2011 C L C 1953
[Quetta]
Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ
Messrs AL -MAKKAH CNG STATION through Proprietor ----Petitioner
Versus
GOVERNMENT OF PAKISTA N MINISTRY OF PETROLEUM AND NATURAL
RESOURCES through Secretary and another ----Respondents
Constitutional Petition No.(S)51 of 2011, decided on 18th August, 2011.
(a) Oil and Gas Regulatory Authority Ordinance (XVII of 2002) ---
----S. 6---Compressed Natural Gas (CNG) (Production and Marketing) Rules, 1992 ---
Constitution of Pakistan, Arts.4, 18, 158 & 199 ---Constitutional petition ---Establishment
of CNG Filling Station in Sibi (Balochistan) ---Grant of Provisional licence for such
station and obtaining of NOC from Municipal Administration, Chief Inspector of
Explosives and the Gas Company ---Completion of such station by spending huge amount -
--Pre-commissioning inspection of such station by consultant of OGRA and payment of
dues of SSGC by petitioner ---Refusal of OGRA to grant CNG Marketing Licence to
petitioner in view of subsequent ban imposed by Prime Minister on new gas
connections ---Validity ---Impugned ban would apply only to new industrial connections ---
Petitioner did not fall within ambit of impug ned ban for having been granted permission
by SSGC much prior to its imposition ---Petitioner in pursuance of provisional licence
after having obtained NOCs from various authorities and deposited dues of Gas
Company, had a vested right for grant of marketin g licence ---Oil and Gas Regulatory
Authority was legally bound to issue licence for putting petitioner's station into operation -
--Petitioner's fundamental right to conduct lawful business of such station had been
infringed ---So long a trade or business was lawful, a citizen eligible to conduct same
could not be deprived from undertaking the same ---High Court, in exercise of its powers
of judicial review, could examine prohibition, if any, imposed on such right ---Every
citizen had a fundamental right to be d ealt with in accordance with law ---Refusal of Oil
and Gas Regulatory Authority to issue marketing licence to petitioner was illegal, thus, he
had not been dealt with in accordance with law ---Policy decision of Federal Cabinet was
that supply of gas would r emain uninterrupted in gas producing areas including
Balochistan ---Article 158 of the Constitution had provided that a Province, in which a
well-head of natural gas was situated, shall have the precedence over other part of
Pakistan in meeting the requirem ents from the well -head, subject to the commitments and
obligations as on the commencing day ---Oil and Gas Regulatory had neither pleaded
that gas produced a Balochistan was more than its requirements nor placed on record any
agreement regarding commitme nt---When statutory functionary acted mala fide or in a
partial, unjust and oppressive manner, then High Court could issue appropriate directions -
--High Court accepted constitutional petition with special cost of Rs.20,000 and directed
the Authority to i ssue marketing licence to petitioner immediately.
Brig. Muhammad Bashir v. Abdul Karim and others PLD 2004 SC 271 rel.
(b) Constitution of Pakistan ---
----Art. 199 ---Constitutional jurisdiction of High Court ---Scope ---When statutory
functiona ry acted mala fide or in a partial, unjust and oppressive manner, then High Court
had the power to appropriate directions.
Brig. Muhammad Bashir v. Abdul Karim and others PLD 2004 SC 271 rel.
H. Shakeel Ahmed for Petitioner.
Malik Sikandar Khan, Dy. A.-G. for Respondent No.1.
Saleem Ahmed Lashari for Respondent No.2.
Date of hearing: 11th August, 2011.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. --- Through this petition, the
petitioner Abdul Jabbar Lakhti has assailed the directives, contained in let ters 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 furth er 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
connections across the country for a period of six months through the directives contained
in letters dated 18th and 23rd April, 2011, referred t o above.
3. The respondents filed their separate parawise 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 i ssued 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 lette rs 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 unconstitutional,
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 refusi ng 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 sa me 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 Ahme d 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 part ies.
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 and Natural Resources should take further necessary action
according ly 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 pur view 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 Sep tember, 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 hi m 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 circumstanc es 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
fundam ental 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 ri ght 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 judicia l 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 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 accor dance 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)
and (i) of paragraph (a) to sub -Article (1) of Ar ticle 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 prov ided 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 preceden ce 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 resp ondents 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
statutor y 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 t he 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 ci tizens 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 al ways 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.
S.A.K./89/Q Petition accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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