bank v. Karachi Electric Supply Corporation Ltd. (PLD 2001 Karachi 344), National Industrial Cooperative Credit Corporation Ltd. And another v. Province of Punjab/Government of Punjab through Secretary, Cooperative Department and another (PLD 1992 Lahore 462), Naseem Mehmood v. Principal King Edward Medical College and others [PLD 1965 (W.P.) Lahore 272], Abdul Majid and another v. Province of East Pakistan and others (PLD 1960 Dacca 502), I.T.As Nos.3934/LB/2002 and other allied matters [2007 PTD (Trib.) 181] and I.T.As Nos.5138/LB/2004 and another allied matter [2007 PTD (Trib) 139].

5. On the constitutional plane, the legal propositions and basic objections, put forwarded by Mr. Azhar Siddique, Advocate for petitioners in some of the petitions, are to the effect that as the source for imposition of impugned surcharge is missing the same cannot be given legal blanket and that as the impugned Notifications were not issued under section 31(5) of the Act, 1997, the same cannot be allowed to hold the field even for a moment.

6. While controverting the submissions made by learned counsel for the petitioners, Sheikh Muhammad Ali, Advocate, representing Ministry of Water and Power, Government of Pakistan, states that as impugned notifications have already been withdrawn by the government, these petitions, as a matter of fact, have become infructuous; that NEPRA is only regulatory authority for determination of rates, charges and tariffs but it has nothing to do with the surcharge which exclusively falls within the domain of the government in terms of section 31(5) of the Act, 1997; that NEPRA being only regulatory authority cannot preempt the powers of the government to levy Surcharge; that under the new scheme, the generation, transmission and distribution of electricity is being governed through distinct licensees, thus, the government, with a view to raise funds for providing subsidy to the consumers has to impose Surcharge at certain, points of time; that as the surcharge cannot be equated with charge, rate and tariff, it has nothing to do with NEPRA; that provisions of Article 157(2) of the Constitution are only enabling and not mandatory in nature; that the Provincial Government can levy a surcharge only when it constructs dams, grid stations etc. Or purchases electricity in bulk from the Federation for its onward distribution to the consumers in the Province; that wrong mentioning of a provision of law or non-mentioning thereof does not make any difference as the same can be cured while following the principle of reading down; that the periodical imposition of EQ Surcharge is proof positive of the fact that the government resorted to such exercise just to cope with financial pandemonium for the time being; that even today the government is providing subsidy to the electricity consumers approximately at the rate of Rs,3/4 per unit; that in the instant case, the Golden Principle of interpretation is to be followed to make up any procedural deficiency on the part of government; that as the government is providing subsidy considering it as obligation, it reserves the right to impose Surcharge to raise funds in the hour of necessity and that after 18th Amendment subject of electricity is also included at item No,4 in the Federal List, thus, the Surcharge in question was rightly imposed by the Federal Government.

7. The legal formulations put forwarded by the learned Additional Attorney General, assisted by the learned Deputy Attorney Generals, are to the effect that though the power regarding determination of tariff vests with NEPRA but to notify the same is prerogative of the Federal Government as postulated under section 31(4) of the Act, 1997; that Article 157(2)(b) of the Constitution does not debar the Federation to levy any surcharge on electricity through DISCOs; that the word used under Article 157(2) of the Constitution is "may" therefore, if the Provincial Government does not impose any surcharge on electricity, the Federal Government cannot be debarred to do so; that the imposition of surcharge does not fall within the subjects which are to be referred to CCI rather the same can be imposed by the government through Finance Act and that imposition of EQ Surcharge has already been declared legal by a learned Division Bench of High Court of Balochistan, Quetta through its judgment, dated 8-7-2014, rendered in Constitutional Petition No,904/2011 and other allied matters, To substantiate his contentions, learned Additional Attorney General has relied upon the cases reported as Gadoon Textile Mills and 814 others v. WAPDA and others (1997 SCMR 641), Shamshad Bibi v. District Judge, Multan and 2 others (2012 YLR 277) and Shaikh Nadeem Younas, Chief Executive, Noble Textile Mills Pattoki District K asur v. WAPDA and 4 others (1996 CLC 1090).

8. Mr. Muhammad Ilyas Khan Advocate, appearing on behalf of LESCO, pleads that if for the sake of arguments it is admitted that there is some lacuna in the issuance of the notifications, in question, the same can be filled up by this Court while following the dictum laid down in the cases reported as Dr. Akhtar Hassan Khan and others v. Federation of Pakistan (2012 SCMR 455), Commissioner of Income Tax v. Messrs Eli Lilly Pakistan (Pvt.) Ltd. (2009 PTD 1392), Messrs Elahi Cotton Mills Ltd. And others v. Federation of Pakistan (PLD 1997 SC 582) and Indus Jute Mills Ltd. v. Federation of Pakistan and 3 others (2009 PTD 1473) .

9. Mr. Sarfraz Ahmad Cheema, Advocate for FESCO, in furtherance of the arguments put forwarded by learned counsel for LESCO states that second part of impugned notifications renders it unambiguously clear that the same was issued by the government while exercising powers as contemplated under section 31(5) of the Act, 1997, thus, the impugned Notifications were issued validly; that as language of the notification is explicit, the objection raised by learned counsel for the petitioners has no worth especially when the same is put in juxtaposition to the judgment rendered by the Hon'ble Supreme Court of Pakistan in the case Messrs Jame's Construction Co.

(Pvt.) Ltd. Through Executive Director v. Province of Punjab and 3 others (PLD 2002 SC 310).

10. Mr. Aurangzeb Mirza Advocate, representing GEPCO, states that after admission on the part of counsel for the petitioners that the Federal government enjoys power to levy surcharge in view of section 31(5) of the Act, 1997, there is nothing to be left for adjudication by this Court rather the petitions deserve outright dismissal and that as the preposition under discussion, has already been set at rest by a learned Division Bench of High Court of Balochistan, the entire exercise is nothing but wastage of precious time of this court.

11. Learned counsel for the petitioners, while exercising their right of rebuttal, submit that Federal Government cannot impose any surcharge while pressing into service the question of subsidy being given to the consumers of other DISCOs; that the subsidy being provided to the consumers cannot be withdrawn by the Government in view of the verdict of the apex Court of the country in Human Rights Case No,14392 of 2013 (supra); that as the case-law being relied upon by the respondents side relates to tax matters, the same is of no help to the respondents; that tax and surcharge being polls apart from each other cannot be intermingled; that the consumers/petitioners before this Court cannot be burdened with any extra surcharge/levy just to facilitate or accommodate the consumers of inefficient DISCOs in other provinces as lapse on the part of one entity cannot be made ground for punishment to another; that the Federal Government can manage cost of electricity by using less expensive sources for its production in addition to controlling electricity theft etc; that argument advanced by learned counsel appearing on behalf of the respondents that EQ Surcharge is not payable on consumption of electricity rather it is on sale thereof is not tenable as on the face of it the same is payable on consumption and not on sale; that if for the sake of arguments it is admitted that EQ Surcharge was imposed by the government, while exercising powers under section 31(5) of the Act, 1997, the same can be set at naught by following the principle of "reading down"; that the judgment passed by the High Court of Balochistan is not binding on this Court; that, as a matter of fact, the question regarding EQ Surcharge has not been dealt with by High Court of Balochistan independently rather the same was taken up along with proposition qua imposition of Fuel Price Adjustment; that the judgment of High Court of Balochistan is also distinguishable on the ground that QESCO cannot be equated with distribution companies, whose consumers have instituted these petitions; that the judgment passed by the High Court of Balochistan cannot be considered on all fours as the principle of "reading down" has not been discussed in the said judgment; that Karachi Electricity Supply Company (KESC now K-Electric) has not been burdened with such surcharge which speaks volumes about the discriminatory attitude of Government of Pakistan, Ministry of Water and Power towards different DISCOs. To conclude his arguments, Mr.Azhar Siddique, Advocate has pleaded that had the notification been issued under section 31(5) of the Act, 1997, the petitioners would have definitely challenged the same while calling in question the vires of said section.

12. At this juncture, learned Additional Attorney General, assisted by Sheikh Muhammad Ali, Advocate, in furtherance of his arguments enumerated above, states that as the K-Electric has multiple licenses viz. In respect of "Generation", "Transmission" and "Distribution", the same cannot be quoted as precedent in respect of tariff/surcharge being levied against other Generation, Transmission and Distribution Companies; that since the promulgation of the Act, 1997 all the notifications by the government are being issued under section 31(4) of the Act, 1997, thus the impugned notifications cannot be set at naught only for the reason that the same were issued while mentioning wrong provision of law; that as uniform policy is being followed by the government in respect of tariffs for different DISCOs except K-Electric for the reasons narrated above, the petitioners have no cheeks to press into service the point of discrimination; that in order to meet with raising demand of electricity, same is being produced on commercial basis and the consumers are bound to face the brunt of fluctuation in cost thereof, in particular the fuel being used for the said purpose; that the intent of the government is not to put additional burden on the consumers rather is to manage funds to provide subsidy to the consumers who are not able to bear the raising price of the electricity.

13. I have given patient hearing to learned counsel for the parties and have also scanned the relevant documents in addition to going through the provisions of law as well as the ease-law cited at the bar.

14. Firstly, taking up the plea of the respondents that after withdrawal of impugned notifications, these petitions have become infructuous, I do not find myself in agreement on the said point for the reason that not only the imposition of Surcharge has been challenged in these petitions but the petitioners have also prayed for refund of the amount already deducted on that account.

15. It is of common knowledge that in this era, the electricity has assumed crucial role for survival of a nation and to compete with others in the comity of nations. The energy, as such, has become one of the basic components of everyday life. With the change in seasonal cycle and raising demand, the production of the electricity on priority basis through alternate sources has become one of the foremost challenges for the persons at the helm of the affairs of a State. With a view to fulfil the raising demand of electricity the government is compelled to introduce lucrative packages for private power generation entities just to expand the sources for production of electricity. During the said process, sometimes the private power generation companies, with a view to extract maximum profit and blackmail the consumer on the one hand and the government on the other, create a monopoly. Due to monopolistic attitude of the power generation units the consumers have to bear extra burden. This Court, being custodian of the fundamental rights, can take judicial notice in order to have the continuous supply of energy for the B present and future domestic and commercial needs in addition to maintaining the present sources of energy along with expansion of new sources of energy. Therefore, while imposing the levies and fixation of rates by the Government, in particular NEPRA, a balance has to be struck between the financial status of citizens of the country and the extent of national requirement for energy on the one hand and available resources for electricity on the other. Thus, a very heavy duty casts upon the public functionaries, the executive as well as judiciary to see that balance is struck in such a manner that the system flourishes and continue progressing on the one hand and the interest of customers/citizens is ensured on the other.

16. Now reverting to the merits of the case, out of divergent contentions urged by learned counsel for the parties, inter alia following legal propositions have emerged out for determination by this court: -

(i) Whether word "Surcharge" carries the same meaning as those of "Tariff", "Rate" or "Charge" or it has independent character?

(ii) Whether Surcharge is a tax and. Further as to whether Federal Government is empowered to impose Surcharge in electricity bills or not?

(iii) Whether the Government is bound to refer the matter to NEPRA prior to imposition of Surcharge?

(iv) Whether a notification issued under section 31(4) of the Act, 1997 can be considered as under section 31(5) of the said Act?

(v) Whether the matter regarding levy of Surcharge was to be routed through the Council of Common Interests (CCI)?

(vi) Whether under Article 157 of the Constitution the provincial government has the exclusive power to levy any tax/surcharge on distribution of electricity in the province or the Federal Government has simultaneous powers to do so?

(vii) Whether the questioned levies are excessive and unreasonable and, hence, are liable to be struck down, in exercise of power of judicial review by this Court?

(vii) Whether subsection (5) of section 31 of the Act, 1997 can be struck down while following the principle of "reading down"?

(viii)Whether non-imposition of Surcharge, under discussion, against Karachi Electricity Company (KESE now K- Electric) or against a particular category of consumers can be considered as discrimination on the part of the government?

17. Firstly, taking up the question as to whether the word "Surcharge" can be equated with the terms known as "Tariff" "Rate" and "Charge", it is imperative to know their respective meanings. According to K. J. Aiyar Judicial Dictionary, 16th Edition 2014, the word "tariff" means- "A table alphabetically arranged and containing duties, bounties, etc. Charged upon merchandise exported and imported, as settled by authority or authorities that hold commerce together.

It is a list of duties charged on specified articles; any list of charges.

Includes within its ambit not only the fixation of rates but also the rules and regulations relating to it. "

In Wharton's Law Lexicon, 14th Edition, the word "Tariff" has been defined as- "Tariff: [Span.] a cartel of commerce, a book of rates, a table or catalogue, drawn up usually in alphabetical order, containing the names of several kinds of merchandise, with the duties or customs to be paid for the same, as settled by authority or agreed on between the several States that hold commerce together."

The word "Tariff" in BLACK'S LAW DICTIONARY, Eighth Edition has been defined as:-- "A schedule or system of duties imposed by a government on imported or exported goods. In the United States, tariffs are imposed on imported goods only.

A duty imposed on imported or exported goods under such a system."

According to ADVANCED LAW LEXICON by P Ramanatha Aiyar's 4th Edition Volume 1 and 4 word "Tariff" means:- "Duties or customs to be paid on imports or exports, such duties collectively; law imposing these duties.

'Tariffmeans a rate of tariff leviable upon the consumption of electricity in the State supplied by the licensee and as fixed by the Tamil Nadu electricity Regulatory Commission.'

Determination, ascertainment, a table of rates of export and import duties, in which sense the word has been adopted in English and other European languages.

Levied either on ad valorem basis or on a specific basis, customs duty on merchandise imports.

Custom, duties, toll, or tribute, payable upon merchandise exported and imported, are so called, (Tomlin)."

Similarly word "tariff" has been defined in The Chambers Dictionary 12th Edition as under:-- "a list or set of customs duties; a customs duty levied on particular goods (eg at a hotel); (a list of) standard rates charged for a service, eg electricity or insurance; a menu; a scale of penalties established by law for sentencing those convicted of certain crimes."

Likewise, the word "tariff" in Halsbury's Laws of India, Volume 42, has been explained as under:- "where the exigibility to duty cannot be gathered from positive terms under a particular entry, it must be deduced from a proper construction of the tariff entry."

The Major Law Lexicon, Volume VI, defines "tariff" in the following manner:-- "Duties or customs to be paid on imports or exports, such duties collectively; law imposing these duties."

Insofar as meaning of the word "RATE" is concerned, the same has been defined in K J Aiyar Judicial Dictionary, 16th Edition 2014 as under: - "The history of the use of the word ratefor purposes of local taxation in English law clearly shows that the word 'ratewas used with respect to a tax which was levied on the net annual value or rateable value of lands and buildings and not on their capital value. But according to AK Sarkar J, expressing minority view 'rate', is an expression used to indicate an impost levied by the local authority to raise funds for its expenses. Such an impost would be rate irrespective of the basis on which it is levied."

According to Wharton's Law Lexicon, 14th Edition, the word "Rate" means- "A contribution levied by some public body for a public purpose, as a poor rate, a highway rate, a sewers rate, upon, as a general rule, the occupiers of property within a parish or other area.

'The term 'rateis also used to mean a charge by a water, gas, railway, or other public undertaking for services rendered."

In BLACK'S LAW DICTIONARY, Ninth Edition, the word "Rate" has been defined as under:--

(1) Proportional or relative value; the proportion by which quantity or value is adjusted<rate of inflation>

(2) An amount paid or charged for a good or service<the rate for a business-class fare is $550> According to ENCYCLOPAEDIC LAW DICTIONARY, (Legal & Commercial), By Dr. A. R. Biswas, the word "Rate" means- "Rates are the principal means by which money to defray local Government expenses is raised by direct levy on occupiers, or in certain cases owners of property within the area of the authority making the rate. Halsbury's laws of England, 3rd Edn., Vol. 32, P.3.

'Rateincludes any fare, charge or other payment for the carriage of any passenger, animal or goods."

The definition of word "Rate" has been given by The Major Law Lexicon, By P Ramanatha Aiyar's, 4th Edition, in the following manner:-- "Rate" defined. [N.B. This word is also used in combination with other words (as) occupier's rate; Owner's rate; Rural policy-rate.] "Rate" includes any fare, charge or other payment for the carriage of any passenger, animal or goods as Railway rate.

"Rate" includes any toll, rent, rate, fee or charge leviable under this Act.

"Rate" includes any fare, charge, or other payment for the carriage of passengers, animals or goods."

Now reverting to word "Charge" the same has been defined in Wharton's Law Lexicon, 14th Edition as under:-- "Charge: A burden, duty, or trust; when attached to property."

According to ADVANCED LAW LEXICON by P Ramanatha Aiyar's, 4th Edition, Volume 1 & 4, the word "Charge" means- "Obligation to meet a debt, a debit to an account, or the process of debiting. It is also a legal interest in land agreed by a borrower to secure a lone that gives the charge (often a bank or building society) a priority right to repayment when the land is sold. A creditor's interest in company property is also called charge and must be registered with the Registrar of Companies.

Includes all taxes.

The term 'chargesin relation of fixation of price must be read ejusdem generis taking colour from the succeeding terms-rates, duties and taxes, under Cl. 2(d). "

As far as the word "Surcharge" is concerned the same has been defined in Black's Law Dictionary, Ninth Edition, in the following manner:-- "Surcharge, 1. n. An additional tax, charge, or cost, usu. One that is excessive.2. An additional load or burden.

3. A second or further mortgage.

4. The omission of a proper credit on an account. 5.

The amount that a court may charge a fiduciary that has breached its duty.

6. An overprint on a stamp, esp. One that changes its face value.

7. The overstocking of an area with animals."

In Aiyer's Judicial Dictionary, 10th Edition, the word "Surcharge" has been defined in the following way:-- "Surcharge: "An overcharge of what is just and right".

According to Ballantine's Law Dictionary, 3rd-Edition, the word "Surcharge" means - "An additional amount added to the usual charge, an exaction."

In Black's Law Dictionary, 4th Edition, the word "Surcharge" has been interpreted as under:-- "An over-charge; an exaction imposed or encumbrance beyond what is just or right, or beyond one's authority or power."

After comparison of afore-quoted definitions one thing is clear that word "Surcharge" is entirely different from other words and accumulatively it means something chargeable over and above the original levy in whatever shape it may be.

18. Now coming to the point as to whether the Surcharge is a tax, I am of the view that a bare reading of section 31(5) of the Act, 1997 renders it indubitably clear that neither it is an independent levy nor a tax rather is part of tariff to be determined by the NEPRA. When the Legislator has declared it as part of tariff, the same cannot be considered as an independent tax. The said preposition also came under discussion before the apex court of the country in the matter of Gadoon Textile Mills and 814 others (supra) wherein it has been dealt with in the following words:- "

40. After having gone through the record, we are of the view that surcharge and additional surcharge are in substance part of electricity tariff and are not taxes. The use of the above words or use of word "levy" will not change the nature of the charge, the same is to be ascertained on the basis of the facts as a whole and attending circumstances." (emphasis provided)

As far as question regarding power of the Government to impose any surcharge is concerned, it is observed that for determination of said question perusal of section 31 of the Act, 1997 is very conducive, which for ready reference is reproduced herein below:--

331. Tariff (1)---As soon as may be, but not later than six .Months from the commencement of this Act, the Authority shall determine and prescribe procedures and 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) keep in view the research, development and capital investment programme costs of licensee;

(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 tariffs 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 customers and other interested parties to participate meaningfully in the tariff approval process; and protection for refund, if any, to customers 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; Provided further that the Authority .May, on a monthly basis and not later than a period of seven days, make adjustments in the approved tariff on account of, any variations in the fuel charges and, policy guidelines as the Federal Government may issue and, notify the tariff so adjusted in the official Gazette.

(5) Each distribution company shall pay to the Federal Government such surcharge as the Federal Government, from time to time, notify in respect of each unit of electric power sold to the consumers and any amount paid under this subsection shall be considered as a cost incurred by the distribution company to be included in the tariff determined by the Authority. "(emphasis provided)

According to afore-quoted provision of law, in particular section 31(5) of the Act, 1997, the Government enjoys exclusive power to impose I surcharge on electricity against a distribution company. There is no cavil with the proposition that Government is bound to notify tariff as determined by the N EPRA in respect of 'Tariff', 'Chargeor 'Ratebut regarding imposition of surcharge in terms of section 31(5) of the Act, 1997, the Government enjoys the exclusive poweRs, Further, the question regarding imposition of surcharge and additional surcharge in electricity bill came under discussion before the Hon'ble Supreme Court of Pakistan in the case of Gadoon Textile Mills and 814 others (Supra) wherein the law has been laid to the following effect:--- "39. We may now take up the question as to the legality of the surcharge and additional surcharge. It was vehemently urged by Messrs Abdul Hafeez Pirzada and Khalid Anwar that the above two levies are in fact taxes and not part of tariff and, therefore, WAPDA has no power under the Act to impose the same; whereas Mr. Fakhruddin G. Ebrahim's submission was that a perusal of the documents on record indicates that in substance and in fact they are part of electricity tariff and they are not taxes. If we were to hold that the above two levies are taxes the same would be ultra vires the power of WAPDA. However, if we were to agree with Mr.Fakhruddin G. Ebrahim's above submission, then the next question which would require consideration would be, whether the same are violative of any provisions of the Act or any law or principle of law.............................................................................................................

12. In the result we are unable to sustain the view of the High Court. The question that was referred must be answered in the affirmative and in favour of the Revenue. In view of the nature of the points involved the parties are left to bear their own costs in this Court, certificate is dismissed. "

(emphasis provided)

If we see the nature of Surcharge, subject matter of these petitions, it is conspicuously clear that the same is nothing else merely because of a different nomenclature as shown in the break-up of electricity bills separately just for keeping different heads of account of various imposts and to demonstrate transparency of demand to the consumers but appendage of the tariff determined by the NEPRA. As a net conclusion of the discussion made in this paragraph, the Surcharge, under discussion, cannot be considered as independent tax or levy and government enjoys power to impose the same.

19. The hub of arguments of the learned counsel for the petitioners, in particular Mian Mehmood Rashid, Advocate is that impugned surcharge has been imposed without the intervention of NEPRA.

In this regard, I am of the humble view that the Act, 1997 was promulgated on 6-12-1997 to regulate the affairs of Generation, Transmission and Distribution of Electric Power and other allied matters and the NEPRA has been established under section 3 thereof. According to section 7 of the Act, 1997 the NEPRA has been vested with the following powers and functions:-

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 licences and renewal thereof; prescribe fines for contravention of the provisions of this Act;

(g) review its orders, decisions or determinations;

(h) settle disputes between the licensees;

(i) issue guidelines and standards operating procedures; and

(j) 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 the operation of electric power services and for continuous and efficient supply of such services;

(c) encourage uniform industry standards and code of conduct for generation, transmission and distribution companies;

(d) tender advice to public sector project;

(e) submit reports to the Federal Government in respect of activities of generation, transmission and distribution companies; and

(9) perform any other function which is incidental or consequential to any of the aforesaid functions.

(4) Notwithstanding anything contained in this Act, the Government of a Province may construct power houses and grid stations and lay transmission lines for use within the Province and determine the tariff for distribution of electricity within the Province.

(5) Before approving the tariff for the supply of electric power by generation companies using hydro-electric plant, the Authority shall consider the recommendations of the Government of the Province in which such generation facility is located.

(6) In performing its functions under this Act, the Authority shall, as far as practicable, protect the interests of consumers and companies providing electric power services in accordance with guidelines, not inconsistent with the provisions of this Act, laid down by the Federal Government.

A glance over the afore-quoted provision, in particular section 7(3)(a), makes it crystal clear that though NEPRA has been given multiple tasks in connection with the Generation, Transmission and Distribution of electricity, including determination of tariff, rates, charges and other terms and conditions for supply of electric power services by Generation, Transmission and Distribution Companies but nowhere it has been given any authority to determine the quantum of Surcharge. It is well entrenched by now that while interpreting any provision of law, the ordinary meaning of a word used therein should be followed until and unless the context provides otherwise. Insofar as question, under M discussion, is concerned, suffice it to observe that when the legislator has knowingly confined the jurisdiction of NEPRA to determine "Rate", "Tariff" and "Charge" excluding "Surcharge" this Court, in no way, can hold that NEPRA has the authority to determine the same while introducing an entirely different meaning as against the explicit terminology of section 31 of the Act, 1997 as the same would amount to deviate from well-recognized principles of Interpretation of a Statute. However, if the government decides to refer the matter to NEPRA prior to imposition of Surcharge as has been decided under the National Power Tariff and Subsidy Policy Guidelines, 2014, then the situation would be entirely different. The discussion in the fore-going lines leads to N indubitable conclusion that it is optional for the Government either to refer the matter to NEPRA prior to imposition of Surcharge or impose the same directly while exercising powers as contemplated under section 31(5) of the Act, 1997.

Even otherwise, if the intention of the legislator was to put a condition of prior approval by the Government from NEPRA while imposing any Surcharge there was no need to mention under section 31(5) of the Act, 1997 that the Surcharge so imposed shall be considered as cost incurred by the DISCO to be included in the tariff determined by NEPRA. When the intent of the legislator is explicit that imposition of Surcharge in the wake of section 31(5) of the Act, 1997, shall be considered as cost of electricity incurred by the Distribution Company thus the same cannot be intermingled with the tariff to be determined by NEPRA under section 31(4) of the Act, 1997,

20. The next ticklish question is as to whether a Notification issued by the Government under section 31(4) of the Act, 1997 can be considered as having been issued under section 31(5) of the said Act. To resolve the controversy, a cursory glance over the notifications through which the impugned surcharge was imposed twice firstly in the year 2011 and secondly in the year 2013, is of much importance, which for purposes of reference are being reproduced herein below: - "Government of Pakistan Ministry of Water and Power Islamabad the 15th March, 2011.

NOTIFICATION S.R.0.235(1)12011. In pursuance of subsection (4) of section 31 of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 (XL of 1997), and in supersession of its Notification No,S.R.O. No,1127(I)/2009, dated the 21st December, 2009, the Federal. Government is pleased to notify the National Electric Power Regulatory Authority's determination as per Schedule-I to this notification for the quarter July-September, 2010 with effect from 1st October, 2010 and applicable tariff as per Schedule- II to this notification. In respect of the FESCO and it is notified that FESCO shall receive payments from its consumers at the rates as per Schedule-II. The difference between the relevant rates determined by NEPRA as per Schedule-I and the rates charged from the consumers as per Schedule-II shall be paid to FESCO by the Federal Government.

Provided that there shall be levied a surcharge @ 2% on the consumption of electricity by every category of electricity consumer mentioned in Schedule-II except consumption up to 300 units "Residential-Al ".

Provided further that consumer of domestic category "Residential-Al " will be billed and given benefit of all previous, slabs of the tariff as per existing procedure.

Provided also that there shall be levied till the 31st December, 2015, an additional charge at the rate of Rs,0.10/kwh on the consumption of electricity by every category of electricity consumer mentioned in Schedule- II except the lifeline domestic consumers of the category "Residential-Al " and such additional charges:

(i) Shall not form a part while calculating the difference between the relevant rates of Schedule-1 and Schedule-H and

(ii) Shall be deposited in a Fund called the "Neelum Jhelum Hydro Power Development Fund" to be kept in the Escrow Account of the Neelum-Jhelum Company for exclusive use of the Neelum- Jhelum Hydro Power Project.

The Fuel Price Adjustment Mechanism is placed at Annex-I, FESCO Power Purchase Price at Annex- II and the Terms and Conditions at Annex-III to this notification."

"Government of Pakistan Ministry of Water and Power Islamabad the 5th August, 2013.

NOTIFICATION S.R.O. 700(1)/2013. In pursuance of subsection (4) of section 31 of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 (XL of 1997), and in supersession of its Notification No,S.R.O. No,235(1)/2011, dated the 15th March, 2011, the Federal Government is pleased to notify the National Electric Power Regulatory Authority's determination as per Schedule-I to this notification with effect from the 1st July, 2012 and applicable tariff as per Schedule-II to this notification with immediate effect, in respect of the FESCO and it is notified that FESCO shall receive payments from its consumers at the rates as per Schedule-H. The difference between the relevant rates determined by NEPRA as per Schedule-I and the rates charged from the consumers as per Schedule-II shall be paid to FESCO by the Federal Government.

Provided that consumer of domestic category "Residential-Al " will be billed and given benefit of all previous slabs of the tariff as per existing procedure.

Provided that there shall be levied till the 31st December, 2015, an additional charge at the rate of 1.10/kwh on the consumption of electricity by every category of electricity consumer mentioned in Schedule- II except the lifeline domestic consumers of the category "Residential A-1 " and such additional charges

(a) Shall not form a part while calculating the difference between the relevant rates of Schedule-1 and Schedule-II and

(b) Shall be deposited in a Fund called the "Neelum Jhelum Hydro Power Development Fund" to be kept in the Escrow Account of the Neelum-Jhelum Company for exclusive use of the Neelum Jhelum Hydro Power Project.

2. The Order of the Authority is placed at Annex-l, Fuel Price Adjustment Mechanism at Annex-II, FESCO Power Purchase Price at Annex-III and the Terms and Conditions at Annex-IV to this notification."

A perusal of first proviso to Notification dated 15-3-2011 shows that Government proceeded to impose Surcharge at the rate of 2% against all types of electricity consumers excluding those having tariff "Residential Al". Similarly, through Notification, dated 5-8-2013, the Government while issuing Tariffs for different categories of consumers in the Schedule under the heading of "Industrial Supply Tariffs" imposed Surcharge by the name of "EQ Surcharge" at the rate of Rs,0.81 per KWH . In both the Notifications the word is "Surcharge" and in view of the discussion made in the foregoing paragraphs, I have no doubt in my mind to hold that the same was imposed by the Government while exercising powers under section 31(5) of the Act, 1997 as the nomenclature of surcharge has least relevancy rather the purposes and the background of its imposition are pivotal. In this regard, I seek guidance from the judgment of the august Supreme Court in the case of Gadoon Textile Mills and 814 others (supra) wherein the apex court of the country, while determining the validity of a surcharge on the basis of nomenclature, has inter alia held as follows:-- "**If the tariff rates are fixed within the parameters laid down by above subsection (2) of section 25 of the Act, whether the same are recovered under the nomenclature of electricity charges or surcharge or additional surcharge, it does not matter. No exception can be taken to the same."

As far as the plea of the petitioners that as the Notifications in question having not been specifically issued under section 31(5) of the Act, 1997 cannot be read under the said provision is concerned, I am of the humble view that omission to mention the relevant provision of law Q or wrong mentioning thereof does not make any difference especially when the context and the language of a document vividly encompasses the purposes and the legal backing thereof. In this regard, I stand guided by the judgment of the apex Court of the country reported as Zaman Cement Company (Pvt.) Ltd. v. Central Board of Revenue and others (2002 SCMR 312) wherein it has inter alia been observed as under:-- "8. There is no denying the fact that while, interpreting a notification "the purpose or purposes for which a notification is issued would be relevant in determining the vires of a notification. One of the practical and effective ways of proliferating the purpose is to see how far the suggested meaning destroys and defeats or promotes the ultimate purpose.

In this research the Court is not confined to the literal meaning of the words used in the notification but it has to adopt a rational attitude by attempting to align its vision to that of the draftsman while drafting the notification in question. "(emphasis provided).

Further, a learned Division Bench of Sindh High Court, in the case of Qurban v. Senior Member, Board of Revenue, Sindh (2000 CLC 1083), while clinching the issue, under discussion, has observed as under:-- "*But the fact remains that misquoting of provision of law would not render particular proceedings incompetent, provided the jurisdiction invoked is available under the law....

(emphasis provided)

It is important to mention over here that when the government has been empowered to levy surcharge in terms of section 31(5) of the Act, 1997, neither any embargo can be put against it to impose the same while notifying the tariff determined by NEPRA nor the said notification can be declared illegal merely for the reason that it does not specifically find mention of section 31(5) of the Act, 1997. At the cost of repetition it is made clear that for the first time the surcharge was introduced in the year 2011 in the shape of a proviso to the Notification issued under section 31(4) of the Act, 1997 and subsequently EQ Surcharge was included in the Schedule of tariff determined for Industrial consumers through Notification dated 5-8-2013, thus, issuance of independent notification for imposition of said Surcharge was not necessary.

21. As far as the plea of the petitioners that as the impugned EQ Surcharge was imposed without approval by the National Assembly and Senate the same is not justified, is concerned, suffice it to observe that section 31(5) of the Act, 1997 was incorporated in the Act, 1997 through Finance Act, 2008. Article 73 of the Constitution deals with the procedure regarding Money Bills which for ready reference is reproduced herein below:-- "73. Procedure with respect to Money Bills.---(1) Notwithstanding anything contained in Article 70 or Article 71, a Money Bill shall originate in the National Assembly: Provided that simultaneously when a Money Bill, including the Finance Bill containing the Annual Budget Statement, is presented in the National Assembly, a copy thereof shall be transmitted to the Senate which may, within fourteen days, make recommendations thereon to the National Assembly.

(IA) The National Assembly shall, consider the recommendations of the Senate and after the bill has been passed by the Assembly with or without incorporating the recommendations of the Senate, it shall be presented to the President for assent.

(2) For the purposes of this Chapter, a Bill or amendment shall be deemed to be a Money Bill if it contains provisions dealing with all or any of the following matters, namely :----

(a) the imposition, abolition, remission, alteration or regulation of any tax;

(b) the borrowing of money, or the giving of any guarantee, by the Federal Government, or the amendment of the law relating to the financial obligations of that Government;

(c) the custody of the Federal Consolidated Fund, the payment of moneys into, or the issue of moneys from, that Fund;

(d) the imposition of a charge upon the Federal Consolidated Fund, or the abolition or alteration of any such charge;

(e) the receipt of moneys on account of the Public Account of the Federation, the custody or issue of such moneys;

(D) the audit of the accounts of the Federal Government or a Provincial Government ; and

(g) any matter incidental to any of the matters specified in the preceding paragraphs.

(3) A Bill shall not be deemed to be a Money Bill by reason only that it provides-

(a) for the imposition or alteration of any fine or other pecuniary penalty, or for the demand or payment of a licence fee or a fee or charge for any service rendered ; or

(b) for the imposition, abolition, remission, alteration or regulation of any tax by any local authority or body for local purposes.

(4) If any question arises whether a Bill is a Money Bill or not, the decision of the Speaker of the National Assembly thereon shall be final.

(5) Every Money Bill presented to the President for assent shall bear a certificate under the hand of the Speaker of the National Assembly that it is a Money Bill, and such certificate shall be conclusive for all purposes and shall not be called in question."

According to sub-Article 4 (supra) the decision of the Speaker qua the nature of a Bill as to whether the same is a Money Bill or not is conclusive. In the matter, under discussion, the Parliament ventured to pass Finance Bill, 2008 after considering it as Money Bill. Further, a perusal of sub- Article (5) of the afore-quoted Article renders it explicitly clear that after approval of Money Bill by the National Assembly, it is not mandatory rather optional to refer to the same to the Senate.

Moreover, the certificate issued by Speaker of the National Assembly in support of authenticity of a Money Bill is considered sufficient for soliciting requisite assent of the President. Further, the said proposition has beautifully been dealt by a learned Division Bench of this court in the case of Chaudhry Sugar Mills Ltd. v. Govt. Of Punjab and others (2012 PTD 798), in the following manner:-- "4. Under our Constitution, a Money Bill has a unique position under Article 73(1A) of the Constitution. After being passed by the National Assembly, a Money Bill must be presented to the President for his assent. When so presented, the President must assent the same within 10 days in terms of the duty imposed by Article 75(1) (b) of the Constitution read with Article 75(1)(a) thereof.

Consequently, a duly passed Money Bill is legislation that can be deemed under Article 75(2) of the Constitution to have been assented by the President. Therefore, on the day a Money Bill is passed, it is a validly made law but one that comes into force not later than ten days from the date of its presentation for the Presidential assent. In terms of proviso to Article 73(1) of the Constitution, a Finance Bill is a Money Bill that contains the Annual Budget statement for that year.

For the foregoing reasons the duly passed Finance Bill, 2007 is valid legislation which can be analogized with a 'passedAct for the purposes of section 22 of the General Clauses Act, 1897.

Accordingly the challenge made by the appellants has no force."

Further a Full Bench of the Sindh High Court, Karachi, in the case reported as Pakistan Burmah Shell Ltd. And another v. Federation of Pakistan and 3 others (1998 PTD 1804) while determining the authenticity of a Money Bill after assent by the President has inter alia held as under:-- "* * * * *It may be pointed out that although Article 73 of the Constitution provides for a different procedure in respect of Money Bills but when the Bill has been passed by the National Assembly and it receives assent by the President, it will have effect like an Act of Parliament. The fact that the Money Bill was not transmitted to Senate, in no case places it at a lower pedestal when compared to any other Act passed by the Parliament. However, after raising the contention, Mr. Khalid Ishaque did not support it by full length arguments. We would, therefore, refrain from dilating further on this question." (emphasis provided)

Even otherwise, according to mandate given under Article 77 read with 97 of the Constitution, the Federation enjoys power qua the matters in respect whereof the Parliament has been empowered to legislate. The said question came under discussion before the august Supreme Court of Pakistan in case of Messrs Elahi Cotton Mills Ltd. And others (Supra) wherein it has inter alia been held as under: - "The power of taxation rests on necessity, and is an essential and inherent attribute of sovereignty belonging as a matter of right to every independent State or Government. Such power is an inherent one, and is not dependent on any grant by the Constitution, or the consent of the owners of property subject to taxation; Constitutional provisions with, respect to taxation constitute a limitation on the legislative power and not a grant of power. The power to tax rests primarily in the State, to be exercised by its Legislature, as discussed infra section 7, and the State may exercise the power directly or may delegate such power as political sub-divisions of the State, as considered in infra section 8. The H exercise of the taxing power is a high Governmental function, in invitum in nature. "(emphasis provided).

There is nobody denying the competence of the National Assembly to introduce any amendment in the laws relating to matters enumerated under Article 73 of the Constitution while bypassing the procedure provided under Articles 71 and 72 of the Constitution. Any act of the National Assembly towards amendment of any provision of law relating to a subject enumerated under Article 73 of the Constitution cannot be declared ultra vires merely for the reason that the matter was not assented to by the Upper House (Senate). As far as addition of subsection (5) under section 31 of the Act, 1997, through which the government was empowered to impose surcharge, is concerned, suffice it to note that the same still holds the field and till the time the same is declared ultra vires by a competent forum, any action taken thereunder cannot be dubbed as unconstitutional.

22. It has emphatically been argued on behalf of the petitioners that the Surcharge in question was levied without resorting to CCI. Article 154 of the Constitution deals with formation and jurisdiction of CCI, which for convenience of reference is reproduced herein below:--

154. Functions and rules of procedure.--(1) The Council shall formulate and regulate policies in relation to matters in Part II of the Federal Legislative List and shall exercise supervision and control over related institutions. (emphasis provided)

(2) The Council shall be constituted within thirty days of the Prime Minister taking oath of office.

(3) The Council shall have a permanent Secretariat and shall meet at least once in ninety days: Provided that the Prime Minister may convene a meeting on the request of a Province on an urgent matter.

(4) The decisions of the Council shall be expressed in terms of the opinion of the majority.

(5) Until [Majlis-e-Shoora (Parliament)] makes provision by law in this behalf, the Council may make its rules of procedure.

Majlis-e-Shoora (Parliament)] in joint sitting may from time to time by resolution issue directions through the Federal Government to the Council generally or in a particular matter to take action as Majlis-e-Shoora (Parliament) may deem just and proper and such directions shall be binding on the Council.

(7) If the Federal Government or a Provincial Government is dissatisfied with a decision of the council, it may refer the matter to [Majlis-e-Shoora (Parliament)] in a joint sitting whose decision in this behalf shall be final.

A cursory glance over the afore-quoted Article shows that the powers of CCI are limited to formulate and regulate policies in relation to matters in Part-II of the Legislative List. The following subjects form Part-II of the Federal Legislative List: - "PART II

1. Railways.

2 Mineral oil and natural gas; liquids and substances declared by Federal Law to be dangerously inflammable.

3. Development of industries, where development under Federal control is declared by Federal law to be expedient in the public interest; institutions, establishments, bodies and corporations administered or managed by the Federal Government immediately before the commencing day, including the Pakistan Water and Power Development Authority and the Pakistan Industrial Development Corporation; all undertakings, projects and schemes of such institutions, establishments, bodies and corporations, industries, projects and undertakings owned wholly or partially by the Federation or by a corporation set up by the Federation.

Electricity (emphasis provided)

Major ports, that is to say, the declaration and delimitation of such ports, and the constitution and powers of port authorities therein.

6. All regulatory authorities established under a Federal law.

7. National planning and national economic coordination including planning and coordination of scientific and technological research.

8. Supervision and management of public debt.

9. Census,

10. Extension of the powers and jurisdiction of members of a police force belonging to any Province to any area in another Province, but not so as to enable the police of one Province to exercise powers and jurisdiction in another Province without the consent of the Government of that Province; extension of the powers and jurisdiction of members of a police force belonging to any Province to railway areas outside that Province.

11. Legal, medical and other professions.

12. Standards in institutions for higher education and research, scientific and technical institutions.

13. Inter-provincial matters and co-ordination.

14. Council of Common Interests.

15. Fees in respect of any of the matters in his Part but not including fees taken in any Court.

16. Offences against laws with respect to any of the matters in this Part.

17. Inquiries and statistics for the purposes of any of the matters in this Part.

18. Matters incidental or ancillary to any matter enumerated in this Part."

A perusal of afore-quoted Part-II of the Federal Legislative List shows that subject of electricity is available at Serial No,4. Now the next query is as to which extent the CCI can formulate or regulate policies relating to the subject of electricity. To me, the CCI can form policies regarding, electricity in respect of new projects or for resolution of a dispute arising between two federating units but its scope cannot be lowered down to determine Surcharge especially when after enactment of the Act, 1997 the matters regarding Generation, Transmission and Distribution are being controlled by NEPRA In this scenario, this Court is of the opinion that no illegality has been committed by the government while imposing surcharge without intervention of CCI. Moreover, a learned Division Bench of this Court, while discussing the role of the CCI towards determination of tariff, in the case of Shaikh Nadeem Younas, Chief Executive, Noble Textile Mills Pattoki District Kasur (Supra) has inter alia observed as under:-- "17. Keeping in view the above-referred background and contentions, first issue to be decided is as to who is to fix the tariff. Argument from the petitionersside except by Mr. Qamar Afzal Khan, Advocate is that the tariff for sale of power is to be fixed by the Provincial Government within whose territorial jurisdiction the energy is being distributed by WAPDA. Reliance in this behalf is placed on the provisions of Article 157 of the Constitution which has been reproduced in the earlier part of the judgment. Argument of Mr. Qamar Afzal Khan, Advocate is that it is the Council of Common Interests alone, who can fix rates of tariff and neither the Authority nor the Provincial Government is authorised to fix the price. Case of the respondents, however, is that fixation of the price of tariff is the prerogative of the Authority with the approval of the Federal Government as per provisions of section 25 of the WAPDA Act, 1958------------------------------------------- -------------------------------------------------- Therefore, the argument that the tariff for distribution of electricity is to be determined by the Provincial Government is misconceived and, hence, is repelled. For the same reasons argument addressed by Mr. Qamar Afzal Khan, Advocate to the effect that it is the Council of Common Interests who alone can determine the price of electricity, the same is also misconceived and is based upon misreading of the relevant Article hence, is repelled. (emphasis provided)"

23. Now coming to the proposition as to whether after 18th Amendment the provincial government has exclusive power to levy any tax or surcharge on distribution of electricity in the province in terms of Article 157 of the Constitution, I am of the view that though the provincial government has been empowered to levy tax on distribution of electricity in the province but the said fact does not take away the powers of the Federal government to do so mainly for the reason that exercise of such powers by the provincial government is not mandatory rather optional. It is well entrenched by now that when both Federal and Provincial Governments have simultaneous jurisdiction to legislate qua a particular subject, preference should be given to the Federal Government. Further, even after the introduction of 18th Amendment subject of electricity is available at Item No,4 in the Federal Legislative List thus the Federal Government was fully competent to impose the Surcharge under discussion. In this backdrop, powers of the Federal government to levy any surcharge on the electricity cannot be declared illegal merely on the ground that provincial government enjoys the power to impose such levy/tax. The said proposition also came under discussion before the august Supreme Court of Pakistan in the case of Gadoon Textile Mills and 814 others (supra) wherein it has inter alia been held as under:-- "18. It will not be out of context to point out that in the above Article 157, the word "may" has been employed and not the word "shall", meaning thereby that it is an enabling provision and not a mandatory provision. The Federal Government and the Government of a Province have discretion either to act under the above Article or not to act. In other words, there is no Constitutional obligation to carry out words or to take action mentioned in the above Article. "

(emphasis provided)

It is admitted position that even after 18th Amendment, the electricity is simultaneously on the Federal and as well as Provincial Legislative List, hence the Federal Government as well as the Provincial Government can legislate qua the subject without entering into arena of each other. In these circumstances, the argument raised on the petitioners side that the surcharge on the distribution of electricity is to be imposed solely by the Provincial Government is misconceived and is accordingly spurned.

24. Insofar as the contention of the petitioners that the impugned Surcharge being excessive and unreasonable is not sustainable, is concerned, suffice it to observe that there is no denying the fact that the price of the material which form components of the fuel being used for production of electricity has increased manifold. To exemplify the said fact day to day increase in price of furnace oil can be quoted as precedent. According to the detail narrated by the learned counsel appearing on behalf of the Ministry of Water and Power, average cost of a unit of electricity produced from all sources comes to Rs,22/23 approximately whereas the same is being sold to the consumers at the rate of Rs,18/19 per unit. In this backdrop, the levy of Surcharge for a limited period cannot be considered exorbitant or excessive especially in the wake of the subsidy being provided by the government to different categories of electricity consumers,

25. Reverting to the question regarding powers of this Court to take care of an action of the executive, I am of the considered opinion that there is no second thought that this Court can exercise its powers as contemplated under Article 199 of the Constitution to determine the legality of an order passed by the executive provided it is established on record that the action impugned seems to be arbitrary or mala fide on account of colourable exercise on the part of the competent authority or the same appears to be violative of any law of the land. Reliance in this regard can be placed on the cases reported as Dossani Travels (Pvt.) Ltd. And others v. Messrs Travels Shop (Pvt.)

Ltd. And others (PLD 2014 SC 1) wherein the Hon'ble Supreme Court has inter alia been observed as follows:-- "*Besides the task of allocating such quotas and making arrangements for Hall fell within the policy making domain of MORA and in absence of any illegality, arbitrariness or established mala fides, it was not open for the learned High Court to annul the policy framed by the competent authority. "(emphasis provided)

Further, the apex court of the country in the case of Dr. Akhtar Hassan Khan and others v.

Federation of Pakistan and others (2012 SCMR 455) while highlighting guidelines for judicial review of a government policy has inter alia observed as under:-- "Though its policies sometimes may be open to criticism but that is for the concerned economists in the government or academics to examine and opine but once the Competent Authority in the government has taken a decision backed by law, it would not be in consonance with the well established norms of judicial review to interfere in policy making domain of the executive authority."

If we adjudge the validity of the impugned Notifications on the touchstone of the principles highlighted in the above quoted judgment, it is unequivocally clear that the same do not fall within the category of documents where exercise of power of judicial review by this court is justified. The said conclusion finds further support when the same is visualized in the light of the fact that the government has been empowered to levy surcharge in terms of section 31(5) of the Act, 1997.

Moreover, the interference by this court in the impugned notifications is also uncalled for the reason that the provision under which the same have been issued still holds the field and the compelling circumstances behind their issuance are also apparent.

26. It has vehemently been argued on the petitioners side that though the vires of subsection (5) of section 31 of the Act, 1997 have not been specifically called in question but this court can strike it down by following the rule of "reading down". In this regard. I am of the humble view that while applying principle of harmonious interpretation of a statute the courts may take note of matters of common knowledge, the history of the times and may assume every state of facts which can be conceived. It must always be presumed that the Legislature understands Y and correctly appreciates the need of its own people and that discrimination, if any, is based on adequate and intelligible grounds. Thus, in routine the courts would accept an interpretation, which would be in favour of constitutionality rather than the one which would render the same unconstitutional as the latter is one of the last resorts. On the other hand, when the Court, during the course of hearing of a matter, comes to the conclusion that any provision of a statute offends against the parent legislation or is violative of any provision of Constitution or the same was enacted by an incompetent authority can declare it ultra vires while following the principle of "reading down" or "reading into" the provision irrespective of the fact as to whether the vires of said provision has been assailed before it or not. The principle of reading down has beautifully been dealt with by apex Court of the country in the case reported as Province of Sindh through Chief Secretary and others v. M.Q.M. Through Deputy Convener and others (PLD 2014 SC 531), wherein it has inter alia has held as under:-- "* An argument was raised that the Court should make every effort to save the statute and this can be done by invoking the principle of 'reading inor 'reading down'. However in this context two principles have to be kept in view. First, that the object of 'reading downis primarily to save the statute and in doing so the paramount question would be whether in the event of reading down, can the statute remain functional? Second, would the legislature have enacted the law, if that issue had been brought to its notice which is being agitated before the Court" (emphasis provided).

The question regarding "reading down" also came under discussion in Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz (PLD 2011 SC 260) wherein it has inter alia been observed as under:-- "Because according to the literal approach of reading a statute, the statute has to be read literally by giving the words used therein, ordinary, natural and grammatical meaning. Besides, the addition and substraction of a word in a statute is not justified, except where for the interpretation thereof the principle of reading in and reading down may be pressed into service in certain cases; thus when in Entry No,9 actionable claim has not been provided by the legislature, it shall be improper and shall impinge upon the legislative intent and the rules of interpretation to add this expression to the clause/entry. "(emphasis provided)

Further, a full Bench of this Court in the case reported as Arshad Mehmood v.

Commissioner/Delimitation Authority, Gujranwala and others (PLD 2014 Lah. 221), has inter alia held as under:-- "* 'The theory of reading down is a rule of interpretation resorted to by the Courts where a provision, read literally, seems to offend a fundamental right, or falls outside the competence of the particular legislature. In interpreting the provision of a statute the courts will presume that the legislation was intended to be inter vires and also reasonable. The rule followed is that the enactment is interpreted consistent with the presumption which imputes to the legislature an intention of limiting the direct operation of its enactment to the extent that is permissible.

Legislature is presumed to be aware of its limitations and is also attributed an intention not to overstep its limits. To keep the act within the limit of its scope and not to disturb the existing law beyond what the object requires, it is construed as operative between certain persons, or in certain circumstances, or for certain purposes only, even though the language expresses no such circumstances of the field of operation. To sustain law by interpretation is the rule. The reading down of a provision of a statute puts into operation the principle that so far is reasonably possible to do so, the legislation should be construed as being within its power. It has the principal effect that where an Act is expressed in language of a generality which makes it capable, if read literally, of applying to matters beyond the relevant legislative power, the court will construe it in a more limited sense so as to keep it within power. If certain provision of law construed in one way would make them consistent with the Constitution and another interpretation would render them unconstitutional the court would lean in favour of the former construction. (emphasis provided)

Moreover, this Court, in the case of Lone Cold Storage, Lahore v. Revenue Officer, Lahore Electric Power Co. (2010 PTD 2502), has inter alia observed as under:-- "34. It is settled law that where literal construction or plain meaning causes hardship, futility, absurdity or uncertainty, purposive or contextual construction is preferred to arrive at a more just, reasonable and sensible result. "Every law is designed to further the ends of justice and not to frustrate it on mere technicalities. Though the function of the courts is only to expound the law and not to legislate, nonetheless the legislature cannot be asked to sit to resolve the difficulties in the implementation of its intention and the spirit of the law. In such circumstances, it is the duty of the court to mould or creatively interpret the legislation by liberally interpreting the statute. The statutes must be interpreted to advance the cause of statute and not to defeat it...........

Further, a full Bench of this Court in the case of Rub Nawaz Dhadwana Advocate and others v. Rana Muhammad Akram Advocate and others (Writ Petition No,16793 of 2014) while dealing with the question regarding "reading down" a provision, has inter alia observed as under:-- "Professor A. Barak emphasizes the importance of "purposive interpretation" in the following manner: "The aim of interpretation in law is to realize the purpose of the law; the aim in interpreting a legal text (such as a constitution or statute) is to realize the purpose the text serves.

Law is thus a tool designed to realize a social goal. It is intended to ensure the social life of the community, on the one hand, and human rights, equality, and justice on the other. The history of law is a search for the proper balance between these goals, and the interpretation of the legal text must express this balance Every statute has a purpose, without which it is meaningless. This purpose, or ratio legis, is made up of the objectives, the goals, the interests, the values, the policy, and the function that the statute is designed to actualize. It comprises both subjective and objective elements. The judge must give the statute's language the meaning that best realizes its purpose." Subjective purpose is not the only purpose relevant to statutory interpretation, especially in situations where we lack information about that purpose. Even when we do have such information, it does not always help us in the interpretive task. Moreover, even when we do find useful information about the subjective purpose, we must keep in mind that focusing on legislative intent alone fails to regard the statute as a living organism in a changing environment. It is insensitive to the existence of the system in which the statute operates. It is not capable of integrating the individual statute into the framework of the whole legal system. It makes it difficult to bridge the gap between law and society. Thus, it does not allow the meaning of the statute to be developed as the legal system develops. Rather, it freezes the meaning of the statute at the historical moment of its legislation, which may no longer be relevant to the meaning of the statute in a modern democracy. If a judge relies too much on legislative intent, the statute ceases to fulfill its objective. As a result, the judge becomes merely a historian and an archaeologist and cannot fulfil his role as a judge. Instead of looking forward, the judge looks backward. The judge becomes sterile and frozen, creating stagnation instead of progress. Instead of acting in partnership with the legislative branch, the judge becomes subordinate to a historical legislature. This subservience does not accord with the role of the judge in a democracy. The objective purpose of the statute means the interests, values, objectives, policy and functions that the law should realize in a democracy. Just as the supremacy of fundamental values, principles, and human rights justifies judicial review of the constitutionality of statutes, so too must that supremacy assert itself in statutory interpretation. The judge must reflect these fundamental values in the interpretation of legislation. The judge should not narrow interpretation to the exclusive search for subjective legislative intent. He must also consider the "intention" of the legal system, for the statute is always wiser than the legislature. By doing so the judge gives the statute a dynamic meaning and thus bridges the gap between law and society."

33. Lord Denning in Macgor and St Mellons Rural District Council v New- port Corporation held: 'We do not sit here to pull the language of Parliament and of Ministers to pieces and make nonsense of it... We sit here to find out the intention of Parliament... And we do this better by filling the gaps and making sense of the enactment rather than by opening it up to destructive analysis "

(emphasis provided)

According to afore-quoted judgments the foremost consideration before the courts should be to save the statute while following the rule of "reading down" or "reading into" a provision. Secondly, it is to be seen that while following the said principle, can the statute remain functional. Insofar as the case in hand is concerned, the question which surfaces for adjudication by this court is that as to whether section 31(5) of the Act, 1997 can be declared ultra vires while following the principle of "reading down".In view of the guidelines framed in the afore-quoted judgments, firstly, it is to be seen that as to whether the insertion of subsection (5) under section 31 of the Act, 1997 offends against any provision of the parent statute (the Act, 1997). A cursory glance over the Act, 1997 in entirety renders it crystal clear that subsection (5) of section 31 of the Act, 1997 neither offends against any clear cut provision of the parent statute or the constitution nor runs against the purposes for which the Act, 1997 was promulgated inasmuch as the prime purpose for promulgation the Act, 1997 is to streamline the affairs regarding Generation, Transmission and Distribution whereas subsection (5) has 'been added just to enable the government to recover any amount which is to be incurred by it for implementation of uniform tariff irrespective of the determinations of NEPRA in respect of 'Rate'Chargeor 'Tariff'. Though the mainstay of the arguments of learned counsel for the petitioners is that after establishment of NEPRA, the government cannot impose independent surcharge against the tariff determined by NEPRA but the said plea is not worth consideration for the reason that from the discussion made in the foregoing paragraphs it is clear that imposition of surcharge does not fall within the domain of NEPRA. The second condition precedent for declaring a provision ultra vires while following the principle of "reading down" is the incompetence of the authority to enact said provision. It is admitted position that subsection (5) of section 31 of the Act, 1997 was added by virtue of Finance Act, 2008 and there is no denying the fact that National Assembly can amend any law or introduce any addition therein just to cope with the future situation through Finance Act while exercising powers vested under Article 73 of the Constitution. Thus, in the instant case both the most vital conditions for declaring a provision ultra vires while following rule of "reading down" are missing, thus the request of the petitioners for declaring subsection (5) of section 31 of the Act, 1997 as such cannot be acceded to.

27. It is imperative to observe over here that the petitioners have called in question the vires of Notifications whereby the Surcharge in question has been imposed. It is bounden duty of this court to follow the principles laid down by the august Supreme Court of Pakistan regarding Interpretation of Statutes relating to fiscal matteRs, The matter regarding interpretation of Statutes pertaining to fiscal matters came under discussion in the case reported as. H.R.C. No,40927-S of 2012 Application by Abdul Rehman Farooq Pirzada (PLD 2013 SC 829) in which the apex Court of the country, while highlighting the principles on the subject, has inter alia observed as under:- "The interpretation cannot be narrow and pedantic but the Courtsefforts should be to construe the same broadly, so that it may be able to meet the requirements of an ever changing society.

The general words cannot be construed in isolation but the same are to be construed in the context in which they are employed. In other words, their colour and contents are derived from the context." (emphasis provided).

Further the Hon'ble Supreme Court of Pakistan in the case of Elahi Cotton Mills (Supra), while setting down guidelines for interpretation of a Statute relating to taxation etc., has inter alia held as under:- - "31. From the above case-law and the treatises, inter alia the following principles of law are deducible:---

(i) ...........

(ii) That Courts while interpreting laws relating to economic activities view the same with greater latitude than the laws relating to civil rights such as freedom of speech, religion etc., keeping in view the complexity of economic problems which do not admit of solution through any doctrinaire or straitjacket formula as pointed out by Holmes, J. In one of his judgments.

(iii) ......................

(iv) ......................

(v) ........................

(vi) .......................

(vii) ......................

(viii) That while interpreting Constitutional provisions Court should keep in mind, social setting of the country, growing requirements of the society/nation, burning problems of the day and the complex issues facing the people, which the Legislature in its wisdom through legislation seeks to solve. The judicial approach should be dynamic rather than static, pragmatic and not pedantic and elastic rather, than rigid. "(emphasis provided).

Similarly, the Islamabad High Court, in the case of OMV Pakistan Exploration v. Commissioner of Inland Revenue (2013 PTD 1620) has inter alia observed as under:-- "*There is no doubt that legislative history of a fiscal statute could be traced and considered to understand its scope, but such an effort is not required to be made when there is no ambiguity in the statute itself.........................In the interpretation of statute levying taxes, it is established rule not to extend their provision by implication, beyond the clear import of the language used or to enlarge their operation so as to embrace matters not specifically pointed out. Reference for the sake of guidance may be made to PLD 1990 SC 332. "(emphasis provided).

If we adjudge the authenticity of impugned Notifications on the touchstone of the aforequoted judgments, there is no ambiguity left that the reasons advanced by the learned counsel for the petitioners do not justify their setting aside.

28. As far as question regarding discrimination qua imposition of impugned Surcharge is concerned, I am of the view that discrimination against a group or an individual implies making an adverse distinction with regard to some benefit, advantage or facility with an element of unfavourable biasness. Article 25 of the Constitution provides that all citizens are equal before law and entitled to equal protection of law viz. All persons subjected to a law should be treated alike both in respect Of privileges conferred and in the liabilities imposed. The equality must be amongst the equals. The guarantee enshrined under this Article is only that no person or class of persons shall be denied the same protection of law which is enjoyed by other persons or other classes in the same set of circumstances. It must, however, be kept in mind that though the persons similarly situated or in similar circumstances are to be treated in the same manner but the equality clause particularly the provision about the equal protection of the law does not connote that all citizens shall be treated alike under all set of circumstances and conditions. Equality of citizens does not mean that all laws must apply to all the subjects or that all subjects must have the same rights and liabilities. The concept of equality before the law does not involve the idea of absolute equality among human beings which is a physical impossibility. The protection of equal laws does not mean that all laws must be uniform. In nutshell, classification which is not arbitrary, capricious or violative of the doctrine of equality cannot be questioned in constitutional jurisdiction of this court.

In this respect, I stand guided by the various verdicts of the august Supreme Court of Pakistan including in the cases reported as Shahid Ahmed v. OGDC and others (2014 SCMR 1008), Human Rights Case No,40927-S of 2012 (PLD 2013 SC 829) and Secretary Economic Affairs Division, Islamabad and others v. Anwarul Haq Ahmed and others (2013 SCMR 1687). In the case of Secretary Economic Affairs Division, Islamabad and others (supra) the apex court of the country has laid law to the following effect:-- "22. With regard to the arguments of the learned counsel for the respondents-students that the charging of fee/endowment funds at higher rates from the students of SFS as compared to other students is discriminatory as well as violative of Article 9 read with Article 25 of the Constitution, it is to be noted that Article 25 provides that all citizens are equal before law and are entitled to equal protection of law, and that there shall be no discrimination on the basis of sex. However, by now it is well settled that equality clause does not prohibit classification for those differently circumstanced provided a rational standard is laid down. The doctrine of reasonable classification is founded on the assumption that the State has to perform multifarious activities and deal with a vast number of problems. The protection of Article 25 of the Constitution can be denied in peculiar circumstances of the case on basis of reasonable classification founded on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out." (emphasis provided)

While agitating the point of discrimination, learned counsel for the petitioners have argued that firstly the said surcharge has not been imposed against the consumers of KESE (now K-Electric) and secondly in the impugned notification, dated 5-8-2013, the same has been confined only to industrial consumeRs, Taking up the point regarding non-imposition of impugned surcharge against KESE (now K-Electric), it is observed that character of K-Electric is entirely different from the other DISCOs, GENCOs and Transmission Companies, inasmuch as it is the sole electric company in the country which has multiple licenses of F Generation, Transmission and Distribution, thus, said precedent cannot F be used to establish the discriminatory attitude on the part of the government while determining tariffs for different electric companies or imposing surcharge. At the cost of repetition, it is reiterated that the point of discrimination can be agitated when the similarly placed persons are treated differently but in the case in hand none of the distribution companies/licensees of the petitioners/consumers, have multiple licenses of Generation, Transmission and Distribution, thus, precedent of K-Electric cannot be quoted to press into service point of discrimination. The apex court of the country, in the matter of N.-W.F.P. Public Service Commission and others v. Muhammad Arif and others (2011 SCMR 848), while dilating upon the question of discrimination has held as under:- "8. In view of what has been discussed hereinabove it can be inferred safely that reasonable classification which is not arbitrary or violative of doctrine of equality cannot be questioned. We are not impressed by the contention made by the learned Advocate Supreme Court on behalf of respondents that it is a case of sheer discrimination because discrimination means "making a distinction or difference between things; a distinction; a difference; a distinguishing mark or characteristic; the power of observing differences accurately, or of making exact distinctions; discernment. But discrimination against a group or an individual implies making an adverse distinction with regard to some benefit, advantage or facility. Discrimination thus involves an element of unfavourbale bias and it is in that sense that the expression has to be understood in this context (Shirin Munir v. Government of Punjab (PLD 1990 SC 295), (Pakcom Limited v.

Federation of Pakistan (PLD 2011 SC 44). The learned Advocate Supreme Court has failed to point out any unfavourable bias which is an essential ingredient of discrimination and it is not understandable that how it can be pressed in to service. "(emphasis provided).

As far as contention of the petitioners that the surcharge in question has been imposed against industrial consumers only is concerned, suffice it to note that the same hardly establishes discrimination on the part of the government for the reason that different tariffs are determined for different consumers as is evident from the impugned notifications and the Schedules annexed therewith. Apparently, while determining tariffs for different category of consumers, the authorities concerned have to consider the geographic position of area, nature of supply and purpose of supply. Further, the apex court of the country in the case of Messrs Elahi Cotton Mills Ltd. And others (Supra), while dealing with the question regarding power of the Legislature to draw a line of distinction amongst different classes/groups of the society, has inter alia observed as under: -- "That the Legislature is competent to classify persons or properties into different categories subject to different rates of tax. But if the same class of property similarly situated is subject to an incidence of taxation, which results in inequality amongst holders of the same kind of property, it is liable to be struck down on account of infringement of the fundamental right relating to equality."

In Human Rights Case No,14392 of 2013 (supra) being relied by Mr.Azhar Siddique, Advocate, the august Supreme Court of Pakistan has directed that government should ensure provision of subsidy to the consumers who are unable to pay the raising price of electricity. In this regard, following lines from the said judgment are of prime importance:-- "Though subsidy is not the right of the consumers, the Government being responsible for their welfare may consider in near future to increase the rate of subsidy by extending its benefits to the consumers, who are not in a position to pay high charges of the electricity." (emphasis provided)

When the apex court of the country has drawn a line of distinction between different categories of consumers, it is not open for the petitioners to press the said point into service to establish discrimination. Further, it is observed without any fear of contradiction that industrial consumers are comparatively financial sound as compared to other categories of consumers, thus they cannot be yoked with domestic consumers etc. In respect of tariff of electricity.

29. Mr. Azhar Siddique, Advocate has argued that government cannot withdraw any subsidy previously enjoyed by citizens of the country in view of dictum laid down in the case Human Rights Case No,14392 of 2013 (supra). The said assertion of learned counsel seems to be worthless when the same is put in juxtaposition to the following lines from the said judgment of the apex court of the country in the said case:-- "*However, the exorbitant tariff was reinstated by NEPRA and the subsidy that is afforded to consumers was taken away under section 31 of the 1997 Act vide notification dated 10-10-2013 as noted in 22-10-2013. It is not disputed that Government has the power to take away subsidies In the judgment being relied upon by Mr.Azhar Siddique, Advocate the Hon'ble Supreme Court has held in unequivocal terms that provision of subsidy is not vested right and the government enjoys power to withdraw the same if already provided to the citizens. Moreover, said assertion becomes irrelevant when the same is considered while putting in juxtaposition to the fact that the question involved in these petitions revolves around imposition of impugned Surcharge and in no way deals with the grant or withdrawal of subsidy by the government. With utmost respect to the verdicts of the apex Court of the country, when the government is bound to provide electricity to certain categories of consumers at subsidized rates while considering it as their fundamental right, it also reserves the right to recover the expenditures being incurred on its Generation, Transmission and Distribution in addition to any other charges from the financially sound customeRs, In the wake of the economic condition of the government at the relevant time the imposition of impugned surcharge just to a bridge the gap between the subsidy being given to different categories of consumers and funds available with the government neither the same can be considered unconstitutional nor unjustified.

30. The question regarding imposition of EQ Surcharge also came under discussion before a learned Division Bench of High Court of Balochistan in Constitution Petition Nos.861/2011 and other allied matteRs, Operative part of the judgment passed by the Hon'ble High Court of Balochistan reads as under:-- "13. We now turn to the remaining matter of the 'equalization surchargewhich is referred to as 'EQsurcharge in the bills. Mr. Muhammad Shafiq stated that NEPRA does not impose the equalization surcharge. The learned counsel for QESCO and the learned DAG stated, that, the same was imposed vide Notification S.R.O. 233 (1)12011 dated 15th March 2011 by the Government of Pakistan; the operative part of the said notification is reproduced hereunder: S.R.O. 233(1)/2011. In pursuance of subsection (4) of section 31 of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 (XL of 1997), and in supersession of its Notification No, S.R.O. No,1125(I)/2009, dated the 21st December, 2009, the Federal Government is pleased to notify the* National Electric Power Regulatory Authority's determination as per Schedule-I to this notification for the quarter July- September 2010 with effect from 1st October, 2010 and applicable tariff as per Schedule-II to this notification. In respect of the QESCO and it is notified that QESCO shall receive payments from its consumers at the rates as per Schedule-II.

The difference between the relevant rates determined by NEPRA as per Schedule-I and the rates charged from the consumers as per Schedule-II shall be paid to QESCO by the Federal Government.

Provided that there shall be levied a surcharge @ 2% on the consumption of electricity by every category of electricity consumer mentioned in Schedule- II except consumption up to 300 units "Residential-Al".

Subsequently, the rate was enhanced from 2 to 4 % vide Notification S.R.O. 360(1)/2011 dated 6th May 2011, which was further revised vide Notification S.R.O. 698(1)/2013 dated 5th August 2013, wherein on all consumers consuming more than 50 units of electricity were subject to a levy at the rate of 10 paisas per kilowatt hour and industrial consumers were levied at the rate of 81 paisas per kilowatt hour. We were told that NEPRA would determine the tariff in respect of each of the electricity distribution companies, including QESCO, and the Government of Pakistan would usually take the lowest tariff so determined and notify the same in Schedule II of the tariff notification and notify the rates determined by NEPRA in Schedule 1; the difference between the two rates was a subsidy that the Government of Pakistan granted to the respective distribution companies. The equalization charge attempted to reduce the effect the financial impact of the subsidy granted by the Government of Pakistan. It is further stated that QESCO is one of the most inefficient units and receives the largest subsidy from the Government of Pakistan, whereas the equalization surcharge was uniformly applied throughout Pakistan, thus the QESCO consumers had a lesser financial impact than those in other provinces. The equalization surcharge however has been discontinued with effect from 1st October, 2013 (reference Notification S.R.O. 911(I)/2013 dated 11th October, 2013 issued by the Government of Pakistan). The equalization surcharge was the difference between the two rates as mentioned above; the Government of Pakistan first granted a subsidy and then sought to reduce the financial impact thereof by imposing the equalization surcharge, therefore, it would not be correct to categorize the equalization surcharge as an, additional imposition. The financial gymnastics resorted to by the Government was probably to cover the real price of electric power borne by the consumer.

14. We therefore conclude that the fuel price adjustment and the equalization surcharge are/were neither illegal nor unconstitutional. Moreover, by the imposition of FPA and equalization surcharge QESCO did not seek to recover anything beyond the cost of the electricity consumed by the petitioneRs, Therefore, we are constrained to dismiss these petitions, but with no order as to costs.

We had however passed interlocutory orders restraining QESCO from the recovery of the fuel price adjustment and equalization surcharge and it may work hardship on the petitioners if they are required to make immediate payment thereof. Therefore, following the precedent of the interim relief granted by the Hon'ble Supreme Court, the said amounts may be recovered by QESCO in twelve equal monthly instalments."

According to information imparted by Additional Attorney General, on the instructions imparted by the respondents, the judgment passed by the Hon'ble High Court of Balochistan, having not been challenged any further, has attained finality. Thus, this court has been left with no option but to follow the dictum laid down in aforementioned case.

31. Insofar as the contention of Mr. Azhar Siddique, Advocate that in absence of source the impugned surcharge is not justified, is concerned, suffice it to note that from the discussion made in the foregoing paragraphs it is clear that the same is part of the tariff to be determined by the NEPRA. Further, when the legislature itself has made it clear that same would be considered as cost of the electricity the said argument has little value. It is of common knowledge that the government, in order to share financial burden with the electricity consumers who are unable to bear the day to day increase in the price of the electricity, is providing subsidy. When the government is facilitating K the consumers in the shape of subsidy etc., it is our national as well as K moral obligation, in particular the well-off persons/customers, to assist the government to wriggle out from financial turmoil. The imposition of impugned surcharge also seems to be reasonable when the same is considered in the light of the fact that the government, with a view to maintain harmony and integrity amongst different federating units, has introduced a uniform tariff qua companies having licences of Generation, Transmission or Distribution excluding KESE (now K- Electric) for the reasons enshrined above. In this backdrop, the argument of the learned counsel for the petitioners that default on the part of consumers of one company cannot be adjusted against the other has little value. Moreover, we should not hesitate to alter our individual interests over the national so that national harmony amongst the federating units becomes strong and cohesive.

32. It is important to mention over here that with a view to further streamline the affairs regarding Generation, Transmission and Distribution, the government has introduced National Power Tariff and Subsidy Policy Guidelines, 2014. According to the said policy, in future, the quantum of E.Q. Shall be determined by the NEPRA. The said fact provides an answer to the query raised on behalf of the petitioners that in terms of section 31(5) of the Act, 1997 the executive has been given unfettered power to levy surcharge without laying down any criteria for its determination.

33. To establish that the EQ Surcharge has been imposed to facilitate the consumers of DISCOs who are being provided subsidy or to make up the difference between the actual cost and line losses of inefficient DISCOs, Mian Mehmood Rashid, Advocate, has referred to National Power Tariff and Subsidy Policy Guidelines, 2014. Firstly the same is not applicable in these cases for the reason that the same is only to be operative from the year 2014 onwards and the same has nothing to do with cases in hand. It is settled proposition of law that no legislation or policy can be given retrospective effect until and unless the legislature has decided so, thus, the reference made in this behalf is not relevant to the facts and circumstances of the instant case. Even otherwise, if for the sake of arguments, it is admitted for a moment that the impugned surcharge was levied just to abridge the gap between the actual cost of the electricity and the subsidy being provided by the government to the consumers of distribution companies which have higher tariff, the same does not justify setting aside of the impugned notifications simply for the reason that when a uniform policy is being followed by the government towards determination of tariff and other allied matters, it cannot be debarred to raise funds for said purpose. Further, in view of the ever changing circumstances, it cannot be ruled out that at some point the petitioners may also be beneficiaries of the said policy, thus, instead of challenging the same they should sacrifice something for their brethren.

34. The suggestion posed by Mr. Azhar Siddique, Advocate that instead of putting extra burden on the consumers in the shape of Surcharge or Additional Surcharge, the government should minimize the line losses and lower down price of electricity by using less expensive sources in particular hydel sources in addition to controlling the pilferage of electricity, is worth consideration.

For the purpose first of all the government shall have to take stern action against the persons who are involved in electricity theft and the officials/officers of the department who have facilitating role in this respect. Likewise, in respect of tariff, while making uniform policy, the output of the distribution company should be viewed critically and the inefficient companies be put at guard in the first instance and in case of non-improving they be blacklisted forthwith. Further, the competent authority should take steps to control all kinds of losses after supply of the generation like line losses, theft, etc., by using modern devices. At the cost of repetition, it is observed that the uninterrupted supply of electricity for all types of consumers has assumed identical role as that of blood in the human body. The government should take steps to produce electricity by using less expensive sources. For the purpose, a detailed study can be undertaken while considering the alternate sources of generation being applied by the other countries. Further, for generation through thermal sources, the local sources of fuel like coal, natural gas etc. Should be preferred.

Furthermore, the renewable sources for generating electricity including wind and solar power can also be utilized to overcome this phenomenon.

35. Now coming to the case-law cited by learned counsel for the petitioners, I am of the view that the same being quite distinguishable from the facts and circumstances of present case is inapplicable inasmuch while declaring the GIDC Act, 2011 as ultra vires in the judgment rendered in Federation of Pakistan through Secretary Ministry of Petroleum and Natural Resources and another v. Durrani Ceramics and others (Civil Appeals Nos.1540-1590 of 2013 and 21 of 2014) the apex Court of the country has inter alia observed as under:-- "*True that such an advice or opinion or non- reference of the matter to the Council of Common Interest would not render the levy illegal or invalid.,.."

If we consider contention of the petitioners that the Surcharge was imposed without referring the matter to CCI, the same is not worth consideration firstly for the reasons enumerated above and secondly the apex Court of the country has held that no enactment can be declared ultra vires just for the reason that the same was promulgated without intervention of CCI provided the same otherwise stands justified in the peculiar state of affairs. As far as verdict of august Supreme Court of Pakistan in Human Rights Case N 0.14392 of 2013 (supra) is concerned, though the Hon'ble Supreme Court has observed that the government is bound to ensure well-being of citizens in terms of Article 38 of the Constitution but at the same time a line of distinction has been drawn amongst different categories of consumers in the said judgment, thus, the same is inapplicable for the reason that in both the impugned notifications the Surcharge has been confined to comparatively well-off categories of consumers. Moreover, the government with a view to fulfil its obligation towards provision of subsidy on electricity to poor customers issued impugned notifications thus the same are unexceptionable. In the case of Engineer Zafar Iqbal Jhagra (supra), the point, under consideration, was regarding tax and in view of the discussion made in the preceding paragraphs, as Surcharge is not a tax, thus the said case is quite distinguishable.

Now taking up the case of Alleged Corruption in Rental Power Plants etc. (supra) I am of the humble opinion that the same pertains to corruption in rental power plants. Further though the matters pertaining to NEPRA also came under discussion but as the question of Surcharge having not been dilated upon by apex Court of the country the same cannot not be quoted in the present case rather policies towards Generation, Transmission and Distribution of electricity. In the cases of Pearl Continental Hotel and another, Pakistan through Secretary Finance and others v. Pakistan Industrial Development Corporation and Dawood Hercules (supra), the flashing point was the interpretation of Taxing Statutes in case of any ambiguity whereas in the matter in hand the language of Section 31(5) of the Act, 1997 being self-explanatory, the said precedents are irrelevant. Coming to the case of Wattan Party through President (supra), it is observed that the same is polls apart from the present case as none of the prepositions evolved in this case were discussed in the said judgment. Insofar as the case of Caltex Oil (Pakistan) Ltd. (supra) is concerned, it was inter alia held therein that in certain cases which pertain to fundamental rights of the parties, the Hon'ble Supreme Court can entertain a question which was not raised before the lower forum, thus, the same has no relevancy with the instant case. Now coming to the case of The Province of Punjab and another (supra) I have observed that in the said case the apex Court of the country has inter alia framed guidelines for judicial review of a legislation introduced on account of some emergency thus the same is not aptly applicable to the present case. As far as the cases of Collector of Customs and others, Messrs Shahbaz Garments (Pvt.) Ltd. And others v. Messrs Azgard Nine Ltd. And Abdul Majid and another (supra) are concerned, the proposition, under discussion, in the said cases revolved around difference between the words "tax" and "fee" whereas as it has been held that Surcharge is neither independent tax nor fee, the said judgment is of no help to the petitioners. In the cases of Gatron (Industries) Limited and Govt. Of Balochistan (supra), the apex Court of the country has inter alia observed that equal protection of law should be ensured whereas the instant case is quite distinguishable for the reason that the test of reasonable classification has been fully applied by the legislator while excluding different categories of consumers from levy of impugned surcharge. The case of Aftab Shahban Mirani (supra) inter alia deals with the principle known as "due process of law" with reference to Article 4 of the Constitution whereas in the instant case the impugned Surcharge was levied subsequent to an amendment introduced in the Act, 1997 through Finance Act, 2008, thus the same cannot be dubbed as having been levied without due process of law. As far as case of Messrs Elahi Cotton Mills Ltd. And others (supra) is concerned, the same instead of lending any support to petitionersversion seemingly supports the version of the respondents that in the matters relating to interpretation of fiscal matters judicial self-restraint should be shown by the courts. In the matter of Gadoon Textile Mills and 814 others (supra) the powers of CCI in respect of formation of policies regarding electricity came under discussion but while responding to the proposition regarding power of CCI to determine tariff, it has been held that CCI has nothing to do with the same, thus, the same is quite distinguishable. As far as the matter of Mian Muhammad Nawaz Sharif (supra), is concerned, its facts and circumstances being entirely different stands polls apart from the instant case. Insofar as the case of Pakistan through Secretary Cabinet Division and others (supra) is concerned, the proposition involved therein was qua the mala fides on the part of the authorities concerned. As no such element has been pointed out by learned counsel for the petitioners in these matters, the said case also stands distinguished. The case of Haji Abdullah Khan and others (supra), has not the remotest connectivity with the case in hand as the said case had arisen out of civil proceedings.

The case of Abdul Latif (supra) is also distinguishable on the ground that in the said case the apex Court of the country held that nobody should be condemned unheard whereas no such question is involved in the instant matter. The matter of Syed Feroze Shah Ghillani and others (supra) deals with the implementation of the order passed by CCI, thus, the same is quite distinguishable from the instant case. In the case of Exide Pakistan Ltd. (supra) the subject was the powers of the Cantonment Board to levy Shop Board Fee whereas in the instant case the situation being entirely different the same is not applicable here. The case of Sanofi Aventis Pakistan Ltd. And others (supra) deals with the powers of the Federal as well as Provincial Government to legislate qua a subject but in the instant matter when the item of electricity is available in Federal Legislative List, that said precedent has no relevancy with the case in hand. The judgments in the cases of Rashid- ur-Rehman, National Industrial Cooperative Credit Corporation Ltd. And another and Naseem Mehmood (supra) are not relevant to the case in hand as having been rendered in entirely different backdrop. So far as the case of Standard Chartered Rank (Supra) is concerned, the legal question involved in the said matter, in pith and substance, was the powers of NEPRA to determine rate, charge and tariff whereas in the instant case the question is as to whether the NEPRA has the power to determine Surcharge, thus, the same is on quite distinct footing. So far as judgments in cases of I.T.As Nos.3934/LB/2002 and other allied matters and I.T.As Nos.5138/LB/2004 and another allied matter (Supra) are concerned, these having been rendered by different Tribunals have no binding force on this court.

36. As a necessary corollary to discussion in the fore-going paragraphs, I have no doubt in my mind to hold that Surcharge is entirely different from 'RateTariffand 'Chargeand Government enjoys power to impose the same with or without courtesy of NEPRA. Further when valid grounds for reasonable classification are available no legislation can be annulled on the ground of discrimination. Consequently, I see no merits in these petitions which are accordingly dismissed with the observation that the amount due on account of impugned Surcharge, if any, against the petitioners due to restraint order issued by this court during pendency of these petitions shall be recovered by the Government in twelve equal monthly instalments. There shall be no order as to costs.

37. Before parting with this judgment, I am of the view that it would not be out of place to appreciate the assistance rendered by the Research Centre of this Court, in particular Messrs Mohsin Mumtaz and Qaisar Abbas, Research Officers. I hope that the members of the Research Centre shall continue with this spirit of enthusiasm and commitment in future as well.