PESHAWAR ELECTRIC SUPPLY COMPANY LTD. (PESCO) vs SS PLOYPROPYLENE (PVT — 2023 PLD 316 SUPREME-COURT

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PESHAWAR ELECTRIC SUPPLY COMPANY LTD. (PESCO) VS SS PLOYPROPYLENE (PVT.) LTD., PESHAWAR Ss. 7(2)(g), 12-a & 31(4)---NEPRa Determination of Consumer-end-Tariff (Methodology and Process) Guidelines, 2014, Clauses 6(d), 40(1) & 50(1)---Constitution of Pakistan, art. 199---Electricity tariff, determination of---Consumers of Peshawar Electric Supply Company (PESCO)---Fuel Price adjustment Charges determined by NEPRa---Legality and constitutionality---By way of impugned judgment the High Court declared the imposition of Fuel Price adjustment Charges ('the Charges') on consumers of PESCO as unconstitutional and illegal on the basis that the Province of Khyber Pakhtunkhwa ("KP") had been discriminated against and had not received the Net Hydel Profits due to the province and therefore, the imposition of Charges on consumers of electricity in the Province was violative of their fundamental rights---Held, that the non-payment of Net Hydel Profits is an entirely different and distinct matter which does not concern consumer-end tariff, which is designed to ensure recovery of the revenue requirement of the Electricity Distribution Companies (DISCOs)---Fact that Province of KP had not received Net Hydel Profits related to a dispute between the Government of KP and the Federal Government which should more appropriately be raised before the appropriate forum, rather than the High Court---Even otherwise, there was nothing on the record which showed that the mechanism for recovery of the Charges was either arbitrary or discriminatory---To the contrary, NEPRa after an elaborate, open and transparent process that involved hearing all interested stake holders and careful scrutiny of the various components of the claimed rate of tariff suggests a uniform consumer tariffs across the country in line with Section 31(4) of the Regulation of Generation, Transmission and Distribution of Electric Power act, 1997 ('the 1997 act')---Licensing agreement of the PESCO with NEPRa specifically provided that the licensee i.e., PESCO shall only charge such tariff as approved by the authority from time to time---as such, PESCO did not have any discretion to determine the 'Charges', rather, it was required to recover the Charges fixed by NEPRa---Furthermore the High Court could not have assumed jurisdiction in the present matter when alternate remedies existed under sections 7(2)(g) and 12-a of the 1997 act and were admittedly not availed---appeals were allowed and impugned judgment of High Court was set-aside with the observations that no matter which province generates more electricity, it must first go into the national basket where the electricity is stored collectively rather than separately on a provincial basis on requirement and capacity basis; that thereafter the units purchased by them are dispatched to DISCOs which then provide electricity to end consumers; that margins administrative costs, line loses repair and upkeep costs of DISCOs being part of the recoverable tariff are included in the tariff as their claims for such costs after due scrutiny and analysis and included in the consumer tariff determined by NEPRa.

PESHAWAR ELECTRIC SUPPLY COMPANY LTD. (PESCO) vs SS PLOYPROPYLENE (PVT — 2023 PLD 316 SUPREME-COURT

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