SHAKEEL AHMAD. J. The challenge in this group of writ petitions No.3573-P, No.3641-P, No.3642-P, No.3643-P, No.3644-P, No.3645-P, No.3646-P, No.3647-P, No.3648-P, No.3649-P, No.3650-P, No.3651- P, No.3652-P, No.3653-P, No.3654-P, No.3655-P, No.3656-P, No.3657-P, No.3674-P, No.3675-P, No.3676-P, No.3677-P, No.3678-P, No.3679-P, No.3680-P, No.3681-P, No.3682-P, No.3683-P, No.3684- P, No.3685-P, No.3687-P, No.3688-P, No.3689-P, No.3690-P, No.3691-P, No.3692-P, No.3694-P, No.3695-P, No.3696-P of 2022, is to the decision dated 22nd July, 2022 of National Electric Power Regulatory Authority, by which, maximum demand indicator was imposed/incorporated in the monthly electricity bills of the petitioners. Since common questions of law and facts are involved therein, therefore, these petitions are taken up together and decided through this single judgment.
2. The narration of facts in detail are not necessary to answer the preliminary objections raised by the learned Additional Attorney General on the maintainability of these petitions. Suffice it to say that disputes have arisen between the parties, on the incorporation/imposition of maximum demand indicator in the monthly electricity bills of the petitioners, pursuant to the decision of National Electric Power Regulatory Authority dated 22nd July, 2022. The petitioners have raised their voice against the said claim made by the respondents.
3. During preliminary arguments, the learned Additional Attorney General and learned counsel for respondent No.4 put their appearance and sought permission to argue the case on behalf of the respondents. Permission was granted to them.
4. At the very outset, the learned Additional Attorney General raised preliminary objections, on the maintainability of this and connected writ petitions firstly on the ground that the dispute between the parties relates to the determination of tariff and impugned decision was taken in terms of sub- section (7) of section 31 read with section 7 of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, and Notification dated 25th July, 2022, which was not impuged before the Court, and secondly, that if the petitioners are aggrieved by the impugned decision, they have an alternate remedy by way of filing of review petition in terms of clause "g" of section 7 or appeal before the Appellate Tribunal constituted under section 12-A of the Act ibid, which is more efficacious, convenient and beneficial, and prayed for dismissal of the writ petitions.
5. In rebuttal, the learned counsels representing the petitioners argued that availability of alternate remedy as argued by the learned Additional Attorney General would not constitute a bar upon the High Court to entertain the petitions and to exercise constitutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. In support of their contentions, they produced order dated 23.09.2022, passed by the Hon'ble Lahore High Court in constitutional petition No.56102 of 2022, and went on to say that under similar circumstances, not only the writ petition was entertained, but, interim relief was also granted to the writ petitioners, and concluded their arguments by saying that the preliminary objections raised by the learned Additional Attorney General may be overruled.
06. Having considered the submissions of the learned counsel for the parties, we are of the view that at this stage, the following questions require determination by this Court:-
(1) Whether the petitioners have exhausted alternate remedy as pointed out by the learned Additional Attorney General before invoking constitutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973?
(2) Whether rule of exhaustion of alternate remedy, though is not prescribed by Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 is a rule of law or one of practice?
(3) Whether the alternate remedy provided in clause "9" of section 7 and 12-A of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, is efficacious, beneficial and more convenient? And
(4) Whether the dispute between the parties relates to determination of tariff?
7. We find that, the claim made by the respondents against the petitioners is maximum demand indicator in terms of section 7 read with sub-section (7) of section 31 of the Act of 1997, and notification dated 25.07.2022. The writ petitioners being aggrieved of the said demand have come to this Court.
8. Before giving findings on the maintainability of these constitutional petitions, we deem it appropriate to reproduce section 7 of the Act of 1997, which reads as under: - "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, subject to the provisions in sub-section (4), shall;
(a) grant licences under this Act;
(aa) specify procedures and standards for registration of persons providing electric power services;
(ab) aid and advise the Federal Government, in formulation of national electricity plan;
(ac) ensure efficient tariff structures and market design for sufficient liquidity in power markets;
(b) specify procedures and standards for investment programmes by generation, companies and persons licensed or registered under this Act;
(c) specify and enforce performance standards for generation companies and persons licensed or registered under this Act;
(d) specify accounting standards and establish a uniform system of account by generation companies and persons licensed or registered under this Act;
(e) specify fees including fees for grant of licences and renewal thereof;
(f) **
(g) review its orders, decisions or determinations;
(h) settle disputes between licensees in accordance with the specified procedure;
(i) issue guidelines and standards operating procedures;
(ia) promote development of a market, including trading, in accordance with the national electricity policy and the national electricity plan; and
(j) perform any other function which is incidental or consequential to any of the aforesaid functions.
(3) Notwithstanding the provisions of sub-section (2) and without prejudice to the generality of the power conferred by sub-section (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, companies and persons licensed or registered under this Act 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, companies and persons licensed or registered under this Act;
(d) tender advice to public sector;
(e) submit reports to the Federal Government in respect of activities of generation, companies and persons licensed or registered under this Act;
(f) 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 and such tarrif shall not be called into question by the Authority.
(5) Before approving the tariff for the supply of electric power by generation companies using hydro-electric plants, 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 protest interests of consumers and companies providing electric power services in accordance with the principles of transparency and impartially".
09. It will also be advantageous to reproduce section 12-A of the Act of 1997 as follows: "12A. Establishment of the Appellate Tribunal (1) The Federal Government shall, by notification in the official Gazette, establish an Appellate Tribunal for the purposes of exercising jurisdiction under this Act.
(2) The members of the Appellate Tribunal shall be appointed by the Federal Government and shall comprise -
(a) a former judge of a High Court who shall be the Chairman, for a single term of four years on such terms and conditions as may be prescribed and shall be nominated by the Provinces or Federal Government, as the case may be, by rotation in the following order, namely:
(i) the member representing the Federal Government;
(ii) the member representing the Province of the Punjab;
(iii) the member representing the Province of Khyber Pakhtunkhwa;
(iv) the member representing the Province of Sindh; and (v)the member representing the Province of the Balochistan: Provided that the Chairman of the Appellate Tribunal shall not be appointed if he has attained the age of sixty-five years.
(b) a member finance who shall be a qualified chartered accountant or a qualified cost and management accountant or a qualified chartered financial analyst and shall be nominated by the Provinces or Federal Government, as the case may be, by rotation in the following order, namely:-
(i) the member representing the Province of Sind;
(ii) the member representing the Province of the Punjab;
(iii) the member representing the Federal Government;
(iv) the member representing the Province of Khyber Pakhtunkhwa; and
(v) the member representing the Province of Balochistan;
(c) a member electricity, who shall be a member of the Pakistan Engineering Council, with a specialization in electrical engineering and shall be nominated by the Provinces or Federal Government, as the case may be, by rotation in the following order, namely:
(i) the member representing the Province of Balochistan;
(ii) the member representing the Province of Khyber Pakhtunkhwa;
(iii) the member representing the Federal Government;
(iv) the member representing the Province of the Punjab; and
(v) the member representing the Province of Sindh.
(3) The member finance and member electricity of the Appellate Tribunal shall be appointed for a period of three years on such terms and conditions as may be prescribed: Provided that no person who has attained the age of sixty years shall be appointed as member finance and member electricity: Provided further that no person shall be eligible to be the member finance or member electricity, if in case of being a civil servant, they hold a position which is less than BPS-21 or equivalent.
(4) No person shall be appointed as member of the Appellate Tribunal unless he is a citizen of Pakistan and such member shall be employed on full-time basis."
10. Section 12-G of the Act of 1997 gives right of appeal to the aggrieved person from the decision or order of the Authority. It will be appropriate to reproduce the same for ready reference, which states as under: - "12G, Appellate procedures. [1) Any person aggrieved by a decision or order of the Authority or a single member thereof or a Tribunal established under section 11 may, within thirty days of the decision or order, prefer an appeal to the Appellate Tribunal in the prescribed manner and the Appellate Tribunal shall decide such appeal within three months after the filing of the appeal.
(2) In examining an appeal under sub-section (1), the Appellate Tribunal may make such further inquiry as it may consider necessary and after giving the Authority or the Tribunal and an appellant an opportunity of being heard, pass such order as it thinks fit, confirming, altering or annulling a decision or order appealed against: Provided that if the decision under appeal is a determination of tariff by the Authority, then the Appellate Tribunal may in case of disagreement with the determination of the Authority, remand the matter back to the Authority with relevant guidelines, which shall be duly considered by the Authority which shall be bound to review its determination within one month of the receipt of such guidelines from the Appellate Tribunal.
(3) The decision of the Appellate Tribunal shall be in writing, detailing the issues raised in the appeal and the arguments adopted by the appellant and the Authority or Tribunal, as the case may be. The Appellate Tribunal shall also provide reasons for reaching its decision with reference to the provisions of this Act and the facts of the case.
(4) The Appellate Tribunal shall provide copies of its decision to all the appellants and the respondents including the Authority or Tribunal, as the case may be, not later than five days from the date of rendering its decision.
(5) A decision or order of the Authority or Tribunal, as the case may be, shall be given full force and effect during the pendency of any appeal of such determination.
(6) The decision of the Appellate Tribunal shall be appealable before the High Court having territorial jurisdiction".
11. Section 31 of the Act of 1997 deals with the Tariff, which reads as follows: - "31. Tariff.- (l) The Authority shall, in the determination, modification or revision of rates, charges and terms and conditions for the provision of electric power services, be guided by the national electricity policy, the national electricity plan and such guidelines as may be issued by the Federal Government in order to give effect to the national electricity policy and national electricity plan.
(2) The Authority, in the determination, modification or revision of rates, charges and terms and conditions for the provision of electric power services shall keep in view-
(a) the protection of consumers against monopolistic and oligopolistic prices;
(b) the research, development and capital investment programme costs of licensees;
(c) the encouragement of efficiency in licensees, operations and quality of service;
(d) the encouragement of economic efficiency in the electric power industry;
(e) the economic and social policy objectives of the Federal Government;
(f) and the elimination of exploitation and minimization of economic distortions.
(3) Without prejudice to the generality of sub-section (2), the following general guidelines shall be applicable to the Authority in the determination, modification or revision of rates, charges and terms and conditions for provision of electric power services, namely:-
(a) tariffs should allow licensees the recovery of any and all cost prudently incurred to meet the demonstrated needs of their customers: Provided that assessments of licensees' prudence may not be required where tariffs are set on other than cost of service basis, such as formula based tariffs that are designed to be in place for more than one year;
(b) tariffs should generally be calculated by including a depreciation charge and a rate of return on the capital investment of each licensee commensurate to that earned by other investments of comparable risk;
(c) tariffs should allow licensees a rate of retun which promotes continued reasonable investment in equipment and facilities for improved and efficient service;
(d) tariffs should include a mechanism to allow licensees a benefit from and penalties for failure to achieve the efficiencies in the cost of providing the service and the quality of service;
(e) tariffs should reflect marginal cost principles to the extent feasible, keeping in view the financial stability of the sector;
(f) the Authority shall have a preference for competition rather than regulation and shall adopt policies and establish tariffs towards that end;
(g) tariffs may be set below the level of cost of providing the service to consumers categories consuming electric power below such consumption levels as may be prescribed, as long as such tariffs are financially sustainable;
(h) tariffs should, to the extent feasible, reflect the full cost of service to consumer categories with similar service requirements;
(i) tariffs should seek to provide stability and predictability for customers; and
(j) tariffs should be comprehensible, free of misinterpretation and shall state explicitly each component thereof Provided that the Authority shall strike a balance to the extent possible, among the general guidelines in order to optimize the benefits to all persons likely to be affected by the determination, modification or revision of rates, charges and terms and conditions.
(4) Subject to sub-sections (2) and (3), the Authority shall, in the basis of uniform tariff application, determine any uniform tariff for public sector licenses, engaged in supply of electric power to consumers, in the consumer's interest, on the basis of their consolidated accounts.
(5) The Authority may specify procedures for the determination, modification or revision of rates, charges and terms and conditions for the provision of electric power services, including without limitation,
(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
(c) protection for refund, if any, to customers while tariff decisions are pending.
(6) The time frame for determination by the authority on tariff petition shall not exceed four months after the dae of admission of the tariff's petition: Provided that this time frame shall commence after the applicant as complied with all requirements of rules and regulations and the authority as admitted the tariff's petition.
(7) Notification of the Authority's approved tariff or uniform tariff, as the case may; rates, charges, and other terms and conditions for the supply of electric power services shall be made, in the official Gazette by the Federal Government within 30 days of intimation of the same by the Authority. In the event, the Federal Government falls to notify the tariff so determined by the Authority, or refer the matter to the Authority for reconsideration, within the time period specified, then the Authority may direct immediate application of its recommended and approved tariff or uniform tariff, as the case may be, by way of notification of the same, subject to adjustment which may arise on account of recosideration, if any, subquently filed by the Federal Government;
(i) the Federal Government may, as soon as may be, but not later than 30 days of receipt of the Authority's limitation of its approved tariff of public sector licenses involved in distribution and supply business, require the Authority to be considered its determination of such tariff to the extent of issues common to these licenses. Whereupon the Authority shall, within 30 days, determine these after reconsideration and intimate the same to the Federal Government;
(ii) the Authority may, on a quarterly basis and not later than a period of fifteen days, make quarterly adjustments in the approved tariff on account of capacity and transmission charges, impact of transmissions and distribution losses variable operation and maintenance and, policy guidelines as the Federal Government may issue and, intimate the tariff so adjusted to the Federal Government prior to its notification in the official gazette. The Federal Government may, as soon as may be, but not later than fifteen days of receipt of the Authority's intimation of its recommendation for adjustment, require the Authority to reconsider its determination of such quarterly adjustment. In the event, the Federal Government does not refer the matter to the Authority for reconsideration, within the time period specified above, then the Authority shall notify the tariff so adjusted in the official gazette. However, in case of filing the reconsideration request by the Federal Government within the time period specified above, the Authority shall, within fifteen days determine such adjustment after reconsideration and intimate the same to the Federal Government prior to its notification in the official Gazette.
(iii) the Federal Government in lieu of reconsideration requests may opt to file an appeal, however, in the event, the Federal Government moves reconsideration request that it shall not be subsequently be entitled to avail the remedy of appeal against the decision of reconsideration request;
(iv) 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.
12. Now adverting to the preliminary objections raised by the learned AAG, a plain reading of clause
(g) of section 7 and section 12G of the Act of 1997 reflect that statutory remedy of assailing the impugned order, passed by the Authority by filing review petition under section 7(g) or appeal under section 12G, as the case may be, to the Tribunal constituted under section 12A of the Act of 1997, is available to the petitioners. In our view, they could not bypass the said statutory remedy, which is more suitable and efficacious, and without exhausting that remedy recourse to proceedings under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, is bound to show sense of distrust in the statutory Tribunal. No doubt, rule of exhaustion of available remedy, though not prescribed by Article 199 of the Constitution, however, it is statutory criterion by which the High Court regulates its proceedings. It is by now settled that presence of alternate remedy is neither a principle of law nor rule of thumb impression, but, one of practice. However, if the High Court is of the view that the alternative remedy available to the petitioner/claimant is a remedy in law i.e. a remedium Juris and one which is not less convenient beneficial and effective, inexpensive, expeditious and efficacious. He must first avail of the remedy provided by the Statute before he applies for issuance of a writ. Moreso, there are two well-recognized exceptions to the doctrine with regard to the exhaustion of statutory remedies. In the first place, it is well settled that where proceedings are taken before a Tribunal or public functionary under a provision of law, which is ultra vires, it is open to a party aggrieved thereby to move High Court under Article 199 of the Constitution for appropriate writ for quashing the proceedings firstly, on the ground that they are incompetent, without his being obliged to wait until these proceedings run their full course and secondly, that the doctrine has no application unless the impugned order has been made in violation of principles of natural justice or where the proceedings themselves are an abuse of process of law. No such illegality could be pointed out by the learned counsel for the petitioners to interfere in writ jurisdiction.
13. Admittedly, the dispute between the parties relates to the determination of Tariff as envisaged in sub-section (7) of section 31 of the Act of 1997, for which the relief can conveniently be sought in terms of clause (g) of section 7 and 12A of the Act of 1997, which is equally efficacious, inexpensive, beneficial and convenient. We are of the view that the Act of 1997, itself provides a mechanism for redressal of grievance of the petitioners as discussed in the preceding para. Under these circumstances, the petitioners must first avail the remedy provided by the statute before applying for a writ or order in the nature of writ. In this context, reliance can be placed on the judgment reported as "Human Rights (Environmental Pollution in Balochistan in Re vs. "Human Rights [Environmental Pollution in Balochistan" (PLD 1994 SC 102 relevant at page 119), wherein, it was observed that Article 199 of the Constitution provides that the same cannot be invoked if alternate remedy is available to the aggrieved party under the relevant law. In this behalf, reference may also be made to Abdur Rehman's case (PLD 1987 SC 21) wherein, it was held that writ jurisdiction could be exercised only on proof of non-availability of adequate remedy. In this behalf reliance can also be placed on the judgment reported as "Allah Bakhsh vs. Muhammad Ismail" (1987 SCMR 810) and "Moula Bux alias Mouledino vs. S.H.O Police Station Hatri Ghulam Shah and 2 others"
14. Before parting with the judgment, it is observed that the order dated 23.09.2022, passed in Writ Petition No.56102 of 2022 by the Hon'ble Lahore High Court, produced by the learned counsel for the petitioners, is of no help to them, for the simple reason that the question of maintainability of jurisdiction as pointed out by the learned Additional Attorney General, was neither urged nor discussed in the said order.
15. From the discussion made hereinabove, it is obvious that if an adequate remedy is available under the relevant law, therefore, the jurisdiction as provided under Article 199 of the Constitution cannot be invoked.
16. It is for all these reasons, these petitions are dismissed being not maintainable. However, it is made clear that the writ petitioners shall be at liberty to seek their relief in terms of section(s) 12(g) and 12A of the Act of 1997, as the case may be, if so desired.