ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

C.P. Nos.D-2661 & 2662 of 2023

___________________________________________________________________ Date Order with signature of Judge

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C.P. NO.D-2661/2023

FRESH CASE:

1. For order on CMA No.12790/2023 (Stay).

2. For hearing of main case.

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C.P. NO.D-2662/2023

FRESH CASE:

1. For order on CMA No.12793/2023 (Stay).

2. For hearing of main case.

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Dated; 30^th May 2023

Mr. Abdallah Azzaam Naqvi alongwith Mr. Waqar Ahmed, Advocate for Petitioners in both petitions.

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3&4. Through instant Constitutional Petitions, the petitioners have challenged the vires of Section 31(8) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 (NEPRA Act) and the decision of NEPRA dated 06.03.2023 as well as SRO 293(I)/2023 dated 07.03.2023 issued by the Government of Pakistan, Ministry of Energy (Power Division) for being ultra vires to the Constitution of Pakistan. It has been contended by the learned counsel for the petitioners that through impugned amendment the executive has been given unfettered power to impose additional surcharge, which exercise could have been undertaken through proper legislation, whereas, under similar circumstances, provisions of section 31(5), which were identical in nature, were challenged before the learned Divisional Bench of Lahore High Court, who vide its decision in the case of FLYING CEMENT COMPANY v. FEDERATION OF PAKISTAN and others [2015 PTD 1945] has been pleased to declare similar provision as ultra vires to the Constitution. In support of his contention, learned counsel for the petitioner, while referring to Para 47 of the aforesaid judgment, has placed on record a copy of the aforesaid cited judgment. Learned counsel for the petitioners further submits that number of petitions have already been filed before this Court, including C.P. No.D-1835/ 2023, wherein, Notices have been issued to the respondents as well as to the Attorney General of Pakistan in terms of Order XXVII-A, C.P.C., whereas, interim relief has been granted to the petitioners requiring them to deposit disputed amount of additional surcharge before the Nazir of this Court in the shape of pay order and/or bank guarantee and subject to such deposit respondents have been restrained from taking any adverse action against the petitioners, who were required to make payment of their electricity dues by excluding the disputed amount of additional surcharge. In support of his contention, learned counsel has placed on record a copy of order dated 14.04.2023 passed by this Court in the aforesaid petition.

Let pre-admission notices be issued to the respondents as well as to the Attorney General of Pakistan in terms of Order XXVII-A, C.P.C., to be served through first three modes, for a date to be fixed by the office, when instant petitions may be taken up alongwith aforesaid petition and other connected petitions, whereas, reply/comments, if any, shall be filed with advance copy to the learned counsel for the petitioner. In the meanwhile, the interim order passed in the aforesaid petition shall apply mutatis mutandis in the instant petitions.

J U D G E

*Farhan/PS*