PESHAWAR: The Peshawar High Court has ruled that non-payment of net hydel profit with accumulated mark-up and arrears to Khyber Pakhtunkhwa amounts to violation of the Constitution, which is un-condonable default and will lead to disqualification for all those breaching the relevant constitutional provisions.

A two-member bench has ruled that by not paying the net profit with accumulated markup was in violation to Article 161(2) of the Constitution which could attract disqualification as under Article 5(2) it is commanded by the Constitution that obedience to the Constitution and the law is the [inviolable] obligation of every citizen wherever he may be and of every other person for the time being within Pakistan.

The court made observations in its detailed judgment released here in around 80 writ petitions filed by industrial units and other entities challenging the levy fuel adjustment charge (FAC)/fuel price adjustment (FPA) by the National Electric Power Regulatory Authority (Nepra) in electricity bills of consumers in Khyber Pakhtunkhwa.

A bench comprising then Chief Justice Dost Mohammad Khan and Justice Nisar Hussain Khan had on Dec 17 allowed the petitions and declared the levy of FAC/FPA as unconstitutional and illegal.

In the detailed judgment, the court also took notice of the controversy between the Khyber Pakhtunkhwa government and Wapda regarding the net hydel profit. It ruled that none of the authorities including Nepra and the government were following the decision of the CCI (Council of Common Interest), the NFC (National Finance Commission) categorically made, followed by the two Arbitration Awards of high profile and report of the technical committee, ordering the payment of due rights to Khyber Pakhtunkhwa and payment of the net hydel profit with arrears and accumulated markup and to uncap the per kilowatt rate.

“This attitude and conduct on part of the federal government for the last many years, the Wapda and the Nepra are un-condonable acts of violating the Constitution, the statutory law and the rules on the subject.”

The bench observed that the most intriguing and not understandable phenomenon is that when thermal power stations/companies generating energy through diesel/furnace oil or natural gas for what the generating cost per unit to Nepra to fix tariff on higher side because of using of fuel/gas in the energy generating plants then how the FAC could be charged or claimed by these companies at a later stage. It ruled that before fixing tariff, the generating cost of the private sector companies, generating electricity energy on furnace oil, high speed diesel and gas are determined and fixed according to the prices of fuel supplied to it with a margin of reasonable profit.

According to it, on one hand, the federal government and the Nepra are generous to the private companies generating electricity through fuels/natural gas and nuclear power station and accepted their claims and demands readily without any proper physical check and verification but on the other, the Nepra has not established any channel nor has laid down any methodology to act upon the mandatory Rule-17 of the Nepra Rules, 1998.

The court ruled that Nepra had no authority to impose levy or recover FAC in the present manner and that too from the consumers of Khyber Pakhtunkhwa and hence, all such claims made in the past, the claim of accumulated arrears of FAC, presently claimed and to be claimed in future, were declared ultra vires and of no legal effect.

It directed the Nepra/federal government to return the FAC imposed, levied and recovered earlier from the end consumers of Khyber Pakhtunkhwa.