SHC dismisses KE plea against Nepra proceedings for multi-year tariff determination

The Sindh High Court has dismissed KE petitions seeking an injunction against the National Electric Power Regulatory Authority (Nepra) for passing any order on review motions filed by the energy ministry with regard to tariff determinations for FY 2024 to 2030 and writing off claims of the KE for multi-year tariff (MYT) 2017-2023.

The KE submitted in the petitions that Nepra made tariff determinations for the K-Electric under Section 31 of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 for FY 2024 to 2030, and on the petitioner’s write-off claims for Multi Year Tariff for 2017-2023.

The KE counsel submitted that the ministry of energy preferred review motions under Regulation 3 of the Nepra (Review procedure) Regulations, 2009 against such tariff determinations, and also a reconsideration request under Section 31(7) of the Nepra Act, which was subsequently converted by Nepra to a review motion.

The court was informed that review motion hearings were held by Nepra on October 1 to October 9 and the decision was reserved, which continues to be so.

The counsel submitted that the ministry of energy could not have filed review motions or a reconsideration requests without the approval of the federal cabinet. The counsel further stated that Nepra could not have converted a reconsideration request to a review motion. He said that even though such an objection was raised by the petitioner at the outset, the KE was not provided a copy of the admission order or the conversion order passed by Nepra, nor did Nepra decide the objection before hearing the review motions.

The court was requested to restrain Nepra from passing any order on the review motions without first providing the petitioner with a copy of the admission order and conversion to enable it to appeal the same.

An SHC division bench headed by Justice Adnan Iqbal Chaudhry, after going through the regulations of 2009, observed that Nepra’s power to admit a review motion, referred to there in as granting leave to review, is to enable it to cull review motions that are frivolous, and not to bifurcate the proceedings to present the licensee with an appealable order at the pre-hearing stage.

The court further observed that where Nepra admits a review motion for hearing, that is without prejudice to any legal objection that may be raised against its maintainability at the hearing. It said that admittedly, Nepra has yet to decide the review motions and it may well agree with the petitioner and dismiss the review motions as not maintainable.

The high court observed that if not, the objection would still be available to the petitioner in assailing the decision eventually passed on the review motions. The court observed that petitions are misconceived and dismissed in limine.