IN THE HIGH COURT OF SINDH

CIRCUIT COURT LARKANA

 

Constitution Petition D - 79 of 2017

 

Present:     Zafar Ahmed Rajput and Agha Faisal, JJ.

 

 

Qadir Bux @ Ghulam Shabir

vs.

Federation of Pakistan and Others

 

For the Petitioner:                  Mr. Habibullah G.Ghouri, Advocate

For the Respondent No. 2:  Mr. Shakeel Ahmed S. Abro, Advocate

For the Respondent No. 3:  Mr. Nisar Ahmed G. Abro

                                                Deputy Attorney General

 

Dates of Hearing:                  06.09.2018 and 13.09.2018

 

Date of Announcement:       03.10.2018

 

 

JUDGMENT

 

 

AGHA FAISAL, J. The crux of this judgment is the determination of the issue as to whether the petitioner is entitled to an enhanced supply of Compressed Natural Gas (“CNG”) notwithstanding the moratorium imposed by the Federal Government in such regard.

 

2.            Mr. Habibullah G. Ghouri, Advocate opened the case for the petitioner and submitted that the petitioner is the owner and proprietor of Messrs Data Filling Station, Empire Road, Larkana (“CNG Station”). Per learned counsel the CNG Station is functioning and the petitioner applied for permission for an additional CNG compressor for the CNG Station, which in fact would double the capacity of the said CNG Station and hence would also require twice the supply of CNG being received. Per learned counsel, the respondent No.3, being the Oil and Gas Regulatory Authority (“OGRA”), granted permission to the petitioner vide its letter dated 22.08.2011 (“OGRA Letter”). It was next contended that there was a difference of opinion between the petitioner and the respondent No.2, Sui Southern Gas Company (“SSGC”), with regard to the quantum of billing and as a consequence thereof the SSGC failed to consider the petitioner’s application for enhancement of CNG supply. It was demonstrated that the aforesaid dispute was the subject matter of C.P. D- 1226 of 2014 which was decided vide order dated 29.05.2015 (“CP Order”). Per learned counsel, subsequent to the CP Order, SSGC rejected the petitioner’s application vide its letter date 10.6.2015 (“SSGC Letter”) on the basis that there is a moratorium imposed on new gas connections. It was next shown that a contempt application was preferred by the present petitioner in CP No. D- 1226 of 2014 which was disposed of by the Court vide its order dated 26.01.2017 (“Contempt Order”). Learned counsel drew attention to the CNG Production & Market Rules 1992 (“CNG Rules”) and stated that the same, read injunction with the Oil and Gas Regulatory Ordinance 2001 (“OGRA Ordinance”), stipulates that OGRA is in fact the only authority permission whereof is required for the enhancement prayed for by the petitioner and in presence of such permission having been granted the action of SSGC was not in accordance with the law. Learned counsel referred to moratorium imposed by the Government of Pakistan, Ministry of Petroleum & Natural Resources vide letter dated 04.10.2011 (“Moratorium”) and submitted that the said instrument could not be applied retrospectively and since the permission granted to the petitioner by OGRA was prior in time to the aforesaid Moratorium hence the same was inapplicable to the petitioner. Per learned counsel despite remonstrations to SSGC, it was failed to sanction the application for enhancement of gas connection and being aggrieved in respect thereof the present petition has been filed seeking inter alia following relief:

a)    “That this Honorable Court may be pleased to declare the impugned letter dated 10th June 2015 refusing to grant NOC for operation of second compressor as null and void, as the same is granted by OGRA vide permission dated 22.8.2011 and direct the Respondent No.2 to allow the petitioner to operate second compressor of DATA CNG Filling Station Larkana during pendency of this petition.

 

b)    To granted mandatory injunction directing the Respondent No.2 to allow the petitioner to operate the second compressor of DATA CNG Filling Station Larkana during pendency of this petition”.

 

3.            Mr. Shakeel Ahmed S. Abro, Advocate for respondent No.2 submitted that the grievance of the petitioner with regard to SSGC was determined vide the CP Order and that no further cause of action has accrued and hence this petition is not sustainable, as is manifest from the Contempt Order. Per learned counsel, the Moratorium was duly applicable to the petitioner and in pursuance of the policy of the government the prayer made by the petitioner herein is prima facie unreasonable. Learned counsel demonstrated from the record that while the Moratorium was imposed on 04.10.2011, the petitioner applied to SSGC on 07.10.2011, therefore, it was argued that the question of retrospective application does not arise. Learned counsel submitted that the relationship between the petitioner and the SSGC is contractual and contractual disputes are not amenable to adjudication before the writ jurisdiction of this Court. It was further added that the petitioner is a chronic defaulter of dues in excess of Rupees Thirty Million and the same is subject matter of a suit before the appropriate Court of plenary jurisdiction. Per learned counsel, the petitioner has approached this Court with unclean hands as he has actively concealed the fact that the subject matter of the present petition is also pending between the same parties before the Principal Seat of this Court at Karachi in Suit No. 1182 of 2013 (“Suit”). It was thus prayed that the instant petition be dismissed.

 

4.            Mr. Nisar Ahmed G. Abro, learned Deputy Attorney General appearing on behalf of the respondent No. 3, supported the arguments advanced on behalf of Respondent No.2 and in addition thereto stated that in the presence of a forum available for resolution of disputes, pursuant to the OGRA Ordinance, the present petition was not maintainable in any event.

 

5.            We have heard the respective learned counsel and have also perused the record filed before us. It is considered appropriate to initiate a deliberation hereupon by condensing the factual aspect of the present dispute and then advert to the legal merit of the claim in respect thereof.

 

6.            The petitioner is stated to be a licensed purveyor of CNG, conducting his business at the CNG Station. The petitioner sought permission for installation / addition of another compressor at the CNG Station and the such permisssion was granted vide the OGRA Letter, subject to the terms and conditions stated therein. The content of the OGRA Letter is reproduced herein below:

 

“I am directed to refer to your request and to say that in exercise of powers conferred under Rule-11 of CNG (Production & Marketing) Rules 1992, the Authority is pleased to grant you permission for installation/ addition of brand new CNG compressor (SAFE s.r.l Italy, SW132-F1 EM) subject to the following conditions:

 

i)             You will adhere to the contractual gas load approved by the gas utility company concerned in accordance with the gas supply contract.

 

(Underline added for emphasis.)

 

ii)            The specification/installation of compressor shall meet the minimum requirement of CNG (Production & Marketing Rules), 1992 and all other applicable laws.

iii)           You will not commission/operate the compressor till the same is verified by the 3rd party inspector appointed by the Authority for conformity of laid down standards. An application to this effect shall be submitted to the Authority after completing the installation along with an inspection fee of Rs.20,000/- in favour of OGRA.

iv)          You will furnish the complete impact documents including 3rd party test certificates to the 3rd party inspector at the time of inspection.”

 

7.            Pursuant to the OGRA Letter, the petitioner applied to SSGC for permission, vide its letter delivered to SSGC on 07.10.2011. The relevant content of the aforesaid letter is reproduced herein below:

“This is to submit that the undersigned is the owner of M/s Data CNG Larkana situated at above mentioned survey for installation of additional Compressor at our filling Station.

 

In this regard, we had requested OGRA for the same purpose and they have issued a letter No.OGRA/CNG-18 (6865)/2008 dated 22.08.2011 on the same matter (copy enclosed).

 

We are therefore requesting your honour to please issue further orders regarding process in the case as per policy of the Company”.

 

8.            The petitioner’s request was denied by SSGC and hence the petitioner challenged the same in a Constitution petition before the Principal Seat of this Court at Karachi. The matter was decided vide the CP Order, observations whereof are reproduced herein below:

 

“The petitioner has challenged the disconnection of supply of gas to Data CNG Station on the ground of heavy bills. The background of this case is that the petitioner and respondents No.2 to 4 are already having a dispute of different nature for which civil litigation is already pending. The main grievance of the respondents is that the petitioner has unlawfully installed second compressor which has damaged the already existing meter and therefore, most of the gas has been consumed without being properly measured through the meter.

 

On the other hand petitioner claims that they already have a permission for installation of second compressor from OGRA. However, OGRA is not party in this case and it is not disputed that OGRA has also granted permission. It is admitted position that the petitioner till date has not been given official permission (N.O.C) by the respondents No.2 to 4 for the use of second compressor. The application of the petitioner with the respondents No.2 to 4 for N.O.C to install second compressor is pending for almost three years without any decision on the same. Had this application been decided the controversy involved in this petition could not have arisen at all. The petitioner gas was disconnected from 13th November, 2014, and the respondents No.2 to 3 have issued bills on the basis of previous consumption. Be that as it may, without going into the merits of this bill and all that for the time being it is hereby ordered as follows:-

 

(i)            That, the petitioner will deposit minimum consumption bills for the month of September, October and November, 2014 within one week on receiving proper bill from the respondents and he shall also despot bank guarantee of Rs.10 millions for the reconnection of the gas. The fresh meter shall be installed on payment of usual charges of installation of fresh meter as per OGRA rules.

 

(ii)          The petitioner shall not be allowed to use second compressor pending this petition and to ensure that he will not unlawfully use second compressor; the staff of respondents No.2, 3 and 4 alongwith police of the area shall be free to inspect the premises on any point of time without notice to the petitioner. If the area police and the staff of respondents No.2, 3 and 4 find that the second compressor in operation they may take the photographs and instantly seal the CNS station without further notice.

 

(iii)         The respondents No.2, 3 and 4 will ensure that the application of petitioner for permission to install second compressor which has been granted by OGRA shall be decided at the level of respondents No.2, 3 and 4 within thirty days from the date of this order. The NOC should be issued by the respondents in accordance with law within thirty days otherwise the same shall be deemed to have been granted and the respondents unless dismiss application for NOC on proper justification shall forthwith change the gas meter and increase the load of gas for the consumption of second compressor on payment of usual charges as per rules.

 

(Underline added for emphasis.)

 

This order is without prejudice to the stand taken by the parties in any litigation between them. These applications stand disposed of in the above terms”.

 

9.            Immediately thereafter the petitioner re-agitated his request for installation of an additional compressor and the same was denied vide SSGC letter dated 10.6.2015 (“SSGC Letter”), contents whereof are reproduced herein below:

 

“Government of Pakistan vide Ministry of Petroleum & Natural Sources letter No.CNG-7(81-)V/10 1-1-MPM dated 4 October 2011 has imposed moratorium on new gas connections (copy enclosed). Clause 1 (f) of the letter is as follows:

 

“The operational CNG stations would remain within their sanctioned load”

 

(Underline added for emphasis.)

 

Installation of additional compressor will result in enhancement of the sanctioned load of CNG station.

 

In view of the above directives, SSGC is unable to issue NOC for installation/operation of 2nd Compressor as long as the moratorium dated 4 October 2011 remains effective”.

 

10.         Hence it was apparent that after consideration of the application, as ordered vide the CP Order, SSGC denied the petitioner’s request upon being so constrained by the Moratorium imposed by the Federal Government, copy whereof is reproduced herein below:

I.              “CNG Sector

 

a.    Moratorium on CNG gas connections has been lifted on the following categories, priority wise.

 

1st              CNG stations where meters have been installed but gas supply has not been commissioned. (Priority 1 and with immediate effect).

 

2nd                 CNG stations who have paid the connection charge/security deposit but meters have not been installed. (Priority 2 and the process to be completed within a period of three months).

 

3rd              CNG stations where gas pipelines have been laid with 100% cost recovery, in advance, from stations but demand notices have not been issued. (Priority 3 and the process to be completed within a period of six months).

 

b.    Ban on issuance of new provisional licenses of CNG stations shall continue. Further, renewal or extension of existing provisional licenses will not be allowed except in those cases where the station is 100% complete in terms of installation of equipment and civil works and OGRA has already carried out inspection before the date of approval of the summary i.e. 30.09.2011.

 

c.    Shifting of CNG stations and site change of provisional licenses shall not be allowed except in cases of those operational CNG stations which are forced by the government to close their CNG stations for various reasons i.e. widening of road, construction of bridges, security reasons. However, shifting shall be limited within the same region and would be subject to provision of prior NOC from gas utility companies and within the maximum gas load prior to closure.

 

d.    No gas generators at CNG stations are allowed.

 

e.    Gas will be supplied to CNG stations in Balochistan which are already in pipeline. No new application will be entertained.

 

f.     The operational CNG stations would remain at their sanctioned load.

 

(Underline added for emphasis.)

 

II.            Commercial/Industrial Sectors

 

a.    Moratorium imposed on new commercial and Industrial connections has been extended for one year except for those who have paid the connections charges/security deposit or have deposited 100% cost of line pipe to be laid for them.

 

b.    Moratorium at ‘a’ above will not be applicable in the province of Balochistan. However, for industrial connections, the Minister for Petroleum & Natural Resources will decide on case to case basis.

 

c.    The gas connections of strategic nature will be allowed on case to case basis.

 

d.    No new applications for the industrial/commercial will be entertained except Roti Tandoor (stand alone).

 

e.    Natural gas through the Sui transmission system will not be provided to high rise buildings and new housing schemes. These will be encouraged to energize their customers through LPG, LNG and Alternate Energy sources.

 

III.           Development Schemes

 

Gas development schemes will be prioritized as under:

 

(i)            Only ongoing development schemes will be executed.

 

(ii)          The scheme where work has yet to commence (funding received) will be initiated after completion of ongoing schemes.

 

(iii)         No new gas development scheme will be allowed till implementation of previous directives/commitments as indicated at para (i) and (ii) above.

 

(iv)         Gas producing districts shall be exempted from Moratorium as indicated at para (iii) above. Preference will be given to the villages/towns located in the vicinity of gas fields.

 

 

IV.          Campaign to Convert Existing Gas Geysers:

 

Sui Companies will launch a campaign and undertake to convert existing gas geysers to solar system and instant water heaters.”

 

11.         The petitioner preferred a contempt application against the SSGC, in view of the denial conveyed vide the SSGC Letter, which proceedings were disposed of vide the Contempt Order reproduced herein below:

 

“The petitioner has filed contempt application for non compliance of order dated 29.05.2015. The petitioner is aggrieved by non compliance of directions in para-(iii) of the said order whereby respondents were directed to decide the fate of an application of petitioner for increasing load of gas. This order was to be complied with within 30 days. It has been complied within time and the order is not to the satisfaction of the petitioner/ applicant, therefore, contempt application has been filed. This was not the order of the Court that what reasoning should be given by the respondents while passing the order as per para No.iii of the order impugned in these contempt proceedings.

 

We are of the considered view that the order has been complied with and therefore, if the application has been disposed of to the dislike of the petitioner, he may seek remedy if any, in accordance with OGRA rules and regulations but not through contempt proceedings.

 

(Underline added for emphasis.)

 

With the above observations this contempt application stands disposed of”.

 

12.         Learned counsel for the petitioner was confronted with the issue of res judicata and queried whether the controversy in the present petition had been determined vide the CP Order, in view of the findings having been delivered vide the Contempt Order. The prayer clause in the Suit was also laid before the learned counsel to solicit his position upon whether the issue herein was also the subject matter thereof. It may be pertinent to reproduce the prayer clause of the Suit herein below:

 

I)             “It may be declared that the plaintiff entered into contract of supply of gas thereby the defendants are bound to provide natural gas with full pressure to the plaintiff without any restriction and plaintiff have preferential/priority right of enhancement of load.

 

II)            It may be declared that when for the last many months after permission from OGRA, the load of the plaintiff was enhanced thereby SSGC impliedly accepted and /or granted permission of enhancement of load of the plaintiff.

 

III)           It may be declared that when the OGRA enhanced the load of the plaintiff thereby SSGC cannot withheld the enhancement of load of the plaintiff and SSGC is bound to issue load enhancement permission to the plaintiff.

 

IV)          Permanently restrain the defendants, its attorneys, representatives, officers, agents and /or anybody claiming through or under the defendants from disconnecting the gas connection of the plaintiff and also restrain them from taking any adverse and/or coercive action against the plaintiff, consumer No.9986045125(3) …….”

 

13.         The learned counsel was unable to dispel the prima facie overlap of the lis in each of the matters cited hereinabove. A specific query was put to the learned counsel seeking whether the Suit would survive in the presence of any findings rendered herein. The learned counsel answered the query in the negative.

 

14.         It is hence observed that the dispute between the parties herein was the subject matter of the Suit, instituted before the original civil side of the Principal Bench of this Court at Karachi. Notwithstanding the Suit, the matter was also adjudicated upon vide the CP Order and in pursuance thereof the SSGC Letter was issued. Vide the Contempt Order it was manifest that the SSGC Letter was not in dissonance with the CP Order and that if aggrieved the petitioner was free to seek a remedy by virtue of the OGRA rules and regulations. It appears that no remedy was sought pursuant to the OGRA rules and regulations and instead thereof the present petition was instituted.

 

15.         OGRA, being the respondent no. 3 herein, has filed its comments to the present petition and it may be prudent to reproduce the relevant passages there from:

 

“2.       That OGRA (answering respondent) deals with the complaints of the consumers / persons for redressal of their grievances against SNGPL/ SSGCL under “Complaint Resolution Procedure Regulations, (CRPR), 2003” framed under Section 42 of Oil and Gas Regulatory Authority Ordinance, 2002.

 

………..

 

15.       …. The alternate remedy of complaint was available to the Petitioner under Section 11 of OGRA, Ordinance, 2002 whereas the Petitioner filed the Writ Petition under Article 199 of Constitution which is in contradiction to the principle of law that writ petition can be entertained only if there was no alternate remedy available in the statute to a petitioner.”

 

16.         It is prima facie apparent that no complaint against or with regard to SSGC has been filed by the petitioner with OGRA and no justification for having invoked the writ jurisdiction of this Court in the presence of an alternate remedy has been advanced in the pleadings or at the bar. The OGRA Ordinance inter alia regulates the CNG sector and it may be relevant to advert to the applicable provision thereof:

 

“22.Exclusive power to grant licences.--- (1) The Authority shall have the exclusive power, to be exercised in the manner prescribed in the rules, to grant, issue, renew, extend , modify, ,amend, suspend, review, cancel and reissue, revoke or terminate, a license in respect of any regulated activity.

 

(2)   If a licensee is of the opinion that it is not financially viable for it to supply natural gas to a particular area based on the tariff applicable to it, it shall give reasons to the Authority therefor.

 

(3)    If the Authority agrees with the licensee that it is not financially viable for such licensee to supply natura gas to a particular area based on the tariff applicable to it unless the Federal Government makes special financial arrangements with the licensee, it shall report the matter to the Federal Government and the licensee shall not be obligated to supply natural gas to the said area unless suitable financial arrangements are made by the Federal Government.

 

(4)    On receipt of instructions from the Authority, the licensee shall supply natural gas to the said area within such time as the Authority may specify.

 

23.   Grant of licenses.- (1) No person shall—

 

(a)          construct or operate any pipeline for natural gas,

(b)          construct or operate any natural gas testing facility or natural gas storage facility;

(c)          construct or operate any natural gas installation; or

(d)          undertake transmission,  distribution or sale or natural gas,

 

unless a general or specific licence to undertake such activity has been issued and is in full force and effect and the person is the licensee.

 

            (2)       No person shall –

 

(a)  construct or operate any pipeline for LPG;

(b)  construct or operate any LPG or LNG production or processing facility; LNG, LPG or CNG testing facility or LPG, LNG or CNG storage facility;

(c)  construct or operate any installation relating to LPG or LNG; or

(d)  undertake transporting, filling, marketing or distributing of LPG, LNG or CNG,

 

unless a general or specific licence to undertake such activity has been issued and is in full force and effect and the person is the licensee.

 

(4)       An application for the licence shall be submitted to the authority on the prescribed form and in accordance with the rules.

 

(5)       An application under sub-section (1), (2) and (3) shall be accompanied by the prescribed fee.

 

(6)       On receipting an application for a licence, the Authority may grant the licence subject to such conditions, restrictions or stipulations as may be set out in, or attached to, the licence.”

 

(Underline added for emphasis.)

 

17.         It is an admitted fact that the OGRA Letter was issued prior to the imposition of the Moratorium, however, the said permission categorically stipulated that the petitioner was required to adhere to the gas load approved by the gas utility company concerned in accordance with the gas supply contract. Therefore, the OGRA Letter was prima facie conditional and also required adherence to the contract with the gas supplier in such regard. Notwithstanding the foregoing it is an admitted fact that the petitioner’s request to SSGC was filed subsequent to the imposition of the Moratorium and hence no infirmity has been identified with respect to the denial by SSGC vide the SSGC Letter.

 

18.         The contract for gas supply, between the petitioner and SSGC, was placed before us and the veracity thereof was not denied by the petitioner. It may be prudent to reproduce the relevant content thereof:

 

“21.00             Without prejudice to any other right that the Company may have and in addition to such right, the Company shall be entitled to rescind the contract at any time for following reasons:

 

……………

 

21.06             Any alteration, addition or extension to the existing gas installation carried out by the Consumer without obtaining prior approval of the Company in writing.”

 

19.         It is recorded in the CP Order that the allegation against the petitioner was that he had installed the additional compressor in the absence of permission / additional load sanction from SSGC and hence damaged the existing meter apparatus and also consumed excessive unbilled CNG. It is also observed that the contract inter se permitted SSGC to sanction the petitioner for violation of the said terms and conditions. Notwithstanding the fact that this issue was dealt with in the CP Order, wherein a resolution was prescribed without there being any dilation upon the merits, the remedy available to the petitioner, if aggrieved, would have been before the statutorily prescribed forum or the appropriate Court of plenary jurisdiction and not in a constitution petition. It is well settled law that the constitutional jurisdiction of this Court is not amenable to resolution of contractual disputes.

 

20.         The SSGC Letter has categorically predicated the denial of permission upon the constituent of the Moratorium requiring all operational CNG stations to remain within their sanctioned load. The said restraint is admittedly placed by the Moratorium and it is apparent that the Moratorium, or any constituent thereof, is not under challenge herein. The Moratorium is a policy devised by the mechanism inter alia to regulate the apportionment of natural resources / fossil fuels in Pakistan. We are cognizant of the well settled principle of law that policies of the Government may not be interfered with by the Court unless it is manifest that a policy is violative of the fundamental rights enshrined in the Constitution. Reliance is placed in such regard on the judgment of the honorable Supreme Court in the case of Punjab Public Service Commission and Another vs. Mst. Aisha Nawaz and Others reported as 2011 SCMR 1602. In the present facts and circumstances nothing has been placed before us to suggest that the Moratorium infringes upon any fundamental right.

 

21.         In view of the reasoning and rational delineated herein, it is considered view of this Court that the present petition is misconceived and devoid of merit hence the same is dismissed, along with pending application(s), with no order as to costs.

 

 

 

                                                                                                            Judge

 

 

 

                                                                                                Judge