1. CH. MUSHTAQ AHMAD KHAN, J.---This judgment shall dispose of Writ Petition No,14612 of 1995 filed in a representative form as well as the following connected writ petitions involving identical questions of fact and law:--
(1) W.P. No, 8519 of 1995; (2) W.P. No, 10042 of 1993; (3) W.P. No, 13555 of 1993; (4) W.P. No,13777 of 1993; (5) W.P. No, 13771 of 1993; 4) W.P. No, 13659 of 1993; (7) W.P. No, 15107 of 1993; (8) W.P. No,14607 of 1993; (9) W.P. No,14608 of 1993; (10) W.P. No,14609 of 1993; (11) W.P. No,14610 of 1993; (12) W.P. No,11411 of 1993; (13) W.P. No,11412 of 1993; (14) W.P. No,11413 of 1993; (15) W.P. No,11414 of 1993; (16) W.P. No,11415 of 1993; (17) W.P. No, 16148 of 1993; (18) W.P. No,15249 of 1993; (19) W.P. No,17421 of 1993; (20) W.P.
2. No,17411 of 1993; (21) W.P. No,17557 of 1993; (22) W.P.17558 No, of 1993; (23) W.P. No,357 of 1994; (24)
3. W.P. No,358 of 1994; (25) W.P. No,1093 of 1994; (26) W.P. No,1094 of 1994; (27) W.P. No,17213 of 1993;
(28) W.P. No, 2271 of 1994; (29) W.P. No,2270 Of 1995; (30) W.P. No:7228 of 1994; (31) W.P. No,7227 of 1944; (32) W.P. No,5879 of 1994; (33) W.P.. No,5905 of 1994; (34) W.P. No,1715 of 1994; (35) W.P. No,4472 of 1994; (36) W.P. No,8435 of 1994; (37) W.P. No,8436 of 1994; (38) W.P. No,8437 of 1994; (39) W.P.
4. No,8438 of 1994; (40) W.P. No, 8442 of 1994; (41) W.P. No, 8443 of 1994; (42) W.P. No,8444 of 1994; (43)
5. W.P. No,9741 of 1994; (44) W.P. No,9894 of 1994; (45) W.P. No,12682 of 1995; (46) W.P. No,6895 of 1994;
(47) W.P. No,9668 of 1994; (48) W.P. No,15094 of 1994; (49) W.P. No,10198 of 1994; (50) W.P. No,10199 of 1994; (51) W.P. No,15217 of 1994; (52) W.P. No,15228 of 1994; (53) W.P. No,15231 of 1994; (54) W.P.
6. No,15237 of 1994; (55) W.P. No,15238 of 1994; (56) W.P. No,15239 of 1994; (57) W.P. No,15240 of 1994;
(58) W.P. No,15241 of 1994; (59) W.P. No,15247 of 1994; (60) W.P. No,15248 of 1994; (61) W.P. No,15250 of 1994; (62) W.P. No,15253 of 1994; (63) W.P. No,4736 of 1994; (64) W.P. No,5989 of 1994; (65) W.P.
7. No,15099 of 1994; (66) W.P. No,15100 of 1994; (67) W.P. No,15081 of 1994; (68) W.P. No,15075 of 1994;
(69) W.P. No,15084 of 1994; (70) W.P. No,15109 of 1994; (71) W.P.15082 No, of 1994; (72) W.P. No,15058 of 1994; (73) W.P. No,15108 of 1994; (74) W.P. No,15061 of 1994; (75) W.P. No,15060 of 1994; (76) W.P.
8. No,15205 of 1994; (77) W.P. No,15209 of 1994; (78) W.P. No,15208 of 1994; (79) W.P. No,15207 of 1994;
(80) W.P. No,15206 of 1994; (81) W.P. No,15186 of 1994; (82) W.P. No,15187 of 1994; (83) W.P. No,15171 of 1994; (84) W.P. No,15172 of 1994; (85) W.P. No,15174 of 1994; (86) W.P. No,15173 of 1994; (87) W.P.
9. No,15143 of 1994; (88) W.P. No,15124 of 1994; (89) W.P. No,15125 of 1994; (90) W.P. No,14868 of 1994; (91)
10. W.P. No,15005 of 1994; (92) W.P. No,15005 of 1994; (93) W.P. No,15005 of 1994; (94) W.P. No,15007 of 1994; (95) W.P. No,15432 of 1994; (96) W.P. No,15433 of 1994; (97) W.P. No,15434 of 1994; (98) W.P.
11. No,15469 of 1994; (99) W.P. No,15470 of 1994; (100) W.P. No,15467 of 1994; (101) W.P. No,15468 of 1994;
(102) W.P. No,15471 of 1994; (103) W.P. No,15473 of 1994; (104) W.P. No,15472 of 1994; (105) W.P. No,205 of 1995; (106) W.P. No,206 of 1995; (107) W.P. No,207 of 1995; (108) W.P. No,75 of 1995; (109) W.P. No,81 of 1995; (110) W.P. No,138 of 1995; (111) W.P. No,151 of 1995; (112) W.P. No,150 of 1995; (113) W.P. No,286 of 1995; (114) W.P. No,15343 of 1994; (115) W.P. No,15401 of 1994; (116) W.P. No,15343 of 1994; (117) W.P.
12. No,15345 of 1994; (118) W.P. No,15346 of 1994; (119) W.P. No,15347 of 1994; (120) W.P. No,15348 of 1994;
(121) W.P. No,15349 of 1994; (122) W.P. No, 15350 of 1994; (123) W.P. No,15351 of 1994; (124) W.P. No,15352 of 1994; (125) W.P. No,15353 of 1994; (126) W.P. No,15354 of 1994; (127) W.P. No,15355 of 1994; (128) W.P.
13. No,15356 of 1994; (129) W.P. No,15400 of 1994; (130) W.P. No,14304 of 1994; (131) W.P. No,15308 of 1994;
(132) W.P. No,15335 of 1994; (133) W.P. No,15337 of 1994; (134) W.P. No,15339 of 1994; (135) W.P.
14. No,15340 of 1994; (137) W.P. No,15394 of 1994; (138) W.P. No,15395 of 1994; (139) W.P. No,15393 of 1994;
(140) W.P. No,15395 of 1994; (141) W.P. No,15397 of 1994; (142) W.P. No,15398 of 1994; (143) W.P. No,15399 of 1994; (144) W.P. No,15362 of 1994; (145) W.P. No,15363 of 1994; (146) W.P. No,15364 of 1994; (147) W.P.
15. No,15365 of 1994; (148) W.P. No,15366 of 1994; (149) W.P. No,11825 of 1994; (150) W.P. No,11862 of 1994;
(151) W.P. No,11827 of 1994; (152) W.P. No,11828 of 1994; (153) W.P. No,15261 of 1994; (154) W.P. No,15262 of 1994; (155) W.P. No,15263 of 1994; (156) W.P. No,15264 of 1994; (157) W.P. No,15265 of 1994; (158) W.P.
16. No,15361 of 1994; (159) W.P. No,15317 of 1994; (160) W.P. No,15318 of 1994; (161) W.P. No,15319 of 1994;
(162) W.P. No,15320 of 1994; (163) W.P. No,15321 of 1994; (164) W.P. No,15322 of 1994; (165) W.P. No,15323 of 1994; (166) W.P. No,15324 of 1994; (167) W.P. No,15325 of 1994; (168) W.P. No,15326 of 1994; (169) W.P.
17. No,15327 of 1994;(170) W.P. No,15328 of 1994; (171) W.P. No,15329 of 1994; (172) W.P. No,15330 of 1994;
(173) W.P. No,15331 of 1994; (173) 15357 of 1994; (174) W.P. No,15367 of 1994; (175) W.P. No,15368 of 1994;
(176) W.P. No,15369 of 1994; (177) W.P. No,15279 of 1994; (178) W.P. No,15280 of 1994; (179) W.P. No,15281 of 1994; (180) W.P. No,15282 of 1994; (181) W.P. No,15283 of t994; (182) W.P. No,15285 of 1994; (183) W.P.
18. No,15286 of 1994; (184) W.P. No,15287 of 1994; (185) W.P. No,15288 of 1994; (186) W.P. No,15422 of 1994;
(187) W.P. No,15370 of 1994; (188) W.P. No,15371 of 1994; (189) W.P. No,15372 of 1994; (190) W.P. No,15373 of 1994; (191) W.P. No,15374 of 1994; (192) W.P. No,15375 of 1994; (193) W.P. No,15376 of 1994; (194) W.P.
19. No,15377 of 1994; (195) W.P. No,15378 of 1994; (196) W.P. No,15379 of 1994; (197) W.P. No,15380 of 1994;
(198) W.P. No,15381 of 1994; (199) W.P. No,430 of 1995; (200) W.P. No,431 of 1995; (201) W.P. No,592 of 1995; (202) W.P. No,432 of 1995; (203) W.P. No,593 of 1994; (204) W.P. No,598 of 1995; (205) W.P.
20. No,599 of 1995; (206) W.P. No,442 of 1995; (207) W.P. No,618 of 1995; (208) W.P. No,7087 of 1994; (209)
21. W.P. No,474 of 1995; (210) W.P.. No,733 of 1995; (211) W.P. No,726 of 1995; (212) W.P. No,727 of 1995; (213)
22. W.P. No,728 of 1995; (214) W.P. No,729 of 1995; (215) W.P. No,699 of 1995; (216) W.P. No,739 of 1995;
(217) W.P. No,751 of 1995; (218) W.P. No,759 of 1995; (219) W.P. No,760 of 1995; (220) W.P. No,781 of 1995;
(221) W.P. No,786 of 1995; (222) W.P. No,787 of 1995; (223) W.P. No,799 of 1995; (224) W.P. No,800 of 1995; (225) W.P. No,801 of 1995; (226) W.P. No,804 of 1995; (227) W.P. No,806 of 1995; (228) W.P. No,807 of 1995; (229) W.P. No,683 of 1995; (230) W.P. No,539 of 1995; (231) W.P. No,542 of 1995; (232) W.P.
23. No,685 of 1995; (233) W.P. No, 1160 of 1995; (234) W.P. No, 1161 of.1995; (235) W.P. No,1162 of 1995; (236)
24. W.P. No,1163 of 1995; (237) W.P. No,1169 of 1995; (238) W.P. No,1168 of 1995; (239) W.P. No,1130 of 1995;
(240) W.P. No,1214 of 1995; (241) W.P. No,1211 of 1995; (242) W.P. No,1212 of 1995; (243) W.P. No,1223 of 1995; (244) W.P. No,1260 of 1995; (245) W.P. No,14879 of 1994; (246) W.P. No,14911 of 1994; (247) W.P.
25. No,14912 of 1994; (248) W.P. No,14913 of 1994; (249) W.P. No,14914 of 1994; (250)
26. W.P. No,14915 of 1994; (251) W.P. No,14916 of 1994; (252) W.P. No,14983 of 1994; (253) W.P. No,14984 of 1994; (254) W.P. No,12443 of 1993; (255) W.P. No,846 of 1995; (256) W.P. No,850 of 1995; (257) W.P.
27. No,853 of 1995; (258) W.P. No,854 of 1995; (259) W.P. No,855 of 1995; (260) W.P. No,856 of 1995; (261)
28. W.P. No,858 of 1995; (262) W.P. No,859 of 1995; (263) W.P. No,860 of 1995; (264) W.P. No,11424 of 1995;
(265) W.P. No,872 of 1995; (266) W.P. No,884 of 1995; (267) W.P. No,886 of 1995; (268) W.P. No,890 of 1995; (269) W.P. No,891 of 1995; (270) W.P. No,894 of 1995; (271) W.P. No,895 of 1995; (272) W.P. No,896 of 1995; (273) W.P. No,897 of 1995; (274) W.P. No,899 of 1995; (275) -W.P. No,898 of 1995; (276) W.P.
29. No,900 of 1995; (277) W.P. No,901 of 1995; (278) W.P. No, 902 of 1995; (279) W.P. No,903 of 1995; (280)
30. W.P. No,929 of 1995; (281) W.P. No,930 of 1995; (282) W.P. No,931 of 1995; (283) W.P. No,932 of 1995;
(284) W.P. No,938 of 1995; (285) W.P. No,939 of 1995; (286) W.P. No,940 of 1995; (287) W.P. No,942 of 1995; (288) W.P. No,950 of 1995; (289) W.P. No,952 of 1995; (290) W.P. No,954 of 1995; (291) W.P.
31. No,955 of 1995; (292) W.P. No,957 of 1995; (293) W.P. No,970 of 1995; (294) W.P. No,971 of 1995; (295)
32. W.P. No,978 of 1995; (296) W.P. No,979 of 1995; (297) W.P. No,980 of 1995; (298) W.P. No,981 of 1995;
(299) W.P. No,991 of 1995; (300) W.P. No,992 of 1995; (301) W.P. No,1026 of 1995; (302) W.P. No,1028 of 1995; (303) W.P. No,1029 of 1995; (304) W.P. No,1030 of 1995; (305) W.P. No,1041 of 1995; (306) W.P.
33. No,1042 of 1995; (307) W.P. No,1043 of 1995; (308) W.P. No,1044 of 1995; (309) W.P. No,1064 of 1995;
(310) W.P. No,1056 of 1995; (311) W.P. No,1057 of 1995; (312) W.P. No,1058 of 1995; (313) W.P. No,1059 of 1995; (314) W.P. No,1621 of 1995; (315) W.P. No,1622 of 1995; (316) W.P. No,1623 of 1995; (317) W.P. No:1632 of 1995; (318) W.P. No,1690 of 1995; (319) W.P. No,1693 of 1995; (320) W.P. No,1694 of 1995; (321) W.P.
34. No,1695 of 1995; (322) W.P. No,1696 of 1995; (323) W.P. No,2055 of 1995; (324) W.P. No,2056 of 1995;
(325) W.P. No,1980 of 1995; (326) W.P. No,1981 of 1995; (327) W.P. No,1982 of 1995; (328) W.P. No,2159 of 1995; (329) W.P. No,2160 of 1995; (330) W.P. No,2161 of 1995; (331) W.P. No,2162 of 1995; (332) W.P.
35. No,2163 of 1995; (333) W.P. No,2164 of 1995; (334) W.P. No,2165 of 1995; (335) W.P. No,2166 of 1995;
(336) W.P. No,2220 of 1995; (337) W.P. No,2221 of 1995; (338) W.P. No,2222 of 1995; (339) W.P. No,2361 of 1995; (340) W.P. No,2356 of 1995; (341) W.P. No,2702 of 1995; (342) W.P. No,2839 of 1995; (343) W.P.
36. No,2840 of 1995; (344) W.P. No,2841 of 1995; (345) W.P. No,1312 of 1995; (346) W.P. No,1313 of 1995;
(347) W.P. No,3240 of 1995; (348) W.P. No,3627 of 1995; (349) W.P. No,3693 of 1995; (350) W.P. No,6316 of 1995; (351) W.P. No,6608 of 1995; (352) W.P. No,7364 of 1995; (353) W.P. No,9881 of 1995; (354) W.P.
37. No,9922 of 1995; (355) W.P. No,9923 of 1995; (356) W.P. No,10055 of 1995; (357) W.P. No,9975 of 1995;
(358) W.P. No,10332 of 1995; (359) W.P. No,10331 of 1995; (360) W.P. No,10375 of 1995; (361) W.P.
38. No,10367 of 1995; (362) W.P. No,10924 of 1995; (363) W.P. No,10534 of 1995; (364) W.P. No,10535 (466)
39. W.P. No,11760 of 1995; (467) 11690 of 1995; (469) W.P. No,11821 (471) W.P. No,11823 of 1995; (472) 11839 of 1995; (474) W.P. No,11850 (476) W.P. No,11852 of 1995; (477 f 1995; (365) W.P. No,10536 of 1995; W.P.
40. No,10491 of 1995; (368) W.P. No of 1995; (370) W.P. No,10652 of 1995; W.P. No,9247 of 1995; (373) W.P.
41. No, of 1995; (375) W.P. No,10815 of 1995; W.P. No,10731 of 1995; (378) W.P. No of 1995; (380) W.P.
42. No,10734 of 1995; W.P. No,10827 of 1995; (383) W.P. No of 1995; (385) W.P. No,10830 of 1995; W.P.
43. No,10832 of 1995; (388) W.P. No of 1995; (390) W.P. No,11003 of 1995; W.P. No,11021 of 1995; (393) W.P.
44. No of 1995; (395) W.P. No,10814 of 1995; W.P. No,11063 of 1995; (398) W.P. No, of 1995; (400) W.P.
45. No,10713 of 1995; W.P. No,10670 of 1995; (403) W.P. No of 1995; (405) W.P. No,11066 of 1995; W.P.
46. No,10712 of 1995; (408) W.P. No of 1995; (410) W.P. No,10747 of 1995; W.P. No,11042 of 1995; (413) W.P. No of 1995; (415) W.P. No,11147 of 1995; W.P. No,11115 of 1995; (418) W.P. No of 1995; (420) W.P. No,11119 of 1995; W.P. No,11125 of 1995; (423) W.P, No of 1995; (425) W.P. No,11133 of 1995; W.P. No,11136 of 1995;
(428) W.P. No, of 1995; (430) W.P. No,11140 of 1995; W.P. No,11148 of 1995; (433) W.P. No, of 1995; (435)
47. W.P. No,11167 of 1995; W.P. No,11071 of 1995; (438) W.P. No, of 1995; (440) W.P. No,11075 of 1995; W.P.
48. No,11081 of 1995; (443) W.P. No, of 1995; (445) W.P. No,11096 of 1995; W.P. No:11297 of 1995; (448) W.P.
49. No, of 1995; (450) W.P. No,11250 of 1995; W.P. No,11287 of 1995; (453) W.P. No, of 1995; (455) W.P.
50. No,11288 of 1995; W.P. No,11290 of 1995; (458) W.P. No, of 1995; (460) W.P. No,11296 of 1995; W.P.
51. No,11546 of 1995; (463) W.P. No, of 1995; (465) W.P. No,11681 of 1995; W.P. No,11686 of 1995; (468) W.P.
52. No, of 1995; (470) W.P. No,11822 of 1995; W.P. No,11824 of 1995; (473) W.P. No, of 1995; (475) W.P.
53. No,11851 of 1995; 436) W.P. No,11102 of 1995; (437) 11073 of 1995; (439) W.P. No,11074 (441) W.P. No,11077 of 1995; (442) 11085 of 1995; (444) W.P. No,11095 (446) W.P. No,11097 of 1995; (447) 11260 of 1995; (449)
54. W.P. No,11261 (451) W.P. No,11286 of 1995; (452) 11284 of 1995; (454) W.P. No,11285 (456) W.P. No,11289 of 1995; (457) 11291 of 1995; (459) W.P. No,11295 (461) W.P. No,11710 of 1995; (462) 11827 of 1995; (464) W.P.
55. No,11650 W.P. No,11853 of 1995; (478) W.P. No,11425 of 1995; (479) W.P. No,11426 of 1995; (480) W.P.
56. No,11677 of 1995; (481) W.P. No,11685 of 1995; (482) W.P. No,11762 of 1995; (483) W.P. No,11750 of 1995;
(484) W.P. No,11280 of 1995; (485) W.P. No,11539 of 1995; (486) W.P. No,11776 of 1995; (487) W.P.
57. No,11819 of 1995; (488) W.P. No,11820 of 1995; (489) W.P. No,1161 of 1995; (490) W.P. No,1162 of 1995;
(491) W.P. No,12138 of 1995; (492) W.P. No,12111 of 1995; (493) W.P. No,12108 of 1995; (494) W.P. No,12090 of 1995; (495) W.P. No,12119 of 1995; (496),W.P. No,12133 of 1995; (497) W.P. No,12105 of 1995; (498) W.P.
58. No,12112 of 1995; (499) W.P. No,12115 of 1995; (500) W.P. No,12116 of 1995; (501) W.P. No,12118 of 1995;
(502) W.P. No,12120 of 1995; (503) W.P. No,12121 of 1995; (504) W.P. No,12122 of 1995; (505) W.P. No,12316 of 1995; (506) W.P. No,12399 of 1995; (507) W.P. No,12359 of 1995; (508) W.P. No,12393 of 1995; (509)
59. W.P. No,12375 of 1995; (510) W.P. No,12367 of 1995; (511) W.P. No,12376 of 1995; (512) W.P. No,12395 of 1995; (513) W.P. No,12394 of 1995; (514) W.P. No,12396 of 1995; (515) W.P. No,12398 of 1995; (516) W.P.
60. No,12397 of 1995; (517) W.P. No,12385 of 1995; (518) W.P. No,12384 of 1995; (519) W.P. No,12383 of 1995;
(520) W.P. No,12382 of 1995; (521) W.P. No,12381 of 1995; (522) W.P. No,12380 of 1995; (523) W.P.
61. No,12379 of 1995; (524) W.P. No,12318 of 1995; (525) W.P. No,12317 of 1995; (526) W.P. No,12333 of 1995;
(527) W.P. No,11957 of 1995; (528) W.P. No,11952 of 1995; (529) W.P. No,11954 of 1995; (530) W.P.
62. No,11983 of 1995; (531) W.P. No,11953 of 1995; (532) W.P. No,11976 of 1995; (533) W.P. No,11975 of 1995;
(534) W.P. No,11974 of 1995; (535) W.P. No,11973 Of 1995; (536) W.P. No,11972 of 1995; (537) W.P. No,11971 of 1995; (538) W.P. No,11970 of 1995; (539) W.P. No,11969 of 1995; (540) W.P. No,11968 of 1995; (541) W.P.
63. No,11967 of 1995; (542) W.P. No,11966 of 1995; (543) W.P. No,11977 of 1995; (544) W.P. No,12034 of 1995;
(545) W.P. No,12031 of 1995; (546) W.P. No,12055 of 1995; (547) W.P. No,12054 of 1995; (548) W.P.
64. No,12056 of 1995; (549) W.P. No,12057 of 1995; (550) W.P. No,12059 of 1995; (551) W.P. No,12058 of 1995;
(552) W.P. No,12272 of 1995; (553) W.P. No,12273 of 1995; (554) W.P. No,12274 of 1995; (555) W.P.
65. No,12275 of 1995; (556) W.P. No,12276 of 1995; (557) W.P. No,12277 of 1995; (558) W.P. No,12278 of 1995;
(559) W.P.(No,12279 of 1995; (560) W.P. No,12280 of 1995; (561) W.P. No,12281 of 1995; (562) W.P.
66. No,12294 of 1995; (563) W.P. No,12287 of 1995; (564) W.P. No,12299 of 1995; (565) W.P. No,13059 of 1995; (566) W.P. No,13124 of 1995; (567) W.P. No,13063 of 1995; (568) W.P. No,13090 of 1995; (569) W.P.
67. No,13100 of 1995; (570) W.P. No,13118 of 1995; (571) W.P. No,13119 of 1995; (572) W.P. No,13120 of 1995;
(573) W.P. No,13122 of 1995; (574) W.P. No,13123 of 1995; (575) W.P. No,13125 of 1995; (576) W.P. No,13126 of 1995; (577) W.P. No,13127 of 1995; (578) W.P. No,13128 of 1995; (579) W.P. No,13129 of 1995; (580) W.P.
68. No,13130 of 1995; (581) W.P. No,13131 of 1995; (582) W.P. No,13132 of 1995; (583) W.P. No,13133 of 1995;
(584) W.P. No,12229 of 1995; (585) W.P. No,12247 of 1995; (586) W.P. No,12248 of 1995; (587) W.P.
69. No,12249 of 1995; (588) W.P. No,12250 of 1995; (589) W.P. No,12251of 1995; (590) W.P. No,12252 of 1995;
(591) W.P. No,12253 of 1995; (592) W.P. No,12254 of 1995; (593) W.P. No,12255 of 1995; (594) W.P.
70. No,12256 of 1995; (595) W.P. No,12201 of 1995; (596) W.P. No,12215 of 1995; (597) W.P. No,12216 of 1995;
(598) W.P. No,12243 of 1995; (599) W.P. No,12244 of 1995; (600) W.P. No,12245 of 1995; (601) W.P.
71. No,12408 of 1995; (602) W.P. No,12409 of 1995; (603) W.P. No,12410 of 1995; (604) W.P. No,12424 of 1995;
(605) W.P. No,12438 of 1995; (606) W.P. No,12439 of 1995; (607) W.P. No,12940 of 1995; (608) W.P.
72. No,12941 of 1995; (609) W.P. No,12942 of 1995; (610) W.P. No,12943 of 1995; (611) W.P. No,12944 of 1995;
(612) W.P. No,12945 of 1995; (613) W.P. No,12946 of 1995; (614) W.P. No,12947 of 1995; (615) W.P.
73. No,12948 of 1995; (616) W.P. No,12949 of 1995; (617) W.P. No,12530 of 1995; (618) W.P. No,12531 of 1995;
(619) W.P. No,12487 of 1995; (620) W.P. No12488. Of 1995; (621) W.P. No,12489 of 1995; (622) W.P.
74. No,12491 of 1995; (623) W.P. No,12492 of 1995; (624) W.P. No,12493 of 1995; (625) W.P. No,12494 of 1995;
(626) W.P. No,12496 of 1995; (627) W.P. No,12548 of 1995; (628) W.P. No,12595 of 1995; (629) W.P.
75. No,13010 of 1995; (630) W.P. No,13149 of 1995; (631) W.P. No,13148 of 1995; (632) W.P. No,13147 of 1995;
(633) W.P. No,13146 of 1995; (634) W.P. No,13145 of 1995; (635) W.P. No,13144 of 1995; (636) W.P.
76. No,13143 of 1995; (637) W.P. No,13151 of 1995; (638) W.P. No,13152 of 1995; (639) W.P. No,13150 of 1995;
(640) W.P. No,13153 of 1995; (641) W.P. No,13154 of 1995; (642) W.P. No,13155 of 1995; (643)W.P. No,13156 of 1995; (644) W.P. No,13157 of 1995; (645) W.P. No,13158 of 1995; (646) W.P. No,13159 of 1995; (647)
77. W.P. No,13037 of 1995; (648) W.P. No,13038 of 1995; (649) W.P. No,13091 of 1995; (650) W.P. No,13092 of 1995; (651) W.P. No,13093 of 1995; (652) W.P. No,13094 of 1995; (653) W.P. No,13095 of 1995; (654) W.P.
78. No,12679 of 1995; (655) W.P. No,12680 of 1995; (656) W.P. No,12681 of 1995; (657) W.P. No,12685 of 1995;
(658) W.P. No,12766 of 1995; (659) W.P. No,12768 of 1995; (660) W.P. No,12769 of 1995; (661) W.P.
79. No,12952 of 1995; (662) W.P. No,12952 of 1995; (663) W.P. No,13333 of 1995; (664) W.P. No,914 of 1995;
(665) W.P. No,915 of 1995; (666) W.P. No,12507 of 1995; (667) W.P. No,12508 of 1995; (668) W.P.
80. No,12528 of 1995; (669) W.P. No,916 of 1995; (670) W.P. No12954. Of 1995; (671) W.P. No,12955 of 1995;
(672) W.P. No,12498 of 1995; (673) W.P. No,12501 of 1995; (674) W.P. No,12874 of 1995; (675) W.P.
81. No,12951 of 1995; (676) W.P. No,12533 of 1995; (677) W.P. No,12534 of 1995; (678) W.P. No,12834 of 1995;
(679) W.P. No,12833 of 1995; (680) W.P. No,12747 of 1995; (681) W.P. No,12825 of 1995; (682) W.P.
82. No,12826 of 1995; (683) W.P. No,12175 of 1995; (684) W.P. No,12497 of 1995; (685) W.P. No,12754 of 1995;
(686) W.P. No,13600 of 1995; (687) W.P. No,13601 of 1995; (688) W.P. No,13602 of 1995; (689) W.P.
83. No,13603 of 1995; (690) W.P. No,13604 of 1995; (691) W.P. No,13605 of 1995; (692) W.P. No,13606 of 1995; (693) W.P. No,13632 of 1995; (694) W.P. No,13627 of 1995; (695) W.P. No,13628 of 1995; (696) W.P.
84. No,13629 of 1995; (697) W.P. No,13630 of 1995; (698) W.P. No,13631 of 1995; (699) W.P. No,13633 of 1995;
(700) W.P. .No,13634 of 1995; (701) W.P. No,13635 of 1995; (702)W.P. No,13636 of 1995; (703) W.P.
85. No,13637 of 1995; (704) W.P. No,13638 of 1995; (705) W.P. No,13639 of 1995; (706) W.P. No,13640 of 1995;
(707) W.P. No,13641 of 1995; (708) W.P. No,13642 of 1995; (709) W.P. No,13643 of 1995; (710) W.P.
86. No,13644 of 1995; (711) W.P. No,13645 of 1995; (712) W.P. No,13646 of 1995; (713) W.P. No,13647 of 1995;
(714) W.P. No,13648 of 1995; (715) W.P. No,13649 of 1995; (716) W.P. No,13650 of 1995; (717) W.P.
87. No,13652 of 1995; (718) W.P. No,12668 of 1995; (719) W.P. No,12670 of 1995; (720) W.P. No,12671 of 1995;
(721) W.P.No,12848 of 1995; (722) W.P. No,13217 of 1995; (723) W.P. No,12818 of 1995; (724) W.P. No,12524 of 1995; (725) W.P. No,13168 of 1995; (726) W.P. No,13183 of 1995; (727) W.P. No,13184 of 1995;(728) W.P.
88. No,917 of 1995; (729) W,P. No,913 of 1995; (730) W.P. No,12785 of 1995; (731) W.P. No,12786 of 1995; (732)
89. W.P. No,12903 of 1995; (733) W.P. No,12904 of 1995; (734) W.P. No,912 of 1995; (735) W.P. No,12549 of 1995; (736) W.P. No,13678 of 1995; (737) W.P. No,13325 of 1995; (738) W.P. No,13677 of 1995; (739) W.P.
90. No,13399 of 1995; (740) W.P. No,13367 of 1995; (741) W.P. No,13283 of 1995; (742) W.P. No,13284 of 1995;
(743) W.P. No,13089 of 1995; (744) W.P. No,13,759 of 1995; (745) W.P. No,14142 of 1995; (746) W.P.
91. No,13588 of 1995; (747) W.P. No,13591 of 1995; (748) W.P. No,13590 of 1995; (749) W.P. No,13774 of 1995;
(750) W.P. No,13343 of 1995; (751) W.P. No,13599 of 1995; (752) W.O. No,13181 of 1995; (753) W.P.
92. No,13182 of 1995; (754) W.P. No,13206 of 1995; (755) W.P. No,13207 of 1995; (756) W.P. No,13548 of 1995;
(757) W.P. No,13561 of 1995; (758) W.P. No,13619 of 1995; (759) W.P. No,13714 of 1995; (760) W.P.
93. No,13672 of 1995; (761) W.P. No,13549 of 1995; (762) W.P. No,13209 of 1995; (763) W.P. No,13575 of 1995;
(764) W.P. No,13758 of 1995; (765) W.P. No,13875 of 1995; (766) W.P. No,13758 of 1995; (767) W.P.
94. No,13875 of 1995; (768) W.P. No,13702 of 1995; (769) W.P. No,14141 of 1995; (770) W.P. No,14085 of 1995;
(771) W.P. No,13337 of 1995; (772) W.P. No,13338 of 1995; (773) W.P. No,13546 of 1995; (774) W.P.
95. No,13547 of 1995; (775) W.P. No,13970 of 1995; (776) W.P. No,13978 of 1995; (777) W.P. No,13977 of 1995;
(778) W.P. No,13982 of 1995; (779) W.P. No,13974 of 1995; (780) W.P. No,13965 of 1995; (781) W.P.
96. No,13898 of 1995; (782) W.P. No,12968 of 1995; (783) W.P. No,12499 of 1995; (784) W.P. No,239 of 1995;
(785) W,P. No,240 of 1995; (786) W.P. No,241 of 1995; (787) W.P. No,242 of 1995;(788) W.P. No,48 of 1995; (789) W.P. No,793 of 1995; (790) W.P. No,794 of 1995; (791) W.P. No,795 of 1995; (792) W.P. No,796 of 1995; (793) W.P. No,797 of 1995; (794) W.P. No,798 of 1995; (795) W.P. No,799 of 1995; (796) W.P.
97. No,800 of 1995; (797) W.P. No,878 .Of 1995; (798) W.P. No,1001 of 1995; (799) W.P. No,1063 of 1995;
(800) W.P. No,1064 of 1995; (801) W.P. No,1065 of 1995; (802) W.P. No,1066 of 1995; (803) W.P. No,1067 of 1995; (804) W.P. No,1068 of 1995; (805) W.P. No,1069 of 1995; (806) W.P. No,1070 of 1995; (807) W.P.
98. No,1071 of 1995; (808) W.P. No,1072 of 1995; (809) W.P. No,1073 of 1995; (810) W.P. No,1074 of 1995; (811)
99. W.P. No,1075 of 1995; (812) W.P. No,1083 of 1995; (813) W.P. No,958 of 1995; (814) W.P. No,959 of 1995;
(815) W.P. No,61 of 1995; (816) W.P. No,60 of 1995; (817) W.P. No,2553 of 1995; (818) W.P. No,308 of 1995;
(819) W.P. No,1504 of 1995; (820) W.P. No,1860 of 1995; (821) W.P. No,1968 of 1995; (822) W.P. No,1969 of 1995; (823) W.P. No,1984 of 1995; (824) W.P. No,2006 of 1995; (825) W.P. No,2007 of 1995; (826) .W.P.
100. No,2008 of 1995; (827) W.P. No,2009 of 1995; (828) W.P. No,2015 of 1995; (829) W.P. No,2016 of 1995;
(830) W.P. No,2025 of 1995; (831) W.P. No,2041 of 1995; (832) W.P. No,2043 of 1995; (833) W.P. No,2062 of 1995; (834) W.P. No,2081 of 1995; (835) W.P. No,2082 of 1995; (836) W.P. No,2083 of 1995; (837) W.P.
101. No,2084 of 1995; (838) W.P. No,2085 of 1995; (839) W.P. No,2086 of 1995; (840) W.P. No,2199 of 1995;
(841) W.P. No,2300 of 1995; (842) W.P. No,2342 of 1995; (843) W.P. No,2475 of 1995; (844) W.P. No,2320 of 1995; (845) W.P. No,13841 of 1995; (846) W.P. No,13842 of 1995; (847) W.P. No,13945 of 1995; (848)
102. W.P. No,13201 of 1995; (849) W.P. No,13186 of 1995; (850) W.P. No,13301 of 1995; (851) W.P. No,14077 of 1995; (852) W.P. No,13911 of 1995; (853) W.P. No,14089 of 1995; (854) W.P. No,12667 of 1995; (855) W.P.
103. No,14109 of 1995; (856) W.P. No,13328 of 1995; (857) W.P. No,261 of 1995; (858) W.P. No,265 of 1995;
(859) W.P. No,267 of 1995; (860) W.P. No,268 of 1995; (861) W.P. No,269 of 1995; (862) W.P. No,270 of 1995; (863) W.P. No,271 of 1995; (864) W.P. No,273 of 1995; (865) W.P. No,274 of 1995; (866) W.P. No,275 of 1995; (867) W.P. No,262 of 1995; (868) W.P. No,263 of 1995; (869) W.P. No,264 of 1995; (870) W.P.
104. No,13160 of 1995; (871) W.P. No,13395 of 1995; (872) W.P. No,13550 of 1995; (873) W.P. No,13551 of 1995;
(874) W.P. No,13847 of 1995; (875) W.P. No,14148 of 1995; (876) W.P. No,14149 of 1995; (877) W.P.
105. No,14150 of 1995; (878) W.P. No,14151 of 1995; (879) W.P. No,14152 of 1995; (880) W.P. No,13545 of 1995;
(881) W.P. No,14084 of 1995; (882) W.P. No,14010 of 1995; (883) W.P. No,14136 of 1995; (884) W.P.
106. No,14118 of 1995; (885) W.P. No,14119 of 1995; (886) W.P. No,14120 of 1995; (887) W.P. No,14211 of 1995;
(888) W.P. No,14206 of 1995; (889) W.P. No,14207 of 1995; (890) W.P. No,14208 of 1995; (891) W.P.
107. No,14209 of 1995; (892) W.P. No,14210 of 1995; (893) W.P. No,14212 of 1995; (894) W.P. No,14213 of 1995;
(895) W.P. No,14214 of 1995; (896) W.P. No,14238 of 1995; (897) W.P. No,14239 of 1995; (898) W.P.
108. No,14240 of 1995; (899) W.P. No,14241 of 1995; (900) W.P. No,14242 of 1995; (901) W.P. No,14243 of 1995;
(902) W.P. No,14244 of 1995; (903) W.P. No,14245 of 1995; (904) W.P. No,14246 of 1995; (905) W.P.
109. No,14697 of 1995; (906) W.P. No,14698 of 1995; (907) W.P. No,14699 of 1995; (908) W.P. No,14700 of 1995; (909) W.P. No,14701 of 1995; (910) W.P. No,14702 of 1995; (911) W.P. No,14708 of 1995; (912) W.P.
110. No,14710 of 1995; (913) W.P. No,14709 of 1995; (914) W.P. No,14711 of 1995; (915) W.P. No,14712 of 1995;
(916) W.P. No,14721 of 1995; (917) W.P. No,14724 of 1995; (918) W.P. No,14725 of 1995; (919) W.P. No,14726 of 1995; (920) W.P. No,14729 of 1995; (921) W.P. No,14753 of 1995; (922) W.P. No,14754 of 1995; (923)
111. W.P. No,14755 of 1995; (924) W.P. No,14757 of 1995; (925) W.P. No,14758 of 1995; (926) W.P. No,14425 of 1995; (927) W.P. No,14430 of 1995; (928) W.P. No,14448 of 1995; (929) W.P. No,14433 of 1995; (930) W.P.
112. No,14440 of 1995; (931) W.P. No,14434 of 1995; (932) W.P. No,14460 of 1995; (933) W.P. No,14461 of 1995;
(934) W.P. No,14463 of 1995; (935) W.P. No,14464 of 1995; (936) W.P. No,14465 of 1995; (937) W.P.
113. No,14764 of 1995; (938) W.P. No,14674 of 1995; (939) W.P. No,14683 of 1995; (940) W.P. No,14684 of 1995; (941) W.P. No,14685 of 1995; (942) W.P. No,14692 of 1995; (943) W.P. No,14694 of 1995; (944) W.P.
114. No,14459 of 1995; (945) W.P. No,14366 of 1995; (946) W.P. No,14368 of 1995; (947) W.P. No,14370 of 1995; (948) W.P. No,14372 of 1995; (949) W.P. No,14377 of 1995; (950) W.P. No,14378 of 1995; (951) W.P.
115. No,14382 of 1995; (952) W.P. No,14383 of 1995; (953) W.P. No,14404 of 1995; (954) W.P. No,14411 of 1995;
(955) W.P. No,14412 of 1995; (956) W.P. No,14416 of 1995; (957) W.P. No,14417 of 1995; (958) W.P.
116. No,14418 of 1995; (959) W.P. No,14419 of 1995; (960) W.P. No,14420 of 1995; (961) W.P. No,14759 of 1995;
(962) W.P. No,14760 of 1995; (963) W.P. No,14761 of 1995; (964) W.P. No,14742 of 1995; (965) W.P.
117. No,14763 of 1995; (966) W.P. No,14765 of 1995; (967) W.P. No,14766 of 1995; (968) W.P. No,14676 of .1995; (969) W.P. No,4605 of 1995; (970) W.P. No,4611 of 1995; (971) W.P. No,4613 of 1995; (972) W.P.
118. No,4615 of 1995; (973) W.P. No,4831 of 1995; (974) W.P. No,4837 of 1995; (975) W.P. No,4877 of 1995;
(976) W.P. No,4931 of 1995; (977) W.P. No,4933 of 1995; (978) W.P. No,4935 of 1995; (979) W.P. No,4523 of 1995; (980) W.P. No,4403 of 1995; (981) W.P. No,4479 of 1995; (982) W.P. No,4483 of 1995; (983) W.P.
119. No,4505 of 1995; (984) W.P. No,4507 of 1995; (985) W.P. No,4509 of 1995; (986) W.P. No,4513 of 1995;
(987) W.P. No,4527 of 1995; (988) W.P. No,4539 of 1995; (989) W.P. No,3685 of 1995; (990) W.P.
120. No,3687 of 1995; (991) W.P. No,3689 of 1995; (992) W.P. No,3729 of 1995; (993) W.P. No,3691 of 1995;
(994) W.P. No,3735 of 1995; (995) W.P. No,3737 of 1995; (996) W.P. No,3757 of 1995; (997) W.P. No,3769 of 1995; (998) W.P. No,3775 of 1995; (999) W.P. No,3777 of 1995; (1000) W.P. No,3811 of 1995; (1001) W.P.
121. No,3789 of 1995; (1002) W.P. No,4391 of 1995; (1003) W.P. No,4105 of 1995; (1004) W.P. No,6131 of 1995; (1005) W.P. No,2327 of 1995; (1006) W.P. No,2421 of 1995; (1007) W.P. No,2449 of 1995; (1008) W.P.
122. No,2463 of 1995; (1009) W.P. No,3505 of 1995; (1010) W.P. No,3547 of 1995; (1011) W.P. No,3601 of 1995; (1012) W.P. No,3603 of 1995; (1013) W.P. No,3615 of 1995; (1014) W.P. No,3617 of 1995; (1015) W.P. No,3619 of 1995; (1016) W.P. No,3621 of 1995; (1017) W.P. No,3633 of 1995; (1018) W.P. No,3663 of 1995; (1019) W.P.
123. No,3643 of 1995; (1020) W.P. No,3681 of 1995; (1021) W.P. No,4674 of 1995; (1022) W.P. No,4738 of 1995; (1023) W.P. No,4778 of 1995; (1024) W.P. No,4788 of 1995; (1025) W.P. No,4930 of 1995; (1026) W.P.
124. No,4932 of 1995; (1027) W.P. No,4934 of 1995; (1028) W.P. No,4968 of 1995; (1029) W.P. No,348 of 1994; (1030) W.P. No,4344 of 1994; (1031) W.P. No,4362/A of 1994; (1032) W.P. No,4414 of 1994; (1033) W.P.
125. No,5128 of 1994; (1034) W.P. No,4518 of 1995; (1035) W.P. No,4526 of 1995; (1036) W.P. No,4550 of 1995; (1037) W.P. No,4552 of 1995; (1038) W.P. No,4608 of 1995; (1039) W.P. No,4610 of 1995; (1040) W.P.
126. No,4612 of 1995; (1041) W.P. No,4614 of 1995; (1042) W.P. No,4458 of 1995; (1043) W.P. No,4478 of 1995; (1044) W.P. No,4490 of 1995; (1045) W.P. No,4496 of 1995; (1046) W.P. No,4504 of 1995; (1047) W.P.
127. No,4508 of 1995; (1048) W.P. No,4510 of 1995; (1049) W.P. No,4514 of 1995; (1050) W.P. No,4516 of 1995; (1051) W.P. No,4360 of 1995; (1052) W.P. No,2354 of 1995; (1053) W.P. No,3732 of 1995; (1054) W.P.
128. No,3774 of 1995; (1055) W.P. No,3776 of 1995; (1056) W.P. No,6016 of 1995; (1057) W.P. No,6030 of 1995; (1058) W.P. No,6032 of 1995; (1059) W.P. No,6050 of 1995; (1060) W.P. No,6054 of 1995; (1061) W.P.
129. No,6160 of 1995; (1062) W.P. No,6200 of 1995; (1063) W.P. No,6275 of 1995; (1064) W.P. No,6268 of 1995; (1065) W.P. No,5350 of 1995; (1066) W.P. No,6294 of 1995; (1067) W.P. No,1700 of 1995; (1068) W.P.
130. No,5340 of 1995; (1069) W.P. No,6332 of 1995; (1070) W.P. No,544 of 1995; (1071) W.P. No,462 of 1995; (1072) W.P. No,6330 of 1995; (1073) W.P. No,5970 of 1995; (1074) W.P. No,5972 of 1995; (1075) W.P.
131. No,5368 of 1995; (1076) W.P. No,5358 of 1995; (1077) W.P. No,5854 of 1995; (1078) W.P. No,5800 of 1995; (1079) W.P. No,5782 of 1995; (1080) W.P. No,5744 of 1995; (1081) W.P. No,5724 of 1995; (1082) W.P.
132. No,5694 of 1995; (1083) W.P. No,5660 of 1995; (1084). W.P. No,5524 of 1995; (1085) W.P. No,5388 of 1995; (1086) W.P. No,5286 of 1995; (1087) W.P. No,5298 of 1995; (1088) W.P. No,4308 of 1995; (1089)
133. W.P. No,4310 of 1995; (1090) W.P. No,3688 of 1995; (1091) W.P. No,3690 of 1995; (1092) W.P. No,3716 of 1995; (1093) W.P. No,3726 of 1995; (1094) W.P. No,3728 of 1995; (1095) W.P. No,3686 of 1995; (1096) W.P.
134. No,3616 of 1995; (1097) W.P. No,3614 of 1995; (1098) WIP. No,3618 of 1995; (1099) W.P. No,3622 of 1995; (1100) W.P. No,3644 of 1995; (1101) W.P. No,3696 of 1995; (1102) W.P. No,3662 of 1995; (1103) W.P.
135. No,3678.Of 1995; (1104) W.P. No,3682 of 1.995; (1105) W.P. No,3684 of 1995; (1106) W.P. No,3558 of 1995; (1107) W.P. No,3584 of 1995; (1108) W.P. No,3602 of 1995; (1109) W.P. No,3604 of 1995; (1110) W.P. No,484 of 1995; (1111) W.P. No,5128 of 1995; (1112) W.P. No,6692 of 1995; (1113) W.P. No,5894 of 1995; (1114) W.P.
136. No,5902 of 1995; (1115) W.P. No,5904 of 1995; (1116) W.P. No,5906 of 1995; (1117) W.P. No,5920 of 1995; (1118) W.P. No,5928 of 1995; (1119) W.P. No,5930 of 1995; (1120) W.P. No,5934 of 1995; (1121) W.P. No,5936 of 1995; (1122) W.P. No,5948 of 1995; (1123) W.P. No,5950 of 1995; (1124) W.P. No,5968 of 1995; (1125) W.P.
137. No,3608 of 1995; (1126) W.P. No,2384 of 1995; (1127) W.P. No,2320 of 1995; (1128) W.P. No,2410 of 1995; (1129) W.P. No,2412 of 1995; (1130) W.P. No,2420 of 1995; (1131) W.P. No,2450 of 1995; (1132) W.P. No,3024 of 1995; (1133) W.P. No,6683 of 1995; (1134) W.P. No,6693 of 1995; (1135) W.P. No,6721 of 1995; (1136) W.P.
138. No,6717 of 1995; (1137) W.P. No,6591 of 1995; (1138) W.P. No,6592 of 1995; (1139) W.P. No,6593 of 1995; (1140) W.P. No,6594 of 1995; (1141) W.P. No,6595 of 1995; (1142) W.P. No,6793 of 1995; (1143) W.P.
139. No,6794 of 1995; (1144) W.P. No,6795 of 1995; (1145) W.P. No,6796 of 1995; (1146) W.P. No,6797 of 1995; (1147) W.P. No,5971 of 1995; (1148) W.P. No,337 of 1995; (1149) W.P. No,461 of 1995; (1150) W.P. No,6331 of 1995; (1151) W.P. No,6305 of 1995; (1152) W.P. No,6295 of 1995; (1153) W.P. No,6293 of 1995; (1154) W.P.
140. No,6161 of 1995; (1155) W.P. No,6029 of 1995; (1156) W.P. No,6015 of 1995; (1157) W.P. No,6017 of 1995; (1158) W.P. No,6001 of 1995; (1159) W.P. No,5973 of 1995; (1160) W.P. No,5969 of 1995; (1161) W.P. No,5941 of 1995; (1162) W.P. No,5923 of 1995; (1163) W.P. No,5917 of 1995; (1164) W.P. No,5907 of 1995; (1165) W.P.
141. No,5853 of 1995; (1166) W.P. No,5779 of 1995; (1167) W.P. No,5723 of 1995; (1168) W.P. No,5305 of 1995; (1169) W.P. No,5307 of 1995; (1170) W.P. No,5311 of 1995; (1171) W.P. No,5313 of 1995; (1172) W.P. No,5315 of 1995; (1173) W.P. No,5317 of 1995.; (1174) W.P. No,5321 of 1995; (1175) W.P. No,5325 of 1995; (1176) W.P.
142. No,5347 of 1995; (1177) W.P. No,5335 of 1995; (1178) W.P. No,5351 of 1995; (1179) W.P. No,5353 of 1995; (1180) W.P. No,5717 of 1995; (1181) W.P. No,5719 of 1995; (1182) W.P. No,5695 of 1995; (1183) W.P. No,5707 of 1995; (1184) W.P. No,5685 of 1995; (1185) W.P. No,5310 of 1995; (1186) W.P. No,5344 of 1995; (1187) W.P.
143. No,5339 of 1995; (1188) W.P. No,5326 of 1995; (1189) W.P. No,5314 of 1995; (1190) W.P. No,5312 of 1995; (1191) W.P. No,5308 of 1995; (1192) W.P. No,5306 of 1995; (1193) W.P. No,5304 of 1995; (1194) W.P.
144. No,5302 of 1995; (1195) W.P. No,5034 of 1995; (1196) W.P. No,5098 of 1995; (1197) W.P. No,5112 of 1995; (1198) W.P. No,5154 of 1995; (1199) W.P. No,5156 of 1995; (1200) W.P. No,5176 of 1995; (1201) W.P. No,5214 of 1995; (1202) W.P. No,5216 of 1995; (1203) W.P. No,5218 of 1995; (1204) W.P. No,5224 of 1995; (1205)
145. W.P. No,3694 of 1995; (1206) W.P. No,5220 of 1995; (1207) W.P. No,5226 of 1995; (1208) W.P. No,5234 of 1995; (1209) W.P. No,5236 of 1995; (1210) W.P. No,5238 of 1995; (1211) W.P. No,5240 of 1995; (1212) W.P.
146. No,5246 of 1995; (1213) W.P. No,5248 of 1995; (1214) W.P. No,5250 of 1995; (1215) W.P. No,5268 of 1995; (1216) W.P. No,5270 of 1995; (1217) W.P. No,5271 of 1995; (1218) W.P. No,1088 of 1995; (1219) W.P. No,1114 of 1995; (1220) W.P. No,1148 of 1995; (1221) W.P. No,1168 of 1995; (1222) W.P. No,1496 of 1995; (1223) W.P.
147. No,1502 of 1995; (1224) W.P. No,1642 of 1995; (1225) W.P. No,1702 of 1995; (1226) W.P. No,5014 of 1995; (1227) W.P. No,546 of 1995; (1228) W.P. No,548 of 1995; (1229) W.P. No,552 of 1995; (1230) W.P. No,556 of 1995; (1231) W.P. No,558 of 1995; (1232) W.P. No,1004 of 1995; (1233) W.P. No,1024 of 1995; (1234) W.P.
148. No,480 of 1995; (1235) W.P. No,416 of 1995; (1236) W.P. No,216 of 1995; (1237) W.P. No,5237 of 1995; (1238) W.P. No,5239 of 1995; (1239) W.P. No,5241 of 1995; (1240) W.P. No,5245 of 1995; (1241) W.P.
149. No,5269 of 1995; (1242) W.P. No,5271 of 1995; (1243) W.P. No,5273 of 1995; (1244) W.P. No,5287 of 1995; (1245) W.P. No,5291 of 1995; (1246) W.P. No,5297 of 1995; (1247) W.P. No,5303 of 1995; (1248) W.P.
150. No,5219 of 1995; (1249) W.P. No,5221 of 1995; (1250) W.P. No,5225 of 1995; (1251) W.P. No,5229 of 1995; (1252) W.P. No,5233 of 1995; (1253) W.P. No,482 of 1995; (1254) W.P. No,494 of 1995; (1255) W.P. No,495 of 1995; (1256) W.P. No,496 of 1995; (1257) W.P. No,497 of 1995; (1258) W.P. No,505 of 1995; (1259) W.P.
151. No,506 of 1995; (1260) W.P. No,507 of 1995; (1261) W.P. No,508 of 1995; (1262) W.P. No,1717 of 1995; (1263) W.P. No,1718 of 1995; (1264) W.P. No,584 of 1995; (1265) W.P. No,5063 of 1995; (1266) W.P. No,5155 of 1995; (1267) W.P. No,5213 of 1995; (1268) W.P. No,5215 of 1995; (1269) W.P. No,5217 of 1995; (1270) W.P.
152. No,545 of 1995; (1271) W.P. No,5165 of 1995; (1272) W.P. No,565 of 1995; (1273) W.P. No,551 of 1995; (1274) W.P. No,547 of 1995; (1275) W.P. No,1019 of 1995; (1276) W.P. No,585 of 1995; (1277) W.P. No,687 of 1995; (1278) W.P. No,681 of 1995; of 1995; (1279) W.P. No,579 of 1995; (1280) W.P. No,5643 of 1995; (1281)
153. W.P. No,5389 of 1995; (1282) W.P. No,5387 of 1995; (1283) W.P. No,5377 of 1995; (1284) W.P. No,485 of 1995; (1285) W.P. No,487 of 1995; (1286) W.P. No,1689 of 1995; (1287) W.P. No,1495 of 1995; (1288) W.P.
154. No,1223 of 1995; (1289) W.P. No,1165 of 1995; (1290) W.P. No,1149 of 1995; (1291) W.P. No,1147 of 1995; (1292) W.P. No,1113 of 1995; (1293) W.P. No,1060 of 1995; (1294) W.P. No,1103 of 1995; (1295) W.P. No,582 of 1995; (1296) W.P. No,77 of 1995; (1297) W.P. No,1087 of 1995; (1298) W.P. No,10735 of 1995; (1299) W.P.
155. No,16418 of 1995; (1300) W.P. No,10222 of 1995; (1301) W.P. No,10223 of 1995; (1302) W.P. No,10224 of 1995; (1303) W.P. No,8520 of 1995; (1304) W.P. No,8521 of 1995; (1305) W.P. No,8522 of 1995; (1306) W.P.
156. No,8523 of 1995; (1307) W.P. No,8524 of 1995; (1208) W.P. No,8525 of 1995; (1309) W.P. No,8526 of 1995; (1310) W.P. No,8527 of 1995; (1311) W.P. No,8528 of 1995; (1312) W.P. No,8529 of 1995; (1313) W.P. No,8530 of 1995; (1314) W.P. No,8531 of 1995; (1215) W.P. N6.8532 of 1995; (1316) W.P. No,8533 of 1995; (1317) W.P.
157. No,14442 of 1995; (1318) W.P. No,14443 of 1995; (1319) W.P. No,14545 of 1995; (1320) W.P. No,14546 of 1995; (1321) W.P. No,14548 of 1995; (1322) W.P. No,14549 of 1995; (1323) W.P. No,14550 of 1995; (1324)
158. W.P. No,14551 of 1995; (1325) W.P. No,14552 of 1995; (1326) W.P. No,14553 of 1995; (1327) W.P. No,14554 of 1995; (1328) W.P. No,14555 of 1995; (1329) W.P. No,14556 of 1995; (1330) W.P. No,14557 of 1995; (1331)
159. W.P. No,14558 of 1995; (1332) W.P. No,14559 of 1995; (1333) W.P. No,14560 of 1995; (1334) W.P. No,14561 of 1995; (1335) W.P. No,14562 of 1995; (1336) W.P. No,14563 of 1995; (1337) W.P. No,14572 of 1995; (1338)
160. W.P. No,14573 of 1995; (1339) W.P. No,14589 of 1995; (1340) W.P. No,14590 of 1995; (1341) W.P. No,14591 of 1995; (1342) W.P. No,14592 of 1995; (1343) W.P. No,14593 of 1995; (1344) W.P. No,14594 of 1995; (1345)
161. W.P. No,14595 of 1995; (1346) W.P. No,14602 of 1995; (1347) W.P. No,14603 of 1995; (1348) W.P. No,14611 of 1995; (1349) W.P. No,14617 of 1995; (1350) W.P. No,14618 of 1995; (1351) W.P. No,14620 of 1995; (1352)
162. W.P. No,14623 of 1995; (1353) W.P. No,14628 of 1995; (1354) W.P. No,14629 of 1995; (1355) W.P. No,14630 of 1995; (1356) W.P. No,14631 of 1995; (1357) W.P. No,14635 of 1995; (1358) W.P. No,14644 of 1995; (1359)
163. W.P. No,14645 of 1995; (1360) W.P. No,14647 of 1995; (1361) W.P. No,14651 of 1995; (1362) W.P. No,14653 of 1995; (1363) W.P. No,14655 of 1995; (1364) W.P. No,14661 of 1995; (1365) W.P. No,14663 of 1995; (1366)
164. W.P. No,14664 of 1995; (1367) W.P. No,15197 of 1995; (1368) W.P. No,15042 of 1995; (1369) W.P. No,15043 of 1995; (1370) W.P. No,15044 of 1995; (1371) W.P. No,15045 of 1995; (1372) W.P. No,15046 of 1995; (1373)
165. W.P. No,15047 of 1995; (1374) W.P. No,15048 of 1995; (1375) W.P. No,15061 of 1995; (1376) W.P. No,10730 of 1995; (1377) W.P. No,15307 of 1995; (1378) W.P. No,14266 of 1995; (1379) W.P. No,14284 of 1995; (1380)
166. W.P. No,14285 of 1995; (1381) W.P. No,14286 of 1995; (1382) W.P. No,14288 of 1995; (1383) W.P. No,14290 of 1995; (1384) W.P. No,14298 of 1995; (1385) W.P. No,14299 of 1995; (1386) W.P. No,14300 of 1995; (1387)
167. W.P. No,14301 of 1995; (1388) W.P. No,14302 of 1995; (1389) W.P. No,14307 of 1995; (1390) W.P. No,14313 of 1995; (1391) W.P. No,14314 of 1995; (1392) W.P. No,14315 of 1995; (1393) W.P. No,14325 of 1995; (1394) W.P.
168. No,14338 of 1995; (1395) W.P. No,14346 of 1995; (1396) W.P. No,14347 of 1995; (1397) W.P. No,953 of 1995; (1398) W.P. No,885 of 1995; (1399) W.P. No,1185 of 1995; (1400) W.P. No,13183 of 1995; (1401) W.P.
169. No,13184 of 1995; (1402) W.P. No,726 of 1995; (1403) W.P. No,162 of 1995/BWP of 1995; (1404) W.P.
170. No,2610 of 1995/BWP of 1995; (1405) W.P. No,1161 of 1995; (1406) W.P. No,1162 of 1995 of 1995; (1407) W.P.
171. No,11767 of 1993; (1408) W.P. No,14027 of 1993; (1409) W.P. No,7447 of 1995; (1410) W.P. No,5903 of 1995; (1411) W.P. No,14462 of 1995; (1412) W.P. No,9712 of 1995; (1413) W.P. No,11538 of 1995; (1414) W.P. No,11296 of 1995; (1415) W.P. No,2314 of 1994; (1416) W.P. No,2315 of 1994; (1417) W.P. No,2316 of 1994; (1418) W.P.
172. No,2317 of 1994; (1419) W.P. No,2318 of 1994; (1420) W.P. No,2319 of 1994; (1421) W.P. No,2320 of 1994; (1422) W.P. No,2326 of 1994; (1423) W.P. No,2323 of 1994; (1424) W.P. No,3412 of 1994; (1425) W.P.
173. No,3706 of 1994; (1426) W.P. No,3843 of 1994; (1427) W.P. No,1104 of 1995; (1428) W.P. No,1105 of 1995; (1429) W.P. No,1115 of 1995; (1430) W.P. No,11 i6 of 1995; (1431) W.P. No,1117 of 1995; (1432) W.P. No,15112 of 1994; (1433) W.P. No,14028 of 1993; (1434) W.P. No,14029 of 1993; (1435) W.P. No,14574 of 1994; (1436)
174. W.P. No,14573 of 1994; (1437) W.P. No,14848 of 1994; (1438) W.P. No,12952 of 1995; (1439) W.P. No,13209 of 1995.
2. Water and Power Development Authority, the respondent in all these petitions, to be described in the later part of the judgment as the "Authority" was created under the provisions of Water and Power Development Authority Act, 1958. As per deeming provisions of section 12 of the said Act, the Authority has been declared to be a licensee for the purpose of Electricity Act, 1910 and has been conferred with all the powers and obligations of a licensee under the said Act. However, the provisions of sections 3 to 11, 21(2) & (3), 22, 23 and 27 and clauses (i) to (xii) of the Schedule I to the Electricity Act have been made inapplicable to the Authority in relation to duties and obligations of a licensee under the said Act, which are to be performed by it in accordance with the provisions of the WAPDA Act, 1958, under which Act, the Authority can fix rates for sale of power in accordance with the provisions of section 25 thereof, after obtaining of prior approval from the Federal Government.
3. In pursuance of the various provisions of the WAPDA Act read with applicable provisions of the Electricity Act, 1910, the Authority is performing the functions of generation, supply and distribution of electricity throughout Pakistan and is also responsible for the development of water and power resources of the country.
4. In exercise of its power of fixation of rate for sale of power, the Authority fixed the tariff for the consumption of energy for domestic, commercial and industrial purposes. Subsequently, vide Notification dated 1-1-1992, the Authority imposed a surcharge at the rate of 2.5% of the tariff, which was increased to 5%, 7.7% and 10.4% respectively vide Notifications dated 1-2-1992, 1-4-1992, and 16- 1-1993. Thereafter vide Notification dated 9-8-1993, the Authority imposed additional surcharge at the rate of 16.1% with effect from 10-8-1993, which was further increased vide Notifications dated 24-11-1994 and 9-7-1995 by 24.3% and 14.5% of the gross tariff, respectively. It may be mentioned here that before issuance of Notification dated 9-7-1995, following summary was submitted to the Federal Government for grant of prior approval:-- "Summary for the Prime Minister Sub: Increase in Consumer Tariff for FY 1995-96.
175. ' The Water and Power Development Authority (WAPDA) has forwarded a proposal for the increase in consumer tariff for the fiscal year 1995-96 for approval by the Government of Pakistan (AnnexureA). The proposal is based on the following assumptions:-
(i) An investment plan of Rs,34,548 million including funds for the Ghazi Barotha Power Project will be met by WAPDA through its internal cash generation and borrowings, without recourse to the Government of Pakistan.
(ii) WAPDA will pay hydel profit of Rs,6,000 million to the provinces from its own resources.
(iii) WAPDA will meet all its debt servicing obligations budgeted at Rs,26,557 million including those to the Federal Government.
(iv) WAPDA will meet its payment obligations towards oil and gas companies supplying fuel to it.
(v) An amount of Rs,3,000 million will be repaid to the Privatization Commission.
(vi) WAPDA will retire its short-term liability of US $ 1000 million borrowed during the year 1994-95.
(vii) An increase of 24% in gas prices and 5% in the prices of furnace oil will be absorbed by WAPDA.
(viii) WAPDA will meet its financial covenants agreed with the World Bank which include a 40% internal cash generation and a debt service coverage ratio of 1.5 times.
2. After meeting all the financial obligations listed above, WAPDA has proposed an increase of 21.2% in the existing tariff. (21.7% if furnace oil rates are increased by 10%).
3. A more acceptable alternative would be to make the following adjustments to limit the increase:
(a) An amount of Rs,3,000 million due to the Privatization Commission may be written off/deferred.
176. This will result in a reduction of 4.5% in the increase demanded.
(b) The profits payable to the Provinces may be maintained on the existing level of Rs,4,644 million for one more year as was done in the previous years. This will result in a further reduction of 2.25% in the consumer tariff.
4. It is recommended that WAPDA may be allowed an increase of 14.5% over the current tariff for the fiscal year 1995-96 after taking into account the adjustments suggested in para. 3 above. The above tariff will also apply ipso facto to KESC for FY 1995-96, as is practice.
5. Approval is requested for the tariff increase suggested in para. 4 above. It is further proposed that Chairman, WAPDA may be allowed to announce the increase in tariff-at Lahore at a suitable- date and time immediately after the announcement of budget. We are of the view that this may be done on Saturday, June 17, 1995.
6. The Minister for Water and Power is away from Islamabad and could not be contacted.
177. (Sd.)
178. (M. Salman Faruqui)
179. Secretary Water and Power.
180. ANNEXURE ' A'
181. Proposed Budget 1995-96 Assumptions Sales (Units)
182. ' Units sold have been increased by 8% over the revised budget 1994-95 i,e, 33737 Mkwh. The units sold for 1995-96 thus come to 36437 Mkwh.
183. System Losses System Losses (including auxiliary consumption) for the year have been adopted as 21% showing 1% improvement over the previous year i,e, 1994-95.
184. Generation ' Generation has been worked out as 46123 Mkwh on the basis of units sold and losses shown above. The hydel generation would be 21994 Mkwh and thermal generation 24129 Mkwh with Hydel/Thermal mix as 48:52.
185. Receivables ' The receivables at end of 1995-96, have been assumed as 18% of annual billing.
186. Fuel Cost ' The rates of Oil have been increased by 10% over the current rates. The rates for Gas have been increased by 24%.
187. Generation Establishment Expenses General Establishment Expenses have been increased by 12% over those of 1994-9,5. This includes increase of 15% in the salaries of the officers w,e,f, 1-6-1995 as announced by the Government.
188. Maintenance Expenses ' Maintenance expenses for all activities except thermal have been increased by 13.5% over the revised budget 1994-95. This percentage increase is based on the trend of increase in fixed assets over the last years.
189. Increase in Stores An amount of Rs,1340 million has been assumed in 1995-96 against Rs,1561 million taken in original budget of 1994-95.
190. Current Liabilities ' The Current Liabilities in 1995-96 are assumed to be Rs,23250 million Payment of Rs,3000 million paid out of Privatization Fund included in current liabilities in FY 95 (revised) is assumed to be paid during the year.
191. Escrow Account.
192. ' In order to facilitate payments to the Private Sectoi an amount of Rs,1500 million has been provided in 1995-96 against Escrow Account.
193. Hydel Profit to Provinces.
194. ' Hydel Profit payment to Provinces has been taken at the level of Rs .6100 million. P.S.D.P.
195. ' Investment programme taken as 34,548 million. Tariff Increase ' In order to achieve 40% self-financing, an increase of 21.7% in tariff level (including hydel surcharge) effective July 1st, 1995, would be required."
196. ' The Federal Government in its cabinet meeting held on 14-6-1995 took the following decision:-- "The Cabinet noted the proposal of WAPDA. The decision with regard to the percentage increase in the electricity tariff should be taken by WAPDA itself and announced in the first week of July, 1995."
197. Hence, the Notification dated 9-7-1995 was issued.
5. Bills for payment of electricity charges were issued to the petitioners, showing the following break-up of the amount demanded:--
(i) Consumption charges;
(ii) Fuel adjustment charges;
(iii) Surcharge;
(iv) Additional surcharge;
(v) Excise duty;
(vi) Income-tax charges; and
(vii) Late payment charges.
6. Aggrieved of the aforesaid notifications of imposition of surcharge and additional surcharge and demand of other charges besides consumption charges, the consumers have filed these writ petitions to challenge the same as being illegal and without a lawful authority. All these petitions involve almost identical questions of fact and law, particularly the main issues, hence, facts of each case have not been separately stated and all the writ petitions are being decided by this consolidated judgment after a consolidated hearing thereof with consent of learned counsel for all the parties.
7. Messrs Mansoor-ul-Islam Joyia and other Advocates, whose names have been mentioned in the title page of this judgment, have appeared on behalf of the petitioners in Writ Petition No,14612 of 1995 as well as other petitions which have been filed through them, whereas learned counsel for the petitioners in the remaining writ petitions, though opportunity given, have chosen not to argue separately and have adopted the arguments addressed by the learned counsel, referred to above.
198. Messrs Fakhar-ud-Din G. Ebrahim, Ch. Ijaz Ahmad, Muhammad Ilyas Khan, Senior Advocates, Karim Nawaz Awan, Aurangzeb Mirza, Syed Ali Raza, Ch. Abdul Sattar, Muhammad Arshad Qureshi, Syed Mazhar Ali Akbar Naqvi, Tanvir Ahmad Qureshi, Qamar Abbas and Bashir Hussain Khalid, Advocates have argued on behalf of the Authority, whereas Mr. Faqir Muhammad Khokhar, Deputy Attorney- General for Pakistan has argued on behalf of the Federal Government and Mian Abdus Sattar Najam, Advocate-General, Punjab assisted by Mr. Zahid Farani Sheikh, Assistant Advocate-General has argued on behalf of the Province of Punjab.
8. Appearing from the side of the petitioners, learned counsel have argued as under:-- Mr. Mansoor-ul-Islam Joyia, Advocate has contended that the questioned levy of surcharge and additional surcharge is a tax/a cess and not a part of tariff, therefore, it could not have been imposed by the Authority as there is no law framed by the Parliament authorising the said levies and that as per Entry No,34 of concurrent legislative list, to the Constitution, electricity is the subject regarding which the Provincial Government alone can legislate, as per provisions of Article 157 read with Article 161 thereof, therefore, tariff of electricity could only be determined by the Provincial Government and not the Authority or the Federal Government, therefore, the impugned imposts are without a lawful authority.
199. ' Kh. Mukhtar Ahmad Butt, Advocate has made a reference to the provisions of sections 12 and 13 of the WAPDA Act and has contended that neither the Authority nor the Federal Government can impose or increase surcharge or additional surcharge as the Authority is a licensee under the Electricity Act, 1910 by virtue of the deeming provisions of section 12 of WAPDA Act, hence is to be governed by the provisions of the said Act in matters of fixation of price according to provisions whereof, the price/tariff can only be fixed by the Provincial Government or with its authority and none else, that too after giving a notice to the consumers and that at any rate the levy of the surcharge and the additional surcharge is neither permissible under the provisions of section 25 of the WAPDA Act nor the Electricity Act, 1910, therefore, the abovesaid levies are absolutely illegal and without a lawful authority.
200. ' Syed Mansoor Ali Shah, Advocate has made a reference to preamble of the WAPDA Act, 1958 and has contended that the Authority has been created for the purpose of co-ordinated development of water and power resources of the country and status thereof is that of a local Authority, who as a licensee can charge the price of electricity actually sold, but cannot levy or increase the surcharge or additional surcharge as the same is a tax, which can only be imposed by an Act of the Assembly/Parliament. It is further contended that the Authority has no power to charge from the consumer anything in addition to the consumption charges for the purpose of payment of royalty and obtaining of loans for the expansion/development of power resources or to cover the losses on account of theft of electricity, line losses and pilferage of its resources at the hands of its own employees.
201. ' Kh. Muhammad Fazil, Advocate has argued that by, imposing of surcharge/additional surcharge, tariff of electricity could not have been increased without service upon the petitioners at least one month's prior notice and that different rates of surcharge and additional surcharge for various categories of consumers, makes the same discriminatory, hence, being violative of the provisions of Article 25 of the Constitution, the same is without a lawful authority.
202. ' Mr. Imtiaz Ahmad Siddiqui, Advocate has contended that under Article 157 of the Constitution, it is the Provincial Government alone who can fix or revise the rates of power and the Authority has absolutely no jurisdiction to fix or increase the tariff and that the abridged Conditions No,26 and 27 of the Contract executed between the parties are void as per principles of "unequal bargain" and "economic duress". Elaborating his arguments, he contends that the electricity being necessity of life and not available from any other source, the consumer is bound to approach the respondents for supply thereof, hence, being in a disadvantageous position, the abridged Conditions Nos.26 and 27 of the Agreement shall be deemed to be void and inoperative against the petitioners. Reliance is placed on the cases reported as All England Law Reports 1975 page 237 and PLD 1990 SC 1. He has next contended that even if 'it is assumed for the sake of argument that revision/increase of tariff is the prerogative of the Authority, the price fixed has to be reasonable and in these cases magnitude of additional imposts as compared to the actual consumption charges which is writ large on bills, proves beyond doubt that the rate of increase of the questioned levies is unreasonable, hence, is liable to be struck down on this score as well.
203. ' Mian Saqib Nisar, Advocate has contended that the levy of surcharge and additional surcharge being a tax is not permissible without there being an Act of the Assembly/Parliament and as admittedly there is no such law which authorises the Authority to impose the aforementioned levies, the same are ultra vires, hence, are not recoverable from the petitioners.
204. ' Mr. Shahid Hamid, Advocate has made a reference to section 12 and 25 of the WAPDA Act as well as various provisions of the Electricity Act, 1910 and has contended that neither the Federal Government nor the Authority has any power to fix or revise the electricity rates as this is the prerogative of the Provincial Government alone as per provisions of Article 157 of the Constitution to determine the tariff.
205. ' In order to demonstrate that the questioned levies are unreasonable, he has made a reference to the bill issued to Messrs Seven-up Bottling Co. Ltd. Etc. The petitioners in Writ Petition No,10692 of 1995, wherein consumption charges have been shown as Rs,60,000, fuel adjustment charges as Rs,1,800, surcharge as 8,199 and additional surcharge as Rs,44,618 and Rs,13,000 as late payment.
206. He, hence, contends that on the face of it, the levy of surcharge and the additional surcharge is patently unreasonable besides being unauthorised under the law. He has made a reference to the definition of word surcharge' and additional surcharge' from the Black's Law Dictionary, as "over charge". While making reference to the provisions of section 34 of the Sales Tax Act, 1990, he contends that the surcharge has been imposed as a penalty. Similar is the position under the Income Tax Ordinance, 1979, under section 10 whereof the surcharge is imposed by way of penalty.
207. Exact argument of the learned counsel is that surcharge and additional surcharge is not a part of the original levy and always is in addition thereto and is imposed by way of penalty and that too by an Act of the Assembly/Parliament, and further that the levy of surcharge and additional surcharge cannot be imposed by the Authority to meet the expenses for expansion/development of the sources of electricity as the said power has not been specifically conferred on WAPDA by an Act of the Assembly/Parliament as has been done in cases of development charges to be levied for development of petroleum products and development of cement resources as per provisions of the Natural Gas (Development Surcharge), Ordinance, 1967, Petroleum Products (Development Surcharge) Ordinance 1961 and Managed Cement Establishment (Payment to Corporation)
208. Ordinance, (No,II of 1979), therefore, the questioned levies are patently illegal and without a lawful authority.
209. ' Kh. Habib-Ullah, Advocate has contended that it is the Provincial Government alone who can determine the tariff; that the Authority has no power to fix or increase the tariff; that even if the power to fix the tariff and impose the questioned levies is conceded to the Authority, it is qualified to be reasonable and in these cases ratio of actual consumption charges and the questioned levies proves beyond doubt that the same are unreasonable and are liable to be struck down in exercise of power of judicial review by this Court; that the disputed levies have not been imposed with reference to the full details of the Hydel Generation Scheme; that the Authority has absolutely no jurisdiction to collect and invest for the future generation of energy from the present consumers and that the questioned levies are also violative of the provisions of Article 18 read with Articles 37 and 38 of the Constitution, as imposition thereof has knocked many industries out of business and, therefore, the same are ultra vires. Reliance has been placed on the case reported as PLD 1994 SC 693.
210. ' Ch. Rashid Ahmad, Advocate has contended that the tariff can only be determined and increased by the Provincial Government and not by the Authority or the Federal Government and further that the tariff rate which has resulted by addition of the impugned levies is excessive, hence, unreasonable.
211. ' Mr. Qamar Afzal Khan, Advocate has contended that although WAPDA is a licensee to be governed by the provisions of Electricity Act, 1910 except the excluded provisions thereof by virtue of section 12 of the WAPDA Act, yet, the electricity now falls exclusively in the Federal List and, as such, the price for sale thereof can only be fixed and revised by the Council of Common Interests as per provisions of Article 154 of the Constitution and the Authority or the Provincial Government or the Federal Government is entitled to fix the tariff for sale of electricity. In support of his arguments, he has made a reference to the definition of word 'surcharge' in the Black's Law Dictionary and the cases reported as AIR 1955 Bombay 182 and AIR 1976 SC 127. Learned counsel concedes that WAPDA is entitled to receive fuel adjustment charges as held in the latter case cited by him. In the alternate, he has contended that surcharge and additional surcharge is not a cost of electricity but is a tax, therefore, could not have been levied by the Authority without there being an authority conferred by the Act of Parliament.
212. ' Dr. A. Basit, Advocate has made a reference to the provisions of sections 12 and 25 of the WAPDA Act and Articles 157 and 161(2) of the Constitution and has contended that the Authority has absolutely no power to distribute electricity within a province which is the prerogative of the relevant Provincial Government as per provisions of Article 157 of the Constitution, therefore, both the distribution of electricity as well as fixation of tariff for consumption charges as well as the imposition of questioned levies by the Authority are without jurisdiction, which levies are a tax and, hence, cannot be imposed without an act of the Assembly/Parliament.
213. ' Mr. Ashtar Ausaf Ali, Advocate has contended that to have energy is the fundamental right of every citizen of Pakistan as it is a necessity to remain alive. According to him provision of social, economic and political justice is the duty of this Court as per provisions of the Objective Resolution which is now a substantive part of the Constitution and as the questioned levies have created inflationary conditions in the country and discontentment amongst the public, the same are liable to be struck down as being unauthorised and unreasonable. He has referred to a book, named 'Justice' by Dr. R.G. Chatter, Third Edition, page 746, Chapter 26 to contend that the Courts are to strike a balance between State and citizen by striking down unreasonable acts of the State; that the questioned levy is . Tax and, therefore, could not have been imposed without inviting the objections and giving a public hearing to the consumers and that too after a law was framed on the subject; and that this Court should record evidence in order to know as to why such an excessive increase has been made in levy of the additional surcharge in order to decide as to whether the same are justified and reasonable or not. In support of his contentions, learned counsel has referred to the case reported as PLD 1964 SC 673.
214. ' Mr. Muhammad Akram Sheikh, Advocate has contended that the matter of fixation of tariff of energy is more a matter of public policy, therefore, decision in relation thereto must be taken in the Parliament where an open debate should take place so that the people should know the future plans of the Government with regard to the expansion of the energy and justification for the price which the nation has to pay for such purposes. According to him, the price of the energy has to be reasonable within the reach of common man as the Authority bas the monopoly to provide electricity, hence, the consumer is an unequal contracting party, therefore, unilateral increase/imposition of additional levies is against the principle of public policy and, hence, cannot be supported at any legal plane in spite of signing of the agreement containing abridged Conditions No,26 and 27 which authorise the Authority to increase the tariff unilaterally. It is contended that even the discretion is to be exercised with reasonableness as the WAPDA is a serving and not a ruling agency, hence, the questioned levies are liable to be struck down as being unreasonable. In support of his contentions, he has placed reliance on the case reported as PLD 1991 SC 14.
215. ' Mr. M.D. Tahir, Advocate has stated that out of 1,26,000 villages the electricity has been provided only to 50,000 villages; that employees of the WAPDA are being given free energy; that there is an alarming theft of energy in collusion with the WAPDA Staff and there is complete mismanagement and financial irregularities in the administration of the affairs of the Authority; that the price of electricity cannot be increased by the Federal Government as per provisions of Article 157 of the Constitution, it is the Provincial Government alone, who can determine the price of the electricity and that without issuance of show-cause notice, inviting of objections and decision thereof, neither the tariff could be increased nor additional levies could be imposed. According to him, the generation and distribution of electricity could be privatized and WAPDA should be asked to set its own house in order and control theft of electricity and make recoveries from the defaulters, which steps, if taken, shall be sufficient to cater for the existing and future financial needs of the Authority.
216. ' Syed Samar Hussain Shah, Advocate has contended that it is the Provincial Government alone who can determine price of electricity as per provisions of Article 157 of the Constitution, hence, neither the Authority nor the Federal Government has any say in the matter. Learned counsel suggests that the correct reading by the meter readers and issuance of correct bills and full recoveries are the requisite steps rather than to levy and increase the questioned levies and hence ask for a pound of flesh rather than price of electricity actually consumed. He has relied on the cases reported as 1983 PLC (C.S.) 690 and PLD 1985 SC 260.
217. ' Mr. M.R. Jan, Advocate has argued that the Authority can only sell bulk supply of energy, hence, section 25 of the Act is not available to it for fixation of tariff in general.
218. ' Mr. Anwar Kamal, Advocate has traced the history of the WAPDA Act, 1958 and has contended that the determination of price of the electricity is the function of the Provincial Government; that the levy of surcharge and additional surcharge is a tax and, hence, is beyond the scope of the provisions of section 25 of the WAPDA Act; that the reasons for imposition of questioned levies are not valid and open; that the questioned rates are excessive and unreasonable; that the WAPDA being a local authority has no power to get loans for expansion of the electricity sources as per provisions of Loans Act, 1914, hence, levy/increase of questioned imposts is not justified to arrange 40% of the loan to be taken for development by self-financing. Learned counsel has placed reliance on the cases reported as PLD 1971 Lahore 462 and PLD 1976 SC 254.
219. ' During the course of arguments, almost all the learned counsel for the petitioners have conceded that the levy of fuel adjustment charges, demand of Income-tax as well as the late payment charges are lawful.
9. Appearing from the respondents' side, various learned counsel have argued as under:-- ' Mr. Fakhar-ud-Din G. Ebrahim, Advocate has contended that surcharge or additional surcharge is neither a tax nor a cess and is rather appendage to the tariff/price of the electricity consumed by the petitioners and, therefore, the Authority is well within its rights to levy/increase the same as per provisions of section 25 of the WAPDA Act read with abridged Conditions Nos.26 and 27 of the Agreement between the parties; that the surcharge has been levied in order to cover the operational charges which include the payment of net profits amounting to Rs,6 billions to the N.- W.F.P. Government as determined under Article 154 read with Article 161 of the Constitution of Islamic Republic of Pakistan, 1973; that the levy of additional surcharge has been imposed in the exercise of right to earn reasonable return on investment, to be further invested towards contribution of 40% of the requisite loan to be taken from foreign Banks by self-financing, which loan is necessary for expansion of the sources of energy, in order to cater for the continuance of supply of electricity for the present and future needs of the nation; that against the investment of rupees 280 billions, total receipts at the prevalent rates shall result only in 18% return on investment, which is quite reasonable, hence, it cannot be said that the questioned levies fall beyond the scope of section 25 of the Act; that fuel adjustment charges are being charged to cover the increase in prices of furnace oil; petrol and gas etc., which is to be purchased by the Authority to be used to generate the thermal energy in order to provide support to the hydro-electric generation during the loan period; that Article 157 of the Constitution is not applicable to the case in hand as it applies in those cases only, where a Province gets the bulk supply of energy from the National Grid and distributes the same itself but in this case as the energy is being supplied and distributed by the Authority, said Article is not attracted, as such, it cannot be said that the questioned tariff is ultra vires and that all the issues raised in these petitions already stand authoritatively answered against the petitioners in the following decided cases reported as PLD 1971 Lahore 462; PLD 1976 SC 254; AIR 1976 SC 127 and Writ Petition No,255 of 1995 titled as M/s Khawaja Plastic Ind. (Pvt.) Limited v. WAPDA through its Chairman and others, decided on 2-10-1995 by the Peshawar High Court.
220. ' Ch. Ijaz Ahmad, Advocate has contended that the levy of surcharge and additional surcharge is neither a tax nor a cess and is an appendex to the price already fixed and has been imposed with approval of the Federal Government who is the competent Authority; that it is not necessary to give personal hearing to the consumers before imposing the additional surcharge or changing the rates thereof and that the questioned levies are not excessive/unreasonable keeping in view the reasons mentioned by Mr. Fakhar-ud-Din G. Ebrahim, Advocate necessitating the imposition/increase of the questioned levies. He has placed reliance on the cases reported as AIR 1975 Allahabad 19; PLD 1976 SC 254; AIR 1976 SC 127; PLD 1986 Quetta 181; AIR 1990 Delhi 249 and 1989 CLC 1774.
221. ' Mr. Muhammad Ilyas Khan, Advocate has given the chronological history of the imposition of surcharge and additional surcharge by the Authority which has been taken note of in the earlier part of this judgment. Adopting the arguments addressed by Messrs Fakhar-ud-Din G. Ebrahim and Ch. Ijaz Ahmad, Advocates, he has further contended that the questioned levies are necessary for the purpose of continuance of supply and further expansion of the electricity to cater for the present and future needs of the people of Pakistan, therefore, he contends that no case has been made out for interference by this Court in exercise of writ jurisdiction of this Court as the questioned levies/demands are quite lawful and reasonable.
222. ' Mian Abdus Sattar Najam, Advocate-General, Punjab has contended that in the given situation, the Provincial Government does not come in at all nor any sanction of the Provincial Government is necessary, to impose and demand the questioned levies as the said Government has neither obtained the supply of Energy in bulk from the national grid nor is distributing the same within the Province, therefore, the provisions of Article 157 of the Constitution are not attracted; that the increase of the levies is quite reasonable, which has been sufficiently reasoned out by the respondents' learned counsel that major resources so collected are to be spent by the Authority for the national good and social welfare of the people in order to successfully compete with the developing and developed countries, while at the threshold of 21st Century.
223. ' Mr. Faqir Muhammad Khokhar, learned Deputy Attorney-General for Pakistan has conceded the power of judicial review of this Court but has contended that the questioned levies are not a tax; that the same are not unreasonable and that additional surcharge has been increased vide the Notification dated 9-7-1995 with approval of the Federal Government in terms that Authority should itself increase the rates, hence, no case for interference has been made out. He has further contended that the Courts are to make every effort to justify the Acts/decisions taken by the public authorities which enjoy a presumption of regularity. He has placed on record a copy of the summary submitted by WAPDA to the Federal Government for grant of approval for the last increase in additional surcharge, and Cabinet decision taken in this behalf and has placed reliance on the cases reported as PLD 1971 Lahore 462; AIR 1976 SC 127; AIR 1976 Patna 323; AIR 1986 SC 1999; 1986 MLD 1731; AIR 1988 SC 1737; AIR 1990 SC 699 and PLD 1994 SC 693.
10. In reply to the arguments, Kh. Tariq Rahim, Advocate, who has appeared of his own, has contended that the other Provinces of Balochistan and N.-W.F.P. Owe more than rupees four billions to the Authority and if those amounts are recovered or adjusted by the Authority, theft of electricity, line losses are controlled and the amount of royalty which has been wrongly calculated on the basis of "gross profits" instead of "net profits" is determined afresh strictly in accord with the Constitution and the relevant laws on the subject, there will be no need to impose the questioned levies, therefore, striking down the same a direction may be issued to the respondents to take steps and proceed to make up the deficiencies pointed out by him instead of increasing the tariff rate by imposition of surcharge and additional surcharge.
224. ' Mr. M.D. Tahir, Advocate has contended that the loans worth Rs,80 billions are not being paid by various industrialists of the country which should be recovered by the Federal Government, whereafter the electricity can be supplied to the people of Pakistan free of charges.
11. Mr. Muhammad Ilyas Khan, Advocate, learned counsel for the Authority has placed on record various charts demonstrating the resultative comparative rates of tariff, rates of cost of production of energy by thermal and hydel generation and the present extent of consumption of energy by various parts of Pakistan by various classes of consumers, which charts have been reproduced for ready reference as under:
(1) SPECIMEN BILLS GOVERNED UNDER TARIFF A-1 (DOMESTIC) (NEW) AFTER 9-7-1995 UnitsEnergy ChargesFixed Char- ges.Fuel Adjust- ment ChargeSupply Charges Col.2+3+4Sur- charge Rs 10.4% Of Col.5Addi- tional SurchargeTotal WAPDA Charges Column 5+6+7Electri- city Duty 7% of Col.2Inco- me TaxGrand Total 1 2 3 4 5 6 7 8 9 10 11 50 27.00 3.50 30.50 30.17 14.00 47.67 1.89 50.00 15095.00 10.50 105.50 10.98 60.00 176.48 6.65 183.00 300210.00 33.00 243.50 25.33 180.00 448.8314.74 464.00 1000980.00 558.00 1538.50 160.01 1181.00 2879.5168.64 2948.00 20002450.50 1308.00 3758.50 390.883101.00 7020.38171.54 7422.00 30003920.50 2058.00 5978.50621.76 5181.00 11781.26274.44 12056.00 40005390.00 2808.00 8198.50 852.647411.00 16462.14377.34 16839.00 50006860.00 3558.00 10418.501083.479781.00 21282.00480.24 21763.00
(II) SPECIMEN BILLS GOVERNED UNDER TARIFF A-1 (DOMESTIC) (OLD) AFTER 9-7-1995 1 2 34 5 6 7 8 9 1011 50 27.00 3.50 30.50 3.17 9.50 43.17 1.89 45.00 15095.00 105.50105.5010.9836.50 152.98 6.65 160.00 30021.50 33.00 243.5025.3393.50 362.3314.74 377.00 1000980.50 558.001538.50160.01464.502163.0168.64 2232.00 20002450.501308.003758.00390.881124.505273.38171.54 5445.00 30003920.502058.005978.50621.761914.505814.76274.44 8789.00 40005390.002808.008198.50852.642784.5011835.64377.34 12213.00 50006860.003558.0010418.501083.523744.5015246.50480.2415727.00
(III) DATA FOR 1995-96 Hydel Generation21994 Mkwh Auxillary Consumption and System Losses23 % Sales.16935 CONSUMER FOR 1995-96 * Punjab7072590 * Peshawar (N.W.F.P.)1491499 * Hyderabad (Sindh other than Karachi)817918 * Quetta240565 (Balochistan)
225. 9622572 * Hydel Generation21994Mkwh * Auxillary Consumption & System Losses23% * Sales to Consumers16935Mkwh * No. of Consumers for 1995-96 (Pakistan)9622572 * Consumption per. consumer (Hydel) per annum1760Mkwh (units)
226. (Pakistan) * No. of consumers (Punjab)7072590 * Consumption for Punjab11414 Mkwh * Consumption per consumer per annum Punjab1614 Mkwh Hydel Generation (Actual)MKWH July, 953225 Aug.3368 Sep.2523 Oct.2140 Nov.1474 12730 Average Monthly generation 12730/52546 Proiected Hydel Generation during winter months Dec. 95 1128 Jan. 96 496 Feb. 1131 - Mar. 1014 3769 Average monthly generation (3769/4) during winter month. 942 This shows that the average monthly hydel generation will drop to 37% in winter months (942/2546 x 100). *Consumption from hydel component 942*. 77(100-23) = 725 Mkwh Availability of hydel generation per consumer/month would be: Pakistan as Punjab a whole WAPDA area Monthly average 1760 1614 consumption (for the 147 Units 135 Units whole year data).
227. Monthly average consumption (during 75 units 69 Units. winter season).
(III) STATEMENT SHOWING PER CAPITA HYDEL CONSUMPTION PER YEAR Population of WAPDA area 119.6 Million 43% Or Population Served 51.5 Million Hydel Generation 21994 Million Kwh Consumption 16935 (After Accounting for Losses Anx. Con. 23% (100 - 23%) = 77% On the Basis of 16935 Total Population 119.6 142 KWH of WAPDA area Per person per annum. Populations 16935 = 329 Kwh Served 51.5 Per person per annum
(IV) 1995-96 (Budget) Operating Cost.
228. Generation (MKWH)
229. Hydel 21994 Thermal 26630 Total 48624 Units sold 37440{{TABLE}} Cost Cost per unit generated Cost per Unit sold Hydel 4.3 20 26 Thermal 32.4 122 158 Generation Cost 36.7 76 98 Transmission 7.9 16 21 Distribution 12.8 26 34 118 153 '12. The followings are the issues, which arise for determination by this Court in these petitions:--
(i) Whether WAPDA is entitled to fix/increase the tariff under the provisions of section 25 of the WAPDA Act read with abridged Conditions No,26 and 27 of the agreement?
(ii) Whether the agreement between the consumers petitioners and the Authority is void to the extent of abridged Conditions No,26 and 27?
(iii) Whether determination of tariff of electricity is exclusive prerogative of the Provincial Government or Council of Common Interests as per provisions of Articles 154 and 157 of the Constitution of Islamic Republic of Pakistan, 1973?
(iv) Whether surcharge or additional surcharge is a tax or a cess and, hence, cannot be imposed by Authority?
(v) Whether it is necessary to issue notice to the consumers and the public at large while revising the tariff rates of electricity/imposing/ increasing levy of surcharge and additional surcharge?
(vi) Whether the questioned levies are excessive and unreasonable and, hence, are liable to be struck down, in exercise of the power of judicial review of this Court?
13. In order to determine the above issues in the light of the arguments addressed at the bar, it will be necessary to have in view the meaning of words 'surcharge' and 'additional surcharge' as given in various dictionaries; relevant provisions of the statutes on the subject, Constitution of Islamic Republic of Pakistan, 1973 and also a brief resume of decided cases on the subject, which is reflected as under:-
(I) DICTIONARIES: ' In Black's Law Dictionary, Fifth Edition, at page 1292, the word 'surcharge' has been defined as "An overcharge; an exaction, impost, or encumbrance beyond what is just and right, or beyond one's authority or power; and additional tax or cost. In the same dictionary at page 35, the word 'additional' has been defined as under:-- "Additional. This term embraces the idea of joining or uniting one thing to another so as thereby to form one aggregate."
230. ' In Judicial Dictionary by K.J. Aiyar, Tenth Edition of 1988 at page 985, the word 'surcharge' has been defined as under':-- "Surcharge. An overcharge of what is just and right; "Surcharge". The word 'surcharge is not defined in the Electricity Supply Act, 1948, but etymologically, inter alia, surcharge stands for an additional or extra charge or payment. (See Shorter Oxford English Dictionary). Surcharge is thus a superadded charge, a charge over and above the usual or current dues. Although in the instant case it is in the form of a surcharge, it in substance an addition to stipulated rates of tariff. The nomenclature, therefore, does not alter the position. Enhancement of the rates by way of surcharge is well within the power of the Electricity Board to fix, or revise the rates of tariff under the provisions of the Act. (Bisra Stone Lime Co. v. O.S.E.
231. Board (1976) 2 SCC 167: (1976)2 SCR 307: AIR 1976 SC 127(180).
232. ' The meaning of the word "surcharge" as given in the Webster's New International Dictionary includes among others "to charge (one) too much or in addition...." also "additional tax". Thus the meaning of surcharge is to charge in addition or to subject to an additional or extra charge.
233. (Commissioner of Income-tax v. K. Srinivasan AIR 1972 SC 491).
234. ' Surcharge' means an additional or extra charge or payment. Shorter Oxford English Dictionary, page 2199; (D.C.M. v. Rajasthan State Electricity Board (1986) 2 SCC 431 at p. 465). As held by the Supreme Court in Bisra Stone Lime Co. Ltd. v. Orissa State Electricity Board (1975) 2 SCC 436), a surcharge is in substance an addition to the stipulated rates of tariff and enhancement of the rates by way of surcharge is well within the power of the Board to fix or revise the rates of tariff under the provisions of the Act."
235. ' In the Oxford English Dictionary, Volume X at page 224, the word 'surcharge' has been defined as under:- "Surcharge. A pecuniar charge in excess of the usual or just amount; an additional or excessive pecuniary charge.
(II) The West Pakistan Water and Power Development Authority Act, 1958.-- "Preamble.--Whereas it is expedient to provide for the unified and coordinated development of the water and power resources of West Pakistan; ' It is hereby enacted as follows:--Section 3. (as amended uptodate):-- Constitution of the Authority.--(1) There shall be established an Authority to be known as the Pakistan Water and Power Development Authority for carrying out the purposes of this Act.
(2) The Authority shall be a body corporate, shall be entitled to acquire and hold property, shall have perpetual succession and a common seal and shall by that name sue and be sued.
(3) The Federal Government may, from time to lime, issue such directives as it may consider necessary on matters of policy and the Authority shall comply with such directives; and if a question arises whether any directive relates to a matter of policy, the decision of the Federal Government shall be final.
236. S.8. General powers and duties of the Authority and framing of Schemes.--(1) The Authority shall prepare, for the approval of the Government, a comprehensive plan for the development and utilization of the water and power resources of West Pakistan on a unified and multi purpose basis.
(2) The Authority may frame a scheme or schemes for the province or any part thereof providing for all or any of the following matters, namely:-
(i) irrigation, water supply and drainage and recreational use of water resources;
(ii) the generation, transmission and distribution of power; and the construction, maintenance and operation of power houses and grids;
(iii) flood control;
(iv) the prevention of water logging and reclamation of water logged and salted lands;
(v) in land navigation; and
(vi) the prevention of any ill-effects on public health resulting from the operations of the authority.
(3) Every scheme prepared by the Authority under subsection (2) shall be submitted for approval to the Government, with the following information:--
(i) A description of the scheme and the manner of its execution;
(ii) an estimate of costs and benefits; the allocation of costs to the various purposes to be served by the scheme and the amounts to be repaid by the beneficiaries; and
(iii) a statement of the proposals by the Authority for the resettlement or rehousing of persons likely to be displaced by the execution of the scheme.
(4) The Government may sanction or may refuse to sanction, or may return for reconsideration any scheme submitted to it under this section, or may call for such further details or information about the scheme, or may direct such further examination of the scheme as it may consider necessary.
237. S.12. Authority to have powers and obligations of licensee under Act IX of 1910.--The Authority shall, for the purposes of the Electricity ' Act, 1910, be deemed to be a licensee and shall have all the powers and discharge all the obligations of a licensee under the said Act: ' Provided that nothing in sections 3 to 11, subsections (2) and (3) of section 21 and sections 22, 23 and 27 or in clause I to XII of the Schedule to the said Act relating to the duties and obligations of a licensee shall apply to the Authority.
238. S.13. Powers regarding certain matters.--(1) The Authority may take such measures and exercise such powers as it considers necessary or expedient for the carrying out of the purposes of this Act.
(2) Without prejudice to the generality of the power conferred by the preceding sections and the provisions of subsection (1) the Authority may for carrying out the purposes of this Act:-
(a) undertake any works, incur any expenditure, procure plant, machinery and material required for its use and entry into and perform all such contracts as it may consider necessary or expedient;
(b) acquire by purchase, lease, exchange or otherwise and dispose of by sale, lease, exchange or otherwise any land or any interest in land;
(c) place wires, poles, wall brackets, stays, apparatus and appliances for the transmission of electricity, or for the transmission of telegraphic or telephonic communications necessary for the proper execution of a scheme;
(d) direct the owners of private lands to--
(i) carry out measures for training of streams;
(ii) undertake anti-erosion operations, including conservation of forests and re-aforestat ion ;
(e) restrict or prohibit by general or special order the cleaning and breaking up of land in the catchment area of any river;
(f) direct that any word which has been required to be done by any reason under the two preceding clauses, and which remains undone, shall after due notice to such person and consideration of any objection raised by him, be executed by the Authority and specify the proportion in which the risk and expense of such work shall be borne by such person, or by any person who, after being given a reasonable notice and after such inquiry as the Authority considers necessary, is held by the Authority to be responsible for the execution of such work in whole or in part; and
(g) seek and obtain advise and assistance in the preparation of execution of scheme from any local body or agency of the Government, and such local body or agency shall give the advice and assistance sought by the Authority to the best of its ability, knowledge and judgment: ' Provided that the Authority shall pay the cost of such advice and assistance if the giving of such advice and assistance entails additional expenditure to the local body or the agency. .(3) The acquisition of any land or any interest in land for the Authority under this section, or for any scheme under this Act, shall be deemed to be an acquisition for a public purpose within the meaning of the Land Acquisition Act, 1894, and the provisions of the said Act shall apply to all such proceedings. S.23. Authority to be deemed to be a local Authority.--The Authority shall be deemed to be local authority under the Local Authorities Loans Act, 1914, for the purpose of borrowing money under the said Act, and the making and execution of any scheme under this Act shall be deemed to be a work which such authority is legally authorised to carry out. S.25. Rates for sale of power.--
(1) The Authority shall ordinarily sell power in bulk.
(2) The rates at which the Authority shall sell power shall be so fixed as to provide for meeting the operating costs, interest charges and depreciation of assets; the redemption at the due time of loans other than those covered by depreciation, the payment of any taxes and a reasonable return on investment.
(III) Constitution of Islamic Republic of Pakistan, 1973: ' Art. 153.--(1) There shall be a Council of Common Interests, in this Chapter referred to as the Council, to be appointed by the President.
(2) The members of the Council shall be--(a) the Chief Ministers of the Provinces, and
(b) an equal number of members from the Federal Government to be nominated by the Prime Minister from time to time.
(3) The Prime Minister, if he is a member df the Council, shall be the Chairman of the Council, but, if at any time he is not a member, the President may nominate a Federal Minister who is a member of the Council to be its Chairman.
(4) The Council shall be responsible to Majlis-e-Shoora (Parliament).
239. ' Art. 154.--(1) The Council shall formulate and regulate policies in relation to matters in Part II of the Federal Legislative List and, in so far as it is in relation to the affairs of the Federation, the matter in Entry 34 (electricity) in the Concurrent Legislative List, and shall exercise supervision and control over related institutions.
(2) The decisions of the Council shall be expressed in terms of the opinion of the majority.
(3) Until Majlis-e-Shoora (Parliament) makes provision by law in this behalf, the Council may make its rules of procedure.
(4) 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-eShoora (Parliament) may deem just and proper and such directions shall be binding on the Council.
(5) If the Federal Government or a Provincial Government is dissatisfied with a decision of the Council, it may refer the matter to Majlis-eShoora (Parliament) in a joint sitting whose decision in this behalf shall be final. Art. 157.--(1) The Federal Government may in any Province construct or cause to the constructed hydro-electric or thermal power installations or grid stations for the generation of electricity and lay or cause to be laid inter-Provincial transmission lines.
(2) The Government of a Province may --
(a) to the extent electricity is supplied to that Province from the national grid, require supply to be made in bulk for transmission and distribution within the Province;
(b) levy tax on consumption of electricity within the Province;
(c) construct power houses and grid stations and lay transmission lines for use within the Province; and
(d) determine the tariff for distribution of electricity within the Province.
240. ' Art. 161.--(1) Notwithstanding the provisions of Article 78 the net proceeds of the Federal Duty of excise on natural gas levied at wellhead and collected by the Federal Government, and of the royalty collected by the Federal Government, shall not form part of the Federal Consolidated Fund and shall be paid to the Province in which the wellhead of natural gas is situated.
(2) The net profits earned by the Federal Government, or any undertaking established or administered by the Federal Government from the bulk generation of power at a hydro-electric station shall be paid to the Province in which the hydro-electric station is situated. Explanation.-- For the purposes of this clause "net profits" shall be computed by deducting from the revenues accruing from the bulk supply of power from the bus-bars of a hydro-electric station at a rate to be determined by the Council of Common Interests, the operating expenses of the station, which shall include any sums payable as taxes, duties, interest or return on investment, and depreciations and element of obsolescence, and over-heads, and provision for reserves.
(IV) Abridged conditions which are part of the agreement between the parties:-
26. Interpretation.--These conditions shall be subject to the Act and nothing in these conditions shall abridge or prejudice the right of the Department under Act of the Government of Pakistan or the West Pakistan or any rule thereunder.
27. Right of Department.---To revise Schedules of Tariffs and charge and conditions of supply.--- Subject to Clause 26 above the Department reserves the right at any time to amend, cancel or add to any of these Schedules and Conditions." .(V) Distribution of Electricity profits from Hydro-Electric Stations to Provinces Order, 1991 (President's Order 3 of 1991).
241. ' Section 3. Distribution of net profits from hydro-electric stations.--The net' profits from the bulk generation of power at a hydro-electric station located in the Provinces shall be paid by the concerned undertaking established or administered by the Federal Government (i,e, Water and Power Development Authority) to the Provinces.
242. S.4. The Federal Government shall guarantee payment of net profits to the Provinces concerned by the above undertaking on a regular basis.
(VI) Resume of Case-Law: ' In case of Babulal Chhanganlal Gujerathi (AIR 1955 Bombay 182), it has been held that Electricity Board cannot unilaterally levy additional surcharge on the consumers under new head as the provisions of section 57 read with clause 1 of Schedule 6 of the Electricity (Supply) Act, 1948 prohibit such a levy without the sanction of the Government or without approaching the rating committee.
243. The perusal of the judgment clearly shows that the permission of imposition of additional charge is available to the Board subject to the sanction of the Government or the Rating Committee.
244. ' In case of Abdul Aziz v. The Multan Electric Supply Company Limited (PLD 1958 (W.P.) Lahore 614), where the question arose as to whether the unreasonable change in tariff rate beyond the scope of the conditions of licence, the licensee is entitled to impose the said levies, it has been held the licensee cannot do so unilaterally and the Court is competent to determine whether the changed rates are not excessive being beyond the provisions of sections 22 and 23 of the Electricity Act.
245. In case of Saiyyid Abul Ala Maudoodi and 2 others v. The Government of West Pakistan and others (PLD 1964 SC 673), it has been held that even the administrative acts are open to judicial review, if the same are without jurisdiction.
246. ' In case of Clifford Davis Management Ltd. v. WEA Records Ltd. And another (All England Law Reports 1975 page 237), where the question arose as to whether the agreement between a composer of music and business manager is valid on the principle of "unequality of bargain of power", it has been held that independent advice being not available to the composer at the time of agreement, hence, the same was unfair and invalid. The same view has been taken in the case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1).
247. ' In case of Bihar State Electricity Board and another v. Jawahar Lal and others (AIR 1976 Patna 323), it has been held that although the Electricity Board can fix tariff rates as it likes, but it cannot use power arbitrarily, therefore, the Court does have the jurisdiction to examine as to whether on the facts and circumstances of the case the increment of tariff was justified or not or whether it was excessive.
248. ' In case of Kh. Ijaz and Muhammad Siddique Nasim v. Government of Punjab through Secretary, Irrigation and Power Department (1983 PLC (C.S.) 690), it has been held that if an Administrative Authority caused any violation of the Standing Instructions of the Federal Government and the exercise of discretion is not in public interest, it was subject to interference by the High Court although the said Court shall be reluctant to interfere with the discretionary orders provided they are neither arbitrary nor in abuse of powers of administrative authority.
249. ' In case of Mst. Amina Begum represented by Legal Heirs v. Sh. Muhammad Nazir and others (PLD 1985 SC 260), it has been held that if an Authority does not advert to law applicable to admitted facts of the case, the error committed by the said Authority can be interfered and corrected by the High Court in exercise of its writ jurisdiction.
250. ' In case of Miss Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416), it has been held that vires of an Act can be challenged if the same is ex facie discriminatory, even it is not substantially demonstrated on record.
251. ' In case of M. Daud Khan and 20 others v. Government of West Pakistan and 2 others (PLD 1971 Lahore 462), where the question arose as to whether WAPDA has power to prescribe rates for sale of power and atnend such rates from time to time unilaterally without giving a notice to the consumers, it has been held that the Authority is competent to prescribe the rates for sale of power and amend the rates from time to time unilaterally. Paragraphs Nos.12 to 27 of the report are reproduced as under:- "12. Section 25 of the WAPDA Act which has been reproduced above gives WAPDA, the Authority to fix the rates at which it shall sell power. It also lays down the criteria on which the rates shall be based. It can therefore not be denied that statutory power vests in WAPDA to prescribe the rates on which it will supply power.
13. Section 13 of the West Pakistan General Clauses Act provides that whenever any Provincial Act confers any power on any Authority it may be exercised from time to time as occasion requires.
252. The power under section 25 of Act XXXI of 1958 is thus exerciseable from time to time as occasion requires. The supply of electricity to the petitioners is being specifically subsidised by Government.
14. It was urged before us by the learned Advocate-General, without contradiction from the other side, that a two part tariff is the universally recognized method of electricity charges. Seventy to eighty per cent. Of the tariff consists of a fixed charge which is used for the purpose of defraying the costs of depreciation, establishment, overheads and return on investment. Twenty-five to twenty per cent represents the "variable charge" which caters for the cost of fuel, chemicals, spare parts, consumable material and stores. Reference in this connection could be made to Chapter 10 of the UN Publication Public Electricity Supply--A Manual on Management' and 'Electrical Engineering Economics', Volume II by Bolton. In the peculiar circumstances obtaining in this part of the world and to reduce the burden on the consumer the Advisory Board reduced the fixed charge to 33% and raised the variable charge to 66% of the total rate for the supply of electricity.
15. It is, therefore, quite clear that there was occasion to exercise the power under section 25, and the amended Notification was, therefore, rightly issued. It is also clear that the petitioners are not being required to pay the full cost of the supply of energy consumed by them.
16. Clause 26 of the Conditions of Supply which have to be signed by the consumer clearly provides that the "conditions shall be subject to the Act and nothing in these conditions shall abridge or prejudice the right of the department under Act of the Government of Pakistan or West Pakistan or any rule there under."
17. Clause 27 goes a step further and lays down that subject to clause 26 "the Department reserves the right at any time to amend, cancel or add to any of these Schedules and Conditions".
18. There is, therefore, no bar in the contract to a unilateral amendment of the rate, and the consent of the consumer is not required for such a change. In fact the contract positively empowers the supplier to amend the rates. The consumer is, in any case, not under any obligation to continue to purchase energy from WAPDA and can discontinue to arrangement at his sweet will.
19. Concluding his book The Contracts of Public Authorities' J.D.B. Mitchell arrives at the following among other, interesting conclusions:-- "Above all however the survey demonstrates that in this field the obligatory force of contract may be weaker than in the case of private contracts. The special purpose for which Government Agencies exist, the service of the community, requires, that on occasion those Agencies must be released from or may be able to override, their obligations. So strong is this requirement that it will override Constitutional provisions which would apparently deny the possibility of release. The developments in the United States sufficiently demonstrate that. Although they may be unsupported by references to earlier authorities, and although they may perhaps be too widely phrased, the statements of Rowllatt, J. In the The Amphitrite may, therefore, be accepted as containing a sound general principle of law. This limitation of the obligation of contract depends not upon the acceptance of any particular theory of political philosophy but upon on practical necessity... The Government exists to govern and that to discharge their functions effectively governmental agencies require special privileges. It is upon this basis that the well-recognized powers of eminent domain have long rested....
253. ' It should be noticed that this right of a public authority to override its contracts is something more than the ability which any Contractor has to disregard his contract and pay damages save where specific performance will be granted. It is a right which it seems recognized by law and does not amount to a wrongful interference with legal rights. Because therefore an interference with contractual obligations under this right and an ordinary breach of contract have different origins, their consequences also should differ, particularly in the matter of damages or compensation."
20. Even if it were to be accepted for the sake of argument that the contract between the consumers and WAPDA stipulated that the will be no change in the tariff and that WAPDA would be bound to supply energy without making such a change, that part of the contract which so provides would be void under section 23 of the Contract Act which lays down that the consideration or object of an agreement is lawful unless inter alia it is of such nature that, if permitted, it would defeat the provisions of law. One of the objections is that the contract is a bar to WAPDA raising the rates it would tantamount to defeating the provisions of section 25 of Act XXXI of 1958 and the contract itself would be void to the extent that it is so provided. In his book Administrative Law', H.W.R. Wade observes at page 54:-- 'Just as a statutory authority has no power to abdicate the discretion entrusted to it by Parliament, so it has no power to fetter its discretion by contract. The leading case concerned the trustees of Ary Harbour, whe had power under their Act to acquire land and build upon it. The House of Lords decided that the trustees had no power on acquiring land, to undertake not to obstruct the former owner' use of it for access to the harbour (Ary Harbour Trustees v. Oswald (1883 8 AC 623). This would have been to fetter the power of building on the land in the future, so that the trustees would have been able to prevent their successors from exercising the power to build which the Act conferred for the public good.'
254. To the same effect are the observations in Birkdale District Electric Supply Co. Ltd. v. Corporation of Southport (1926 AC 355): "If a person or public body is entrusted by the Legislature with certain powers and duties expressly- or impliedly for public purposes, those persons or bodies cannot divest themselves of these powers and duties. They cannot enter into any contract or take any action incompatible with the due exercise of their powers or the discharge of their duties."
21. The Privy Council kept up this refrain in Antonio Buttigieg v. Captain Stephen H. Cross etc. (AIR 1947 PC 29) when it observed that: "Sir Roland Burrows, on behalf of the appellant, mindful of such cases as (Adams v. London Improved Motor Coath Builders) (1921) 1KB 495 and (Rederiaktiebolaget Amphitrite v. The King)
255. (1921) 3 KB 500, properly conceded that it was not open to the Crown to bind itself not to close the club if that course became necessary in the public interest and, further, that the order placing the club out of bounds was justified in the circumstances which existed. In the latter of the two cases abovementioned Rowlatt, J. At page 503 said: "It is not competent for the Government to fetter its future executive action, which must necessarily be determined by the needs of the community when the question arises. It cannot by contract hamper its freedom of action in matters which concern the welfare of the State.
256. ' These words appear to their Lordships to cover that aspect of the present case."
22. It is also clear from the discussion made above that the imposition of the fixed charge per K.W.
257. Of connected load per month is not in the nature of a tax but the result of a splitting up of the tariff into a standing charge and a unit charge which is a universally accepted method of computing charges for the supply of energy. Such an action is not barred by any law either.
23. The first Notification was issued on 15th July, 1969 with effect from 1st July 1969. It has been submitted that it could not be made retrospective. The point does not need any consideration for the simple reason that the Authority has categorically stated that the revised tariff issued under the impugned Notification of July 1969 does not relate to readings received in July 1969. In has already issued Circular Letter No,11786/95-C. A.E/R.IV/G.R-1, dated 21-7-1969 from the Chief Accountant (Electricity), WAPDA, Lahore to all Revenue Officers informing them that the new tariff is to be made applicable to readings received in August, 1969 covering energy consumed partly in July and August 1969. The tariff has, therefore, not been applied retrospectively.
24. The new Schedule of Tariffs was also attacked on the grounds that it was not applicable to the petitioners unless they are given due notice of termination or amendment of the agreement according to the stipulation thereof. Reliance in this behalf was placed upon paragraph 9 of the Notification of the 15th of July 1969 which so provides in respect of consumers with whom the Authority has entered into a Special Agreement.
25. The Authority has rightly pointed out and the same has not been effectively contradicted by the petitioners that at all relevant times the petitioners were ordinary consumers governed by the Authority's Standard Agreement for Supply of Energy. The Authority's Special Agreement only relates to special large scale consumers. Since no special agreements were executed by the petitioners with the Authority the question of any notice of termination or amendment of any Special Agreement in terms of paragraph 9 of the Notification did never arise.
26. The last point is that the Notification offends against the principles of natural justice because no notice to show cause was given. There is no provision in the law which requires the serving of such a notice before amendment of the rates. Moreover, the rates have to be fixed in accordance with the principles laid down in section 25, subsection (2) which relates to the meeting of operating costs, interest charges and depreciation of assets, the redemption at due time of loans other than those covered by depreciation the payment of any taxes and a reasonable return on investment.
27. These are all matters which pertain to the domestic field of company accounting and no individual, not being a shareholder in the Corporation, can have or be given any hand in it. In these circumstances the question of disclosing all this information to the consumers, inviting their objections and giving them a hearing does simply not arise. Even otherwise the exercise of refixing the rates on the basis contained in this subsection does not constitute a lis or at least a lis inter parties. There was therefore no occasion for show-cause notice."
258. ' In case of The Chairman, Electricity WAPDA, Lahore and 2 others v. Ch. Muhammad Shafi, Advocate (PLD 1976 SC 254), where the fixed charges were levied to defeat the large scale of pilferage of energy and the notification was challenged by the consumer, it has been held by their lordships of the Supreme Court that WAPDA has the power to do so under section 25 of the Act read with abridged conditions of the agreement between the parties which are binding upon the consumers.
259. Relevant discussion at pages 256 to 258 of the report is as under:- "Section 25 of the Act clearly empowers WAPDA to change the rates of the power in keeping with the directions given in subsection (2) of the section. As a matter of fact in the case of M. Daud Khan the learned Judges of the Lahore High Court taken pains to indicate the reasons that led WAPDA to introduce the new Schedule of Tariffs under section 25 (2) of the Act. One of the reasons indicated in the concise statement lodged on behalf of appellant is that there was a large scale pilferage of energy supplied to private tube-wells and under the new method of levying fixed charge on connected load basis a stable minimum return was ensured to WAPDA.
260. ' In the present case the agreement between the parties is consistent with the provisions of section 25 of the Act, and, therefore, section 23 of the Contract Act is not attracted. Conditions Nos.26 and 27 of the Agreement kept in view the requirements of law under section 25 of the Act.
261. ' Before us, however, the cheif contention has been that paragraph 4 of the new Schedule of Tariffs itself contemplated a notice to the old consumer to enable him to exercise the option either to continue to be governed by the Special Condition of supply in respect of Minimum Consumption Guarantee or to come under Special Condition No,3 of Tariff-D to the new Schedule of Tariffs.
262. Conditions Nos.3 and 4 are as follows:-- "3. The supply under this Tariff shall not be subject to any Special Condition of Supply in respect of Minimum Consumption Guarantee. Instead, the consumers falling under this Tariff shall be governed by the following conditions:-- {{TABLE}} (i)
263. In cases where the capital expenditure on supply of power does not exceed Rs,7,500.
264. In cases where the capital expenditure on supply of power exceeds Rs,7,500 but does not exceed Rs,10,000. No line rental of installation charges shall be recovered. The amount in excess of Rs,7,500 alongwith interest at the prevalent market rate, shall be recovered in 5 equal annual instalments and the first instalment shall be recovered before the connection is given.
(iii) In cases where the capital The amount in excess of expenditure on supply of power Rs,10,000 shall be recovered exceeds Rs,10,000. In lump sum before the connection is given, and the amount of Rs,2,500 being the difference between Rs,7,500 and Rs,10,000 shall be recovered in the manner prescribed in item (ii) above. {{TABLE}}
4. The consumers who were connected with the Authority's Supply System before the introduction of this Schedule of Tariffs shall have the option either to continue to be governed by the Special Condition of Supply in respect of Minimum Consumption Guarantee or to come under Special Condition No,3 above of this Tariff. The consumers opting for Special Condition No,3 of this Tariff shall not however, be entitled to any claim whatever in respect of the payments made by them in the past on account of Minimum Consumption Guarantee."
265. ' On a reading of the two conditions together, as it should be, it appears clear that they relate only to the exercise of a choice between the special condition of supply in respect of Minimum Consumption Guarantee under the old Tariffs and the special Condition No,3 of the new Schedule of Tariffs. They do not, in any way, concern or affect the revised rates as prescribed in the new Schedule of Tariffs. It is here that the learned Single Judge appears to have fallen in error.
266. ' So far as the option contemplated under Condition No,4 of the Schedule of Tariffs is concerned the respondent was aware of the changed position as soon as the Schedule of Tariffs was notified.
267. Besides, Conditions Nos.26 and 27 of the agreement put him on notice of a possible change in the retain the future, and he should have exercised his option at the appropriate time. In any event, when the bill for September 1969 was served on him he became aware of the change and could and should have exercised the option, if he so desired. He did not do so. In these circumstances there is no substance in the contention advanced on behalf of the respondent that without the service of a notice upon the respondent, the new Tariffs could not be legally enforced against him.
268. Condition No,4 does not envisage such a notice. The respondent cannot be said to have suffered any prejudice by the omission to serve the notice. WAPDA says that such a notice was not necessary, and they had the sole right under the. Schedule of Tariffs to say so. Paragraph 8 of WAPDA (Electricity Operations Branch) Notification No,27840-A/Com/T-86, dated Lahore the 15th of July 1969, runs thus: "8. The Authority further reserves the sole right to interpret any of these tariffs and the definitions and Special Conditions of Supply."
269. The view I have taken receives support from the decision in M. Daud Khan. The decision is correct on the points decided by me. It was a Division Bench decision dated the 12th of May 1970, and should have been followed by the learned Single Judge allowing the revision on the 26th of November, 1974."
270. ' In case of M/s. Bisra Stone Lime Co. Ltd. And another v. Orissa State Electricity Board and another (AIR 1976 SC 127), it has been held that levy of surcharge being a super-added charge of the price, over and above the usual and current dues, is a part of the tariff and as such can be levied by the licensee. In paragraph No,11 of the report, the word 'surcharge' has been defined as under:-- "The word surcharge is not defined in the Act, but etymologically, inter alia, surcharge stands for an additional or extra charge or payment (see Shorter Oxford English Dictionary). Surcharge is thus a super-added charge, a charge over and above the usual or current dues. Although, therefore, in the present case it is in the form of a surcharge, it is in substance an addition to the stipulated rates of tariff. The nomenclature, therefore, does not alter the position. Enhancement of the rates by way of surcharge is well within the power of the Board to fix or revise the rates of tariff under the provisions of the Act. The first submission of counsel is, therefore, of no avail."
271. ' In case of Sohan Singh and others v. The General Manager, Ordnance Factory, Khamaria, Jabalpur and others (AIR 1981 SC 1862), it has been held that levy of supervisory charges over and above the excise duty on the manufacture of medicinal and toilet preparations containing alcohol in a bonded manufactory and imposition of the cost of establishment under section 14(e) of the Act calculated in accordance with the nature and extent of that establishment could not be said to be an imposition of a duty of excise, but is a price for the franchise to carry on the business. Therefore, such a levy cannot be held to be a tax.
272. ' In case of M/s. Rohtas Industries Ltd. And another v. The Chairman, Bihar State Electricity Board and others (AIR 1984 SC 657), it has been held that the provisions of section 49(3) of the Electricity (Supply) Act (54 of 1948) expressly authorise the Board to fix different tariffs for the supply of electricity to any person not being a licensee, having regard, inter alia, to the nature of the supply, the purpose for which the supply is required and other relevant factors, hence, the power to classify the consumers into different categories and to fix differential tariffs has thus been conferred on the Board by the section itself, as such no fault can be found therewith. It has further been held that levy of fuel surcharge cannot be restricted to fuel surcharge paid by Electricity Board to outside sources from whom energy was purchased.
273. ' In case of Kerala State Electricity Board v. M/s. S.N. Govinda Prabhu and Brothers and others (AIR 1986 SC 1999), the same view has been taken as has been taken in case of Ch. Muhammad Shafi (supra). It has further been held in this judgment that revision of tariff is amenable to exercise of power of judicial review by the High Court in cases of the rates being arbitrary or having been fixed on the basis of wrong principles but it has further been held that the Supreme Court cannot examine the price structure and details. In paragraph 16 of the judgment, it has been held as under:- "Shri Potti submitted that the 1980 Committee took place consideration (considering) the anticipated augmentation of the generating capacity from the proposed new power stations of Idukki, Saharigiri and Idamalyar, whereas these projects were not commissioned till 1984 and thus the coststructure arrived at by the Committee was vitiated. We do not think so. From the figures supplied to us we find that notwithstanding the failure to commission the new projects, there was no shortfall in the production of energy. A large part of expenditure involved in the setting up of the new projects had to be met in the several years preceding the actual commissioning of the projects. Therefore, it is not correct to say that the cost structure arrived at by the Committee was in any way affected by the non-commissioning of the new projects between 1980 and 1982.
274. Another submission made by Shri Potti was that the Committee erred in not taking into account the financial position of the Board as brought out by the year 1978-79 which showed that the Board had already turned the corner and that there was therefore no need for enhancing the rates. This submission is again without substance. As we mentioned earlier, the rise in revenue receipts in the year 1978-79 due to the unprecedented sale of energy to neighbouring States, a special situation which was the result of peculiar circumstances which prevailed that year and continued to prevail for a few years thereafter. The sale of energy to neighbouring State was not to be taken as a permanent phenomenon to every year. Yet another submission of Shri Potti was that the 1980 Committee having taken as the basis the 1982 projected cost so as to maintain price stability for a period of five years, it was not proper to revise the tariff again in 1982. But we find that the actual cost of producing energy in 1981-82 and 1982-83 had risen much above the projected 1982 cost and therefore the 1982 Committee has no option but to again consider further revision of the tariff.
275. We are not delving into more details as we are satisfied that it is not within our province to examine the price structure in minute detail if we are satisfied that the revision of tariff is not arbitrary and is not the result of the application of any wrong principle. Relying upon the observation, "It would have been manifestly unjust and discriminatory that one consumer should benefit at the cost of other consumers or general tax-payers" made in D.C.M. v. Rajasthan State Electricity Board, (1986) 2 SCC 431: (AIR 1986 SC 1126), it was argued by Shri Potti that it was not open to the Board to give favoured treatment to Low Tension Domestic and Agricultural Consumers at the cost of the rest of the consumers. We do not find any force in this submission. Section 49(3) expressly reserves the power of the Board, if it considers it necessary or expedient, to fix different tariff for the supply of electricity to any person having regard to the geographical posdition of any area, the nature of the supply and purpose for which supply is required and other relevant factors. Different tariffs for High and Low Tension Consumers and for different classes of consumers, such as, Industrial, Commercial, Agricultural and Domestic having been prescribed and the differentiation appears to us to be reasonable and far from' arbitrary and to be based on intelligent and intelligible criteria."
276. ' It has further been held in this judgment that fixation of different tariffs for different consumers having regard to geographic position of area, nature of supply and purpose of supply has been held to be permissible under the law; and that the Electricity Board may not allow its character as a public utility undertaking to be changed into that of a profit motivated private trading or manufacturing house. Neither the tariffs nor the resulting surplus may reach such heights as to lead to the inevitable conclusion that the Board has shed its public utility character. When that happens the Court may strike down the revision of tariffs as plainly arbitrary. But not until then. Not merely because a surplus has been generated, a surplus which can by no means be said to be extravagant. The Court will then refrain from touching the tariffs. Paragraphs Nos.7 and 10 of the judgment are reproduced as under:- "7. A plain reading of section 59 (as amended in 1978) plainly indicates that it is the mandate of Parliament that the Board should adjust its tariffs so that after meeting the various expenses properly required to be met a surplus is left. The original negative approach of functioning so as not to suffer a loss is replaced by the positive approach of requiring a surplus to be created. The quantum of surplus is to be specified by the State Government. What the State Government is to specify is the minimum surplus. This is made clear by the 1983 amendment which stipulates a minimum of 3 per cent surplus in the absence of specification by the State Government which has the liberty to specify a higher percentage than three. That section 59, as it stood before 1983 contemplated a minimum surplus was also the view expressed by this Court in Rohtas Industries v.
277. Bihar State Electricity Board (AIR 1984 SC 657) (supra) where it was said: 'Under the above provisions, the Board is under a statutory obligation to carry on its operations and adjust its tariffs in such a way to ensure that the total revenues earned in any year of account shall after meeting all expenses chargeable to revenue, leave such surplus as the State Government may, from time to time, specify. The tariff fixation has, therefore, to be so made as to raise sufficient revenue which will not merely avoid any loss being incurred during the financial year but will ensure a profit being earned, the rate of minimum profit to be earned being such as may be specified by the State Government."
8. ......
9. ......
10. We may also refer here to the decision of the Privy Council in Madras and Southern Maharatta Railway Company Ltd. v. Bezwada Municipality, AIR 1944 PC 71, which affirmed the judgment of the Madras High Court in Madras and Southern Maharatta Railway Company Limited v. The Municipal Council, Bezwada, ILR 1941 Mad. 897: AIR 1941 Mad.
641. One of the questions there raised was whether in the absence of rules made by the State Government, the Municipal Council was entitled to determine the capital value of property in the face of a provision which stated: 'Provided that such percentage or rates shall not exceed the maxima, if any, fixed by the Local Government and that the capital value of such lands shall be determined in such manner as may be prescribed' ."
278. ' The High Court, in that case had observed and we agree with what had been said: "We cannot accept the contention of the appellant that, merely because the Local Government has not prescribed the manner in which the capital value should be determined, the Municipal Council is deprived of the power of levying the tax under section 81(3)... The omission of the rule-making authority to frame rules cannot take away the right of the Municipal Council to levy tax at the rate mentioned in the notification issued under clause 3. If, for instance, the Local Government refrained from prescribing the manner in which the value of such lands should be determined, it cannot, we think, be said that the Municipal Council has no power at all to levy the tax at a percentage of the capital value merely because the method of determining the capital value has not been prescribed by the Local Government. If the Local Government does not prescribe it, then the municipal authority is free in our opinion to fix it in any manner it chooses."
279. ' We are of the view that the failure of the Government to specify the surplus which may be generated by the Board cannot prevent the Board from generating a surplus after meeting the expenses required to be met. Perhaps, the quantum of surplus may not exceed what a prudent public service undertaking may be expected to generate without sacrificing the interests it is expected to serve and without being obsessed by the pure profit motive of the private entrepreneure The Board may not allow its character as a public utility undertaking to be changed into that of a profit motivated private trading or manufacturing house. Neither the tariffs nor the resulting surplus may reach such heights as to lead to the inevitable conclusion that the Board has shed its public utility character. When that happens the Court may strike down the revision of tariffs as plainly arbitrary. But not until then. Not, merely because a surplus has been generated a surplus which can by no means be said to be extravagant. The Court will then refrain from touching the tariffs. After all, as has been said by this Court often enough 'price fixation' is neither the forte nor the function of the Court."
280. ' In case of The Treasurer of Charitable Endowments for Pakistan v. Central Board of Revenue and 2 others (1986 MLD 1731), the word 'surcharge' has been defined at page 1736 in paragraphs Nos.13 and 14, which are reproduced as under:-- "13. No doubt, the language used in sections 2 and 4, of the Finance Ordinance is not couched in similar terms, but nevertheless, it is manifest from the language used in section 4 that flood relief surcharged is to be levied and collected as additional duty of excise. Although similar words have not been used by the Legislature does not appear to be different. From the language used in the amendment there appears to be a clear intention that flood relief surcharge is to be levied and collected as additional duty of excise. The words ' in addition to the duty leviable as aforesaid a flood relief surcharge shall be levied on sugar...', used in the amendment leave no doubt that flood relief surcharge was to be levied as additional duty of excise. The term ' surcharge' according to Oxford Dictionary means 'extra load or charge' . According to Black's Law Dictionary, 4th Edition, it means 'an overcharge; an exaction, impost, or encumbrance beyond what is just and right, or beyond one's authority or power..." Legal Thesaurus by William C. Burton defines it as ' added charge, additional charge, excessive burden, excessive charge, extra charge, extra fee, over assessm ent, over burden, over charge, over load penalty'.
14. According to the above definitions, ' surcharge' means something additional or in excess.
281. Therefore, the expression ' flood relief surcharge' cannot be construed as something distinct from excise duty. The intention of the Legislature, therefore, clearly was to provide for levy or collection of an additional or excessive excise duty. For the aforesaid reasons, flood relief surcharge could be levied and collected under section 3(1) of the Act and the amendment introduced by the Finance Ordinance, in no way appears to be in excess of powers conferred under section 3(1) of the Act. The first argument of Mr. Mansoorul Arfin, therefore, cannot be accepted."
282. ' After examining the scope of the definition of surcharge, it has been held that flood relief surcharge is part of the additional excise duty.
283. ' In case of Pakistan Mineral Development Corporation Ltd. v. Pakistan Water and Power Development Authority and 2 others (PLD 1986 Quetta 181), it has been held that where the classification of the tariff being charged from the consumers was wrong, it could be rectified without notice to the consumers and further that obligations arising out of contract of consumption of electricity could not be enforced in Constitutional jurisdiction of the High Court.
284. ' In case of State of U.P. And others v. Renusagar Power Co. And others (AIR 1988 SC 1737), it has been held that in cases where different rates of electricity duty are fixed for different classes of consumers, some of whom have been granted exemption in public interest, it cannot be said that it is a case of excessive delegation as the public interest is a paramount factor to be taken into consideration while fixing the price and further that prior opportunity of hearfng is not necessary while fixing the rates of electricity. In paragraph 85 of the report, it has been held as under:-- "85. Natural justice in the sense that a party must be heard before hand need not be directly followed in fixing the price. Reference in this connection may be made to the observations of this Court in Prag Ice & Oil Mills v. Union of India (1978) 3 SCR 293, where at page 325: (AIR 1978 SC 1296 at p. 1313) of the report, this Court observed that in the ultimate analysis, the mechanics of price fixation has necessarily to be left to the judgment of the executive and unless it is patent that there is hostile discrimination against a class of operators, the processual basis of price fixation has to be accepted in the generality of cases as valid. In this connection reference may also be made to Shree Meenakshi Mills Ltd. v. Union of India (1974)2 SCR 398: (AIR 1974 SC 366), where this Court dealing with the Cotton Textile (Control) Order, 1948 at page 419 (of SCR): (at p.380 of AIR) of the report observed that if fair price is to be fixed leaving a reasonable margin of profit, there is never any question of infringement of fundamental right to carry on business by imposing reasonable restrictions. Unreasonableness and natural justice have to be judged in that context. In that view of the matter non-supply of the basis of the report of the BICP does not by itself in our opinion, in the facts and circumstances of the case made the order of the State Government vulnerable to challenge.
285. ' In case of Gulab Rai v. Municipal Corporation of Delhi and others (AIR 1990 Delhi 249), where the question arose as to whether the condition of supply of electricity could be changed by the licensee without sanction of the State Government, it has been held that the change is not possible without sanction of the State Government even if the licensee is a local authority. It has further been held in this judgment that the agreement between the licensee and the'consumer that they would pay such rates as may be levied by licensee from time to time and the licensee increasing minimum consumption guarantee charges does not amount to change in conditions regulating relation between the parties and such a change is possible after obtaining sanction from the State Government and that the increase in minimum consumption guaranteed charges from the consumers using Arc/Induction furnaces was not a discriminatory act.
286. ' In case of Bihar State Electricity Board, Patna and others v. M/s. Greed Rubber Industries and others (AIR 1990 SC 699), where the question arose as to whether the contract between the consumer and the Electricity Board contained a stipulation to pay minimum guaranteed charges was lawful or not, it has been held that such a contract cannot be held to be ultra vires as there is a presumption that the terms contained in the contract have been entered into after full negotiations.
287. ' In case of M/s. Hindustan Zinc Ltd. Etc. v. Andhra Pradesh State Electricity Board and others (AIR 1991 SC 1473), where the question arose as to whether the revision of tariff by the Electricity Board constituted under the provisions of Electricity (Supply) Act, 1948 with consultation of the consultative council is valid, it has been held that failure to seek advice of the council makes the tariff as invalid. It has further been held in this judgment that the imposition of fuel cost adjustment charges is neither, unreasonable nor discriminatory.
288. ' In case of Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi (PLD 1991 SC 14), the parameters of exercise of discretion have been discussed and laid down as under:-- "16. It is not disputed that the statute conferred a power on the Regional Transport Authority under section 49, relatable to the requirement of section 67 of the Ordinance. The nature of such a power and the duties appurtenant to its exercise have been dealt with in American Jurisprudence, 2nd Edition, Volume 63A (Public Officers and Employees) sections 7, 308, 315 and 317 in the following words:-- ' A public office is a public agency or trust created in the interest and for the benefit of the people, and since an incumbent of a public office is invested with certain powers and charged with certain duties pertinent to sovereignty the powers so delegated to the officer are held in trust for the people and are to be exercised in behalf of the Government or of all citizens who may need the intervention of the officer. Such trust extends to all matters within the range of the duties pertaining to the office. In other words, public officers are but the servants of the people and not their rulers. A public officer is amenable to the rule which forbids an agent or trustee to place himself in such an attitude towards the principal or cestuigue trust as to have his interest, conflict with his duty....
289. Where a statute is silent with respect to the time within which an official act must be performed, the law contemplates that the duty must be performed within a reasonable time. A public official who undertakes to perform an act, even an act which is completely discretionary, must do so reasonably and in complete good faith without such delay as would frustrate its ultimate objective One who accepts a public office does so cum on ere, or with the burden, and is considered as accepting its burdens and obligations with its benefits. He thereby subjects himself to all Constitutional and legislative provisions relating thereto and undertakes to perform all the duties of the office, and while he remains in such office the public has the right to demand that he performs such duties. The acceptance of every public office implies an agreement on the part of the officer that he will execute its duties with diligence and fidelity. The duty of a public officer to fulfil the obligations of his office should take precedence over all other matters... Every public officer is bound to use reasonable skill and diligence in the performance of his official duties, particularly where rights of individuals may be jeopardized by his neglect. In other words he is bound, virtue officii, to bring to the discharge of his duties that prudence, caution and attention which careful men usually exercise in the management of their own affairs."
17. Wherever wide-worded powers conferring discretion are found in statute, there remains always the need and the desirability to structure the discretion and the need for this has been pointed out in the Administrative Law test by Kenneth Culp Davis in the following words:-- "Structuring discretion means regularizing it, organizing it, producing order in it, so that decisions will achieve a higher quality of justice... The seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open findings, open reasons, open precedents, and fair informal procedure... When legislative bodies delegate discretionary power without meaningful standards, administrators should develop standards at the earliest feasible time, and then, as circumstances permit, should further confine their own discretion through principles and rules. The movement from vague standards to definite standards to broad principles to rules may be accomplished by policy statements in any form, by adjudicatory opinions, or by exercise of the rule-making power.
290. ".When legislative bodies delegate discretionary power without meaningful standards, administrators should develop standards at the earliest feasible time, and then, as circumstances permit, should further confine their own discretion through principles and rules."
291. ' In case of M/s Khawaja Plastic Ind. (Pvt.) Limited v. WAPDA through its Chairman, WAPDA House, Lahore and others (W.P.) No,255 of 1995, decided on 2-10-1995), Peshawar High Court has held that levies/demands which have been questioned in these writ petitions as well are lawful. Against this judgment a Petition for Special Leave to Appeal has been filed before the Hon'ble Supreme Court of Pakistan and is still pending.
292. ' In case of PICIC v. Ali GuI Khan (1989 CLC 1774), it has been held that WAPDA charges do not come within the definition of tax or cess, as such, does not fall within the definition of Article 7 of the Constitution. At page 455 of the report, it has been held as under:-- "7. From the above it shall thus be seen that the mere fact that the dues of WAPDA have been made recoverable as arrears of land revenue would not mean that sum has become a Government due.
293. The minute perusal of the provisions of clause (a) of subsection (1) of section 405 of the Companies Ordinance, 1984 would reveal that reference to a local authority therein alongwith the Federal Government or a Provincial Government is in respect of revenues, taxes, cesses and rates.
294. This would mean that the local authority mentioned in the aforesaid provisions of the Companies Ordinance would be that local authority which is competent to collect any revenues or is empowered to impose any taxes, cesses or rates. Even from that angle WAPDA is not that local authority which would have preference in respect of its sums over all other debts of a company under liquidation.
8. The net result of the above discussion is that the sums recoverable by the WAPDA in respect of charges for supply of energy, although recoverable as arrears of land revenue, are not sums which are specified in clause (a) of subsection (1) of section 405 of the Companies Ordinance and shall not be able to claim priority over all other debts. The appeal is, therefore, dismissed."
295. ' In case of Sohail Jute Mills Ltd. And others v. Federation of Pakistan through Secretary, Ministry of Finance and others (PLD 1991 SC 329), while taking a decision as to whether Iqra surcharge is a part of the original levy of duty or is a tax, it has been held that it is a part of duty and is not a tax.
296. ' In case of Ms. Shehla Zia and others v. WAPDA (PLD 1994 SC 693), where the question arose as to whether WAPDA has been authorised to construct a grid station and lay high tension lines in residential areas, it has been held that it has to take reasonable care as living of a safe life is fundamental right of a citizen as guaranteed by Article 9 of the Constitution of Islamic Republic of Pakistan, 1973, therefore, the Supreme Court in exercise of jurisdiction under Article 184(3) of the Constitution may grant a relief to the extent of stopping the functioning of such units which create pollution and environmental degradation, therefore, in furture if such grid stations are to be constructed or transmission lines are to be laid, WAPDA should invite the objections and to finalize the plan for considering the objections, if any, by affording public hdaring to the persons filing objections and this procedure shall be adopted and continued by the Authority till such time the Government constitutes any Commission or Authority comprising of experts as suggested during the course of hearing of the case.
297. ' In case of M/s. Subhash Oil Industries and others v. State of Uttar Pradesh and another (AIR 1975 Allahabad 19), where the rates of electric energy were enhanced by the Electricity Board under the provisions of section 57 and 57-A and Schedule 6, Paragraphs 1 and 9 of the Electricity (Supply) Act, 1948, a question had arisen as to whether the Board is competent to enhance the rates unilaterally, it has been held that consumers have no right of hearing as principles of natural justice do not apply in this case. Paragraphs Nos.9, 10 and 11 of the report are reproduced as under:- "9. The second point relates to the application of the principles of natural justice to the case. The petitioners claim that they ought to have been heard by the licensee before the enhancement was proposed to the State Government under para. 1 of the VIth Schedule. They further claim that the State Government was also under a duty to give them an opportunity before approving the rates.
298. Sections 57 and 57-A and the VIth Schedule provide a complete machinery for the adjustment of rates of electricity between the licensee and the consumer. Under para. 1 of the Schedule the licensee is entitled to earn a reasonable return on its investments. It has a unilateral right to increase the rates under the Supply Act. The increase has to be made under a notice to the State Government or the Board. The State Government or the Board are required to investigate the financial and technical data furnished by the licensee in support of the proposed enhancement. In case of satisfaction the proposal is accepted. In case of doubt the matter is referred to the rating Committee and the proceedings are conducted according to the provisions of section 57-A of the Supply Act. The Committee acts in a quasi-judicial manner and investigates the claim. The purpose behind the provisions of sections 57 and 57-A are to enable the licensees to so adjust the charges as to enable them to earn a reasonable return. The interest of the consumers has been amply safeguarded by providing for a close scrutiny into various data for the fixation of rates, regard being had to the efficiency, potentiality and management of the undertaking. A complete machinery has been set up for the purpose of watching the interest of the consumers and the State Government and the rating Committee act as the custodians of their interest. The notice required by the consumer is only with a view to raise objections to the statements furnished by the licensee in respect of the proposed enhancement. The purpose is only to check the financial and technical data furnished. If an authority under the Act has to look into the proposed enhancement and investigate and check the data furnished by the licensee it must in law be presumed to be acting for the benefit of the consumers and to protect their interest. The interest is thus sufficiently protected under the Act. In such a situation a notice to the consumer has not been provided for under the Act. When the Statute does not provide for such a notice expressly, a question arises whether it does so by implication. As seen earlier when an exhaustive procedure has been laid down by the Act for the enhancement of rates, and the consumers' interest has been amply safeguarded, the Statute by implication also does not seem to provide for any notice to the consumer in the matter of enhancement of rates. A notice to the consumer is thus excluded under the Act. The question then is whether the opportunity claimed, on the principles of natural justice, can be enforced as a requirement of the common law, when not enjoined by the Statute. It seems to me that such a right cannot be claimed. In Furnell v. Whangarei High School Board, (1973) 1 All ER 400 it has been held that justice of the common law will not supply the omission of the Legislature.
299. Their Lordships approved of the observations of Lord Hailsham in Pearlberg v. Varty (Inspector of Taxes) (1972) 2 All ER 6: that the Courts will lean heavily against any construction of a statute which would be manifestly unfair. But they have no power to amend or supplement the language of a statute merely because on one view of the matter a subject feels himself entitled to a larger degree of say in the making of decision than the statute accords him..."
300. ' It was further held that a statute is supposed to be carefully drafted and omission in respect of hearing to a party would be presumed to be deliberate. The omission cannot be supplied by invoking the common law principle of natural justice. In (1972) 2 All ER 6 (supra) an application for leave to raise certain assessm ents was made and it was held on a construction of section 6 of the Income Tax Management Act, 1964 that the application for leave was intended to be ex parte and natural justice did not require that the tax prayer should have the right to be heard. It was observed that the omission to provide for a hearing to a tax payer in section 6 of the Income Tax Management Act, 1964 could note be regarded as anything other than deliberate and if deliberate it should be assumed the Parliament did not think that the requirements of fairness made it advisable to provide any such right to the person affected. If this was the view of the parliament it would require a very strong case to justify the addition to the statute of requirements to meet one's own opinion of fairness.
10. In Union of India v. J.N. Sinha, AIR 1971 SC 40 it was held that the 'rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights. Their aims is to secure justice or to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made". See also the New Prakash Transport Co. Ltd. v. The New Suwarna Transport Co. Ltd., AIR 1957 SC 232. Thus where the legislature prescribes a procedure the principles of natural justice cannot be superimposed over it. Proviso 3 to paragraph 1 of the 6th Schedule specifically provides for a notice to the State Government and the Board and to no other. It can be assumed that the omission to provide for a notice to the consumers was deliberate and they have to rest contended because the law-makers did not provide for it.
11. Further right to enhance a rate is a unilateral right of the licensee under the Sixth Schedule. It is an inherent right of a seller. See Civil Miscellaneous Writ No,19 of 1970 connected with Civil Miscellaneous Writ No,/86 of 1969, decided on 15-4-1971 (All.). In that case it was held that the consumers had no right to object to the proposed enhancement and if it was done without an opportunity to them the enhancement could not be challenged on the ground that it was in violation of the principles of natural justice. I respectfully agree with the view expressed."
14. From the perusal of the various statutory provisions on the subject and the relevant case-law cited at the bar, the following legal principles appear to have been authoritatively settled:--
(i) That a licensee has the power to change the tariff of electricity subject to the condition of his licence and with approval of the relevant Government.
(ii) That the fuel adjustment charges, surcharge and additional surcharge are not a tax or a cess but are appendage to the tariff and, hence, a part thereof, which as such can be levied/increased by the licensee.
301. (iii), That the agreement which includes the abridged conditions agreeing to the payment of tariff rates to be fixed by the licensee from time IU time in future is valid in law.
(iv) That licensee who deals with the supply and distribution of items of public utility, while fixing the price thereof, although is entitled to keep under consideration the commercial aspects of the vocation adopted by him, yet, he cannot totally shed himself from being a concern of public utility.
(v) That the unilateral change of tariff rates is permissible under the law and it is not necessary to issue a prior show-cause notice to the consumers.
(vi) That the High Court has power of judicial review to strike down arbitrary and unreasonable tariff rates, but not the rates which may appear to be merely on the higher side.
(vii) That various rates of tariff applicable to the various classes of consumers described with reference to the areas, the nature and extent of consumption of electricity are not discriminatory in nature and C hence, are not violative of the fundamental rights of the citizens, hence, are valid in law.
15. We have considered the arguments addressed at the Bar, have perused the record placed before us, have gone through the various statutory provisions and relevant case-law on the subject. The Authority for the first time was created under the provisions of West Pakistan Water and Power Development Authority Act, 1958 as prior thereto it were the provisions of Electricity Act, 1910, which governed the generation and distribution of electricity. On the dissolution of one unit, the Authority was placed under the control of President of Pakistan as per provisions of Article 12 of West Pakistan (Dissolution) Order, 1970. After the enforcement of Constitution of Islamic Republic of Pakistan, 1973, the electricity has been placed under the control of Federal Government as per provisions of Article 154 read with Article 161 thereof. In the Concurrent Legislative List, electricity has been mentioned at Serial No,34. In pursuance of the provisions of Ordinance LXXII of 1979, the provisions of WAPDA Act, 1958 were amended and instead of West Pakistan, the word 'Pakistan' has been substituted besides making of other necessary substitutions. The Authority although is an autonomous body, yet, has to perform its functions with approval of the Federal Government as the control thereof vests in the said Government. Under the provisions of section 3 of the WAPDA Act as amended up to date by Ordinance CXXIV of 1995, the Federal Government has the power to issue binding directives to the Authority in the matter of performance of its functions. Section 12 of the WAPDA Act makes the Authority as a licensee under the provisions of Electricity Act, 1910, although the provisions of section 3 to 11, 21(2) & (3), 22, 23 and 27 or in clause Ito XII of the Schedule to the said Act have been made inapplicable to it so far as the same relate to the duties and obligations.
302. Section 25 of the Act, 1958 deals with the fixation of the rates for sale of power by the Authority, which has to be fixed with prior approval of the Federal Government, as is clear from the perusal of sections 2, 3 and 8 of the WAPDA Act, 1958.
16. In terms of the provisions of Article 161 read with Article 154 of the Constitution, the Provinces wherein the hydro-electric stations are situated, are entitled to receive "net profits" as royalty from the licensees. In order to enforce the aforementioned Articles, vide sections 3 and 4 of the President's Order No,3 of 1991, it has been ensured that the said royalty is paid to the Provinces and the Federal Government has been made a guarantor for ensuring the payment of the said royalty.
303. In pursuance of the abovesaid Articles of the Constitution read with the law on the subject, National Council of Common Interests determined that a royalty of Rs,6 billions was to be paid to the Province of N.-W.F.P. As the Tarbela Dam, whereat the bulk supply of the electricity is generated, is situated within that Province. As per provisions of WAPDA Act the responsibility of co-ordinated development of the water and power resources is also that of the Authority, who continues investing for the purpose of maintenance of the existing source of supply of electricity and also expansion/development of the new source for generation of energy. Allegedly invested capital so far is Rs,280 billions. To meet its financial requirements besides utilising its own resources, the Authority has also to get loans from the Foreign Banks and Institutions which are usually given on the condition that 40% thereof is contributed by the Authority itself by self-financing. The Authority also has to generate thermal energy at the cost of six times more than the Hydel generated energy for the purpose of supplementing of the hydro-electric energy, to meet the demand in the country and in order to operate thermal units, it has to purchase the furnace oil, gas and petrol, price whereof is increasing day by day. While transmitting the electricity from the generating stations to the consumers, there are line losses and theft of electricity as well. The questioned levies are being justified as being necessary to cater for the above-referred needs, to pay taxes and to earn reasonable return on investment with a view to utilise the surplus for expansion and development of the sources of energy.
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 petitioners' side 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.
18. As regards the contention that the tariff is to be determined by the Provincial Government, the same is misconceived. It is admitted position amongst the parties that the electricity is on the Concurrent Legislative List and hence the Federal Government as well as the Provincial Government can legislate on the subject. A bare perusal of Article 157 of the Constitution shows that clauses (b), (c) & (d) of sub-Article (2) of the said Article shall be attracted only if the condition as mentioned in clause (a) of sub-Article (2) are satisfied, which is to the effect that the province should get supply of electricity in bulk from the national grid for transmission and then distribute itself within the province. In the case in hand it is the WAPDA who is supplying and distributing the electricity amongst the consumers of various provinces and not the Provincial Governments. 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.
19. Argument of the learned counsel for the petitioners that the tariff is to be determined with the approval of the Provincial Government under the provisions of Electricity Act, 1910 is also misconceived as is clear from the proviso to section 12 of the Act, which specifically excludes from application of various provisions of the Electricity Act, which are relatable to the fixation of the price of electricity. Moreover, section 25 of the WAPDA Act is a special provision governing the fixation of price of electricity by WAPDA, therefore, the provisions of Electricity Act, 1910 are not applicable to.
304. The Authority, while fixing the rate, therefore, the said enactment being not applicable, reference to the provisions of that Act is irrelevant to the controversy in question. We, therefore, hold that the Authority is authorised to fix the rate for sale of power, with prior approval of the Federal Government within the parameters as mentioned in section 25 of the WAPDA Act, 1958.
20. Next issue to be determined is as to what are the parameters and limitations for fixation of tariff and as to whether the questioned levies fall within or outside the said parameters? The provisions of section 25 of the WAPDA Act provide that the Authority can sell the power at the rates to be fixed in order to meet the operational costs, interest charges and depreciation of assets; the redemption of loans; the payments of taxes and to earn reasonable return on investment. Learned counsel appearing from the petitioners' side have contended that at least levy of surcharge and additional surcharge does not fall within the scope of section 25 of the WAPDA Act and being a tax, hence, the notifications imposing the said levies are totally without jurisdiction. Learned counsel appearing from the respondents' side, however, have contended that th fuel adjustment charges have been levied to meet the increase in the prices of furnace oil, gas and petrol, purchase and use whereof is necessary to generate thermal energy to support the hydro-electric generation to meet consumers' demand throughout the year; that the surcharge is levied to make payment of royalty to the Province of N.-W.F. Which is the Constitutional obligation of the Authority, without discharge whereof operation of the power generation and distribution is not possible, hence, both the charges are imposed to cover the operational costs, whereas the additional surcharge has been levied to earn return on investment at the rate of 18%, which is quite reasonable and that too for further investment in projects meant for more power generation to be financed by World Bank, A.D.
305. Bank and other financial institutions by giving of loan, on the condition of contribution of matching self-financing of 40% thereof. In this behalf the case of the Authority is that loan has been granted by the World Bank for construction of Hydel Power Generation Station at Ghazi Barotha and one of the condition alities attached with the foreign loan is that the Authority should contribute for 40% internal cash generation, by way of self-financing and that the Authority has investment plans worth Rs,34,548 millions presently in hand, to be executed in future, hence, it needs funds. Having given our anxious consideration to the above contentions, we are of the view that the reasons advanced by the respondents necessitating the fixation of questioned tariff, which reasons have not been controverted by the petitioners, on the basis of present data available before us, are not without substance and, therefore, it cannot be said that the questioned levies have been imposed not for the reasons and purposes which have been mentioned before us. Consequently, we hold that F the imposition of the same falls within the permitted scope of provisions of section 25 of the WAPDA Act.
21. As regards the issue about nature of surcharge and additional surcharge as defined in various dictionaries and interpreted in judgments referred to supra particularly in cases of M/s. Bisra Stone Lime Co. Ltd.; Sohail Jute Mills Ltd.; the Treasurer of Charitable Endowments for Pakistan; Sohn Singh; Khawaja Plastic Industries and PICIC (supra), it stands established that nature 0f the above- referred charges shall be the same as the levy in relation whereto it is imposed. In case levy is a tax, surcharge or the additional surcharge shall also be a tax and, hence, leviable only by Act of the Parliament. In case, it is levied with reference to a rate/tariff, it will be an appendage thereto. As admittedly in this case, the surcharge or additional surcharge has been imposed with reference to the tariff for consumption of electricity, the same is appendage/a part, of the tariff and nothing else merely because of a different nomenclature as shown in the break-up of electricity bills, separately which has statedly been shown in the bill for keeping of different heads of account of various imposts and to demonstrate transparency of demand, to the consumers. We accordingly hold that the questioned levies are not a tax but are a part of the tariff for sale of power by the Authority, which can be imposed under the provisions of section '25 of the WAPDA Act, 1958.
22. As regards the contention that rate of tariff could only have been increased after service of prior notice to the consumers, the same is also misconceived. As per provisions of section 25 of the WAPDA Act read with abridged Conditions No,26 and 27 of the contract duly executed between the petitioners and the respondents, which bind the consumers to make payment at the rates, which may be changed by the Authority from time to time in future, no prior notice is necessary to be served before changing/increasing the rates by the Authority. This question has also been authoritatively determined against the petitioners in cases of M. Daud Khan; M/s. Subhash Oil Industries and M/s. Bisra Stone Lime Co. Ltd. (supra). Therefore, we hold that it was not necessary to serve a prior notice upon the petitioners or general public before imposition of the questioned levies.
23. As regards the issue regarding the vires of the abridged conditions, suffice it to say that the principles of unequal bargain, economic duress or undue influence are not attracted in these cases as the petitioners have entered into contract with the respondents with their free consent and the compulsion to execute the agreements cannot be said to be pressing to such an extent that the petitioners could be held to fall within that category of persons who are "unequal in bargain" or under "economic duress" or "undue influence". The abridged conditions, as such, are valid in law. This view has also been taken in cases of M. Daud Khan and Ch. Muhammad Shafi (supra). We accordingly hold that the abridged Conditions Nos.26 and 27 are valid and, hence, are binding upon the petitioners.
24. As regards the issue of demand of fuel adjustment charges, income-tax and late payments, learned counsel for the petitioners have not seriously contested the legality of the same. Even otherwise, fuel adjustment charges are fully covered by the operational costs inasmuch as the thermal generation is I necessary to supplement the hydro-electric generation to meet the consumers' demand and, as such, the cost of running the aforementioned thermal units does fall within the definition of operational costs. As regards the income-tax, the Authority is authorised to fix the rate which includes the payment of necessary tax and even otherwise the consumer, who pays the amount of income-tax is also entitled to deduct the amount from the payable income- tax at the time of filing of yearly return, as such, it cannot be said that the demand of income-tax as contained in the bill is in any manner illegal or otherwise unauthorised. As regards the demand of late payment in the bill, the amount is only payable if the consumer fails to deposit the bill amount within the stipulated period, therefore, the said payment being a penalty on account of non-deposit of the original amount, it cannot be said that the mentioning of the same in the bill in any manner is illegal. We accordingly hold that all the aforementioned three demands are lawful.
25. The argument to the effect that the different rates of tariff fixed for different categories of consumers makes the whole tariff as discriminatory and, hence, being violative of the provisions of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, as void, suffice it to say that the different rates of tariff have been fixed by the Authority keeping in view the geographical conditions, the nature of purpose for which the electricity is consumed and the extent of units consumed, which division is definitely based upon a reasonable classification and, hence, it cannot be said that the tariff rate is discriminatory in nature. It is well established a legal proposition that different rates of tariff are permissible under the law as held in case of State of U.P. And others (supra). Even otherwise a consumer of lesser units uses less amount of electricity generated by thermal generation which is six times more costlier to the energy produced by hydel generation and, therefore, he has a right to be treated differently in fixation of the rate to a person who consumes more units of thermal generated energy. Therefore, the above-referred argument of discrimination being without any lawful basis and justification, is repelled.
26. Having rendered the above-mentioned findings the most crucial issue which remains to be determined is, as to whether the gross tariff calculated after addition of questioned levies is arbitrary or unreasonable and, hence, is liable to be declared to be illegal and without a lawful authority in exercise of the power of judicial review? The Authority is admittedly a statutory licensee which is dealing with the supply of item of public utility. It is, hence, under a lawful and bounden duty that it should not change its character of a public utility undertaking into a profit motivated private trading concern. Neither the tariff nor the return on investment can be allowed to reach such heights, which may lead to the conclusion that the Authority has shed its character of public utility, therefore, if in this case we reach the conclusion on facts and record before us, that the- present tariff rates are either arbitrary or unreasonable, it will be a fit case for exercise of power of judicial review. However, merely a higher rate of tariff and surplus age short of extravagance is not justiciable' in exercise of power of judicial review as price fixation is neither the forte nor the function of this Court, as held in case of Kerala State Electricity Board (supra).
27. It is not denied on both the sides that electricity is now a blood line for the country to exist and compete with the developing and developed nations during the coming periods. The energy as such has acquired a status of basic necessity of life. A judicial notice can be taken of the facts that inflationary conditions are prevalent in almost all the countries of the world, including Pakistan and also the fact that in order to have the continuous supply of energy for the present and future domestic and commercial needs, present sources of energy have to be properly maintained, besides expansion of new sources of energy which requires finances to be arranged by the Authority as well as the Government of Pakistan as the obligation for administration of social and economic justice which was erstwhile a part of the Objectives Resolution, has now become a substantial part of the Constitution by Article 2A thereof. Therefore, while imposing the levies and fixation of rates by the Authority, a balance has to be struck between the capacity of citizen to spend, extent of national requirement for energy on the one hand and available financial resources on the other. Therefore, a very heavy duty is cast both upon the public functionaries, the executive as well as judiciary to see that balance is struck in such a manner that the system could also flourish and continue progressing, but the utility of the step taken by the Authority may not become beyond the reach of the citizens of the country. Justification of financial needs of Authority as mentioned in the earlier part of this judgment, which has necessitated the imposition of the questioned levies have not been controverted on facts from the petitioners' side. However, in order to demonstrate that the present questioned tariff rate is arbitrary and unreasonable, it has been urged that tariff rate is on the higher side; that there are huge dues which if recovered from the defaulters of all the four provinces, tariff rates can be reduced; that control and elimination of theft of electricity and line losses supplemented with elimination of financial irregularities within the Authority, Privatization of the Authority, correct and fresh decision of the quantum of net profits payable to N.-W.F. Province, construction of thermal and hydel-power stations in the private sector can also result in reduction of the tariff rates; that the meter readers should be directed to record correct and timely reading; that the meters with correct speed should be installed as speed of the presently installed meters is unusually fast to which irregularity, the Authority is also a party. Except the ground of higher rate of tariff, some of the grounds are matters of policy whereas others are allegations, which will require determination after recording of evidence. There is nothing on the record to prove that the tariff rate is either arbitrary or unreasonable.
28. It has been held in the earlier part of this judgment, that this Court is competent to interfere with the rates only if they are proved to be arbitrary and unreasonable and short of that cannot examine the price structure, details thereof, and fix the tariff rates itself. The nobleness of the steps which have been suggested from the petitioners' side to overcome the problem cannot prima facie be denied but the fact remains that till those steps are taken and sufficient funds are generated to cater for the current and future needs of the Authority, which in fact is the need of the nation, necessity to increase the questioned levies cannot be said to be non-existent and arbitrary.
306. Therefore, present and future expanding need of energy being not denied on either side, we cannot hold that the same can be supplied without sufficient financial resources, which in presentie do require taking of loans and hence increase in the rate of tariff. In case the questioned levies are struck down merely on the ground that the increase in rates appears to be on the higher side, it would result in abandoning power generating schemes including Ghazi Brotha Hydel Scheme, which are so essentially needed to cater for the present and future requirement of electricity in the country. We can take a judicial notice of the fact that during the present era of awareness, hard competition, mechanisation of the life, trading and productive activities, nobody can visualize even to exist not to speak of flourish without there being continuity and expansion of supply of energy in the near future. As per data supplied by the respondents, 57% of the population is yet without the facility of energy. Therefore, we are of the view that in such a situation, element of sacrifice on the part of the consumers is also a relevant factor, while taking a decision about reasonableness of the tariff.
29. The suggested steps for decreasing the rates of tariff are in fact matters of policy and majority thereof proceed on assumptions which cannot be held to be established beyond doubt for rendering a definite finding by us due to incomplete information and data before us,. Which exercise can more appropriately be undertaken by the executive and the Legislature, therefore, we have decided to exercise "judicial restraint" and not to interfere in exercise of power of judicial review as per law declared in cases of Manganbhai Ishwarbhai Patel v. Union of India and another (AIR 1969 SC 783); N. Masthan Sahib and S.S. Reddiar v. Chief Commissioner and another (AIR 1962 SC 797); The Superintendent Land Customs, Torkham (Khyber Agency) v. Zewar Khan and 2 others (PLD 1969 SC 485); R.C. Poundyal v. Union of India and others (AIR 1993 SC 1804); Nargis Shaheen v.
307. Federation of Pakistan and 5 others (PLD 1993 Lahore 732); Chhetriya Pardushan Mukti Sangharsh Samiti v. State of UP and others (AIR 1990 SC 2060); Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473); Inder Mohan Bhardwaj v. Union of India and others (AIR 1980 Delhi.20); Ram Kishore Sen and others v. Union of India and others (AIR 1966 SC 644); Mr. Zulfikar Ali Bhutto v. The State (PLD 1978 SC 40 at page 59); Hakim Khan and 3 others v. Government of Pakistan (PLD 1992 SC 595); Shehla Zia and others v. WAPDA (PLD 1994 SC 693) and Brig. (Retd.)
308. Imtiaz Ahmad v. Government of Pakistan (1994 SCMR 2142), out of which precedents in the last- mentioned case, it has been held that power under Article 199 of the Constitution is a power of judicial review. The power is a great weapon in the hands of Judges, but the Judges must observe the Constitutional limits set by the Parliamentary system on their exercise of this beneficial power, namely, the separation of powers between the Parliament, the Executive and the Court. Judicial review, must, therefore, remain strictly judicial and in its exercise Judges must take care not to intrude upon the domain of' the other branches of Government, as under a Constitutional system which provides for judicial review of executive actions, it is, a fallacy to think that such a judicial review must be in the nature of an appeal against the decision of the Executive Authority. It is not the purpose of Judicial Authority reviewing executive actions to sit on appeal over -the executive or to substitute the discretion of the Court for that of the administrative agency. "Judicial restraint" is so essential to the continuance of rule of law, for the continued public confidence in the political impartiality of the judiciary and the voluntary respect for the law as laid down and applied by the Courts, and, hence, we hold that on the present record the the levies are not proved to be arbitrary or unreasonable, leaving the issue still open for the Federal Government who is better equipped with the facts/information/expert advice on socio-economic issues, resolution whereof is inter- linked with the assessm ent of reasonableness of the rate of tariff of energy and is empowered to issue binding directives to the Authority in pursuance of the provisions of section 3(3) of the Act, 1958, to examine the same and feasibility of taking of steps/actions, which have been suggested from the petitioners' side, which according to them if taken can bring down the prices of tariff rate and grant interim/permanent relief to the consumers, if possible.
30. In view of what has been held above, we decline to issue the writ or order as prayed for in all these writ petitions and dismiss/dispose of the same with the directions/observations that keeping in view our observations as contained in paragraphs 27 to 29, the issue shall be examined by the Federal Government of Pakistan, who is the competent supervisory Authority after giving due consideration to the allegations of: rampant maladministration in the WAPDA, high rate of theft of electricity line losses, extravagance in administrative expenses, misuse of transport, non- replacement of outdated equipments including the meters and the suggested measures for reducing the rate of electricity by the petitioners, which have been taken note of and highlighted in the earlier part of this judgment and if found necessary shall appoint a high-powered inquiry/advisory commission/committee to suggest necessary remedial steps/measures of interim/permanent nature. The Federal Government shall issue necessary directives to the Authority in view of the report of the Commission/Committee in addition thereto or independent thereof to remedy the stated ills. If found feasible, the Federal Government may also in its administrative discretion direct WAPDA to readjust and reduce, if and wherever possible, the rates of additional surcharge for various categories of consumers, with a view to give relief to any or all categories of the consumers. Keeping in view the prevalent inflationary conditions in the country it will be highly an appreciable gesture which is expected from a concern of public utility, if the Chairman, WAPDA directs the recovery of arrears of surcharge and additional surcharge, which has accumulated during the period of stay granted by this Court in accord with a uniform policy by easy instalments to be recovered alongwith running bills instead of recovering the same in lump sum.
31. Keeping in view the intricate legal questions involved in these cases, there shall be no order as to costs.