' ATIR MAHMOOD, J.--- At the very outset, learned counsel for the petitioner submits that since he has no grievance against respondent No,5, he wants to delete respondent No,5 from the arrays of the parties. Accordingly, respondent No,5 is deleted from the arrays of the parties.
2. Succinctly, the cause of action as given in the writ petition is that respondents Nos.1 to 4 have awarded project of carrying out feasibility study and installation of Solar Power Plant (900 MW) in the Quaid-e-Azam Solar Park (the Project) to respondent No,7 (M/s Zonergy Company Limited) merely by way of signing Project Commitment Agreement dated 23-7-2014 (the PCA) by respondent No,2 (Punjab Energy Department) and issuance of Letter of Interest dated 23-9-2014 (the LoI) by respondent No,4 (Punjab Power Development Board 'PPDB') without any process of selection or competitive bidding and the government is also inclined to lease out a piece of land measuring 6,000 acres to respondent No,7 for the Project against law, rules, policy and procedure.
3. Pre-admission notices were issued to the respondents at limine stage. The respondents appeared and filed report and para-wise comments.
4. Learned counsel for the respondents 1 to 4 and learned counsel for respondent No,7 raised preliminary issues regarding locus standi of the petitioner and maintainability of this petition on the plea as to how the petitioner is an aggrieved person under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution). In order to meet with the preliminary objections, learned counsel for the petitioner submitted that the petitioner is a consumer of electricity/ power/energy and enjoys fundamental right of protection of life, and security under Article 9 of the Constitution. Reliance is placed on the dictums laid down in case reported as Ms. Shehla Raza and others v. WAPDA (PLD 1994 SC 693). He submitted that 'word' life is significant as it covers all aspects of human existence and that a person is entitled to protection of-law from being exposed to any hazard which may be due to installation and construction of any grid station, power station or any such like installation. He submitted that before handing over this project of generation of solar energy, the environmental conditions have not been taken into consideration. He further submitted that the petitioner has inalienable right to be provided electricity at the low cost and the respondents have not taken into consideration the grievance of the consumer, i.e, public at large and the petitioner in particular. Relying upon the case law reported as Dr. Akhtar Hussain and others v. Federation of Pakistan and others (2012 SCM R 455), he maintained that all the public functionaries must exercise their public authorities especially while dealing with public property, public funds and assets in a just, fair, transparent and reasonable manner which according to him is missing in the present case. He also submitted that the High Court has extraordinary discretionary powers to interfere in such like matters in order to safeguard rights of the citizens and the consumers of the electricity which are ultimately going to face the consequences of generation of power at higher rates. In this regard, he has relied upon the case law cited as Dr. Imran Khatak and another v. Ms. Sofia Waqar, P.S. To Chief Justice and others (2014 SCM R 122).
5. Learned counsel for the petitioner also contended that respondent No,2 vide PCA has committed to issuance of LoI in line with the stipulations of the Punjab Generation Policy, 2006 (revised 2009)
(the policy) and also to issuance of a letter of Allocation of Project Land to respondent No,7 against signing of the PCA and submission of Bank guarantee amounting to US$ 3000 per MW in favour of respondent No,2; that the bank guarantee when calculated comes to US$ 2,700,000 but bank guarantee of only US$ 9000 has been obtained from respondent No,7; that respondent No,7 has no experience in the field of installation of Power Plants; that while awarding the project, other experienced and technically sound companies have been ignored by the government; that the LoI has been issued without adopting proper procedure; that no advertisement was made in the national press inviting bids from the interested parties and in this way, competitive atmosphere was not created by the government for all who intend to come forward to invest in the project; that ZTE Corporation is a major shareholder of respondent No,7 which is a leading global provider of telecommunication equipment; that ZTE is, in fact, making investment in the project; that ZTE was recently declined a project of even 100 MW by respondent No,4; that the policy allows submission of proposals for project upto 50 MW but respondent No,4 has awarded project of 900 MW to respondent No,7 against the policy; that respondent No,4, in no event, could issue LoI for a project having capacity more than V MW; that under the policy, process of selection requires pre- qualification, issuance of request for proposal, bidding and evaluation as set out in the bidding criteria but the project has been awarded to respondent No,7 without adopting the said procedure; that the proposed project is situated nearby Lal Sohanra Park which is a national park and spreads over an area of 153,000 acres; that a number of species of animals and birds including endangered species can be found in the park, as such, leasing out land measuring 6,000 acres in favour of respondent No,7 is in violation of environmental laws; that the petitioner is aggrieved by acts of respondents 1 to 4 allowing respondent No,7 to develop the project in a non-transparent, arbitrary and unlawful manner and for making investing to install the Solar Power Plant; that the transaction is illegal, unwarranted, non-transparent and uncalled for; that the PCA and LoI are unreasonable and contrary to accepted principles of, governance and regulations; that where an investment is to be made by a foreign company, PPRA rules and regulations are to be strictly followed as held by the Hon'ble Supreme Court in cases reported as Suo Motu Case No,18/2010 (2014 SCM R 585) and Raja Mujahid Muzaffar etc. v. Federation of Pakistan etc. (2012 SCM R 1651); that obtaining a feasibility study is pre-requisite before launching a project; that the PCA and the LoI have been issued in contravention of provisions of Articles 129 and 139 of the Constitution of Islamic Republic of Pakistan, 1973; that respondent No,7 has no registered office in Pakistan which is mandatory under section 451 of the Companies Ordinance, 1984; that the rates of electricity to be generated through the project will be much higher and beyond the reach of common man, therefore, this writ petition, learned counsel asserts, is maintainable.
6. On the other hand, learned counsel for respondents Nos.1 to 4 assisted by learned Law Officers submits that the petitioner has no locus standi in the matter, as such, this writ petition is not maintainable; that the government is not going to invest even a single penny from public exchequer in this project; that the project so far has not been awarded to respondent No,7 as asserted by the petitioner; that respondent No,7 has only been allowed to conduct feasibility study of the project at its own cost and risk after fulfilment of requirement of pre-qualifications; that respondent No,7 is a financially and technically sound company; that a bank guarantee of US$ 9,000 has been obtained from respondent No,7; that rest of the bank guarantee will be obtained from respondent No,7 if it is finally selected for completion of the project and in that case, National Electric Power Regulatory Authority (NEPRA) will issue licence after public hearing where the petitioner or anybody else can raise his grievance, as such, this writ petition is pre-mature; that award of the project in question is a federal subject and not the provincial one; that the land is to be allocated only for the purposes of conducting feasibility study which in case of failure, will be taken back from respondent No,7 and the bank guarantee given by it will also be encashed by the government; that under the policy, the government has to invite bids for installation of hydel and thermal projects but the policy has not made any such compulsion upon the government with regard to installation of solar plants; that the project is transparent and nothing is concealed; that there is acute shortage of energy in our country, as such, anybody including the petitioner is invited to come forward with proposals for installation of the project and if he fulfills requirements of pre- qualifications, he will be given equal opportunity to compete; that the Government of the Punjab and other provinces have adopted energy policy of the Federal Government and keeping in view the severe shortage of energy, the government of the Punjab is in contact with the Federal Government to enhance the limit of capacity of Solar Plant from 50MW to a much higher level; that the tariff will be determined by NEPRA after due process of law and the electricity will be purchased by National Transmission and Despatch Company Limited (NTDC) and nothing is to be done by the government of Punjab in this regard; that the government has not admitted any liability upon it in case of failure in completion of the feasibility study by respondent No,7 which has no right even to claim compensation from the government in any circumstances, therefore, this writ petition, learned counsel avers, has no force, as such, it be dismissed. Learned counsel for respondents No,1 to 4 has relied upon the case law cited as Malik Asad Ali and others v. Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs, Islamabad and others (PLD 1998 SC 161), Sh. Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice ana Parliamentary Affairs, Islamabad and others (PLD 1999 SC 504) and Suo Motu Case No,10 of 2007 (PLD 2008 SC 673).
7. Learned counsel for respondent No,7 adopted the arguments of learned counsel for respondents Nos.1 to 4. He, however, added that various news clippings appended with this writ petition did not constitute valid evidence against respondent No,7; that the ZTE Corporation is the major shareholder in Zonergy/respondent No,7 but Zonergy itself has an independent identity with independent funds and has not been blacklisted anywhere in the world. Regarding argument raised by learned counsel for the petitioner with reference to environmental hazards, he submitted that respondent No,7 would carry out its own detailed environmental examination as part of its feasibility study according to the environmental laws of Pakistan and there will be no violation of any law. He further stated that since that stage has not arrived at so far, therefore, all the allegations are incorrect, false and pre-mature.
8. Arguments heard. Record perused.
9. Perusal of para 12 of the writ petition reflects that the petitioner came to know regarding the disputed project through newspapers that respondents Nos.1 to 4 have approved respondent No,7 for a 900 MW Solar Power Plant (SPP) in Quaid-i-Azam Solar Park (QASP). Through the same report, he got the knowledge that respondent No,7 has no relevant experience in the installation of power plants. According to his version, the petitioner came to know that respondents Nos.1 to 4 have not responded to a number of other technically and financially sound companies who had shown their interest in medium to large scale solar power plants and they were not entertained. The petitioner had no direct knowledge prior to said press clippings nor he has any expertise to adjudge capabilities and qualifications of respondent No,7. His grievance that issuance of without a transparent process or disclosure as to how respondent No,7 was found competent and eligible to develop the project, does not sound good. He can only be an aggrieved person being a consumer of electricity. He neither participated nor showed any intention to compete with respondent No,7 in any regard whereas no other company, who was allegedly competent to compete, has come forward to contest the issuance of LoI in favour of respondent No,7.
10. The next contention of learned counsel for the petitioner that his fundamental rights, are being infringed by issuing of LoI to respondent No,7 for setting up the SPP in the vicinity of Lal Sohanra Park, Bahawalpur is also unfounded. It has categorically been denied by the respondents that by grant of LoI, any licence for generation of solar energy has been allocated to respondent No,7. It is asserted by the respondents that LoI has only been issued by the provincial government in favour of respondent No,7 for carrying out feasibility study for setting up the SPP which includes conducting of Environmental Impact Assessment (EIA) and once the feasibility study is completed by respondent No,7, then it is to be assessed and approved by the Punjab Power Development Board through its panel of experts and thereafter, respondent No,7 has to apply, for grant of licence to set up the SPP, to the National Electric Power Regulatory Authority (NEPRA). (Emphasis provided).
11. According to Section 15 of the NEPRA Act, a licence can be issued under Rule 3 of the NEPRA Licencing (Generation) Rules, 2000 which reads as under:--- Grant of licence.---
(1) Subject to these rules and the other NEPRA rules and regulations, the Authority may grant a generation licence to any person to engage in the generation business.
(2) The location, size, technology, interconnection arrangements, technical limits, technical functional specifications and other details specific to the generation facilities of the licensee shall be set out in a schedule to the generation licence.
(3) The net capacity of the licensee's generation facilities shall be set out in a separate schedule to the generation licence, after it has been determined to the satisfaction of and in the manner specified by the authority.
(4) The Authority may order a public hearing to be held on any application for a generation licence and shall decide the application consistent with the outcome of the public hearing and the procedure for public hearings prescribed under the National Electric Power Regulatory Authority (Tariff Standards and Procedure) Rules, 1998, subject to such modifications as the Authority may specify, shall be applicable to a public hearing on an application for a generation licence.
' The Authority may refuse to issue a licence where the site, technology, design, fuel, tariff or other relevant matters pertaining to the generation facility proposed in an application for a generation licence are either not suitable on environmental grounds or do not satisfy the least cost option criteria in which case the Authority shall indicate its preference for alternative sites, technology, design, fuel, tariff or other relevant matters to the applicant and shall, if so desired by the applicant, allow the applicant a reasonable opportunity to amend the application in accordance with the preferences indicated by the Authority.
' Explanation-- For the purposes of sub-rule (5), least cost option criteria'shall include the following, namely:---
(a) sustainable development or optimum utilization of the renewable or non-renewable energy resources proposed for generation of electric power;
(b) the availability of indigenous fuel and other resources;
(c) the comparative costs of the construction, operation and maintenance of the proposed generation facility against the preferences indicated by the Authority;
(d) the costs and rights-of-way considerations related to the provision of transmission and interconnection facilities;
(e) the constraints on the transmission system likely to result from the proposed generation facility and the costs of the transmission system expansion required to remove such constraints;
(f) the short-term and the long-term forecasts for additional capacity requirements;
(g) the tariffs resulting or likely to result from the construction or operation of the proposed generation facility; and
(h) the optimum utilization of various sites in the context of both the shot-term and the long-term requirements of the electric power industry as a whole.
(6) A generation licence may, for good cause, contain additional terms and conditions, not inconsistent with the provisions of the applicable documents, in order to cater for any special circumstances or matters specific to a particular generation ' licence or in order to provide for the transition towards or implementation of the pooling and settlement arrangement." (Emphasis provided)
' Bare reading of sub-rules (4) and (5) of Rule 3 reproduced above makes it abundantly clear that before issuance of a licence, the Authority (NEPRA) is under obligation to order a public hearing to be held on any application for grant of generation licence. It is prerogative of the Authority to grant or to refuse to issue the licence.
12. As far as the question of determination of tariff is concerned, under Rule 3 of the NEPRA (Tariff Standards and Procedure) Rules, 1998, any licencee or a consumer or a person interested in the tariff may file the petition .Before the authority. A comprehensive procedure has been laid down in the said rules and the Authority after complying with the rules is liable to decide the petition within four months from the date of its admission. In this view of the matter, it cannot be said or even presumed that the grievance of the petitioner cannot be redressed by any competent authority. At this stage, filing of writ petition amounts to circumvent the powers of competent authorities which include respondent No,4 (PPDB) and respondent No,6 (NEPRA).
13. Furthermore, under the provisions of PCA, respondent No,7 is obligated to levelize tariff at 14 cents per unit (other than charges and taxes). According to the respondents, this is the lowest tariff of electricity prevailing in Pakistan but still, the tariff is to be determined by the NEPRA as per applicable rules, therefore, at this stage, the grievance raised by the petitioner is pre-mature.
14. It has been stated on behalf of respondents Nos.1 to 4 that allocation of land for setting up SPP in the QASP is subject to open bidding between all the LoI holders which are 38 in number and respondent No,7 is not the only LoI holder. It has also been stated that the feasibility study is going to be conducted by respondent No,7 at its own cost and risk and even a single penny has not been paid to respondent No,7 out of public exchequer on this account, rather a bank guarantee of US$ 9,000 has been obtained from respondent No,7 which may be encashed and the land proposed to be given to respondent No,7 will also be resumed in case of failure of respondent No,7 in the assignment given to it. He further argued that under the Punjab Power Policy, 2006 (Revised 2009) as well as Federal Energy Policy, 2006, a number of proposals have already been received from various companies and at present, LoIs have been issued for setting up of SPPs after production of electricity aggregating to 4500 MW. Learned counsel for respondents No,1 to 4 categorically asserted that even today, any person can submit a proposal and if he is found technically and financially sound, he may be issued the LoI for conducting the feasibility study which if approved will entitle him to set up a SPP as well. This offer has also been extended to the present petitioner.
15. The argument of learned counsel for the petitioner is that paragraph 9 of Punjab Power Generation Policy, 2006 (Revised in 2009) provides for procedure of competitive bidding. Said paragraph 9 is reproduced below:- "19. In view of the long lead-time required to bring new hydel power plants in the power system, the work on the new power Generation projects has to be started hence forthwith. It is, therefore, the intention of the Government of Punjab:--- i. To solicit bids for Power Generation projects, for which feasibility studies are already available; ii. To initiate feasibility study work on raw sites for exploiting available hydel, oil, gas, coal bagasse, solar and wind potential;"
' Bare reading of above makes it clear that the policy divides the power generation projects in two types, i.e, the projects for which the feasibility study has already been conducted and the projects for which the feasibility study has not yet been done and provides for different modes for both types of projects. In former type of projects, the policy is very much clear that the bids will be solicited but in the latter type, i.e, the raw sites, the policy does not ask for calling for bids rather it unambiguously states that the government will initiate feasibility study work on raw sites for exploiting available hydel, oil, gas, coal, bagasse, solar and wind potential. Para 23(b) of the Policy further states that:--- "Raw site proposals shall be offered to the pre-qualified sponsor. The sponsor shall conduct the feasibility study at his own cost and submit it to the Punjab Power Development Board (PPDB) for approval. The successful sponsor will be selected after the approval of the feasibility study and negotiation of the tariff thereafter. If there is more than one sponsor for a raw site proposal, each sponsor will submit Pre-Qualification Documents (PQD) for the project on intimation from PPDB. The PQDs will be evaluated by PPDB and an LOI will be issued to the qualifying sponsor after submission of the bank guarantee of the specified amount in favour of PPDB."
' Perusal of above para reveals that pre-qualified sponsor will be offered raw sites for their development who will conduct feasibility study at their own cost and risk and if the feasibility study conducted by the sponsor is approved by the PPDB, then it will be selected after negotiation of tariff.
' In case, there are more than one sponsor, each sponsor is obliged to submit their PQDs which will be evaluated by the PPDB and the LoI will be issued to the qualified sponsor after submission of the bank guarantee. In the circumstances, it is explicitly clear that the policy does not provide for calling of competitive bidding in case of raw sites, therefore, allowing respondent No,7 to conduct feasibility study without calling for competitive bidding is in accordance with the policy. The contention of learned counsel for the petitioner is accordingly repelled.
16. In view of the above discussion, I am of the opinion that the grievance raised by the petitioner through this writ petition is premature and at this stage, the petitioner has no personal grievance and he can neither be considered as an aggrieved person nor has any cause of action to file this petition. Reliance is placed upon the law laid down in cases reported as Malik Asad All and others v.
Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs, Islamabad and others (PLD 1998 SC 161) and Faiz Bakhsh and others v. Deputy Commissioner/Land Acquisition Officer, Bahawalpur and others (2006 SCM R 219). Relevant portion from the latter judgment is reproduced below:--- "It hardly needs any elaboration that "a person can be said, to be aggrieved only when a person is denied a legal right by someone who has a legal duty to perform relating to the right. There must not only be a right but a justifiable right in existence, to give jurisdiction to the High court in the matter. Unless whatever right, personal of otherwise, on which the application is based is established, no order can issue under Article 199". Muntizma Committee v. Director K.A. PLD 1992 Kar.
54 and Mahmoona v. Ilam Din PLD 1984 Lah.
228. It must not be lost sight of that "party to writ petition must show that he had got a clear legal right as not to admit of a reasonable doubt or controversy. Disputed question of fact cannot be determined in Constitutional jurisdiction of a Court which is summary in its character". Khairuddin v.
Settlement Commissioner 1988 SCM R 988 and Muhammad Ali v. Government of Sindh 1986 CLC 1123." (Emphasis provided)
' If the feasibility study to be conducted by respondent No,7 is accepted by the panel of experts of PPDB and respondent No,7 applies to NEPRA for grant of a generation licence and for fixation of tariff, then at that stage, the petitioner will be at liberty to raise his grievance before the Authority which will be dealt with by the Authority in accordance with law. This writ petition is not maintainable, which is accordingly dismissed.