Mr. Justice Mushir Alam in his judgment has decided the issue regarding full strength of NEPRA Authority under Regulation of Generation, Transmission and Distribution of Electric Power Act 1997 in Civil Appeal No. 1149 of 2015.
1. Through this appeal by leave of the Court, the Appellant-National Electric Power Regulatory Authority (NEPRA) has impugned the Judgment dated 28.05.2015, passed by a learned Division Bench of Lahore High Court, Lahore in ICA No.67 of 2015, also reported as National Electric Power Regulatory Authority v. Faisalabad Electric Supply Co. Ltd (PLD 2015 Lahore 661), whereby Judgment dated 15.12.2014 passed by a learned Single Judge in Writ Petition No.28681 of 2014 was maintained setting aside the order dated 16.6.2014 made on a ‘Motion for Leave to Review’ by three members Authority of NEPRA, as against total strength of five members and the Appeal was dismissed on the ground inter alia that “it is clear from perusal of the Rule 16(6) of the NEPRA (Tariff Standards Procedure) Rules, 1998 that the law mandates for hearing of a Motion for Leave to review to be heard by the “full strength of the Authority”.
2. Brief facts of the case appear to be that the NEPRA, appellant herein, is an Authority, constituted under Section 3 of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, responsible for determining of tariffs and other terms and conditions for the supply of electricity by generation, transmission and distribution companies. It also confers jurisdiction for determination of the process and procedures for reviewing tariff and recommending tariff adjustment. The Authority is comprised of a Chairman to be appointed by the Federal Government and four members, one from each Province, to be appointed by the Federal Government after considering the recommendations of the respective Provincial Governments. Vice Chairman of the Authority is appointed from amongst the members for a period of one year by rotation. Sub Section (6) of Section 3 of the Act provides that no act or proceeding of the Authority shall be invalid by reason only for the existence of a vacancy in, or defect in, the constitution of the Authority. Section 5 ibid provides that meetings of the Authority shall be presided over by the Chairman or, in his absence, the Vice-Chairman. Three members shall constitute a quorum for meetings of the Authority requiring a decision by the Authority. Decision of the Authority is by majority of its members present, and in case of a tie, the person presiding the meeting has a casting vote. Section 6 mandates that all orders, determinations and decisions of the Authority are in writing and shall identify the determination of the Chairman and each member.
3. The Respondent-FESCO, under Rule 3(1) of the NEPRA Tariff Standards and Procedure Rules, 1998, (hereinafter referred to as NEPRA Rules, 1998) filed a Petition for the determination of Consumer Tariff for the Financial Year 2013-14 dated 28.06.2013. The matter was heard and decided by a three members Authority on 6.2.2014. Respondent being not satisfied, filed a “Motion for Leave to Review, as provided under sub rule (6) of Rule 16 of the NEPRA Rules, 1998. Review motion was admitted for hearing and after hearing the Respondents-FESCO, Order on Review Motion was rendered on 16.6.2014 by the Vice Chairman (Sindh), and two members one from Balochistan and other from Punjab.
4. This order dated 16.6.2014 by the Authority, was challenged by the Respondent-FESCO. Contentious issue was the competence of the Authority to decide “Motion for leave to Review”, on the ground that the order has been passed by three members of the Authority, while Rule 16 (6) of the NEPRA Rules, 1998 requires that the Motion for Leave to Review was to be determined by “full strength of Authority”. A learned Single Judge in Chambers in the High Court quoted Rule 16 ibid which reads as follows:
“16. Decisions, etc., by the Authority. — (1) All orders, determinations and decisions of the Authority shall be taken in writing.
(6) Within ten days of service of a final order, determination or decision of the Authority, a party may file a motion for leave for review by the full strength of the Authority of such final order, determination or decision, as the case be.
(7) A motion for leave for review shall specify the grounds on which review is sought by the party. Parties to the proceedings shall be afforded a reasonable opportunity, orally or in writing as deemed fit by the Authority, to respond to a motion for leave for review.
(8) The Authority shall act upon a motion for leave for review within ten days of receipts of such motion unless it gives notice to the parties, in writing that a longer period of time will be required and specifies the additional length of time necessary to consider the motion.
(9) The Authority may refuse leave for review if it considers that the review would not result in the withdrawal or modification of the final order, determination or decision.
(10) The Authority may grant leave for review on such conditions as deemed appropriate by the Authority including, without limitation, the conditions pertaining to any limits on time or additional evidence proposed to be presented in review.”
In paras 5 & 6 of the Judgment, dated 15.12.2014, it was held as under:
“5. It is clear from a perusal of the Rule 16(6) that the law mandates for the hearing of a Motion for Leave to Review to be heard by the ‘full strength’ of the Authority. The term ‘full strength’ of the Authority does not present a complicated issue of construction of statute. It simply means that the said proceedings shall be taken and decided by all the members of the Authority sitting together and deciding such review. There is no cavil with the proposition that in the instant case the law does not even refer to a quorum but without equivocation requires the hearing by the ‘full strength’ of the Authority. It is settled as a basic canon of interpretation that if the intent of the legislature can be clearly gleaned then it must be given effect to without demur. In this case, there can be no two opinions on the requirement of the law and the meaning of the term ‘full strength’. A dictionary meaning given to the term shall suffice. In Oxford Advanced Learner’s Dictionary, 8th Edition, it is described thus:
‘5[usually before noun] complete; with nothing missing’
and strength as:
‘10 [uncountable] the number of people in a group, a team or an organization’.
6. There also seems to be a purpose for laying it as a condition that the Motion for Leave to Review be heard by the full strength of the Authority. And that seems to be that such a review is in the nature of an appeal and, therefore, the hearing should be by a complete strength of members sitting and deciding the review. This will lend due process to the entire procedure.”
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