Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: SUI NORTHERN GAS PIPELINE LTD through Authorized Attorney VS Respondent: WAFAQI JUDGMENT
Court Name: Lahore High Court Judge(s): Shahid Karim Title:SUI NORTHERN GAS PIPELINE LTD through Authorized Attorney vs WAFAQI
JUDGMENT
Reported As: 2015 MLD 1029 Result: Petition allowed Judgment JUDGMENT ' SHAHID KARIM, J.---Through this consolidated judgment, I intend to decide the instant writ petition (Writ Petition No.19826 of 2013) as well as connected petitions, which are primarily being divided into two sub-groups, one brought by Sui Northern Gas Pipelines Ltd. (SNGPL) and the other by Lahore Electricity Supply Company (LESCO), as all of these petitions involve similar question of law. ' SNGPL Petitions: (i) Writ Petition No.18962/2014 (ii) Writ Petition No.16627/2013 (iii) Writ Petition No.16626/2013 (iv) Writ Petition No.27294/2011 ' LESCO Petitions: (i) Writ Petition No.28195/2013 (ii) Writ Petition No.12729/2012 ' However, there is a third set of petitions in which the orders of the Wafaqi Mohtasib are under challenge, by private persons. It is not necessary to go into the details of the facts of each case. Suffice to say that the jurisdiction of the Wafaqi Mohtasib to take cognizance of such matters is at the heart of these petitions as well and so have been clubbed to be decided together. This set comprises of:-- (i) Writ Petition No.17869 of 2013 (ii). Writ Petition No.21873 of 2009 2. The question which arises for determination is a vexed question of law and is encapsulated as follows:--
---
## Page 2
"Whether the Ombudsman in the exercise of powers under the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order 1983 (Order I of 1983) (Order) has the jurisdiction with regard to the disputes between the consumers and the, gas/electricity companies, licensed by OGRA and NEPRA as the case may be or its jurisdiction stands ousted by the provisions of Oil and Gas Regulatory Authority Ordinance 2002 (OGRA Ordinance, 2002) and in relation to electricity by the provisions of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 (Act of 1997) (cumulatively referred to as the special laws). RELEVANT FACTS 3. There are varying facts in all of these petitions, however, since the challenge is to the assumption of jurisdiction by the Ombudsman in the circumstances which gave rise to disputes between SNGPL and LESCO on the one part and its consumers on the other, those facts are not relevant to be reproduced. Suffice it to say that in all these petitions, the proceedings are pending before the Ombudsman and the Ombudsman intends to assume jurisdiction and to decide upon the complaints filed with it by the petitioners. 4. By way of illustration, the learned counsel for the petitioner has drawn the attention of this Court to the complaint filed by respondent No.3 with the Ombudsman and in particular, the ground "B" at page 12 of the file (the subject matter of Writ Petition No.19826/2013), which is reproduced as under: - "(b) According to the OGRA's Gas Theft Rules, an Industrial Gas Meter is required to be Flow Proved within 5 working days, but our said meter was Flow proved after 23 days. Thus, OGRA's Gas. Theft Rules were violated by SNGPL." ' According to him, as per the showing of the respondent No.3 herein (the complainant before the Ombudsman) the dispute relates to billing on the basis of theft and for which the said respondent had approached the Ombudsman's office. According to him, violation of the OGRA Rules has been urged in the above reproduced paragraph. He has also referred to the grounds 'E, F, G, H, I, J, K & M' of his petition in support of his contentions which, in a nub, is that the exclusive jurisdiction to try disputes with regard to the meter tampering and billing, are the domain of OGRA under the OGRA Ordinance, 2002 and for which special rules have been framed which are called Complaint Resolution Procedure Rules, 2003. 5. Learned counsel for the petitioner-SNGPL relies on section 43 of the OGRA Ord. 2002 which, according to him, is a non obstante clause and gives exclusive jurisdiction for such matters to be tried under the OGRA Ordinance, 2002. He further submits that the OGRA Ord. 2002 is later in time and is a special law and will therefore, override the general law; He has relied upon Sheikh Khalid Mehmood v. Banking Tribunal, N. W.F.P., Peshawar and another (1997 CLC 1812), WAPDA and another v. Muhammad Arshad Qureshi (1986 ,SCMR 18) and an unreported judgment passed in Writ Petition No.26925 of 2013 decided on 3-2-2014. He has further relied on Multan Electric Power Company Ltd. Through Chief Executive and another v. Muhammad Ashiq and others (PLD 2006 SC 328), Water and Power Development Authority and others v. Messrs Kamal Food (Pvt.) Ltd. Okara and others (PLD 2012 SC 371) and. Brig. Sher Ali Baz and another v. The Secretary, Establishment Division and others (PLD 1991 SC 143). With respect to LESCO petitions, the learned counsel has invited this Court to rely on section 45 of the Act of 1997 for a complete ouster of the Ombudsman's jurisdiction. The two provisions are in pari materia. RESPONDENTS SUBMISSIONS 6. Learned counsel for respondent No.3 has supported the proposition that the Ombudsman retains the jurisdiction in matters of such nature notwithstanding the ouster and special nature of these laws as the jurisdiction of the Ombudsman arises from a plea of maladministration which if, within the ambit of the Order, is cognizable by the Ombudsman. He submits that the jurisdiction being exercised by the Ombudsman is parallel and exclusive of the jurisdiction exercised by the
---
## Page 3
forums under the special laws. By no stretch of imagination do the special laws oust the jurisdiction of the Ombudsman in matters relating to SNGPL and LESCO. According to him, it is not disputed that SNGPL and LESCO are agencies within the meaning of the term as used in the Order and any complaint regarding maladministration is justiciable by the Ombudsman. He makes a reference to Article 37 of the Order to submit that by this provision the Order will override all other laws. He refers to subsection (1) of section 6 of the OGRA Ordinance, 2002 to support the plea that only with regard to the regulated activity is the jurisdiction of OGRA exclusive while in all other matters it runs concurrently with the Ombudsman's jurisdiction under the Order. According to him, the instant matter is not a case which is related to a regulated activity and it simply alleges bad faith against an individual officer of SNGPL, which gave rise to maladministration. He has referred to Capital Development Authority through Chairman and another v. Zahid lqbal and another (PLD 2004 SC 99), Shafaatullah Qureshi v. Federation of Pakistan (PLD 2001 Supreme Court 142), Allied Bank of Pakistan Ltd. v. The Wafaqi Mohtasib (Ombudsman) and others (PLD 2001 Kar. 203) and Rahat Hussain v. Collector of Customs (Prey.), Customs House, Karachi and 2 others (2003 CLC 1860) in support of his submissions. OMBUDSMAN'S SUBMISSIONS 7. The submissions on behalf of the Ombudsman are not required to be reproduced extensively. In short, a reproduction of paragraph of the comments filed in this regard will suffice. It is to the following effect:-- "(j) Same as explained at paras 8/a, H & I. Furthermore, the dispute arising out of excess billing or alleged neglect, inefficiency, unjust, arbitrary, discriminatory or an act of commission or omission on the part of the Agency does fall within the definition of mal-administration as defined under Article 2 of the PO No.1 of 1983. After the same time, it does not mean that the mal-administration is confirmed against the Agency unless it is concluded after hearing of the case by the Investigation Officers of the Ombudsman's Secretariat." 8. Written formulations on behalf of Wafaqi Mohtasib Secretariat have already been filed which is a response to a questionnaire which was developed by this Court in its order dated 15-10-2014 in Writ Petition No.12729 of 2013. The learned counsel representing the office of the Ombudsman has relied upon the judgments, copies of which have been submitted with the written formulations on their behalf. They shall be dealt with in due course of time. THE RELEVANT PROVISIONS ARTICLE 37 OF ORDER OF 1983 "Order to override other laws. ---The provisions of this Order shall have effect notwithstanding any thing contained in any other law for the time being in force." FEDERAL OMBUDSMAN INSTITUTIONAL REFORMS ACT, 2013. ' Section 2(a) (a) "Agency" means, the Agency defined in the relevant legislation and in relation to the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 (P.O.No.1 of 1983) shall include an Agency in which the Federal Government has any share or which has been licensed or registered by the Federal Government and notified by the Federal Government in the Official Gazette. ' Section 18 ' Bar of jurisdiction.---No Court or authority shall have jurisdiction to entertain a matter which falls within the Jurisdiction of an Ombudsman nor any court or authority shall assume jurisdiction in respect of any matter pending with or decided by an Ombudsman. OGRA ORDINANCE, 2002 "11. Complaints.---(1) Any interested person may file a written complaint with the Authority against the licensee for contravention of any provision of this Ordinance or of any rule or regulation.
---
## Page 4
(2) The Authority shall, on receipt of a complaint, provide an opportunity to the complainant as well as to the licensee, or any other person against whom such complaint has been made to state its case before taking action thereon." "43. Ordinance to override other laws.---(1) The provisions of this Ordinance, the rules and the regulations, and any licenses issued hereunder shall have effect notwithstanding anything to the contrary contained in any other law, rule or regulation, for the time being in force, and any such law, rule or regulation shall, to the extent of any inconsistency, cease to have any effect on the commencement of this Ordinance and the Authority shall, subject to the provisions of this Ordinance, be exclusively empowered to determine the matters in its jurisdiction as set out in this Ordinance. (2) Nothing in this Ordinance, or any repeal effected thereby, shall affect or be deemed to affect anything done, action taken, proceedings commenced, directions given, instruments executed or orders, rules or regulations issued under or 'in pursuance of any law repealed are amended by this Ordinance and any such things, actions, proceedings, directions, instruments or orders shall, if in force on the commencement of this Ordinance, continue to be in force and have effect as if the same were respectively done, taken, commenced, given executed or issued under this Ordinance." ' NEPRA Act of 1997 "45. Relationship to other laws. The provisions of this Act, rules and regulations made and licenses issued there under shall have effect notwithstanding anything to the contrary contained in any other law, rule or regulation, for the time being in force and any such law rule or regulation shall, to the extent of any inconsistency, cease to have any effect from the date this Act comes into force and the Authority shall, subject to the provisions of this Act, be exclusively empowered to determine rates, charges and other terms and conditions for electric power services:- ' Provided that nothing in this Act shall affect the jurisdiction, powers or determinations of the Corporate Law Authority or the Monopoly Control Authority." IS THERE AN OUSTER OF JURISDICTION OF THE OMBUDSMAN IN THE MATTERS OF SNGPL AND LESCO. 9. In any inquiry or determination, the first step is always to ask the right question. The right question in this case is whether the jurisdiction of the Ombudsman under the Order stands ousted by the provisions of the special laws and not whether said disputes are within the definition of maladministration given in the Order and thus justiciable by the Ombudsman? For, in my opinion, the issue in these petitions will not turn upon whether it is maladministration or not as in that case it will be well-nigh impossible to dissect in each case the instances of maladministration. The learned counsel for the petitioner, as I understand, has raised a challenge to a complete ouster of the Ombudsman's jurisdiction in all matters relating to the SNGPL and LESCO with its consumers may they be billing disputes or others regarding meters, detection bills, tampering, theft etc. Learned counsel for the petitioner pleads a total and complete lack of jurisdiction on the part of the Ombudsman to adjudicate upon these cases. 10. The learned counsel for the respondent Mr. Shahzad Shaukat has cited the following rulings for support:-- ' Capital Development Authority through Chairman and another v. Zahid labal and another (PLD 2004 SC 99); ' Rahat Hussain v. Collector of Customs (Prey.), Customs House, Karachi and 2 others (2003 CLC 1860). ' Allied Bank of Pakistan Ltd. v. The Wafaqi Mohtasib (Ombudsman) and others (PLD 2001 Kar. 203). ' Shafaatullah Qureshi v. Federation of Pakistan (PLD 2001 Supreme Court 142). ' The Prince Wass Works Ltd. v. National Beverages Ltd and Another (PLD 1987 Kar. 49). ' These rulings are not relevant for the purposes of resolution of the present controversy. None of these judgments had the occasion to deal with the issue in these petitions viz. The Basis Authority
---
## Page 5
Question. PLD 2004 SC 99 is relevant so far as the observations as regards the raison d'etre of establishing the office of Ombudsman, which were:-- " 17. Needless to add here that object of establishing the Office of WAFAQI MOHTASIB was to diagnose, investigate, redress and rectify any injustice done to a person through maladministration on the part of any agency. The purpose thus was to undo the administrative excesses from within the administration so that justice could be made available to the wronged persons without such persons being forced to knock at the doors of the Courts of law. Therefore, wide powers had been conferred on the Ombudsman through section 9 of President's Order No.1 of 1983 and the only matters which were kept out of his jurisdiction were the matters which were sub judice before some Court or Tribunal etc. Of competent jurisdiction; matters which related to the external affairs of Pakistan or matters which related to or were connected with the defence of Pakistan. All other matters irrespective of the fact whether they stemmed out of contractual obligations or otherwise were well within the powers of the Ombudsman and a complainant consequently could not be thrown out only because a complained matter emanated from contractual dispute." ' In PLD 2001 SC 142, the Hon'ble Supreme Court of Pakistan settled the proposition that Ombudsman/Wafaqi Mohtasib was not a court or judicial tribunal within the meaning of Art. 175 of the Constitution. 11. The learned counsel for the petitioner has, in respect of SNGPL cases, relied upon the following precedents:- ' Sheikh Khalid Mehmood v. Banking Tribunal, N. -W. F. P, Peshawar and another (1997 CLC 1812) ' Samina Anwaar Ullah Khan v. General Manager, SNGPL, Lahore (PLD 2012 Lah. 554). ' Secretary Wafaqi Mohtasib and 6 others v. Capital Steel Re-Rolling Mills through Partner and 2 others (PLD 2012 Lah. 493). ' In PLD 2012 Lah. 554, the Court was merely concerned with the question of exercise of delegated powers to the consultant during the vacancy in the office of Ombudsman. This was a different proposition altogether. PLD 2012 Lah. 493, too, is not relevant to this case. ' 1997 CLC 1812, however, is a paradigm case. Perhaps for the first time the respective jurisdictions of Ombudsman with a special law, viz. Banking Tribunals Ordinance, 1984 were compared. The finding returned was thus: "It is a settled proposition of law that if two provisions of two different enactments are in clash with each other and cannot be reconciled, then the latter in date shall prevail. The Banking Tribunal Ordinance was effective from 31st December, 1984 while the Presidential Order 1 through which the office of Ombudsman was created was promulgated on 24th January, 1983. This being the legal position, the provisions of the Banking Tribunal Ordinance shall prevail upon the President Order 1 referred above. Even otherwise, the Banking Tribunal Ordinance is a special law on the subject while the President Order 1 is a general law and on this view too, the Banking Tribunal Ordinance had an overriding effect on the Presidential Order 1 of 1983." 12. It is clear that the Ombudsman's jurisdiction was held to be ousted by the Banking Law on the grounds firstly that it was later in time and secondly that it was a special law. No further discussion or reasoning preceded this finding. 13. The learned counsel for the office of Ombudsman made a passionate defence of the powers of the Ombudsman in this regard. He almost jealously guarded these powers. It is not necessary to reproduce or refer to all those submissions made. In a word, the counsel's submission was that if there was an allegation of maladministration, the Ombudsman would have the power to enter upon the dispute and that matters relating to gas detection bills, direct theft/meter tampering etc. Are cognizable by the Ombudsman if the essential jurisdictional fact exists; that is, allegation of
---
## Page 6
maladministration. He further submitted that neither the OGRA Ordinance, 2002 nor NEPRA Act, 1997 were intended to deal with matters of maladministration. 14. The counsel for the office of Ombudsman has referred to a cluster of judgments, yet none of them would strengthen his case in a substantial manner. They are not directly in point and have not dealt with the present issue. The precedents of the Hon'ble Supreme Court, relied upon by both the learned counsel for SNGPL and LESCO on one hand and of Wafaqi Mohtasib on the other, viz. PLD 2006 SC 328 and PLD 2012 SC 371 are authorities in respect of the powers of Electric Inspector under the Electricity Act, 1910 and did not involve the complexity which afflicts the present cases as regards the powers of the Wafaqi Mohtasib to intervene in these matters. 15. Pakistan Water and Power Development Authority through Executive Engineer MEPCO Ltd. v. Messrs Husnain Industries (Pvt.) Ltd. Through Managing Director Amir Azwar Khan and 3 others (2005 MLD 1979), a judgment by this Court, is a precedent in which, upon refusal to implement the orders of the Electric Inspector and Advisory Board, a complaint was filed before the Wafaqi Mohtasib to seek their implementation. However, the petition was dismissed in limine on the ground that a remedy lay under Article 32 of the Order of 1983 and the constitutional petition was not maintainable. This precedent, though not applicable directly, gives some actuality to the analysis in the present petition. For that, I shall revert to this judgment in respect of the conclusion that I wish to draw in this case. 16. A prefatory regarding some basic theories of interpretations which will be engaged in the discussion that follows can be made in the words of Professor Lawrance H. Tribe in his well-known treatise `American Constitution Law' as follows: - "(1) Textualism, the "determined and primary focus on Constitutional language, whether or not to the exclusion of other interpretative sources. 17. According to the recent book "Reading Law---The Interpretation of Legal Texts" by Antonin Scalia, a Justice of the Supreme Court of America, and Bryan A. Garner, who can be said to be the modern exponents of texualism, "The words of a governing text are of paramount concern, and what they convey, in their context, is what the text means". ' But the Textualists reject the view that textualism is antonym of purposivism. According to them words are given meaning by their context and the context includes purpose. They also object to being called strict constructions (See "Reading Law p 355)." "(2). Structure; the effort to discern meaning through constitutional structure and the architecture of government established by the Constitution." "(3). History, "the supplementation of text and structure with historical considerations including various forms of inquiry into original meaning or original intent" "(4). Values, the "elucidation of meaning through attempts to discern which interpretation best accords with the ethos or moral and political character and identity of the nation." 18. I may add to this list purposive interpretation. According to Aharon Barak, Justices of the United States Supreme Court are divided on the task of constitutional interpretation, and it is his view "that purposive interpretation provides a proper solution to this interpretative dilemma". (See his Foreword to Harvard Law Review 2002). According to Aharon Barak, "one should not give the constitution a meaning that its express or implied language cannot sustain A constitution is a unique legal document. It enshrines a special kind of norm and stands at the top of the normative pyramid The key question is what is the proper system of interpretation in the context of a particular system of government, in the context of a particular society"? In his view, "purposive interpretation is that proper system. Purposive interpretation is based, of course, on the concept of purpose. Purpose is a normative concept that the law constructs". 19. As was said by Lord Griffith in the famous case of Pepper v. Hart, (1993) 1 All ER 42, 50, (quoted in Gadoon Textile Mills v. WAPDA 1997 SCMR 641, 829):
---
## Page 7
' The days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach to give effect to the true purpose of legislation". ' Statutes should, said Lord Roskill in Anderson v Ryan (1985) 2 All ER 355, 359, be given what has become known as a purposive construction, that is to say, the courts should when possible identify the mischief which existed before the passing of the statute and then if more than one construction is possible favour that which will eliminate the mischief so identified". In short, purposive interpretation rests on the straightforward premise that law is enacted to fulfill a purpose. 20. The controversy will have to be analyzed on the basis of purposive interpretation, conflict between special and general laws and that the two laws must be reconciled. At the very outset, firmly believe that the competing non obstante clauses in the laws do not have the unholy effect of completely ousting or rendering ineffective the other law. These have to be reconciled and can be made to operate in their respective spheres. This is a principle that can be culled out from a long line of judgments. If the non obstante clause were to have sway then the matter would simply be resolved on the touchstone of S.24 of the Act of 2013 which is as under:-- "24. Overriding effect.---(1) The Provisions of this Act shall have effect notwithstanding anything contained in any other law for the time being in force. (2) In case there is a conflict between the provisions of this Act and the relevant legislation, the provisions of this Act to the extent of inconsistency, shall prevail." ' This provision, in my opinion, simply means that where maladministration is alleged and made out then the Ombudsman can take cognizance of the matter. Yet this has to be squared against the laws which cover special subjects and provide specialist forums. The two have to be balanced and reconciled. OGRA Ordinance, 2002 and NEPRA Act, 1997 are on special subjects and in that sense are special laws without a doubt. 21. In my opinion, the significance of a non obstante clause or an overriding provision becomes all too apparent in the context of special and general laws: In the setting of a special law, a non obstante clause will represent indubitably the will of the legislature, its parliamentary intent. This is where the purposive interpretation will be put to use. What was the purpose of enactment of OGRA Ordinance, 2002 and NEPRA Act, 1997? Quite obviously to provide for specialized forums for the resolution of a special nature. This is one of the functions of the Authorities set up under those laws. There are other equally important functions impacting the areas of oil and gas in case of OGRA and electricity in case of NEPRA. Here, this Court is not concerned with those functions of both the Authorities but only with the procedures relating to complaints etc. In which the Ombudsman claims to have jurisdiction, too and thus justiciable by the office of Ombudsman. I will here pause to bear in mind the immutable principle of interpretation ttat the laws are presumed to be valid and the legislature does not commit a mistake and also does not waste its words. Disputes in the nature of detection bills,…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.