PESHAWAR, Oct 29: The Peshawar High Court bench on Tuesday sought the relevant record to know the Khyber Pakhtunkhwa government has ever raised the issue of the recovery of fuel price adjustment (FPA)/fuel adjustment charge (FAC) from local power consumers with Council of Common Interest (CCI) over the last 15 years.

While asking provincial Advocate General Abdul Lateef Yousafzai to produce the sought-after record, Chief Justice Dost Mohammad Khan and Justice Qaiser Rasheed fixed for Nov 28 the next hearing into around 80 petitions of industrial units and other entities against the levy of FAC/FPA by the National Electric Power Regulatory Authority (Nepra).

They also extended until next hearing the stay order against recovery of FAC/FPA and arrears on that account by the Peshawar Electric Supply Company Limited (Pesco) from consumers in the province.

Power consumers in Khyber Pakhtunkhwa have been paying FAC/FPA since 1997.

The petitioners have also challenged the 2011 Nepra order in an identical matter, which was earlier challenged before the high court by an organisation, Human Rights Commission South Asia, but was referred to Nepra in 2011.

During the hearing, the bench asked what the provincial government had done on the matter since the Nepra Act was enacted in 1997 and whether it had raised the matter in CCI, the advocate generalsought time for consulting the provincial government and providing the relevant details.

Naeem Bukhari and Attaullah Kundi, lawyers for the federal government and Nepra respectively, said the petitions were not maintainable and should be dismissed as under the Constitution and the Regulation of Generation, Transmission and Distribution of Electric Power Act 1997, commonly known as Nepra Act, Nepra was empowered to determine power tariff.

Mr Bukhari said the PHC had referred the issue of tariff determination,including recovery of FAC/FPA to Nepra, which had declared on Sept 19, 2011 that FAC was part of the tariff and could be charged from consumers of the province.

He said petitioners misinterpreted Article 157(2)(D) of the Constitution, which stated the government of a province may determine the tariff for distribution of electricity within the province.

The lawyer, however, said the said subclause of the Constitution should be read with other clauses of Article 157 and a province could only determine tariff if it generated electricity and had laid its transmission lines. He said power generation units and transmission lines were property of federal government and not that of the province.

Mr Bukhari referred to the Supreme Court decision in Gadoon Textile Mills and other cases in 1996 and said the issue was decided by the apex court and the FAC/FPA was part of tariff and Nepra was empowered to make adjustment in it. He said FAC was not a tax and rather it wasonly fuel adjustment in the expenditure on power generation.

Mr Kundi said his client, Nepra, determined power tariff in accordance with the law and issued public notices to power consumers for hearing before such determination.

The chief justice observed that the Nepra officials conducted such hearings in luxurious offices in Islamabad, which the people from far-flung areas had no access to and therefore, the provision of public hearing had not been properly followed.

The petitioners` lawyer, Shumail Butt, said the introduction of FPA mechanism in Nepra Act through the Finance Act, 2008 was unconstitutional as the said mechanism didn`t fall in the domain of a money bill under the Constitution.

He said even CCI was not taken into confidence on the move.

The lawyer said the country had hydroelectric generation capacity of 6,645 megawatts (MW) and hydroelectric stations of Khyber Pakhtunkhwa alone generated 3,917MW, which was more than 58 per cent of the total hydel generation.

He said power generation by hydel sources was much cheaper than electricity produced by other sources as in certain cases, it amounted to only 30 paisas per unit but the province had been sold expensive electricity at much higher rates up to Rs34 per unit.

The advocate general on behalf of the provincial government said Khyber Pakhtunkhwa had been playing significant role in hydel power generation but in the end its residents were not receiving any benefit in the monthly bills.