2011 C L D 1554
[Quetta]
Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ
Messrs AL -MAKKAH CNG STATION through Proprietor ---Petitioner
Versus
GOVERNMENT OF PAKISTAN MINISTRY OF PETROLEUM AND NATURAL
RESOURCES through Secretary Islamabad 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---
Const itution 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 Explosi ves 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 vi ew 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
impugned ban for having been granted permission by SSGC much prior to i ts 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 marketing
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 dealt with in accordance with law ---Refusal of
Oil and Gas Regulat ory 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 remain 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
requirements from the well- head, subject to the commitments and obligati ons as on the
commencing day ---Oil and Gas Regulatory Authority had neither pleaded that gas produced
in Balochistan was more than its requirements nor placed on record any agreement regarding
commitment--- 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
issue 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 functionary
acted mala fide or in a partial, unjust and oppressive ma nner, then High Court had the power
to issue 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 Res pondent 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 letters dated 18th and 23rd
April, 2011, issued by responden t 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 sa id 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 Messrs IMTECH (Pvt.) Ltd. deposited
Rs.22,51,038 and R s.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 Pri me 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 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 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 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 refusing the grant of license and supply of gas, are act ing 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, wh ile 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 and 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 appli es 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 fo r 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, there fore, 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 oblig ation
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 la w 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 "t o 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 t he 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 Article 199 of the
Constitution.
10. We are in agreement wit h 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 v.
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 t he 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 vio lation 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 abov e, 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 spec ial 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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