Ashba Kamran Vs NEPRA through its Chairman etc

Form No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE

(JUDICIAL DEPARTMENT)

Writ Petition No.32881 of 2026.

Ashba Kamran. Versus National Electric Power Regulatory Authority (NEPRA through its Chairman & 05 others.

S. No. of Date of order/ Order with signature of Judge, and that of order/ Proceeding Parties or counsel, where necessary Proceeding 03.06.2026. Petitioner in person.

Syed Ali Raza Abbas, Assistant Attorney General for Pakistan. (On Court’s Call).

Through this Constitutional Petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 ("The Constitution"), the petitioner has called into question the legality and constitutionality of various policy decisions, regulatory frameworks, tariff mechanisms, sovereign guarantees, and contractual arrangements relating to the power sector. She has, inter alia, sought declarations regarding the alleged unconstitutionality of the capacity payment mechanism, dollar indexation of tariffs, sovereign guarantees issued by the Federal Government, and has further prayed for issuance of directions for recovery of amounts allegedly paid to Independent Power Producers (IPPs) as well as restructuring of the entire power sector regulatory regime by claiming the impugned mechanisms to be violative of Articles 2, 2A, 3, 5, 8, 9, 14, 25 and 77 of the Constitution and have resulted in economic exploitation of the public at large.

2.Heard. Record perused.

3.The principal grievance raised in the petition pertains to the wisdom, efficacy, fairness and economic consequences of policies framed by the Federal Government and statutory regulatory bodies concerning generation, purchase and distribution of electricity. The relief sought would require this Court to examine and substitute its own views regarding tariff structures, contractual risk allocation, sovereign guarantees, foreign investment incentives, capacity payment mechanisms and broader energy-sector governance.

4.It is by now a settled principle of constitutional jurisprudence that policy matters fall within the exclusive domain of the Executive and the Legislature. The constitutional jurisdiction of this Court is confined to examining whether any action is tainted by lack of jurisdiction, mala fides, violation of law, or infringement of a specific constitutional or statutory provision. The Court does not sit as an appellate forum over economic, fiscal, commercial or regulatory policies formulated by competent authorities. Questions relating to the desirability, wisdom or economic soundness of a policy are not justiciable unless the policy is shown to be ex facie unconstitutional or violative of a mandatory provision of law.

5.The petitioner has challenged an entire regulatory and contractual framework governing the national power sector and seeks directions requiring redesign of tariff mechanisms, cancellation of sovereign guarantees, recovery

of alleged excess payments, restructuring of contractual relationships and initiation of criminal proceedings against public functionaries. Such matters involve complex economic, technical and financial considerations requiring specialized expertise and policy evaluation, which fall outside the scope of judicial review under Article 199 of the Constitution.

6.Mere disagreement with a policy decision, however strongly expressed, does not furnish a cause of action for invoking constitutional jurisdiction. The Court cannot assume the role of a policy maker, regulator, auditor, economist or energy-sector administrator. Acceptance of the petitioner's contentions would amount to judicial encroachment into spheres constitutionally reserved for other organs of the State.

7.The allegations regarding economic inefficiency, fiscal burden upon consumers, suitability of capacity payments, dollar indexation, adequacy of force majeure provisions, or desirability of sovereign guarantees are all matters of policy. Their examination lies within the competence of the relevant executive authorities, regulatory bodies and legislative forums. No specific violation of any enforceable fundamental right has been demonstrated warranting interference by this Court in exercise of its constitutional jurisdiction.

8.The Indian Supreme Court was confronted with somewhat similar situation and in a judgment reported as

"Asia Foundation and Construction Ltd. V. Trafalgar House Construction (I) and others" [(1997) 1 Supreme Court Cases 738], the Court held as under:- "It is well known that it is difficult for the country to go ahead with such high cost projects unless the financial institutions like the World Bank or the Asian Development Bank grant loan or subsidy, as the case may be. When such financial institutions grant such huge loans they always insist that any project for which loan has been sanctioned must be carried out in accordance with the specification and within the scheduled time and the procedure for granting the award must be duly adhered to. In the aforesaid premises on getting the valuation bids of the appellant and Respondent 1 together with the consultant's opinion after the so-called corrections made the conclusion of the bank to the effect "the lowest evaluated substantially responsive bidder is consequently AFCONS" cannot be said to be either arbitrary or capricious or illegal requiring court's interference in the matter of an award of contract. There was some dispute between the Bank on one hand and the consultant who was called upon to evaluate on the other on the question whether there is any power of making any correction to the bid documents after a specified period. The High Court in construing certain clauses of the bid documents has come to the conclusion that such a correction was permissible and, therefore, the Bank could not have insisted upon granting the contract in favour of the appellant. We are of the considered opinion that it was not within the permissible limits of interference for a court of law, particularly when there has been no allegation of malice or ulterior motive and particularly when the court has not found any mala fides or favouritism in the grant of contract in favour of the appellant."

9.The aforesaid passage was quoted by the Hon’ble Supreme Court of Pakistan in a case reported as "Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others" (2012 SCMR 455), wherein it was observed as follows:-

"Even otherwise, we are living in a globalized world of interdependence; a world where countries and international financial institutions assist and aid the developing countries in their march towards economic progress. International Monetory Fund is one of those institutions which has played its role in several countries. Though its policies some times may be open to criticism but that is for the concerned economists in the government or academics to examine and opine but once the Competent Authority in the government has taken a decision backed by law, it would not be in

consonance with the well established norms of judicial review to interfere in policy making domain of the executive authority."

9.The aforesaid principle regarding judicial restraint and limited interference in matters involving economic policy, commercial arrangements and decisions requiring technical expertise was also reiterated by the Hon’ble Supreme Court of Pakistan in a case titled "Messrs POWER CONSTRUCTION CORPORATION OF CHINA LTD. through Authorised Representative V. PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY through Chairman WAPDA and 2 others" (PLD 2017 Supreme Court 83).

10.It is equally well settled that while exercising constitutional jurisdiction, the superior Courts must observe judicial restraint in matters relating to administration, governance and public policy. The doctrine of separation of powers envisaged by the Constitution requires each organ of the State to function within its own constitutional sphere.

Courts are not expected to interfere with administrative or executive decisions merely because another view may appear more desirable or efficient. Judicial review is concerned with the legality of the decision-making process and not with the merits of the decision itself. Unless an administrative action is shown to be patently unconstitutional, without lawful authority, tainted by mala fides, or violative of a statutory or constitutional provision, the Courts ought to refrain from substituting their own judgment for that of the competent executive or regulatory

authorities. Such restraint preserves the delicate constitutional balance among the organs of the State and ensures that the judiciary does not transgress into domains reserved for the Executive and the Legislature. Scope of judicial restraint has been vastly elaborated by the Hon’ble Supreme Court of Pakistan in a case titled "Dossani Travels Pvt. Ltd. and others. V. Messrs Travels Shop (Pvt) Ltd."

(PLD 2014 Supreme Court 01)

"27. In contemporary age, there has been a significant growth in the judicial review of administrative actions and the grounds on which the Courts interfere have been expanded. This expansion, however, "has taken place in the shadow of competing concerns of 'vigilance' and , 'restraint' and it is faithfulness to these dual concerns of vigilance and restraint which produces the unique supervisory jurisdiction which is the hallmark of judicial review1." If the Courts fail to maintain this delicate balance, none else but people's confidence in the judiciary would be the worst victim. As aptly observed by Radford:

"One of the principal aims of a system of judicial review must be to maintain a high level of public confidence in the administrative decision making process and this must also be borne in mind in assessing the level of judicial intervention which is desirable. It can be argued that the courts' desire to achieve a fair and just result in an individual case must be tampered with a commitment not to interfere unduly with the achievement of policy objectives."

11.For what has been discussed above, this petition is found to be devoid of merit and not maintainable.

Consequently, the same is accordingly dismissed in limine.

(AHMAD NADEEM ARSHAD)

JUDGE

Approved for Reporting.

JUDGE.

M. Arsalan*