IJAZ ANWAR. J. By this single Judgment, we propose to decide the instant as well as the connected W.P. No. 1155-P/2023 "Zaka Ullah and others v. Federation of Pakistan through Secretary Ministry of Energy and Power, Power Division, Lahore and others" filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and COC No. 329-P12-23 "Hydro Electric Labour Union PESCO v. Ghulam Dastagir, Incumbent Minister for Power Division, Ministry of Energy and Power, Lahore and another" as identical questions of law and facts are involved therein. The following prayer has been made in the instant writ petition.
"It is therefore, humbly prayed that on acceptance of this Writ Petition this Honorable Court may very graciously hold, declare and order that: I. The impugned Notification No. 12(24)/202019-DISCO-II dated 18.01.2023 of the Respondent No.6 and Office Order dated February 3, 2023 and subsequent process in this regard are all illegal, without legal sanctity, based on political gains, ethnic provocation and against the fundamental rights of the petitioner and its members/Employees, hence declared to be redundant as such.
II. Respondents shall refrain from proceedings a further in the nature of formation of Hazara Electric Supply Company.
III. Costs throughout.
IV. Interim Relief. In view of all the three ingredients requisite for interim relief, the operation of the impugned Notification and subsequent proceedings be suspended forthwith and the Respondents may be restrained from proceeding a further in the matter till the final disposal of the main writ petition.
V. Any other relief, not specifically prayed may also graciously be granted if appears just, necessary and appropriate."
2. In essence, the petitioner which is a registered Trade Union, formed under the Industrial Relations Act, 2010 for the workmen and employees of PESCO is aggrieved of the Notification No. 12(24)/202019-DISCO-II, dated 18.1.2023 of the Government of Pakistan, Ministry of Energy (Power Division), Islamabad whereby the Prime Minister of Pakistan was pleased to approve bifurcation of PESCO into two companies i.e. PESCO and a new company with the name of Hazara Electric Supply Company (HAZECO).
3. Comments were called from the respondents which were submitted accordingly wherein issuance of the desired writ has been opposed.
4. Learned counsel for petitioner argued that the decision of the Prime Minister to bifurcate PESCO into two companies i.e. PESCO and Hazara Electric Supply Company (HAZECO) is politically motivated and not for public good. He further argued that the impugned notification so issued is violative of Article 153 read with Article 154 of the Constitution of Islamic Republic of Pakistan, 1973 as such, is not maintainable. He further argued that the decision to create HAZECO is not feasible and against the ground realities as duly considered by the Board of PESCO in its meeting held on 28.12.2016. He further argued that the Ministry of Energy vide letter dated 21.9.2017 has also asked for the review and optimization of licensed area of PESCO for better management. He placed reliance on PLD 2022 SC 267 "Privatization Commission v. Aftab Hussain", 2018 SCMR 1956 "Pakistan Medical and Dental Council through President and 3 others v, Muhammad Fahad Malik and 10 others". He further argued that till date the matter has not been taken up with the NEPRA which has to issue licenses for generation, distribution and transmission Companies and also for, determination of tariff rates, charges and other terms and conditions as such, the Notification issued to this effect is against the law. He lastly argued that even HAZECO Company has not been registered, albeit the Board has been notified in order to accommodate the favorites of the respondents.
5. As against this, learned counsel representing the respondents argued that the matter in hand is premature as yet only a formal decision has been taken and the formalities required for registration of the Company and permission/license from the NEPRA are the proceedings that would be taken thereafter. He further argued that it being a policy decision of the Federal Government cannot be questioned on such flimsy grounds of hardships or feasibility as according to him, it is within the domain of the Government to see the viability, feasibility and the organizational structure to follow. He further argued that the constitutional requirements have already been taken when it was decided to unbundle the power wing of the Water and Power Development Authority and this decision was taken in pursuance of the strategic plan which was duly approved by the Council of Common Interests in the year 1993 and therefore, it is not required that for registration of every Distribution Company, repeated approval would be required from the Council of Common Interests (CCI).
6. Arguments of learned counsel for the parties heard and record perused.
7. Perusal of the record reveals that vide Notification No. 12(24)/202019-DISCO-II dated 18.1.2023, the approval of the Prime Minister of Pakistan has been conveyed for the establishment of Hazara Electric Supply Company (HAZECO). The aim and object was mentioned as "For Overall better management of the Electricity Utility of Peshawar Electric Supply Company (PESCO), to increase the operational efficiency and reduce line losses and for improvement in customer services".
The following further decision was taken in para 2 of the Notification. It being relevant is reproduced as under: "2. Accordingly, the following decisions are made:--
(a) PESCO shall be bifurcated into 02 Companies i.e. PESCO and new Company with the name of Hazara Electric Supply Company. (HAZECO).
(b) PESCO shall compromise 06 Circles namely Peshawar, Khyber, Swat, Bannu, Mardan and Swabi circles, whereas HAZECO shall consist of 02 Circles namely Hazara-I and Hazara-II circles with new Company's Headquarter at Abbottabad.
(c) To implement the bifurcation plan, successfully, PPMC will assist PESCO and HAZECO."
8. The West Pakistan Water and Power Authority Act, 1959 (W.P. Act XXXI of 1958) was promulgated on 24.4.1958 to provide for the unified and co-ordinated development of the water and power resources of Pakistan. Later, by virtue of Article 12 of the West Pakistan (Dissolution Order) 1 of 1970, Water and Power Development Authority continued to function under the Act of 1958 subject to certain modifications as duly provided in para 12 of the Dissolution Order. Subsequently, vide Ordinance LXXII of 1979, as amended by Ordinance XX of 1998, the Water and Power Development Authority was constituted and the Pakistan Water and Power Act was extended to the whole of Pakistan except the Districts of Karachi. The record placed on file further suggests that the Council of Common Interests in its meeting held on 12.9.1993 took the following decision: "The Council of Common Interests considered the summary dated 9th September, 1993 submitted by the Ministry of Water and Power on Privatization of WAPDA and amendment of WAPDA Act and approved: "i) Amendment in WAPDA Act, 1958 (Annex II) subject to the condition that in clause 4 (i) (c) (vii) after the word Authority, the words 'except' hydel generating power station and national grid transmission be added' ii) Plan for Privatization of WAPDA as recommended by Privatization Commission (Para 5 and Annex VI). iii) To provide categorical assurance to the provinces that the hydel profits payable to them under the Constitution would not fall below the level which these would have obtained had there been no privatization"
9. Accordingly, vide Water and Power Development Authority (Amendment) Act, 1994 (Federal Act No. XIII of 1994) certain amendments were introduced to carry out the decision so taken in the above referred meeting of the Council of Common Interests. Though both the parties took us to various pros and cons of the decision that would follow after carrying out the bifurcation, however, we feel that we in our Constitutional jurisdiction have only to see whether the action taken by the respondent/Government is within the four corners of law or not; while the decision which requires technical, commercial man power and administrative aspects of the proposed bifurcation is outside our domain because such matters specifically fall within the jurisdiction of the Government for which it has been mandated by the citizens of this country. Even otherwise, the matter in hand has not yet been finalized and numerous steps are yet to be taken to operationalize the decision so taken by the Prime Minister of Pakistan. We have also gone through the bifurcation of other Distribution Companies carried out by the respondents after the initial decision of the Council of Common Interests and find that where the Council of Common Interests has approved the summary, pursuant thereto, amendments were introduced in the WAPDA Act, as such, it is not the requirement of law that for each bifurcation of Companies or creation of Distribution Companies, separate approval be required from the Council of Common Interests.
10. In order to meet the objection if any, regarding the unilateral decision of the Prime Minister of Pakistan for bifurcation of Companies, during the pendency of this petition, the matter was placed before the Cabinet for approval of the proposal/decision taken in the Notification dated 18.01.2023 which was also got approved by the Cabinet and the decision was so conveyed vide letter dated 20.7.2023.
11. It is pertinent to mention here that it is the responsibility of the NEPRA under the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 to provide for the regulation of generation, transmission and distribution of electric power services in Pakistan. Section 20 of the Act deals with the grant of Distribution licenses while subsection (1) is a prohibition clause as it bars any one from distribution of electric power without holding a valid Distribution license granted by the NEPRA. The respondent PESCO was granted Distribution license bearing No. 07/DL/2002 on 30.4.2022. Similarly, when the Federal Government established a Company in the name of Tribal Area Electric Supply Company (TESCO) through an administrative order, on the application of the PESCO for license proposed modification, FATA Agencies Bajaur, Mohmand, Khyber, Aurakzai, Kurram, North Waziristan, South Waziristan agencies and Frontier Region Peshawar, FR Kohat, FR Bannu, FR Lakki, FR Tank and FR D.I. Khan was carved out and accordingly TESCO applied for grant of Distribution License which was also granted vide license bearing No. 22/DL/213 on 12.8.2013 for the distribution of electricity in the said FATA agencies and frontier regions.
12. Admittedly; after the registration of TESCO as a company and after grant of license, it was never challenged by any of the alleged affectees and till date it has never been questioned either on the ground that necessary approval of the CCI is missing or that it has any feasibility issue. The respondent NEPRA has clarified in its comments that so far, pursuant to the decision of the Prime Minister of Pakistan dated 23.1.2023, neither any Company in the name of HAZECO has been registered nor any such application for the grant of Distribution license has been forwarded and the NEPRA has reiterated its commitment that till such time a valid Distribution license has not been granted, HAZECO cannot commence distribution of electric power.
13. By referring to the above background and the legal propositions, we are of the view that so far only a decision to constitute/establish a Distribution Company in the name of HAZECO is taken allegedly with the aim of bifurcating it from PESCO in order to improve the performance of PESCO, reduce its losses and to improve the financial/managerial performance parameters of the power distribution business in the province of Khyber Pakhtunkhwa and the respondents are terming this decision as in continuation of the process of WAPDA's unbundling and that similar bifurcation has already occurred twice in the past. Thus, the matter is at an initial stage and as stated above, neither any company has yet been registered by the Federal Government in the name of HAZECO nor any license has so far been granted for distribution by the NEPRA. As such, we are of the view that this petition is premature beside being policy matter is beyond the jurisdiction of this court.
The petition in hand as well as the connected W.P No. 1155-P/2023 are accordingly dismissed. The connected C.O.C. No.329-P/2023 is also dismissed having become infructuous.