Mst. Nasim Akhtr Vs Federation of Pakistan through Ministry of Energy, Power Division Islamabad and others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

D.I.KHAN BENCH

(Judicial Department)

Writ Petition No.351-D/2019 with CM No.371-D/2019

Mst. Nasim Akhtar Versus.

Federation of Pakistan through Ministry of Energy, Power Division Islamabad and others

For petitioner: Muhammad Yousuf Khan Advocate For respondents: Mr. Adnan Saeed Khan Saddozai (Assistant Attorney General for respondents No. 1 & 2)

M/S Muhammad Anwar Awan and Sheikh Qaiser Advocates (for

PESCO)

Date of hearing 24.06.2025

JUDGMENT

FARAH JAMSHED, J.- Through this single judgment we intend to decide the fate of instant petition with Writ Petition No.249-D/2024 titled High Court Bar Association Vs. Chairman WAPDA etc as both the petitions require common discussion and determination of the controversy.

2.Writ Petition No.351-D/2019. In this petition the petitioner, Mst. Nasim Akhtar, has sought the following relief:

“It is, therefore, most humbly prayed that on acceptance of present writ petition and by issuance of an appropriate writ, respondents may please be directed to: a) Ensure a uniform schedule of load- shedding over all the feeders of D.I.Khan.

b) Take stern legal action against electricity thieves and to overcome the line losses;

c) Lay their hands-off to burden the bill payers with detection bills; d) Ensure supply of sufficient voltage so that electric equipment can be operational without any trouble; e) Respondents be directed that all those consumers who are not involved in theft and are regularly paying their bills be declared immune from load shedding.

f) Load shedding as a whole be declared illegal, unconstitutional, without backing of law and rules. It is further prayed that the respondents may please be restrained from claiming detection bills from the petitioner and thereby the detection bill as reflected in the bill for the month of February 2019 may please be declared as illegal, unlawful, without any legal backing and ab-initio void.

Any other relief deemed appropriate in the given circumstances of case, may also be granted to petitioner.

Factual canvas of the this petition is that the petitioner is a consumer of Peshawar Electric Supply Company (PESCO) and uses to pay the electricity charges regularly according to consumed units per her electricity meter. The PESCO has devised a mechanics to justify the load-shedding schedule under the garb of Composite Efficiency Index (CEI). Low CEI means high line losses and poor recovery of revenue resulting in long duration of load-shedding. But the consumers, like petitioner, who pay full charges of electricity on account of consumed units face the misery of loadshedding and are punished along with those who are not paying the charges or using the energy dishonestly. Thus, the PESCO is bound to stop underhanded actions of their staff with the consumers using electricity dishonestly and to recover the arrears from the defaulters, and hence, they cannot treat the payees of bills and defaulters/dishonest users with the same yardstick, which is unconstitutional and against the natural justice. Hence, the instant petition with the aforementioned prayers has been filed.

2.Writ Petition No.249-D/2024: In this petition the petitioner has sought the following relief:

In view of above submissions, it is therefore, prayed that on acceptance of instant writ petition and by declaring the impugned loadshedding schedule issued by respondent No.4 on the direction of respondents No.1, 2 & 3, is illegal, unjustified and unconstitutional upon the rights of petitioner.

In this petition too, the petitioner has challenged the loadshedding schedule issued by the respondents.

3.In compliance of the directions of this Court, the PESCO authorities (respondent No. 3 to 13) filed their para-wise comments in both the petitions, wherein they opposed the issuance of desired writ. The Federation of Pakistan through respondents No.1 & 2 filed a report to clarify the situation.

4.Arguments of the learned counsel representing parties and that of the learned Assistant Attorney General heard and record gone through with their valuable assistance.

5.The petitioner is primarily aggrieved by the electricity load shedding. According to her, she uses electric energy honestly, pays her bills regularly, hence she should not be penalized for the actions of others who do not pay their bills or use electricity illegally.

6.Conversely, PESCO has stated in their comments that the Board of Governors of PESCO, under instructions from the Ministry of Energy (Power Division) Islamabad, issued circular No. IPPs- 1(103)/13 dated January 24, 2014, and that of the PITC1 Lahore have implemented a mechanism known as the 'Composite Efficiency Index (CEI)' or 'Aggregate Technical & Commercial (AT&C) Losses' for load shedding. The calculation of load shedding hours is based on criteria, as outlined in the following schedule:

S# CEI/ AT&C Number of Loses Interruptions 1 00 to 10% 20 hours 2 10.1 to 20% 20 hours 3 20.1 to 30% 16 hours 4 30.1 to 40% 14 hours 5 40.1 to 50% 12 hours 6 50.1 to 60% 06 hours 7 60.1 to 70% 04 hours 8 70.1 to 80% 04 hours 9 80.1 to 90% 04 hours 10 90.1 to 100% Nil

7.The pivotal point for out determination is, whether the respondents are justified in cutting-off electricity to their consumers under the CEI or AT&C Power Information Technology Company.

loses, as directed in the letter dated 24.01.2024 by the Ministry of Energy (Power Division), Islamabad.

8.Initially, the Pakistan Water and Power Development Authority (WAPDA) was established through an Act2 of parliament for the integrated and rapid development and maintenance of water and power resources to handle the growing needs of the country. However, the electricity sector was restructured in 1998, creating separate generation and transmission companies to regulate the generation, transmission, and distribution of electric power. For this purpose, the Regulation of Generation, Transmission, and Distribution of Electric Power Act, 1997 (Act-1997), was enacted. As a result of this restructuring, WAPDA was unbundled into separate generation (GENCOs), transmission (NTDC), and distribution (DISCOs) companies, with PESCO being one of the DISCOs. To regulate the provisions of electric power services, including generation, transmission, distribution, determination of tariffs, and consumer protection, the National Electric Power Regulatory Authority (NEPRA) was established under Pakistan Water & Power Development Authority Act, 1958.

Section 3 of the Act of 1997. In order to ensure the safe, effective, and reliable supply of electric power, NEPRA published a ‘Consumer Service Manual’ (CSM) in accordance with the provisions of Section 21 of the Act-1997. All functions, operations, and management of PESCO related to the distribution of electric power are governed by the Act of 1997 and NEPRA, including its CSM. The NEPRA, as mandated by section 34 of the Act-1997, is responsible for setting standards for scheduled and unscheduled outages, as well as principles and priorities for load shedding. For quick reading Section 34 of the Act is reproduced below:

34.Performance Standards.– The Authority shall prescribe performance standards for generation, transmission and distribution companies to encourage safe, efficient and reliable service, including standards for–

(i)service characteristics such as voltage and stability;

(ii)scheduled and unscheduled outages;

(iii)reserve margins where applicable;

(iv)time required to connect new customers; and

(v)principles and priorities of load shedding.

9.In the Khyber Pakhtunkhwa generally and especially in D.I.Khan, power outages of up to 20 hours per day have sparked widespread public frustration, particularly among those who have regularly been paying their electricity bills according to their consumed units. The reason advanced for such outages is the less revenue recovery caused by line losses. Technically, line losses refer to the electrical energy lost in a conductor during transmission or distribution due to conductor resistance and magnetic fields. However, admittedly, respondents have adopted a policy of including dishonest use of electricity by consumers, theft and lack of recovery in the definition of line losses. There is no cavil to the fact that electricity has become more integral to our lives than ever before. In addition to meeting people's domestic needs, it is essential for a wide range of activities, including education, business, agriculture, construction, manufacturing, health, and social services. Without electric energy, many aspects of modern life would not be possible and even it has a negative impact over the education of children. On the one hand when right to education has been made

compulsory and on the other hand such a hostile attitude by PESCO for load-shedding on the basis of theft or line losses, has no excuse to deny the supply of electricity. It is a well-known fact that in the future, energy demand in developing countries will increase significantly. In the present day, it seems unfathomable for life to carry on without the provision of an uninterrupted supply of energy in the form of electricity. Electricity pervades every part of human life, so much so that the economy, particularly industry, is heavily dependent on electricity. Without this mode of the progress and development of all commercial activities and education is greatly threatened. True, that in this part of the country, load shedding has become a major problem but it is equally true that the power sector is facing heavy financial losses in revenue recovery. In this scenario, respondents claim that load shedding and the load management is their legal privilege. The contention of respondents that load shedding or load management is purely a technical matter within the jurisdiction of NEPRA and PESCO's technical authorities, and therefore, this Court has no authority to intervene, is

not ringing to mind as the load shedding and load management are two distinct strategies. Load shedding is a reactive measure, involving controlled power outages to prevent a complete system collapse when demand exceeds supply. On the other hand, load management is a broader, proactive approach that includes various techniques to optimize electricity usage and distribution which includes strategies like demand response, energy efficiency programs, dynamic pricing, load shifting, load sharing and load shedding. The latter one is just one possible method of the load management besides others.

10.Undeniably, the respondents are implementing load shedding not to prevent a system collapse or due to insufficient power generation or equipment failure, but rather as a policy to avoid revenue loss and dishonest use/theft of electricity. It is the duty of the respondents to take action against defaulters or dishonest consumers, and they should not treat good- payers and bona-fide users with defaulters in the same manner, which amounts to punish the innocent for his no fault with the wrongdoer. Hence, loadshedding due to culpability of the defaulters or dishonest users,

ultimately results into sufferings of those who are honest consumers of PESCO. Additionally, everyday life is greatly affected by the massive load shedding.

No economic sector can function without a reliable energy supply. It is the State’s responsibility to improve the standard of living for its people, as stated in Article 38. A country without energy is essentially paralyzed. The general public, especially those who honestly pay their electricity bills should not be deprived of this essential service, as it is a fundamental right to life outlined in Article 9 of the Constitution, which provides that no person shall be deprived of life or liberty save in accordance with law. The word ‘life’ caried profound significance as it encompasses the entire spectrum of huma existence and not a mere existence from conception to death.

11.Furthermore, power outages based on CEI or AT&C losses violate the rights to dignity, privacy, trade, education, business, profession, occupation, and equality as guaranteed by Articles 15, 18, 25 and 25- A of the Constitution. These fundamental rights cannot be infringed upon, diminished, or reduced by any policy or law that contradicts the Constitution.

Therefore, the circular No.IPPs-1(103)/13 dated January 24, 2014, issued by the Ministry of Energy (Power Division), Islamabad is ultra-vires to the constitution, against natural justice and violative of the provisions of the Act-1997.

12.Now coming back to the point for

determination, can CEI Index or AT&C losses be a reason for load shedding? While it is true that load shedding can also be influenced by unexpected technical problems, it is undeniable that there is no official load shedding schedule in Pakistan by NEPRA. Instead, the schedules to the extent of Khyber Pakhtunkhwa have been determined by PESCO itself.

Through the act of 1997 as well as CSM of NEPRA are silent in respect of CEI or AT&C losses. However, a Distribution Company (such as PESCO in this case) is obligated under Section 21 of the Act to provide services to its consumers who meet the eligibility criteria without any discrimination. For the sake of convenience, Section 21 reads as follows:

21.Duties and responsibilities of distribution licensees.– (1) The Authority may, after such enquiry as it may deem appropriate and subject to the conditions specified in this Act and as it may impose,

grant a licence for distribution of electric power.

(2)The licensee shall–

(a)possess the exclusive right to provide, for such period as may be specified in the licence, distribution service and to make sales of electric power to consumers in the territory specified in the licence and to frame schemes in respect of that territory:

Provided that a generation company may make sales of electric power to bulk- power consumers within such territory as the Authority may, subject to section 22, for a period of fifteen years, allow;

(b)be responsible to provide distribution service and make sale of electric power within its territory on a non-discriminatory basis to all the consumers who meet the eligibility criteria laid down by the Authority: - - - - - - - (emphasis provided)

13.The provisions of Section 21(2)(b) specifies that there should be no discrimination in the supply and sale of electric power to consumers. Meaning that load-shedding based on CEI or AT&C losses is beyond the authority of electricity supply company as well of the NEPRA and it is also against the fundamental principle of natural justice and individual culpability, a person cannot be blamed or punished collectively or on account of other’s actions.

14.Apart from the above, the Principles of Policy as ordained in Articles 29 and 30 of the Constitution provided that these principles serve as guiding directives for the State in the governance of Pakistan.

This ensures not only the secure and healthy life of the citizens but also provides them with opportunities to engage in trade, business, profession, and occupation, ultimately leading to a prosperous state with content and happy citizens.

15.Regarding the argument of learned counsel for respondents that petitioner, should have approached the NEPRA, is concerned, suffice it to say that the impugned circular was issued by the Ministry of Energy (Power Division), Islamabad. As mentioned above, the PESCO has announced the schedule of load shedding under the influence of referred circular of the Federal Government which does not come under the competence of NEPRA or its tribunals, and therefore, the petitioner has rightly approached this Court through the instant petition.

16.In the nutshell, the impugned circular as well as the power outage due to CEI or AT&C Losses are without any legal backing rather unconstitutional. All

citizens of Pakistan are equal before law and constitution and in the context of present controversy every consumer of PESCO is entitled to un-interrupted electricity subject to payment of electricity bill and such honest consumers should not be made to suffer for the faults/actions of others.

17.The dishonest use of electricity can easily be eliminated under the provisions of Pakistan Penal Code’s Chapter XVII. This chapter outlines various offenses related to electricity, including abstraction, tampering with meters, and damaging electrical equipment. Therefore, the impugned circular as well as decision of the Board of Directors of PESCO for power outage on the basis of CEI or AT&C losses are declared void ab-initio. Resultantly the load-shedding schedule of District D.I.Khan, being without any legal backing and discriminative, is hereby cancelled. This order, however, shall not affect the load management, whether due to supply shortages, load sharing, load shifting, or any technical and legal reasons.

18.As for the issue of sending detection bills to the petitioner, it is a matter of factual controversy that cannot be adjudged by this Court in the exercise of

constitutional jurisdiction. There are other for a including civil Courts to deal with such matters.

19.This petition and the referred writ petition stands disposed of in the above terms.

Announced.

(*M/Subhan)

SD/-

JUDGE

SD/-

JUDGE

(D.B)

Hon’ble Ms. Justice Farah Jamshed and Hon’ble Mr. Justice Inamullah Khan