GHAZI FABRICS INTERNATIONAL LIMITED, GULBERG-HI, LAHORE through Chief

MALIK MUHAMMAD QAYYUM, J.--This judgment will also dispose of I-C.As. Nos. 902, 908, 909, 910, 911, 912, 913', 914, 915, 916, 917, 918, 919, 920; 921, 922, 923, 926, 927, 928, 937, 938 and 939 of 1999 as all of which have been directed against the judgment of the learned Single Judge whereby he dismissed the Constitutional petitions filed by the appellants on 11th of October, 1999 preliminary on the ground that in the presence of alternative remedy available to them, they cannot maintain the Constitutional petitions.

2. The dispute between the parties is short and simple. All the appellants are running various industries and for that purpose they, have made their own arrangements for generation of power.

In addition to it they are all consumers of electricity from WAPDA and were governed by Tariff 'J' of.

The Schedule of Tariffs which was introduced on-10-3-1993.. However, later on the authority decided to withdraw Tariff 'J' from all the industrial consumers and informed the appellants that they will be charged for consumption of electricity under Tariff B-3 from the billing month September, 1998 onward. It may be noted that major difference between these two Tariffs was that while under Tariff 'J' no fixed charges were payable by the appellants. Tariff B-3 required the consumers to pay fixed charges on the basis of load.

3. The primary ground on which the action of the respondents to withdraw Tariff 'J' was challenged was that on account of promulgation of the Regulation of Generation, Transmission and Distribution of Electricity Power Act (XL of 1997), the respondents had no jurisdiction left to amend, modify or revise any Tariff payable which can only be done by the authority constituted under section 3 of the Regulation of Act XL of 1997.

4. Before the learned Single Judge the respondents took an objection that if the provisions of the regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 have been violated, the appellants were to file a complaint under section 9 of the Act. On merits it was submitted that the respondents have failed to fulfil the necessary conditions for the grant of Tariff 'J' inasmuch as they did not generate electricity themselves nor sold any electricity to WAPDA.

5. The learned Single Judge did not go into the question as to whether the respondents had any jurisdiction to withdraw Tariff 'J' or to vary the charges for consumption of electricity after the enforcement of Act LX of 1997. He, however, took the view that the appellants have equally efficaciotis remedy available to them of either filing the civil suit where the factual controversy can be determined or filing complaint under section 39 of the Act., 1997.

6. We have heard the learned counsel for the appellants and Mr. Khurshid Alam Ramay, Advocate, for respondents. As mentioned above the crux of the dispute raised by the appellants in their Constitutional petitions before the learned Single Judge, was as to whether WAPDA had jurisdiction to revise, levy or fix price or charges for electricity after the establishment of the authority under section 3 of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997.

Answer to this question is provided by section 31 of the aforesaid Act which reads:- "31. Tariffs.--(1) As soon as may be, but not later than six months from the commencement of this Act, the Authority shall determine and prescribe procedures and standards for determination, modification or revision of rates, charges and terms and conditions for generation of electric power, transmission, inter connection, distribution services and power sales to consumers by licensees and until such procedures and standards are prescribed, the Authority shall determine, modify or revise such rates, charges and terms and conditions in accordance with the directions issued by the Federal Government." According to section 30 of the Act, 1997 WAPDA is to be treated, as licensee under the said Act. An obvious bare reading of the above cited provision it is the authority constituted under the Act of 1997 which has the power to determine and prescribe procedures and standards for determination, modification or revision of rates, charges and terms and conditions for generation generation of electric power, transmission, inter-connection, distribution services and power sales to consumers by licensees and until such standards and procedures are prescribed by the authority, it shall be competent to modify or revise such rates, charges and terms and conditions in accordance with the directions issued by the Federal Government. As already mentioned WAPDA is also a licensee and, therefore, the Act as a whole, including section 31, is equally applicable to it. Consequently WAPDA had no jurisdiction either to reduce, modify or fix the rate of charges for the consumption of electricity by the consumers.

7. With due reference to the learned Single Judge we are of the opinion that the jurisdictional objection raised by the appellant should have been decided and Constitutional petition should not have been dismissed as being not maintainable on account of availability of alternative remedy in the form of a civil suit or a complaint under section 39 of the Act. As the dispute raised was about the jurisdiction of the respondents to have any action, a Constitutional petition could be maintained even if there were alternative remedies available under the Act. Furthermore, the remedy provided by section 39 is neither adequate nor efficacious inasmuch as it does not provide a right of hearing.

8. It is all now well-settled that in a case where the impugned action is challenged as being without jurisdiction or void, a Constitutional petition was maintainable especially when fate of the case depends upon interpretation of the statutory provisions. If any authority is needed, reference is made to the cases of Attock Cement Pakistan Ltd. v. Collector of Customs and 4 others 1999 PTD 1892; Gatron (Industries) Ltd. v. Government of Pakistan and others 1999 SCM R 1072; Pakistan Tobacco Company Ltd. And another v. Federation of Pakistan and 3 others 1999 SCM R 382; Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan and 2 others PLD 1972 SC 279 and Usmania Glass Sheet Factory Ltd., Chittagong v. Sales Tax Officer, Chittagong PLD 1971 SC 205.

9. So far as filing of the civil suit is concerned suffice it is to say that the remedy is not provided by the Act itself but is available under the general law and not considered to be equally efficacious remedy in the case of Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Tokht Bhai and 10 others PLD 1975 SC 244. Furthermore it may be mentioned that there is no factual dispute involved between the parties and fate of the case turns upon the interpretation of section 39 of the Act, 1997.

10. We do not subscribe to the view taken by the learned Single Judge, for, there was no factual controversy as to the sole question which fell for determination was that whether the respondents had any jurisdiction to vary the terms and conditions for supply of electricity to the consumers after the promulgation of Act XL of 1997.

11. Before parting with this subject we may observe that so far as section 39 of the Act is concerned it merely caters for filing of the complaint with the authority against the licensee for contravention of any rules or regulations but there is no right of hearing or of appeal provided therein. There is no remedy for the aggrieved person against the decision of the authority nor can the authority be expected to enter into the jurisdiction and legal question which depends upon the interpretation of the statutory provisions. Even if the proceedings under section 39 of the Act equated with revision yet the Constitutional remedy would not be barred as held by the Supreme Court in the case of Mst. Hussain Bibi v. Haji Muhammad Din and 3 others 1976 SCM R 395 that failure to have recourse to the revisional remedy does not necessarily operate as a bar for invocation of Constitutional jurisdiction.

12. Learned counsel for WAPDA also urged that the appellants have failed to fulfil the conditions laid down in the letter dated 2-2-1999, whereby Tariff 'J' was introduced. It is, however, to be noted that in the impugned letter by virtue of which Tariff 'J' has been withdrawn there is no such averment or allegation. On the other hand, no reason whatsoever has been given in the letter for withdrawing Tariff 'J' and what appears to have happened is that a general decision has been taken to withdraw Tariff 'J' from all the consumers. Furthermore, if the real reason for withdrawing Tariff 'J' was the failure of the appellants to fulfill the terms and conditions of which such supply was being made then it was obligatory on the part of the respondents to have communicated the shortcomings to the appellants and decide the matter after giving them opportunity to show cause and of being heard against the proposed withdrawal. No action detrimental to the interest of any person can be taken without meeting the minimum requirement of natural justice which are part of every statute of law according to which an opportunity of being heard must be accorded to the aggrieved person.

In view of what has been discussed above, these appeals are allowed. The impugned judgment of the learned Single Judge is set aside and the Constitutional petitions filed by the appellants are accepted and it is declared that the withdrawal of Tariff 'J' by the respondents without disclosing any reasons is without lawful authority and of no legal effect. No orders as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.