PESHAWAR: The Peshawar High Court has rejected a petition against the decision of the federal government to create a power distribution company for Hazara region by bifurcating the Peshawar Electric Supply Company and declared the plea “premature.”

A bench consisting of Justice Ijaz Anwar and Justice Syed M Attique Shah ruled that the matter was at an initial stage as neither any company had yet been registered by the federal government in the name of the Hazara Electric Supply Company (Hazeco) nor had any licence been granted for power distribution in the region by the National Electric Power Regulatory Authority (Nepra).

“As such, we are of the view that this petition is premature and beyond the jurisdiction of this court for being a policy matter,” it declared dismissing the petition filed by the Hydro Electric Labour Union (Pesco), Khyber Pakhtunkhwa.

The petitioner had challenged a notification issued by the energy ministry (power division), on Jan 18, 2023, about the prime minister’s approval of the bifurcation of the Peshawar Electric Supply Company into Pesco and new company Hazeco.

Rules plea is premature, ‘policy matter’ is outside its jurisdiction

It had requested the court to declare that the impugned notification and subsequent process started for it by the federal government is illegal and declare that the decision was based on political grounds, ethnic provocations and against the fundamental rights of the petitioner and its members.

The counsel for the petitioner contended that such decision required the approval of the Council of Common Interest being covered by Article 154 of the Constitution.

He argued that the prime minister had no authority under the rules of business to make such an order.

The lawyer referred to the Supreme Court judgement in the Mustafa Impex case arguing that no cabinet decision was there on the matter. He said under that judgement, the government meant the cabinet and not the prime minister alone.

He contended that since Pesco was a company, such a decision must come from its board of directors and be given effect under the Companies Act.

The lawyer claimed that the Nepra wasn’t involved despite distribution being a regulated activity.

Deputy attorney general Sanaullah resisted the matter and said that the petition was premature.

He argued that only a formal decision had been taken and the formalities required for registration of the company and permission/ license from the Nepra were the proceedings that would be taken thereafter.

The DAG said that the Pesco’s bifurcation was a policy decision of the federal government and it was within its domain to see the viability, feasibility and organisational structure to follow.”

Additional advocate general Umer Farooq represented the provincial government, whereas several lawyers appeared for the respondents, including Barrister Afzal Khan Shinwari, Rizwan Faiz Mohammad, Sardar Haseeb lftikhar, Shakirullah Afridi, Sardar Aslam Khan, Asad Jan and Sabir Hussain Tanoli along with Nepra legal adviser Irfanul Haq, section officer of the energy ministry Umar Vaqar and focal person Mohammad Taufeeq, and Pesco chief law officer Irfan Riayat.

In a 16-page judgement, the bench observed that so far only a decision to establish a distribution company in the name of Hazeco was taken apparently with the aim of bifurcating it from the Pesco in order to improve the performance of Pesco, reduce its losses and to improve the financial and managerial performance parameters of the power distribution business in the province.

It added that the respondents were terming the decision the continuation of the process of Wapda’s “unbundling” and that similar bifurcation had already occurred twice in the past.

The bench referred to the earlier creation of the Tribal Electric Supply Company (Tesco), which was granted a licence in 2013, and observed that after the registration of Tesco as a company and after grant of licence, it was never challenged by any of the alleged victims and it had never been questioned either on the ground that necessary approval of the CCI was missing or that it had any feasibility issue.

It added that the Nepra had also clarified in its comments that pursuant to the decision of the prime minister, neither any company in the name of Hazeco had been registered nor had any application for the grant of distribution licence been forwarded.

Published in Dawn, October 26th, 2023