Additional Attorney General Sajjid Illyas Bhatti, representing the Ministry of Water and Power, told the bench that there is proposal to prioritise the supply of electricity but sought time to submit it.
The APTMA's petition contends that the judgment erred in holding that electricity load-shedding in the country must be held 'without any distinction between rural and the urban areas as well as domestic commercial and industrial sectors.'
It submitted that it is settled law of this court (SC) that treating unequals equally constitutes violation of Article 25 of the Constitution and amounts to unlawful discrimination. The rural, urban, domestic, commercial and industrial consumers of electricity constitute distinct classes with differing imperatives for each class. Therefore, by mandating that no distinction between the various classes of consumers can be made the impugned judgment violates the principle set by this Court.
The petition filed through Advocate Salman Akram Raja argued that the impugned judgment has erred in law in failing to consider the provision of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 (Nepra Act). Under the provision of the Nepra Act, specifically Sections 31 and 34, the National Electric Power Regulatory Authority (Nepra) as an independent regulator is required to consider the economic and social policy objectives of the federal government and prescribes standards for the 'principles and priorities of load-shedding.'
It is clear from these provisions as well as other provisions of the Nepra Act that in determining the distribution of electricity, the setting up tariffs, and standards for electricity load-shedding, there can be various policy and social objectives to be met, and in light of those objectives priorities of load-shedding among different categories of consumers are to be determined. "Thus, it is clearly envisaged that various categories of consumers may be assigned different priorities for the purpose of electricity load-shedding."
Raja contended that in the impugned judgment the apex court has not held any provision of the Nepra Act ultra vires the Constitution, but it has failed to consider the provisions of law in the Nepra Act. Hence, it is respectfully submitted that the impugned judgment suffers from errors floating on the surface of the record and is liable to be reviewed by the apex court.
The impugned judgment has erred in law that it has failed to even consider the various statutory instruments that were presented before the apex court that established clear priorities among different categories of consumers for the purposes of electricity load-shedding.
He submitted that SRO 45(1)2005 dated 11-01-2005 issued by Nepra under Section 46 of the Nepra Act prescribes performance standards and distribution criteria. In Part III, Para 4(f) the principles and priorities of load-shedding are laid down. Under the Nepra Act and through the SRO, the Nepra keeping in view the social and policy objectives of the federal government had assigned priorities to various categories of consumers from the least preferred to the most preferred that are given al follows:
Supply to consumer in rural areas, and residential consumers in urban areas where separate feeders exist; supply to consumers, other than industrial, in urban areas; supply to agriculture consumers where there is a dedicated power supply; supply to industrial consumers; supply to schools and hospitals, and supply to defence and strategic installations.
He also contended that the impugned judgment has failed to even consider the arguments of the petitioner that the regulator along with the federal government and the executive branch of the state had the legal and constitutional prerogative to reach such a policy decision keeping in view the difference in importance and contribution towards the national economy of different categories of the consumers.
Raja maintained that extensive material was placed before the apex court showing the importance of the textile industry to the national economy in terms of providing employment and generating foreign exchange through exports. According to the textile industry economic significance, share in GDP of textile industry stands at 8.5 percent with Pakistan, $18 billion, and Punjab, $12 billion, textile exports of Pakistan are $13.8 billion and share of Punjab is $8.30 billion, its domestic market value for Pakistan is $4.2 billion and for Punjab it is $2.5 billion; textile industry provides employment to 15 million Pakistanis including 10 millions in Punjab.
The commercial and industrial sectors provide the backbone to the national economy. Failure to provide electricity to these consumers has a huge impact on the collective future of the country. The potential shutting down of the industry can cause unemployment and further poverty; thereby, exacerbating the problems of the common man.
The government and the regulator were well within their legal and constitutional rights to determine, which categories of consumers would have a higher priority in receiving electricity. By interfering in this function, the impugned judgment has clearly erred in law and is, therefore, liable to be reviewed.
The petitioner submitted that it is a well established principle of law that the courts do not interfere in the policy domain of the executive. Determining the allocation of natural resources among various classes depending on the requirement of the state in the best interest of the country is clearly a policy domain. "For instance, the federal government has recently successfully managed to obtained GSP Plus status in the European Union for the textile export of the country, which may require that in order to fulfil our international commitments as well as further the national economy, greater gas and electricity supply should be made available to the commercial/industrial sectors in the interest of the whole country."
Similarly, there may be several other competing and complimentary policy objectives and it is the role of an elected government and an independent regulator to evaluate those policy objectives and reach the optimum decision. "Neither is this the court's function nor are the courts equipped to carry out such an activity."
It is for this reason that courts do not interfere in the policy domain of the executive. By failing to appreciate this principle of law, the impugned judgment suffers from clear legal error and is therefore liable to be reviewed.
The impugned judgment has erred in law in holding that the Supreme Court could exercise jurisdiction in the matter under Article 184(3) of the Constitution.
It is not sufficient for jurisdictional purposes for a matter to 'involve' the fundamental rights of the citizens.
The impugned judgment fails to establish that the subject matter involved a question of public importance with reference to the fundamental rights as required under Article 184(3) of Constitution. In failing to establish jurisdiction, the impugned judgement suffers from an error of law and is therefore, liable to be reviewed, submitted the petitioner.