IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

C. P. No. D – 1407 of 2013

Present:

(1) Mr. Justice Nadeem Akhtar

(2) Mr. Justice Muhammad Faisal Kamal

Date of hearing : 17^th May, 2018

Date of decision : 23.10.2018

Petitioner : Dr. Moinuddin Shaikh appears in person.

Respondent No.2 : Federal Secretary, Water & Power, Government of Pakistan through Mr. Rizwan Faiz Muhammad,

Advocate

Respondent Nos.3&4: M.D PEPCO Lahore & G.M. GENCO, Guddu @ Kashmore through Mr. Ghulam Shabbir Shar, Advocate

Mr. Muhammad Aslam Jatoi, Assistant Attorney General and Mr. Ali Mutahir Shar, State Counsel for official respondents.

J U D G M E N T

Muhammad Faisal Kamal Alam, J: The Petitioner being a conscientious member of the Society has filed this petition, seeking directions of this Court that Thermal Power Station Sukkur (TPS) should be restarted after making necessary up-gradations. Following relief has been sought:-

“ (a) To direct all the concerned respondents jointly and severally, and in particular to respondents No.1 to 4, 7, 9, 10 and 11 to re-start Thermal Power Station, Sukkur, and make it an operation and functional unit without wasting any time, and submit such report to this Hon’ble Court.

(b) To initiate inquiry against all concerned respondents / officials involved in making the national asset of Thermal Power Station Sukkur, a sick and non-operation unit, and thus rendered irreparable loss to the public in general and to Pakistan in particular, specially in the light of the installation and establishment of Sui Gas Connection at the Rs.40 (M) in the year 2005, and thereafter, failed to action for their wrong decisions and caused irreparable loss to the nation exchequer. The result of the prayer for inquiry would book the culprits involved before the court of law.

(c) To direct all the respondents jointly and severally to re-start all the closes / shut-down power plants of the country, and to resolve and address the power crises in the country with low cost at their earliest, and submit such report to this Hon’ble Court.

(d) To direct the Chief Secretary Government of Sindh [respondent No.8] to make all efforts to complete the Thar Coal Power Project in Sindh as early as possible, and submit such report to this Hon’ble Court.

(e) To order the Respondent No.1 to 4 to give final time frame to end load shedding from the country.

(f) To direct the Respondents No.1 to 4, 7, 9, 10 and 11 to shift the SEPCO office from the building and premises of Thermal Power Station, Sukkur, as it is creating hindrances in making the Thermal Power Station Sukkur, operational and functional.

(g) To reduce the billing cost of the electricity as well as delete all the unjustified taxes such as fuel price adjustment [FPA].

(h) To set aside any sale or any contract of sale of the land along with its entire infrastructures of Thermal Power Station Sukkur to any person any manner whatsoever.

(i) To grant any other relief which this Honourable Court deems fit and proper keeping alive the circumstances under which this petition has been filed.

(j) To award cost of the petition.”

2. On service of notice, the respondents who are the concerned officials, have contested the petition by filing their respective parawise comments.

3. The Petitioner (Dr. Moinuddin Shaikh) has appeared in person, who is a doctor by profession and a social worker. In the petition, it has been averred that continuous power outages and electricity shortage in the Country has taken a shape of national crisis, severely affecting commercial as well as non-commercial sector. It is further argued by the petitioner that on the one hand no action is taken against those who are involved in power theft and on the other hand an ordinary citizen / consumer is facing hardship of load-shedding and excessive billing.

4. It is set forth that estimated electricity requirement of Sukkur city is 55 MW, whereas TPS has the capacity of producing 250 MW electricity with an additional by-product capacity of 35 MW electricity.

5. The petitioner has made representations to those who are at the helm of the affairs (at the relevant time) but did not receive any positive response, with regard to re-starting of TPS. As an evidence, he has placed on record annexures showing that different representations were made to the Federal Government and its Ministers, including the Chairman WAPDA. In paragraph 10 of the petition, apprehension is shown, that the valuable assets of TPS, particularly the land, would be sold to `builder mafia` at a throw away price, because, though the TPS is lying idle but the respondent No.9 SEPCO (Sukkur Electric Power Company) has shifted its office premises as well as staff to the premises of TPS.

6. With this background, through the present petition, a writ of mandamus is sought that the non-functional Thermal Power Station at Sukkur (TPS) should be made functional.

7. The respondents have contested the petition by filing parawise comments wherein the efforts undertaken by the petitioner in sensitizing the issue, have not been disputed, but the main grievance of the petitioner is controverted on the technical grounds, inter alia, that the TPS has lived its useful life. Secondly, it has been clarified while disputing the contention of the petitioner, that Rental Power Plants are not operational anymore after March 2012, when Honourable Supreme Court of Pakistan has handed down the decision in number of cases; (Para 11 of the parawise comments). It is further denied that the Sukkur TPS has 250 MW generation capacity or it can produce additional 35 MW electricity in prevailing condition.

8. Submissions considered and record perused.

9. Vide order dated 25.08.2016 a technical report on re-startup of Thermal Power Station Sukkur (“TPS”) has been prepared and filed, which is part of the record and is available from pages-111 to 145. Written synopses have also been filed by the Petitioner and the Respondents. It would be advantageous to reproduce the relevant portion of the order dated 25.8.2016 here in under:-

“ The petitioner present in person submits that he would be satisfied if a fair opinion is obtained by technical experts/Engineers of the respondents by associating technical experts / Engineers of petitioner’s side so that the entire facts could be placed before this court. Learned counsel for the respondents has no objection if experts opinion consisting of Engineers of Guddu Thermal Power Station or the General Manager Thermals Lahore may be obtained, however, by associating the technical experts/Engineers of the petitioner, if any.”

10. In compliance of the above order, a Report was submitted by the experts through the Additional Registrar of this Court, vide covering letter dated 13.3.2017 of CEO (Central Power Generation Company Limited Thermal Power Station, Guddu). This report is called “ Technical Report on Re-startup of Thermal Power Station, Sukkur ”. This report was prepared by a committee of experts, comprising of former Chief Engineer / Technical Director of Jamshoro Power Company Ltd. Jamshoro, as representative of present petitioner and other senior officials of Central Power Company Limited.

11. A perusal of Report shows that the issue has been deliberated upon in detail and the conclusion is that the instruments and controls installed at TPS has now been obsoleted and it needs complete replacement. It would be relevant to reproduce the relevant portion of the report which is as under:-

“ EPILOGUE

8.1. Thermal Power Station Sukkur has been closed without deciding its fate. Proper preservation methods have not been adopted at the time of shutdown. The plant is lying idle since April, 2000 without due care. Instruments and controls are absoleted and condition of boilers is critical. In the prevailing condition re-start of the plant is not advisable, however it can be re-started efficiently if existing setup is converted into combine cycle power plant as is stated below.

8.2. The latest trend is to renovate and modernize (R&M) the thermal power station that has lived a useful life of 25-30 years. The basic idea behind is to utilize the available infrastructure. By Renovation & Modernizing the efficiency and output of the plant can be increased with an additional life of more than 20 years.

8.3. However, if following steps are taken the plant, output rating and thermal efficiency can relatively be increased with an addition in plant life to the extent of 20 years or more.

· Gas turbine(s) of suitable capacity is/are installed for which space is available.

· The existing Boilers are replaced with Heat Recovery Steam Generators (HRSG) matching with gas turbine and steam units.

· All existing instruments and control system is modernized for reliable and secured operation of the plant.

· The infrastructure viz. cooling water system, water treatment plant, electric switchgear / switchyard and transmission system can be re-utilized after conducting necessary tests.

· Power plant operation will contribute to stabilize the voltage of the system providing some relief to electricity consumers ”.

12. That vide order dated 16.8.2017, inter alia, respondent Nos. 1 & 2 (Secretary Water & Power, Government of Pakistan) were directed to submit details of the steps taken by them for the revival/refurbishment of the subject TPS or for otherwise expeditiously addressing the shortfall in supply. In compliance of the above order, the respondent No.2, through Mr. Rizwan Faiz Muhammad, Advocate submitted a report (dated 14.12.2017). The crux of the report is that revival/restart of TPS was/is technically impossible so also non-feasible. However, the official respondents have specifically mentioned the steps which have been taken hitherto for remedying the energy crisis. Already, the Thermal Power Station, Guddu is operational having a capacity of producing 747 MW of electricity. In the said Report, it has been specifically pointed out that in Sukkur Division issue of power theft is one of the main factors for the load shedding. As per the report, from July 2015 till October 2017, around one hundred thousand persons were booked in FIRs in connection with power theft. Due to transmission line losses and power theft, SEPCO (Respondent No.9) is unable to withdraw its allocation of power of 533 MW but is only being supplied with 339 MW power.

13. It will be advantageous to reproduce the relevant paragraphs of this Report which are not disputed as such by the petitioner.

“ 9. From 2013 to date, fifty (50) new power generation units, consisting of both renewable plants, and those on conventional fuels, have come online, aiding 8,794 MW to the nation’s power generation capacity. Of this, 5,262 MW generation capacity has been added in the year 2017 alone.

10. At the moment, the `installed capacity` in Pakistan is approximately 23,000 MW, of which, the de-rated / dependable generation capacity is approximately 20,000 MW. In summer’s, peak demand in Pakistan goes up to 25,000 MW, whereas in winter months, the demand is usually between 12000 MW and 13000 MW. For instance, yesterday, the demand for electricity in Pakistan was 12,900 MW, whereas the generation was 14,000 MW, thus constituting a surplus. At the moment, taking into consideration plant outages and maintenance cycles, the nation is capable of producing 19,000 MW. Thus, the nation’s power generation capacity has nearly doubled in the past four and half years. With the expected commissioning of a number of generation units in the next few months, (such as the Neelum-Jehlum Hydel Power Project, and the Unit-2 of Bin-Qasim Power Plant), the addition in power generation capacity, for the period between April 2013 and May 2018, is expected to be in excess of 13000 MW.

13. Since 2013, there has been significant reduction in load-shedding and power outages in SEPCO’s areas. The details are in the following table: -

Table 1: SEPCO Category-wise average load-shedding hours: 2013 2 November 2017

Year	Category-wise Load Shedding (Hours)
Year	Urban	Rural	High-loss Rural	Independent Industrial	Mixed Industrial
2013-14	8-10	10-12	12-20	4-6	6-8
2014-15	8-10	10-12	12-20	4-6	6-8
2015-16	8	10	12-16	4	6
2016-17	4-6	6-8	10-12	0	4
07/17-11/17	0-4	0-4	6-12	0	0

16. The total number of feeders in SEPCO’s area is 476. Out of these, 70 feeders are operating at a loss of 40% - 50%, whereas 148 feeders are operating at a loss of 50% and above. Due to this alarming rate of loss and theft of electricity, SEPCO does not even draw the amount of power that is allocated to it, in order to reduce its losses due to theft and line losses. For instance, in November 2017, SEPCO’s demand for power was 1600 MW, its allocation of power was 533 MW, however, out of this allocation, SEPCO drew only 339 MW power.

14. In the conclusion of the said report, it is further stated that by Summer 2018, the overall power generation capacity in the Country will be doubled as compared to power generation capacity of Summer 2013.

15. Similarly in compliance of the order dated 25.4.2018 a second Report has been submitted by respondent No.2 through CEO Central Power Generation Company Limited. With this report, documents including the Minutes of Meeting have been placed on record, in support of the arguments of learned counsel for the respondents, that way back in the year 1999, the TPS was closed down. The decision was taken at a high-level meeting held on 20.12.1999. The relevant extract of the meeting concerning the TPS is reproduced here in below: -

“TPS Sukkur

The plant be closed after the current winter season. The Staff be shifted and productively employed elsewhere, on closure of the plant No more capital expenditure should be incurred.”

16. The above decision for closure after due deliberation was reiterated in subsequent meetings as well, as is evident from another document of respondent No.1 dated 26.6.2007. The gist of this missive addressed by Member Power (WAPDA) to the then Secretary (Ministry of Power), about revamping of Thermal Power Station at Sukkur is not recommended, being not cost effective, inter alia, as the plant was commissioned in the year 1965-67 and all its four units have completed their useful life.

a. With regard to the objections raised by the respondents about the maintainability of the present petition, the same is misconceived in nature and meritless, in view of the decisions handed down by Honourable Supreme Court of Pakistan and reported in 2012 SCMR 773, (alleged corruption in rental power plants etc) and 2014 SCMR 2020 (Human Right Case No. 14392 of 2013, Suo Moto Case No. 01 of 2013 etc; Engineer Iqbal Zafar Jhagra v. Federation of Pakistan). The crux of these decisions is, inter alia, that when a large segment of society is suffering from power outages, which is not only adversely affecting their daily lives but also ruining the commercial activities and business, then to remedy such a situation, a proceeding of the nature can be filed, inter alia, as provision of electricity comes under the guarantee of the right to life as enshrined in Article 9 of the Constitution of Islamic Republic of Pakistan, 1973.

b. Similarly, about the apprehension of the petitioner that valuable fixed assets of TPS will be wasted, particularly, and land might be handed over to some individual or entity for its commercial exploitation, the respondents in their written synopsis have specifically undertaken to protect the title and interest of TPS in respect of land including the land of its staff colony, at all times; this undertaking is given in para-6 of the written synopsis.

c. In response to a specific question, the Respondents have mentioned in their written synopsis, the efforts and concrete measures already taken by the Federal Government/ Respondents in alleviating plight of the people of Pakistan and Sindh, with a particular reference to Sukkur. The submissions of the Respondents’ side has substance, that at the relevant time when the present petition was filed in April 2013, in fact there was an energy crisis, but, in all these years, power generation capacity has been improved and load-shedding considerably has reduced, specially, in the Industrial Zones. The relevant paragraphs of the synopsis are reproduced here in below: -

“9. . . . . . . . . . In fact, the government is spending heavily on increasing and improving the high voltage transmission network, and has recently installed a new 500 KV line from to connect the Bin-Qasim Power plants with the 500 KV Jamshoro Grid, thus connecting those new plants with the rest of the Country. Furthermore, another 500 KV transmission line has been laid over the length of 153 km to connect the 996 MW Neelum-Jehlum Power Project to the national grid

10. Similarly, in the past 12 months, unprecedented funds have been spent on upgrading, restoring, and expanding the secondary transmission grid and the network at the level of all distribution companies, including SEPCO. (underlined for emphasis)

13. Furthermore, as directed by the Honourable Court, data regarding the unit -wise generation capacity of the government-owned Ex-WAPDA thermal power generation companies is as follows:-

Table 3: unit-wise generation capacity of ex-WAPDA GENCOs

#	Unit	Dependable Capacity (MW)
1. Jamshoro Power Company Limited (GENCO-I)
A	Thermal Power Station Jamshoro
1	ST-1	205
2	ST-2	156.67
3	ST-3	156.67
4	ST-4	156.67
Total		675
B	Gas Turbine Power Station Kotri
1	GT-3	18
2	GT-4	18
3	GT-5	18
4	GT-6	18
5	GC-7	34.50
Total		106.5
Grand Total for JPCL		781.5

II. Central Power Generation Company Limited (GENCO-II)
A	Old Units
1	Unit-1	78.20
2	Unit-2	78.20
3	Unit-3	164.70
4	Unit-4	169.20
5	Unit-5	82.02
6	Unit-6	82.02
7	Unit-7	93.57
8	Unit-8	93.57
9	Unit-9	93.57
10	Unit-10	93.57
11	Unit-11	128.05
12	Unit-12	128.05
13	Unit-13	135.10
Total for Old Units		1419.82
B	New 747 MW CCPP
1	GT-1	241.72
2	GT-2	241.72
3	ST-1	237.35
Total for New Units		720.79
Total for CPGCL		2140.61

14. Additionally, as the Honourable Court was informed during the hearing, the contract for the 2x660 MW Jamshoro Coal Power Project was awarded to M/s. Siemens-Harbin JV on 29^th March 2018. This power plant will be a state-of-the-art supercritical coal fired power plant, and will use a mix of imported and Thar coal. Upon commissioning, this plant will further increase the public sector’s generation capacity, reduce dependency on imported fuel, and will provide cheap, reliable and environmentally friendly energy to the nation. ”

17. The respondents have also stated in their written synopsis that respondent SEPCO is considering gradual switching over to aerial bundled cable (“ABC Cable”) to curb electricity theft. It is already held by Honourable Apex Court in Rental Power Plants case (supra) that NEPRA (Respondent No.7 herein) is mandated to protect the interest of the Consumer. Similarly, Honourable Supreme Court in afore-referred Human Rights Case No. 14392 of 2013, has made a very pertinent observation, that a law abiding citizen / Consumer is made to pay exorbitant bills to cover up the losses towards electricity theft.

It is not a disputed issue that usual cause of electricity theft/dishonest abstraction of energy, is the result of collusion between wrongdoers and the employees of Respondents.

18. In view of the above, the Respondents, particularly, Respondent SEPCO are duty bound to put into place a system through which it is ensured that a consumer who is paying his electricity bills regularly, should not be made to suffer because other persons of the same locality are guilty of stealing electricity. In this regard Official Respondents should award exemplary punishment to their employees who are abetting and aiding the wrong doers. It is expected that within three months from today, Respondents SEPCO will introduce a mechanism or scheme in which genuine consumer and a defaulter can be easily distinguished and former is not punished due to the acts of the latter.

19. In view of the above discussion, it is quite apparent that restoration of Thermal Power Station, Sukkur, is neither feasible nor economically viable and the undisputed documents placed on record, so also argued by learned counsel for the respondents and set forth by them in their parawise comments and written synopsis, clearly suggest that the concerned quarters after proper discussion had taken a decision to close down the Thermal Power Station at Sukkur. It further leads to the conclusion that such an executive decision taken by the respondents does not suffer from any illegality, discriminatory treatment or unreasonableness, therefore, this decision for not restarting the Thermal Power Station (Sukkur), does not require any interference in the present proceeding.

20. Accordingly this petition is disposed of by moulding the relief(s) and directing that_

(i) the respondents to continue their efforts in redressing the genuine grievances of citizens of Sukkur and it is expected that Jamshoro Coal Power Project will be completed within the stipulated time.

(ii) the respondents and particularly respondent SEPCO should switch over to that system in which faithful and law-abiding citizens/ consumers should not be punished with load shedding (power outages) merely because other persons in the same area who are getting electricity from a common feeder are defaulters and / or involved in electricity theft. In this regard respondent SEPCO is directed to speed up its efforts for switching over to aerial bundled cable as mentioned in the written synopsis to foil power theft attempts, while taking strict action against chronic defaulters and those involved in stealing electricity.

(iii). the valuable fixed assets of TPS particularly the lands (of TPS) and its staff colony) shall not be disposed of or put to come other use except through due process of law and in a transparent manner.

21. This petition stands disposed of Parties to bear their own costs.

JUDGE

karar_hussain /PS*