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Petitioner: Messrs Sui Southern Gas Company Limited through Attorney VS Respondent: Oil And JUDGMENT
Court Name: Islamabad High Court Judge(s): Mohsin Akhtar Kayani Title:Messrs Sui Southern Gas Company Limited through Attorney vs Oil And
JUDGMENT
Reported As: PLD 2021 Islamabad 378 Result: Order accordingly Judgment JUDGMENT MOHSIN AKHT AR KAYANI, J.---Through this writ petition, Sui Southern Gas Company Limited/petitioner has assailed the exercise of jurisdiction by the OGRA (respondent) in matters falling within the purview of Gas (Theft Control and Recovery) Act, 2016. The petitioner has also prayed for issuance of direction to the OGRA not to entertain any such complaint dealing with the situation provided under the Gas (Theft Control and Recovery) Act, 2016. 2. Learned counsel for petitioner contends that petitioner is a public limited company incorporated under the Companies Act, 1913 (now Companies Act, 2017), providing gas connection to consumers through a contract, as such, a special law i.e. Gas (Theft Control and Recovery) Act, 2016 (hereinafter referred to as "Act of 2016 or Act") was promulgated to settle the issues of gas theft pursuant to filing of complaints; that section 2(h) of the Act provides the definition of gas utility companies, which covers SSGCL, SNGPL as well as other similar companies, similarly , the definition of consumer has been provided in terms of section 2(b) of the Act, which. means a person, who receives a supply of gas under the gas sale agreement for specific purpose of consumption; that after promulgation of the Act of 2016, a special mechanism has been provided to deal with issue relating to sum due as referred in section 2(o) of the Act, which covers all such amount, inclusive of applicable Government taxes, recoverable from a person who purchas es or receives gas for self consumption or sale for vehicular use or a person whose premises is connected with the network of the Gas Utility Company , lawfully or unlawfully , even certain offences have been defined with reference section 2(r) which deals with tampering or temper of the gas supply line, including interference or creating hindrance in flow of metering of gas power by unauthorized entry or access. A specialized offence of section 2(s) has also been referred which covers the unauthorized use of gas; that all these specialized offences have been established to be settled through Gas (Theft Control and Recovery) Act,
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2016 and OGRA has no domain or jurisdi ction to deal with such kinds of specialize d issues, although the OGRA is dealing with all these issues prior to promulgation of the Act of 2016; that in terms of section 6 of the OGRA Ordinance, 2002 all kinds of complaints and disputes have to be resolved by the OGRA authority and mechanism of complaint has been provided in terms of sections 11 and 12, even a review of authority decision has been provided in section 13, whereby certain overlapping jurisdiction is visible, but after the promulgation of special law the jurisdiction of OGRA stands excluded; the petitioner has heavily relied upon PLD 2018 Islamabad 51 (SNGPL v. Director (Legal) President Secretariat (Public), Islamabad), PLD .2019 Islamabad 1 (FGEHF v. Malik Ghulam Mustafa), PLD 2010 Lahore 353 (A. Rehman Malik v. State), PLD 2019 Sindh 624 (Muslim Commercial Bank Ltd. v. Federation of Pakistan), PLD 2006 SC 249 (Tanveer Hussain v. Divisional Superintendent, Pakistan Railways) and 2017 SCMR 1218 (Syed Mushahid Shah v . FIA ). 3. Conversely , learned counsel for respon dents Nos.1 and 2/OGRA contends that the OGRA was constituted under OGRA Ordinance, 2002 to protect the public interest while respecting individuals' interest and provide effective and efficient regulations; that the Ordinance has provided adequate means and skills to exercise its statutory power and objectively perform its statutory functions under the rules and regulations as the OGRA has an autonomy and independence manifested in the law and even same has been acknowledged by the superior Courts in cases reported as PLD 2012 SC 132 (Muhammad Yasin v. Federation of Pakistan), PLD 2013 SC 224 (Engineer Iqbal Zafar Jhagra v. Federation of Pakistan), 2016 PLC (C.S.) 48 Islamabad (Federation of Pakistan v. Saeed Ahmed Khan), 2015 CLC 1797 (Federation of Pakistan v. Saeed Ahmad Khan) and PLD 2017 Islamabad 207 (Muhammad Nawaz v. Principal Secretary to Prime Minister of Pakistan); that OGRA Ordinance, 2002 provides legal regulatory framework, whereby an exclusive power has been extended to OGRA for grant of license for carrying out regulated activities and regulating such activities which could not be covered under the Gas (Theft Control and Recovery) Act, 2016, therefore, arguments rendered by petitioner for exclusion of OGRA's jurisdiction is not justified; that complaint resolution regulations have also been framed to resolve certain controversy and disputes qua the violations of licensee and the jurisdiction of OGRA could not be curtailed by virtue of Gas (Theft Control and Recovery) Act, 2016; that judgment rendered by this Court, repo rted as PLD 2018 Islamabad 51 (SNGPL v. Director (Legal) President Secretariat (Public), Islamabad), only settles the jurisdiction with reference to the powers provided to the President of Pakistan under the Federal Ombudsmen Institutional Reforms Act, 2013 vis--vis the Gas (Theft Control and Recovery) Act, 2016, as such, the jurisdiction of OGRA has not been ousted in any manner . The respondents Nos.1 and 2 have relied upon 2018 SCMR 1012 (OGRA v. SSGCL), 2019 CLC 851 Islamabad (Al-Muiz-1 CNG v. Federation of Pakistan), PLD 2020 Lahore 367 (SNGPL v. OGRA), 2019 CLC 1247 Lahore (Bhimra Textile Mills (Pvt.) Ltd. v. OGRA), 2019 CLC 1998 Islamabad (Muhammad Azam Khan Niazi v. General Manager , SNGPL, Islamabad), PLD 2018 Islamabad 51 (SNGPL v. Director (Legal), President Secretariat (Public), Islamab ad), 2016 CLC 562 Islamabad (SNGPL v. OGRA), 2011 MLD 1402 Lahore (Anjum Niaz Ch. v. Managing Director , SNGPL), 2017 CLC 745 Lahore (SNGPL v. Muhammad Riaz Bhatti), 2017 CLC 411 Lahore (SNGPL v. Nasir Mehmood Khan), 2016 YLR 1 Lahore (Rana Textile Ltd. v. SNGPL), 2015 MLD 1029 Lahore (SNGPL v. Wafaqi Mohtasib), PLD 2012 Lahore 554 (Samina Anwaar Ullah Khan v. General Manager , SNGPL), 2015 MLD 1514 Lahore (Mehran Filling Station v. OGRA), 2009 CLD 710 Karachi (Mst. Ghazala Hassan v. City District Government, Karachi), 2015 YLR 600 Karachi (Hascol Petroleum Ltd. v . Federation of Pakistan) and PLD 2015 Balochistan 1 10 (SNGPL v. Arbab Najeebullah). 4. Learned AAG in attendance contends that law has to be interpreted in order to protect its constitutionality and the Court should not declare any law void unless strong and exceptional reasons and circumstances are highlighted; that OGRA Ordinance, 2002 and Gas (Theft Control and Recovery) Act, 2016 are two special statutes, which provide different jurisdictions to deal with the issues relating to regulated activity as well as to theft of gas under two different regimes and as such, both the laws are not overlapping each other , rather they are supplementing each other; that both the laws provided overriding clauses and in such circumstances the later in time shall prevail to the extent of subject not earlier provided; that the object and purpose of the Gas (Theft Control and Recovery) Act, 2016 are of limited concept, which have no conflict with the provisions of OGRA Ordinance,
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2002 as the OGRA Ordinance, 2002 primarily deals with regulated activity defined by the apex Court in 2018' SCMR 1012 (OGRA v. SSGCL); that both the laws have special procedure to deal with the subjects provided therein and the overlapping areas in both laws are billing and overcharging, connection and disconnection of services and metering concepts, therefore, it is necessary to settle these thin lines as to when a person aggrieved of any action of the gas utility company can approach both the forums and no restriction could be imposed upon an individual from exercising his authority in this regard. 5. Arguments heard, record perused. 6. Perusal of record reveals that the petitioner SSGCL has primarily disputed the exercise of jurisdiction by OGRA under the OGRA Ordinance, 2002 mainly on the ground that after promulgation of Gas (Theft Control and Recovery) Act, 2016, the jurisdiction of OGRA is impliedly barred to deal with affairs provided in the Act of 2016. In order to resolve the controversy , it is necessary to compare the jurisdiction provided in both the laws through a judicial prism: Gas. (Theft Control and Recovery) Act, 2016 OGRA Ordinance, 2002 Preamble: WHEREAS it is expedient to prosecute cases of gas theft and other of fences relating to gas and to provide for a procedure for expeditious recovery of amounts due, value of gas, fines, penalties and other outstanding amounts payable and sums due to Gas Utility Companies and for matters ancillary and related thereto;Preamble: WHEREAS it is expedient to foster competition, increase private investment and ownership in the midstream and downstream petroleum industry , protect the public interest while respecting individual rights and provide effective and ef ficient regulations and for matters connected therewith or incidental thereto; Section 2(b) Consumer Section 2(c) Distribution pipelines Section 2(g) Gas Sales Agreement Section 2(h) Gas Utility Company Section 2(o) Sums Due Section 2(r) Tempering or Temper Section 2(s) Unauthorized Use of GasSection 2(i) Authority . Section 2(iv) Consumer Section 2(v) Crude Oil Section 2(vii) Distribution Section 2(x) Installations Section 2(xi) License Section 2(xiii) LPG Section 2(xiv) LNG Section 2(xv) Marketing of refined oil produces Section 2(xvii) Natural Gas Section 2(xxi) Oil Section 2(xxiii) Petroleum Section 2(xxv) Pipeline Section 2(xxxii) Regulated Activity Section 2(xxxix) Tariff Section 2(xl) Transmission Section 2(xli) Transportation
Section 3. Constitution of Gas Utility Courts Section 3. Establishment of Authority Section 4. Jurisdiction No specific provision Section 5. Powers of Gas Utility Courts Section 6. Powers and Functions of the Authority Section 6. Procedure for complaints and suits for default before Gas Utility CourtsSection 1 1. Complaints
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Section 10. Execution of Decree No specific provision Section 13. Appeal Section 12. Appeal, etc. Section 13. Review of Authority decision Offences Section 14. Tampering with gas pipelines, etc. Section 15. Tampering with auxiliary or distribution pipelines of gas. Section 16. Tampering with gas meter by domestic consumer , etc. Section 17. Tampering with gas meter by industrial or commercial consumer , etc. Section 18. Damaging or destroying the transmission or transportation lines, etc. Section 19. Penalty for maliciously wasting gas or injuring works. Section 20. Penalties not to af fect other liabilities. Section 21. Penalty for of fence not Otherwise provided for and of fences by bodies corporate. Section 22. Suspension of supply of gasSection 25. Of fences Section 26. Cause damage to facility , plant or equipment, etc. Section 27. Recovery of the value of petroleum stolen, etc. Section 28. Of fences by companies etc. Section 29. Cognizance of of fence
Power of Search and arrest Section 23. Power to search in case of theft and suspected theft.No specific provision Section 24. Arrest for of fence against certain sections.No specific provision
Recoveries Section 26. Recovery of sums recoverable under certain provisions of this ActSection 37. Recovery of arrears Recoveries Section 26. Recovery of sums recoverable under certain provisions of this Act Section 29. Bar of Jurisdiction No specific provision Section 31. Act to override other laws. Section 43. Ordinance to override other laws.
HIST ORY OF OGRA ORDINANCE, 2000 7. Perusal of above two laws in essence provides different dimensions while dealing with the issues relating to natural gas. However , it is important to mention the history of OGRA Ordinance, 2002, which has been established through OGRA Ordinance, 2000 , which is earlier in time and it has been promulgated in order to foster the competition, improve efficiency and availability of natural gas, transportation as well as distribution of services in Pakistan, though it has provided certain offences, but primarily it is meant to tackle the concept of licensing system to private companies for the purpose of regulated activity in terms of section 2(xx), whereby all kinds of transmission, distribution or sale of natural gas by any person and the purification of natural gas by existing company has been regulated, even the OGRA authority can deal with the sale prices, tariff and shall also determine the revenue from an individual consumer to wholesaler . Similarly , section 4 of the OGRA Ordinance, 2000 provides all powers, including but not limited to grant, issue, renewal of license, even modify , amend or suspend or cancel or terminate the license for the undertaking of any unregulated activity in order to protect the interest of consumer . The OGRA is equipped with issues to resolve complaints and other claims against licensee for contravention of provision of the Ordinance in terms of section 4(2)(j)(k), which also covers a dispute between
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licensee and consumer . The most important function which has been performed by the OGRA is to determine the rate of return of each licensee in consultation with Federal Government for regulated activity . Similarly , in terms of section 5 of the OGRA Ordinance, 2000 the Federal Government has a key position to issue guidelines to authority on matter of policy , which cover supply of gas to particular area and shall also provide the policy regarding the financial viability criteria or considering the economic viability to supply gas in a particular area. OGRA shall also deal with tariff or individual tariff activity and pricing for retail consumer in terms of Sections 18 and 19 and fix the terms and conditions of license in terms of Section 20. Any amount on the part of licensee, if due, could also be recovered as arrears of land revenue in terms of: Section 28, which equipped the OGRA to proceed in that manner , however the determination of those charges and amounts is the sole prerogative of the OGRA, whereby any person who is aggrieved with the determination of OGRA has not been provided remedy of appeal under the OGRA Ordinance, 2000. PROMULGA TION OF OGRA ORDINANCE, 2002 8. Due to certain defects in previous law, OGRA Ordinance, 2002 has been promulgated in order to foster competition, increase private investment and ownership in midstream and downstream petroleum industry . The Authority has been defined in terms of section 3 of the Ordinance, comprising of the Chairman along with three Members i.e. Member Oil, Member Gas and Member Finance, having expertise in the relevant field and of known integrity . The Authority is equipped with powers to decide all kinds of issues as defined in Section 6, which includes but not limited to grant, issue, renew , modify , amend, extend, suspend, cancel, or re-issue or revoke or terminate any license for the undertaking of any regulated activity . Similarly , the Authority is also equipped with powers to fix the terms and conditions of the license, as such, it shall also monitor and enforce compliance of license conditions. In order to settle the dispute of licensee, the Authority is equipped with powers to resolve it in terms of section 6(2) (i) and shall also resolve dispute between licensee or any other person with reference to section 6(2)(k) of the Ordinance. The primary object of the OGRA Ordinance, 2002 is to deal with the regulated activity , which is only to be carried out by the licensee under this law, however the Authority is empowered to deal with the distribution of natural gas, LNG and LPG as well as to deal with pipelines, refined oil products, refineries, strategic petroleum storage, tariff as well as transmission and transportation of oil, natural gas, etc. in terms of section 2(xl) and (xli), whereby all these activities fall within the definition of regulated activity . Section 7 provides the concept of tariff for regulated activity which is a sole jurisdiction of the OGRA, including but, not limited to pricing for retail consumer for natural gas in terms of Section 8, even the prescribed price and sale price has also been fixed in terms of Section 8(6)(f) & (g) of the Ordinance. 9. On the other hand, the Gas (Theft Control and Recovery) Act, 2016 deals with the prosecution of those cases of gas theft and other offences which were prescribed in said special law, including the recovery of the amount due, value of gas, fines, penalties and other outstanding amounts payable and sums due to gas utility companies. The primary factor for enactment of this law is to protect the rights of distribution companies known as gas utility companies in terms of section 2(h) of the Act. Though certain powers are available to deal with the issues of similar nature under the OGRA Ordinance, 2002, but when the instances of theft had increased and loss was directly attributing to the companies, different consumers and even to the national exchequer , the legislation has been promulgated in order to curb and eliminate the theft of the natural gas in Pakistan. There are growing complaints regarding gas theft and even the companies, like the petitioner company , were suffering at the hands of those persons or companies for tempering with the pipelines and metering equipments and are involved in theft of natural gas, whose price was being paid by someone else. 10. The wisdom behind the legislation of any law is to deal with specific situation, however when there are two special laws in field, the principle of interpretation comes into play and to cater such type of proposition where two overlapping jurisdictions are involved under two different statutes, it is the rule that incorporated law in existence vis-a-vis the new law on the subject has to be given a harmonious and consistent meaning. Reliance is placed upon 1990 SCMR 183 (Abdul Razzak Khokhar v. Province of Punjab). Though the primary rule is that the statute, which is complete in nature, is to be construed according to its own terms and not with reference to another statute to whittle down the beneficial provision of the former . Similarly , the rights which were already given by one
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statute could not be taken away by anothe r statute, but the simple principle of interpretation is that a statute later in date shall prevail. Reliance is placed upon 1992 SCMR 227 (Matloob Hassan v. Broke Bond Pakistan Limited, Lahore). As such, the Gas (Theft Control and Recovery) Act, 2016 is later in time with a particular specialty to prosecute those involved in gas theft, which is not the subject exclusively falls within the provisions of the OGRA Ordinance, 2002. 11. While dealing with the issue, it is necessary to apply the cardinal and well settled principle of interpretation, which requires that purposive, rather than a lateral approach of interpretation, be adopted as held in 1992 SCMR 710 (Federation of Pakistan v. Messrs Noori Trading Corporation (Pvt.) Ltd.), PLD 1998 Lahore 92, 2018 SCMR 1885 (Saif-ur-Rehman v. Additional District Judge, Toba Tek Singh) and 2019 SCMR 859 (Dr. Tariq Iqbal v. Government of KP), As such, there is no denial that the tone and tanner of OGRA Ordinance, 2002 are clearly beneficial in nature for the purpose of regulated activity in Pakistan vis--vis rights of licensee, consumer and other companies with the aim to achieve the increased price investment as well as foster competition, which is not the mandate of the Gas (Theft Control and Recovery) Act, 2016. This Court is mindful of fact that interpretation which advances the purpose of the Act is to be preferred, rather the interpretation which defeats its object. 12. While considering the question raised in instant writ petition, it is necessary to look into the reasons for which instant writ petition has been filed, whereby the learned counsel for petitioner has mainly argued that certain complaints were being filed by different consumers, even same are appended with this petition, which primarily demonstrates that a residential gas consumer is aggrieved with action of SSGCL, who has replaced his meter for checking purpose and later on consumer was arrested and FIR was lodged. Similarly , in another complaint a consumer had received a letter with the subject of "commercial use of gas tempering of meter illegal" and some of the consumers have referred in their complaints regarding detection bills, which were not agreed by the consumers and as such, the Authority of OGRA at Regional Office, Karachi has decided the complaints with the direction to the SSGCL to restore the gas meters and also determine certain charges against the consumers. The orders reflect that OGRA has protected the company policy , as such, the entire background of this case demonstrates that the SSGCL is aggrieved with actions taken by the OGRA, when any consumer has raised the complaint regarding its overbilling, defective metering equipment or flow of gas supply , per se, they contended that all these factors could only be determined by the Gas Utility Court under the provisions of Gas (Theft Control and Recovery) Act, 2016 and not by the OGRA, the said argument of the petitioner company is not warranted under the law as the question of jurisdiction with reference to complaint s filed by consumers fall within the mandate of OGRA, which has further been highlighted through a procedure provided in Complaint Resolution Proced ure [for Natural Gas, Liquefied Petroleum Gas (LPG), Compressed Natural Gas (CNG) and refined oil products] Regulations, 2003, and as such, there is no bar for invoking the jurisdiction of OGRA. 13. While considering the offences referred in Gas (Theft Control and Recovery) Act, 2016 in terms of sections 14, 15, 16, 17, 18, 19, 20, 21 and 22, the analogy laid down by the legislature is to deal with tempering or attempt to do tempering of any installations, main pipeline of transmission or transportation through which theft of gas is being committed and similarly , where distribution system was damaged, gas meter or regulator has been tempered, whether industrial, commercial or other kinds of consumers, or where gas has been wasted. All these offences have been declared cognizable and non-bailable in terms of. Section 24 of the Gas (Theft Control and Recovery) Act, 2016. However , while comparing these specific offences with offences provi ded in OGRA Ordinance, 2002, which include the offences referred In section 25 of the OGRA Ordinance, 2002, qua the regulated activity or interference or causing damage to facility , plant, equipment or material or causing any physical damage to any property or person or stealing of petroleum, the jurisdiction of OGRA is available, however while comparing the concepts of offences referred in both the laws, the very root difference reflected is the gas theft and stealing of petroleum products and in this regard the Gas (Theft Control and Recovery) Act; 2016 is the special legislation to deal with the offences of gas theft only and it does not cover the regulated activities of petroleum products, even the OGRA is equipped with the powers to prosecute the persons involved in damaging the main plant facility of those products, which fall under the regulated activity i.e. under the license of the OGRA, as such, there is no transgression in the statute of OGRA Ordinance, 2002 where the offence of gas theft is referred, per se, similar is
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the case with Gas (Theft Control and Recovery) Act, 2016, which does not bar the OGRA to exercise its jurisdiction qua the function and powers enumerated under the OGRA Ordinance, 2002, therefore, it is required that the interpretation has to be given effect which may preserve the rights and no interpretation to contrary shall be adopted, especially when it relates to a right of a licensee, hence the OGRA has superior jurisdiction qua the licensee, though the relationship of SSGC L (petitioner) with its consumer is based upon a contract, which is intra- parties and as such, the consumer is not a licensee of OGRA, rather he is a sub licensee of a company to whom a licence is granted by the OGRA. 14. This Court is mindful of the fact that the Courts are not being prevented from adopting beneficial construction as against the lateral one, particularly when such beneficial construction advances the C intention and object of legislation and also to facilitate the administration of justice. Reliance is placed upon 1982 SCMR 582 (Kadir Bux v. Province of Sindh). It is also settled principle that where cognizance existed in two statutes, repugnancy test is to be adopted i.e. when the D two provisions of law were irreconcilable and could not co-exist,…
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