PLJ 2012 Quetta 158 (DB)
Present:
Muhammad Hashim Khan Kakar
and Ghulam Mustafa Mengal,
JJ.
M/s. AL-MAKKAH
CNG STATION through its Proprietor--Petitioner
versus
GOVERNMENT OF
PAKISTAN MINISTRY OF PETROLEUM OF NATURAL RESOURCES through its Secretary, Islamabad and
another--Respondents
C.P.
No.
(s)51 of 2011, decided on 18.8.2011.
Constitution of Pakistan,
1973--
----Arts. 18
& 199--Compressed Natural Gas CNG (Production and Marketing) Rules,
1992--Scope--Directives of prime minister--Moratorium on new Gas
Connections--OG RA refused to grant CNG production and marketing license in
view of moratorium imposed by P.M--Challenge to--After obtaining NOC,
approached (SSGC) for supply of gas--Petitioner does not fall within purview of
moratorium and ban only applies to New Industrial connections--Vested right for
grant of license--When pre-commissioning inspection had already been made by
third party--Validity--After grant of provisional licences
it is fundamental right of petitioner to conduct lawful business of CNG
Station, as enshrined in Art. 18 of Constitution, which right of petitioner
had, admittedly been infringed, as he had been prevented from utilizing and
functioning CNG filing station subject to arbitrary and capricious action by
public functionary in contravention of Ordinance/Rules--Right was not an
absolute right and state may be law regulate trade, commerce or industry in
interest of general public or free competition, but such prohibition can still
be examined by superior Courts in exercise of powers of judicial review, on
touchstone of fundamental rights--High Court directed to issue marketing licence to petitioner, as his case did not fall within
domain of moratorium imposed by prime minister--Petition was allowed. [Pp. 162 & 163] A & E
Constitution of Pakistan,
1973--
----Arts. 4
& 199--Constitutional Petition--Trade or business is lawful right--Moratorium
on new gas connections--Prime Minister directive--Refusal to grant CNG
production and marketing license--Challenge to--So long a trade or business in
lawful, a citizen, who was eligible to conduct same, cannot be deprived from
undertaking same--It is also fundamental right of every citizen u/Art. 4 of
Constitution "to be dealt within accordance with
law" and safe guards any action, detrimental to a person's property taken
except in accordance with law. [P.
162] B
Constitution of Pakistan,
1973--
----Art.
199(1)(a)(1) & (ii)--Appropriate declaration can be made and directions
issued--Moratorium of new gas connection--Prime Minister directive--Refusal of
grant CNG production and marketing license--Challenge to--Objection regarding
jurisdiction of High Court--Validity--Where a statutory functionary acts mala
fide or in partial, unjust and oppressive manner, ample powers vest in High
Court to issue appropriate direction under Art. 199 of
Constitution. [P. 163] D
Constitution of Pakistan,
1973--
----Art.
158--Federal Cabinet in its policy decision had provided that supply of gas
shall remain uninterrupted in area producing gas--Moratorium on new gas
connections--Prime Minister directive--Challenge to--Prove in which a well-head
of natural gas is situated shall have precedence over part of Pakistan in
meeting the requirements from well-head subject to commitments and obligations
as on commencing day--Neither any agreement regarding commitment had been
placed on record, nor it was case of Govt. that gas produced in province was
more than its requirements. [Pp.
162 & 163] C
Mr. H. Shakeel Ahmed, Advocate for Petitioner.
Malik Sikandar Khan, D.A.G. for Respondent No. 1.
Mr. Saleem Ahmed Lashasri, Advocate
for Respondent No. 2.
Date of hearing:
11.8.2011.
Judgment
Muhammad Hashim Khan Kakar, J.--Through
this petition, the petitioner Abdul Jabbar Lakhti has assailed the directives, contained in letters
dated 18th and 23rd April,
2011, issued by Respondent No. 1, pursuant to the directives of the
Prime Minister of Pakistan. The petitioner has requested for the issuance of an
appropriate writ, directing the respondents to issue marketing license to him
without any fail.
2. The petitioner, for establishment of
Compressed Natural Gas (CNG) Filling Station on property bearing Khasra No. 1200, situated, at National Highway district Sibi, applied to Oil and Gas Regulatory Authority
(hereinafter referred to as the "OGRA") for grant of a license under
the provisions of the Compressed Natural Gas CNG (Production and Marketing)
Rules, 1992 (the Rules) and a provisional license was granted to him on 10th
September, 2010, which was, subsequently, extended for a further period of two
years. The petitioner in pursuance of said license, after obtaining No
Objection Certificate (NOC) from Municipal Administration and license under the
provisions of the Petroleum Act, 1934 (the Act) from the Chief Inspector of
Explosives, approached the Sui Southern Gas Company (SSGC) for supply of gas,
who agreed to supply the same. The petitioner, after obtaining license issued
under the provisions of the Minerals Gas Safety Rules, 2010 and
pre-commissioning inspection of the CNG Station by M/s IMTECH (Pvt.) Ltd,
deposited Rs.22,51,038/- and Rs.490,000/- towards the dues of the SSGC and
completed the CNG Station in all respects by spending more than forty million.
However, Respondent No. 2 i.e. OGRA refused to grant CNG Production and
Marketing License in view of the moratorium, imposed by the Prime. Minister of Pakistan, on
the provision of all new gas connection across the country for a period of six
months through the directives contained in letters dated 18th and 23rd April, 2011, referred
to above.
3. The respondents filed their separate par
a-wise comments and the fact of issuance of the provisional license in favour of the petitioner was not denied, however, the
issuance of moratorium was justified and it was stated that the moratorium was
issued on account of large gap between demand and supply of gas and the said
moratorium was "in accordance with the Oil and Gas Regulatory Ordinance,
2002".
4. Mr. H. Shakil
Ahmed, learned counsel for the petitioner, assailed the moratorium, including
letters dated 18th and 23rd
April, 2011, inter alia, on the following grounds:
(a) the directives, contained in the letters
dated 18th and 23rd April, 2011, issued by Respondent No. 1 pursuant to
directives of the Prime Minister, are un-constitutional, illegal, void and in
exercise of jurisdiction, not vested in them,
(b) the aforesaid
moratorium only applies to the new industrial connections, whereas the
petitioner has been granted permission much before the imposition of ban,
(c) the respondents, while refusing the
grant of license and supply of gas, are acting in a manner, which apparently,
violates Articles 4, 18 and 158 of the Constitution of Islamic Republic of
Pakistan, 1973 (the Constitution),
(d) the petitioner
made huge investments, as detailed in the petition, amounting to rupees 40
million.
5. Malik Sikandar Khan, learned Deputy Attorney General, opposed
filing of the petition, with the contention that the moratorium was rightly
issued by the Prime Minister of Pakistan and genuine reason behind the same was
a gap between the demand and supply. He further contended that the matter
mainly relates to Respondent No. 2, being the Regulatory/Licensing Authority,
as such, he prayed for excluding Respondent No. 1 from the array of
respondents.
6. Mr. Saleem Ahmed Lashari, learned counsel for Respondent No. 2, while
supporting claim of the petitioner, requested for remand of the case to OGRA
for decision.
7. We have gone through the record carefully and
considered the contentions of the learned counsel for the parties.
8. Before we discuss the arguments addressed at
the bar, it would be advantageous to reproduce the impugned letter dated 18th April, 2011, which
speaks as under:
"MORATORIUM
ON NEW GAS CONNECTIONS-PRIME MINISTER DIRECTIVE.
The Prime
Minister has been pleased to direct that a moratorium be imposed on provision
of all new gas connections across the country with immediate effect for a
period of six (6) months.
Ministry of
Petroleum & Natural Resources should take further necessary action
accordingly to implement the Prime Minister's directive and intimate progress
to this Secretariat at the earliest."
A plain reading
of the above contents of letter dated 18th April, 2011 clearly demonstrates
that case of the petitioner does not fall within the purview of aforesaid
moratorium and the ban only applies to the New Industrial Connections',
whereas the petitioner
had been granted permission by the SSGC much before
the imposition of ban against the terms, and conditions, contained in letter
dated 3rd September, 2009
after receiving a substantial amount for providing the connections as well as
natural gas. The petitioner has made huge investments and has obtained
permission and NOCs from various authorities, pursuant to the provisional
license issued to him and has also deposited the dues of the SSGC, therefore,
he has a vested right for the grant of the license, particularly when the
pre-commissioning inspection has already been made by the third party i.e.
consultants of OGRA. In such peculiar circumstances of the case, Respondent No.
2 is under legal obligation to issue the necessary permission/license for
putting the petitioner's CNG Filling Station into operation.
9. We are of the considered, view that, after
grant of provisional license, it is the fundamental right of the petitioner to
conduct the lawful business of CNG Filling Station, as enshrined in Article 18
of the Constitution, which right of the petitioner has, admittedly, been
infringed, as he has been prevented from utilizing and functioning the CNG
filling station in view of the provisional license issued to him by the
Respondent No. 2 and is subjected to arbitrary and capricious action by the
public functionary in contravention of the Ordinance/Rules. We are not
unmindful of the fact that this right is not an absolute right and the State
may by law regulate the Trade, Commerce or Industry in the interest of general
public or free competition, but such prohibition can still be examined by the
superior Courts in exercise of the powers of the judicial review, on the
touchstone of other fundamental rights. Needless to mention here that so long a
trade or business is lawful, a citizen, who is eligible to conduct the same,
cannot be deprived from undertaking the same. It is also the fundamental right
of every citizen under Article 4 of the Constitution "to be dealt with in
accordance with law" and safeguards any action, detrimental to a person's
property taken except in accordance with law. The respondents have not dealt
with the petitioner in accordance with law i.e. the Rules and have illegally
refused the issuance of marketing license. Accordingly, appropriate declaration
can be made and directions issued respectively pursuant to sub-paragraph (ii) (i) and of paragraph (a) to sub-Article (1) of Article 199
of the Constitution.
10. We are in agreement with the learned counsel
for the petitioner that the Respondent No. 2 has fallen in error while refusing
grant of marketing license to the petitioner. The Federal Cabinet in its policy
decision has provided that supply of gas shall remain uninterrupted in the
areas producing, gas, including the Province of Balochistan. It is
provided under Article 158 of the Constitution that a
Province, in which a well-head of natural gas is situated, shall have
precedence over other part of Pakistan
in meeting the requirements from the well-head, subject to the commitments and
obligations as on the commencing day. Admittedly, neither any agreement
regarding commitment has been placed on record, nor it is the case of
respondents that the gas produced in the Province is more than its
requirements.
11. Coming to the objection of the learned Deputy
Attorney General Malik Sikandar
Khan regarding the jurisdiction of this Court, we are of the confident view
that where a statutory functionary acts mala fide or in partial, unjust and
oppressive manner, ample powers vest in the High Court to issue appropriate
directions under Article 199 of the Constitution. We are fortified our this
view from the case of Brig. Muhammad Bashir vs. Abdul
Karim and others reported in PLD 2004 Supreme Court
271, relevant portion whereof speaks as under:
"It is well
settled by now that "Article 199 casts an obligation on the High Court to
act in aid of law, protect the rights of the citizens within the framework of
the constitution against the infringement of law and Constitution by the
executive authorities, strike a rational compromise and a fair balance between
the rights of the citizens and the actions of the State functionaries, claimed
to be in the larger interest of Society. This power is conferred on the High
Court under the Constitution and is to be exercised subject to Constitutional
limitations. The Article is intended to enable the High Court to control
executive action so as to bring it in conformity^' with the law. Whenever the
executive acts in violation of the law, an appropriate order can be granted which will relieve the citizen of the effects of illegal action.
It is an omnibus Article under which relief can be granted to the citizens of
the country against infringement of any provision of law or of the
Constitution. If the citizens of this country are deprived of
the guarantee given to them under the Constitution, illegally or, not in
accordance with law, then Article 199 can always be invoked for redress."
12. In view of the reasons stated above, we
hereby direct the Respondent No. 2 to immediately issue marketing license to
the petitioner, as his case does not fall within the domain of Moratorium
imposed by the Prime Minister of Pakistan.
The petition is
allowed on the aforesaid terms with special cost of Rs.20,000/-
(rupees twenty thousand only), which are to be borne by the Respondent No. 2.
(R.A.) Petition
allowed
