2025 MLD 26

M/s Frontier Foundry Steel (PVT.) LTD vs National Electric Power Regulatory

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Citation2025 MLD 26

CourtIslamabad High Court

Case No.C.M. No. 1146 of 2024 in C.M.A No. 165 of 2024

Date2024-07-23

Judge(s)Aamer Farooq (C.J)

ResultApplication dismissed

ORDER

AAMER FAROOQ, C.J. This order shall decide instant application as well as applications mentioned the Schedule attached herewith, as common questions are involved.

2. This application under Order XLI Rule 5(2) of the Code of Civil Procedure, 1908 ("C.P.C., 1908") read with all enabling provisions, has been filed to seek injunctive relief against the Respondent Authority, restraining the same from taking any adverse action and from adopting any coercive methods against the applicant till the time the applicants approach the Supreme Court.

3. By way of brief background; connected appeals were filed by the end-users of electricity challenging the consolidated judgement of the NEPRA Appellate Tribunal dated 13.02.2024 whereby the Impugned Determinations were set aside, while retaining the notification in the Official Gazette, wherein said Impugned Determinations were notified. This Court, vide its judgement dated 26.06.2024 passed in C.M.A. No.08-2024 etc., dismissed the appeals and upheld the judgment of the Tribunal for reasons recorded therein.

4. Learned Counsel for Applicants submitted that the provisions of C.P.C., 1908 are applicable in the instant case and in lieu of the same, this Court may grant the injunctive relief prayed for. It was also contended that even otherwise, this Court has inherent powers and can restrain the Respondent Authority from taking adverse action until the matter is decided with finality by the Supreme Court.

Learned counsel has placed reliance on Rehmat Khan v. Federation of Pakistan and others (PLD 1993 Lahore 70) and Dhunjishah B. Ghadialy and others v. Karachi Parsi Cooperative Housing Society Ltd. and others (2004 CLC 587) in support of his submissions.

5. Arguments have been heard and the relevant laws and precedents have been perused with the assistance of the learned counsel. At the outset it is pertinent to note that the instant application has been filed in connection with C.M.A. No. 15 of 2024 which was an appeal assailing the order of the NEPRA Tribunal filed before this Court under section 12G of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 ("NEPRA Act"). The same is reproduced below for case of reference: "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 subsection (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."

6. Section 12G of the NEPRA Act provides the complete appellate procedure within the legal framework of the Authority, and the right to appeal a decision of the tribunal before the High Court is expressly given under subsection (6) of the same. It therefore follows that while hearing an appeal filed under said law, the High Court is limited to the powers granted by the same law, and it is incorrect to assert that it is on the discretion of the High Court to exercise its inherent powers as the law in question does not grant such discretion. Such inherent powers may be exercised solely where the law allows for it, for instance in constitutional petitions invoking the powers of the Court under Article 199 of the Constitution of the Islamic Republic of Pakistan or matters, in which, Code of Civil Procedure is applicable. In the instant case, the parent law is the NEPRA Act and as such, both the Court and the litigants are bound by its provisions.

7. Similarly, the contention of the applicants that C.P.C., 1908 is applicable in the instant case is incorrect. The case-law submitted by the learned Counsel is not applicable to the instant matter as neither of the cases cited pertain to appeals filed under the NEPRA Act. The legal maxim "generaliaspecialibus non derogant" is a settled principle followed by the Supreme Court and the High Courts of this country providing that general provisions do not take away from special provisions. It is trite law that the existence of a special enactment on any given matter will oust general provisions. In a case cited as Nestle Pak. Limited, Lahore v. Sheharyar Kureshi (2024 CLD 502 Lahore), where Copyright Ordinance, 1962 was applicable, the Court held that the jurisdiction of courts provided under C.P.C. is barred where a general or special, law is in force. This approach has been consistently followed by the Courts of this country and consequently, where the case at hand is governed by a special law which gives special jurisdiction to the specified legal forum, that forum is to function within the limits of that special jurisdiction, and the general laws conferring wider jurisdiction shall be ousted unless specifically made applicable under a provision of that special law.

8. Furthermore, while deciding the connected NEPRA Appeals, this Court has upheld the order of the Appellate Tribunal and has kept in field the notification in question in line with the settled approach in such cases. Reliance has been placed on, inter alia, Flying Board and Paper Products Limited v.

Government of Pakistan through Secretary Cabinet (2010 SCMR 517), wherein the impugned notification regarding tariff determinations was kept in field while the matter of impugned determinations was remanded to the Authority to decide with finality, after which a fresh notification may be issued and any arrears in the tariff payments already made would be adjusted according to the finally decided determinations. The instant application is praying for an injunctive relief which is neither provided for by the NEPRA Act, nor has it been provided before by any High Court or the Supreme Court.

8(sic). In view of above, the instant applications are without merit and are accordingly dismissed.

Serial No.CASE NO./YEAR TITLE

1. C.M. No. 1156- 2024M/s Frontier Foundry Steel Pvt.