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Petitioner: Qurban Ali Shah and others VS Respondent: Federation Of Pakistan through Federal Secretary and others
Court Name: Sindh High Court Judge(s): Muhammad Karim Khan Agha, Omar Sial Title:Qurban Ali Shah and others vs Federation Of Pakistan through Federal
Secretary and others Case No.:Constitutional Petitions Nos.D-1731 of 2014, D-5841 of 2018 along with Constitutional Petitions Nos.D-5528, D-5529, D-5530, D-5531, D-5532, D- 5533, D-5534 and D-6866 of 2019 Date of Judgment:2020-02-03 Reported As: PLD 2020 Sindh 242 Result: Order accordingly? Judgment ORDER Implementation of Supreme Court Judgment dated 27-12-2013 . MUHAMMED KARIM KHAN AGHA. J.---This court has been given the task of implementing the Supreme Court judgment dated 27.12.2013 (the Supreme Court Judgment) where certain directions were given in para 22 of that judgment which need to be implemented by the concerned stakeholders. The directions to be implemented largely concerned the utilization by districts in each province of monies which were provided to the Districts by the E@P companies for (a) Social Development Welfare Projects (b) Marine Research and (c) Production Bonus' which when totaled up amounted to millions of US$ dollars. The Government of Pakistan had made guidelines for the process to be adopted in deciding how to use these funds for the local area and the purposes for which these amounts could be utilized. 2. After about a year of this court implementing the Supreme Court Judgment a large number of districts have now slowly but surely started complying with the guidelines and undertaking the social welfare projects for the benefit of the local community . 3. One aspect of the Supreme Court Judgment despite a lapse of over 6 years is not being implemented which is Para 22 (k) which for ease of reference we set out below: "(k) The Ministry of Petroleum and Natura l Resources shall, ensure implementation of the Prime Minister's directive of 15.9.2003 and provide gas to "all the surrounding localities/villages falling within the radius of 5km of all Gas Fields, on priority basis" as directed, in accordance with law " (bold added)
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4. As the direction clearly mentions this was based on the Prime Minister's directive of 15.9.2003 to provide gas to all the surrounding localities/ villages falling within the radius of 5km of all Gas Fields. 5. This directive of the Prime Minister has not been implemented for the last 16 years and the directive of the Supreme Court for the last 6 years. 6. Following the directive of the Supreme Court a decision of the Counsel of Common interests (CCI) was made on 24-11-2017 to the effect that the provision of gas as per the Prime Ministers Directive and the Supreme Court Judgment was to be borne by the distribution companies. Namely SSGCL and SNGCL. 7. Based on the CCI decision both the Government of Pakistan Ministry of Energy/Petroleum and the Government of Sindh has been requesting the SSGCL to comply with the decision of the CCI and thereby implement the Supreme Court Judgment in terms of para 22 (k). 8. On the other hand the SSGCL, supported by. OGRA, has taken the view that it is not legally obliged to implement this decision unless the Federa l Government make up any shortfall in areas where it is not economically viable for the SSGCL to provide gas as per the provisions of the law . 9. Thus, we have reached a position of stale mate where in effect the Supreme Court Judgment in terms of para 22 (k) is not being implemented because each side is taking a different legal interpreta tion of the issue which is mainly on account that both the Federal Government and the distribution companies lack suf ficient funds for the purpose. 10. In this backdrop to enable us to determine the legal position and where the responsibility lies for providing the relevant funds for the implementation of Para 22 (k) of the Supreme Court Judgment by order dated 07.10.2019 this court issued notice to both the Attorne y General of Pakistan and Advocate General of Sindh to assist us under Order XXVII-A, C.P.C. and later by order dated 25.11.2019 appointed Mr. Makhdoom Ali Khan Sr.ASC as amicus curiae to assist us on this issue and in particular on: (a) The role of the CCI (b) Since the CCI is a constitutionally created body consisting of all Chief Ministers of each Province and the Prime Minister representing the Federation what are the legal ef fect and consequences of a decision of the CCI? (c) Is a decision of the CCI legally binding? (d) If so how can a decision of the CCI be enforced? And through what means. (e) If a decision of the CCI has no bindin g legal effect in their view taking into account the above discussion and any other relevant law which Ministry , body , organization is responsible for the provision of gas under the law in accordance with para 22 (k) of the Supreme Court Judgment to all the surrounding localities/villages falling within the radius of 5km of all Gas Fields and at whose expense. 11. Learned counsel for the Ministry of Petroleum Government of Pakistan submitted that the CCI decision was binding on the Gas distribution companies and it was fully implementable by the concerned province which 'in this case was the Government of Sindh (GOS).He further submitted that the decision of the CCI was in conformity with the direction given by the Supreme Court in Para 22 (k) of the Supreme Court Judgment and as such it was the obligation of SSGCL to provide the gas and pay for its provision as per decision of the CCI. In support of his contentions he placed reliance on Gaddon Amazai Textile Mills v. WAPDA (1997 SCMR 641) and Watan Party v. Federation of Pakistan (PLD 2006 SC 697 ) 12. On the other hand learned counsel for SSGCL and OGRA submitted that the Supreme Court Judgment at Para 22 (k) had placed the obligation to provid e the gas squarely on the Ministry of Petroleum Government of Pakistan and that through a decision of the CCI the Federal Government could not pass on its burden to the SSGCL. He stressed that a decision of the CCI could not take preference over a Supreme Court Judgment which had reached finality and had already placed the responsibility of the provision of Gas on the Ministry of Petroleum especially as the SSGCL was 75% owned by the Federal Government and as such it was unfair to place this financial obligation on non Federal Government private share holders. He further submitted that if the CCI decision was complied with this would also lead to an increase in the gas tariff for the whole of Pakistan which would not be fair as even gas consumers who did not have an E&P Gas Company operating in its area would have to pay an increased tariff without receiving any benefit. Even otherw ise he stressed that the CCI decision was contrary to the Supreme Court
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Judgment at Para 22 (k) which stated that the provision of the gas had to be made in , "accordance with the law" and that the relevant laws governing SSGCL did not permit such an onerous obligation to be placed on the SSGCL. 13. Learned AG Sindh submitted that the Prime Minister's original directive to provide gas to villages within 5 KM of gas fields was not legally binding and was not implementable and in fact was an unlawful directive which was void and as such could not be made a part of the Supreme Court Judgment vis-a-vis its implementation. This was further supported by the fact that that para 22 (k) used the wording "in accordance with law" and thus since the prime ministers directive was not in accordance with law it was non implementable. He conceded that decisions of the CCI were binding on the Federation but in this case since the original directive of the Prime Minister was void ab initio in this case it would not be binding on either the Federation or the Province of Sindh. In addition since the CCI's decision in effect would lead to the levying of taxes to pay for the provision of gas it was once again not binding since the CCI had no power to levy taxes. Even if this court did find that the Prime Minister's directive was enforceable through para 22(k) of the Supreme Court Judgment para 22 (k) itself made it clear that the obligation to carry out and pay for the implementation of the direction lay on the shoulders of the Federal Government and not provincial government pursuant to the wording of para 22(k). With regard to the implementation of the decision of the CCI he referred to Section 11 of the Rules of Procedure of the CCI 2010 which provided a mechanism for the implementation of the decisions of the CCI which had been legally made which was through the concerned department of the Federal Government or the Chief Secretary of the Province as the case may be. In support of his contentions he placed reliance on U.N.R Rao v. Indira Gandhi (AIR 1971 SC 1002) and Gaddon Amazai Textile Mills v . WAPDA (1997 SCMR 641 ) 14. Learned Attorney General for Pakista n had been put on notice on a number of occasions by this Court so that we could benefit from his assistance but unfortunately he did not put in an appearance. 15. Learned Amicus curiae Mr.Makhdoom Ali Khan submitted that on a plain reading of para 22(k) the Ministry of Petroleum and Natural Resources had been directed to provide the gas to all the surrounding localities/villages falling within the radius of 5KM of all gas fields. 16. That since the Ministry of Petroleum and Natural Resources had admittedly failed to comply with this direction they had violated the Supreme Court directive and were subject to the legal consequences for this violation especially as this court was in effect an executing court of the Supreme Court Judgment in terms of Article 187(2) of the Constitution as was made clear in the Supreme Court Order dated 05.07.2 018 referring this matter to this court for implementation. 17. With regard to other aspects of the case he submitted that the Supreme Court Judgment which we are implementing was reported in PLD SC 2014 P 350 which at P.362 had discussed the Prime Minister's directive and as such was fully aware of it. That the Federal Government was a party tc the proceedings and were well aware of the directions in the Supreme Court Judgment but had not reviewed the same and as such the Supreme Court Judgment had reached finality and as such no body or authority could amend the Supreme Court Judgment at this stage. 18. With regard to the decision of the CCI he was of the view that this Constitutional body acted through an executive authority and its decisions could not trump either legislation made by Parliament or the judgments/decisions of the Supreme Court. In this respect he placed reliance on Industrial Relations Advisors' Association v. Federation of Pakistan (PLD 2010 Kar. 328) and Pakistan Medical and Dental Council v. Mohammed Fahad Malik (2018 SCMR 1956 ). 19. Articles 153 and 154 of the Constitutio n which established and set out the funct ions of the CCI did not provide it with any legislative authority and its role was primarily supervision and regulation in terms of policy but it could not override directions given by the Supreme Court in any of its orders or judgments but in any event the directions of the Supreme Court Judgment at Para 22 (k) it self made it clear that the direction was to be implemented in accordance with law . 20. In his view the Ministry of Petroleu m and Natural Resources had simply taken the position that the CCI prevailed in the given circumstances but had not disputed the Supreme Court direction which could not be overridden by the CCI decision.
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21. In his view the arguments by the Government of Sindh that in effect the para 22(k) of the Supreme Court Judgment was not enforceable as the Prime Minister's directive was void in the first place was not an issue which this court could look into as this court was bound to follow the orders/judgments of the Supreme Court as per the mandate of the Constitution and not to sit in judgment over them. 22. W e have heard the parties, perused the record and considered the relevant law . 23. At the outset we need to consider Para 22(k) of the Supreme Court Judgment since it is this para 22(k) which we are implementing which for ease of reference is once again set out below:- "(k) The Ministry of Petroleum and Natura l Resources shall, ensure implementation of the Prime Minister's directive of 15.9.2003 and provide gas to "all the surrounding localities/villages falling within the radius of 5km of all Gas Fields, on priority basis" as directed, in accordance with law ". (bold added). 24. The first point to note in para 22(k) is that the Ministry of Petroleum and Natural Resources were to ensure implementation of the Prime Minister's directive of 15.9.2003. 25. As mentioned earlier this court is acting as an implementation bench in respect of the Supreme Court Judgment. This is made clear by the order of the Supreme Court dated 05.07.2018 which transferred this case to us and is set out below for ease of reference. "ORDER" MIAN SAQIB NISAR, CJ. Const. Petition 1 12 of 2015 :- 2. We have heard the petitioner . Let this matter be sent to the High Court of Sindh who shall, in terms of Article 187(2) of the Constitution , take into consideration and decide if any direction issued by this Court vide order dated 27.12.2013 has been implemented in letter and spirit or is being violated . Disposed of accordingly . "(bold added) 26. Article 187 of the Constitution provides as under: "187. Issue and execution of processes of Supreme Court. (1) Subject to clause (2) of Article 175, the Supreme Court shall have power to issue such directions, order or decrees as may be necessary for doing complete justice in any case or matter pending before it, including an order for the purpose of securing the attendance of any person or the discovery or production of any document. (2) Any such direction, order or decree shall be enforceable throughout Pakistan and shall, where it is to be executed in a Province, or a territory or an area not forming part of a Province but within the jurisdiction of the High Court of the Province, be executed as if it had been issued by the High Court of that Province. (3) If a question arises as to which High Court shall give effect to a direction, order or decree of the Supreme Court, the decision of the Supreme Court on the question shall be final." 27. It is apparent from the order of the Supreme Court dated 05.07.2018 read with Article 187 (2) of the Constitution that in ef fect this court is executing the directions contained in the Supreme Court Judgment. 28. Since it is an admitted position that para 22 (k) of the Supreme Court Judgment has not been complied with/ implemented despite a lapse of more than 6 years, it is clear that the Ministry of Petroleum and Natural Resources is in violation of the Supreme Court Judgment para 22 (k) and as such a show cause notice be issued against the Secretary Ministry of Petroleum and Natural Resources Government of Pakistan for his explanation as to why he has failed to comply with para 22 (K) of the Supreme Court Judgment. 29. Despite this being the case we have still examined the direction in para 22 (k) and the arguments made before us by learned counsel for the parties upon which we set out our findings. 30. The Prime Ministers directive of 15.09.2003 to which para 22(k) direction referred is set out below for ease of reference: "Top Priority PM's Directive PRIME MINISTER'S SECRET ARIA T (PUBLIC) ISLAMABAD
No.1 (1) M-IV/ 2003 Dated: 15 September , 2003
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Subject. ANNOUNCEMENT BY PRIME MINISTER ON THE EVE OF INAUGERA TION CEREMONY OF ZAMZAMA GAS FIELD - PROVISION OF GAS TO VILLAGES FALLING IN THE RADIUS OF 5- KM FROM THE GAS SOURCE. The Prime Minister has been pleased to direct that gas be provided to villages falling in the radius of 5-km from the gas source (Zamzama Gas Field, Tehsil Johi, District Dadu, Sindh). Prime Minister was further pleased to announce that this principle would apply to all gas fields and that gas may be provided to all the surrounding localities / villages falling in the radius of 5 km, of all Gas Fields, on priority basis. 2. The Ministry of Petroleum and Natural Resources should ensure the implementation of the directive and a compliance report be submitted to this Secretariat by September 30,2003. (Bold added) Malik Asif Hayat Additional Secretary (IA) Ph. 9221035
Secretary , Ministry of Petroleum and Natural Resources, Islamabad.
31. In essence the Prime Minister's Directive re iterates Para 22 (k) of the Suprem e Court Judgment which we are implementing. Namely that the Ministry of Petroleum and Natural Resources is directed to provide gas to all the surrounding localities/villages falling in the radius of 5 km, of all Gas Fields, on priority basis. 32. In our view the directive of the Prime Minister on its own has no legal binding effect. It is merely an administrative order which the Prime Minister is at liberty to follow up and ensure its implementation through his good offices and take whatever action in accordance with law that he deems appropriate in order to have his directive complied with. 33. It appears that neither the Prime Minister who issued the directive nor future Prime Ministers have followed up on implementing this directive in its entirety . 34. The position in our view, after para 22 (k) of the Supreme Court Judgment, has however changed as in effect the Prime Ministers directive has now been embodied in a Supreme Court Judgment whereby The Ministry of Petroleum and Natural Resources has been directed by the Supreme Court to ensure the implementation of the Prime Minister's directive and gas is provided to "all the surrounding localities villages within the radius of 5km of all Gas Fields, on priority basis" as directed, in accordance with law " 35. Since the Prime Minister's directive has been incorporated in a._ legally binding Supreme Court judgment such directive now has to be carried out in terms of para 22(k) of the Supreme Court Judgment especially as the Supreme Court Judgment has reached finality and no party (including the Federa tion who were fully aware of its consequences as they were a party in the proceedings) ever filed any review petition against para 22(k) which as such they accepted. Any failure to comply with the Supreme Court Judgment will lead to their own separate legal consequences for those who fail to comply with the same as already decided above vis a vis the show cause notice to the Secretary Ministry of Petroleum and Natural Resources. 36. In our view with regard to whose responsibility it is to carry out the para 22(k) of the Supreme Court Judgment a plain reading of that judgment places the obligation squarely on the shoulders of the Ministry of Petroleum and Natural Resources Government of Pakistan subject to this decision being carried out in. accordance with law . 37. It appears that the Government of Pakistan through the Ministry of inter Provincial Co-Ordination took this issue of providing gas as per the Supreme Court Judgment to the Council of Common Interests for a decision. 38. It appears that keeping in view the aforementioned direction of the Supreme Court and the Prime Minister's directive which the Supreme Court referre d to in its judgment since this matter related to the Federal Government and all the provinces it was placed befor e the Council of Common Interests (CCI) for its decision on how best to proceed with implementing the Prime Ministers directive and the directions of the Supreme Court contained in the
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Supreme Court Judgment. The CCI is a constitutional body created under Article 153 of the Constitution with its function and rules of procedure being set out under Article 154 of the Constitution. 39. Articles 153 and 154 of the Constitution are set out below for ease of reference; "153.( 1) There shall be a Council of Common Interests, in this Chapter referred to as the Council, to be appointed by the President. (2) The Council shall consist of- (a) the Prime Minister who shall be the Chairman of the Council; (b) the Chief Ministers of the Provinces; and (c) three members from the Federal Government to be nominated by the Prime Minister from time to time. (3) ............................................ (4) The Council shall be responsible to [Majlis-e-Shoora (Parliament)] [and shall submit an Annual Report to both Houses of [Majlis-e-Shoora (Parliament)]. 154. Functions and rules of procedure . - (1) The Council shall formulate and regulate policies in relation to matters in Part II of the Federal Legislative List and shall exercise supervision and control over related institutions.] (2) The Council shall be constituted within thirty days of the Prime Minister taking oath of of fice. (3) The Council shall have a permanent Secretariat and shall meet at least once in ninety days. Provided that the Prime Minister may convene a meeting on the request of a Province on an urgent matter .] (4) The decisions of the Council shall be expressed in terms of the opinion of the majority . (5) Until [Majlis-e-Shoora (Parliament)] makes provision by law in this behalf, the Council may make its rules of procedure. (6) [Majlis-e-Shoora (Parliament)] in joint sitting may form time to time by resolution issue directions through the Federal Government to the Council generally or in a particular matter to take action as [Majlis-e-Shoora (Parliament)] may deem just and proper and such directions shall be binding on the Council. (7) If the Federal Government or a Provincial Government is dissatisfied with a decision of the Council, it may refer the matter to [Majlis-e-Shoora (Parliament)] in a joint sitting whose decision in this behalf shall be final." (bold added) 40. On 24-11-2017 when this issue was brought before the CCI at its 34th Meeting the following decision was made by the CCI which is set out below for ease of reference; "34th MEETING OF THE COUNCIL OF COMMON INTERESTS (CCI) Case No. CCI/1/2017
Date 24-1 1.2017Recommendation of the Inter Provincial Coordination Committee (IPCC) and Sub- committee of CCI
(iii) Supply of Gas to Localities / V illages in 5 KM radius of Gas Producing Fields. DECISION The CCI decided that the expenditure involved in provision of gas to localities within 5 km radius of gas producing fields would be borne by distribution companies. In case of Balochistan, if no village is located within the 5 KM radius, the provision of gas to nearest Tehsil/ District Headquarter would be ensured. The cost over and above the criteria will also be borne by gas utility companies which will be recovered through tariff adjustment. This however , will apply only to the locality / villages which fall within the 5 km radius of gas producing fields. It was also decided that the present per consumer cost spectrum (which is Rs.54,000 for Sindh, Rs.108,000 for Punjab and Rs.270,000 for Khyber Pakhtunkhwa and Balochistan, respectively) will be revived keeping in the view inflation and other relevant factors "tor which the provincial governments will submit their proposals to the Petroleum Division for submission of a consolidated report to the CCI in its next meeting." (bold added) 41. On the basis of this CCI decision both the Ministry of Petroleum GOP and Government of Sindh have been pressing through numerous communicati ons the SSGCL in Sindh to implement the Supreme Court Judgment in
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respect of supplying gas to any localities/villages falling within the radius of 5km of all Gas Fields on priority basis. 42. Initially it appears that the SSGCL agreed with the Ministry of Petroleum GOP to carry out this direction based on a 10 year plan vide its letter dated 31-7-2019 (during the course of these implementation proceedings) addressed to Ministry of Energy Petroleum Division which is set out below for ease of reference. "SSGC Sui Southern Gas Company Limited Sales/5KM/ Radius/19 July 31, 2019 Mr. Shahid Yousaf Directorate General Gas Ministry of Energy Petroleum Division Islamabad.
SUBJECT : SUPPL Y OF GAS T O LOCALITIES / VILLAGES IN 5-KM RADIUS OF GAS PRODUCING FIELDS Reference: Letter No.NG(1 1)/15(27)/2018-Zamzama dated 31.07.2019 Dear Sir , This is with reference to above letter on the noted subject: We are enclosing herewith the plan for implementation of CCI's decision for supply of gas to 528 villages/localities within 5-km radius of gas producing fields in Sindh as prepared and expanded up to 10 years (Annexure A). Keeping in view the company's operational capacity as well as financial constraints and time period involved as well as codal formalities for execution of village gasification schemes. ............................................................ ............................................................ ............................................................ ........................................................... Syed Shehryar Kazmi General Manager Incharge (CS) (For Managing Director) "…
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