1. The petitioner Sui Southern Gas Co. Ltd., hereinafter referred to as (SSGC) has sought declaration that the Respondent No, 2 is not entitled to be provided gas connection for Captive Power Generation.
2. The Respondent No, 3 is a private organization engaged in running Hotel Industry established a Hotel under the name and Style of Days INN claiming to be franchise from DAYS INN World Wide Inc. of United States of America. The Respondent No, 3 wrote a letter to the petitioners on 18-10-2003 reads as under:-- "This refers to our A/C No, 710101700 for the gas supply to our kitchen, due to frequent interruption in K.E.S.C. supply we plan to install Gais Fixed generating set for our standing arrangements. The said capacity 200 K.W. will be used during the K.E.S.C. interruption.
3. In view of our best relations we request your good-self to kindly allow us the facility at your earliest."
4. It is urged that the Respondent No, 3 changed his stand demanded connection for Gas of Captive Power Generation which was against the decision of Economic Coordination Committee of the Federal Cabinet and Power Policies/Priorities for the supply of gas to captive power units. The Respondent No, 3 entered into long correspondence with the petitioner, therefore, Respondent No, 3 filed a complaint-before the Federal Ombudsman, preferred a Complaint No, 85 of 2004 before Respondent No, 2 Oil & Gas Regulatory Authority under Section 11 of the Oil and Gas Regulatory Authority Ordinance 1962 hereinafter referred to as the OGRA for the sake of brevity which was allowed vide order dated 31-3-2005, petitioner has resorted to file an Appeal bearing No, OGRA- 6(A-2)(1)2005 which was dismissed. Its review was declined on 26-12-2005 therefore, the petitioner has approached this forum for redress.
5. Mr. Asim Iqbal pointed out that the supply of Gas to captive power units provisions of natural gas for operating stand by, gas generator was limited to certain conditions contained in letter dated 27th September, 2000, reads as under:-- (a)Each company may provide gas up to 10 MMCFD in a year for Captive Power Plants of Export Oriented Units on the recommendations of their respective Chamber of Commerce and Industry.
6. (b)..............................................................
7. (c)..............................................................
8. (d)..............................................................
9. (e)If Captive Power Plant is not located on company's existing gas pipeline it would be considered on 100% cost recovery from the applicant.
10. To support the above version reliance is placed on Notification of Ministry of Pakistan, Ministry of Pertoleum and Natural Resources Department of Petroleum and Energy Resources of Director- General Gas Policy Wing dated 30th December, 2003 reads as under:- "Islamabad the 30th December, 2003 The Managing Director, Sui Southern Gas Company Limited, St. 4/B, Block 14, Sir Shah Suleman Road, Gulshan-e-Iqbal, Karachi.
11. The Managing Director, Sui Northern Gas Pipeline Limited, 21 Kashmir Road, Lahore.
12. SUBJECT: ALLOCATION OF GAS FOR SELF-GENERATION OF POWER BY THE EXPORT-ORIENTED INDUSTRIES I am directed to refer to the correspondence exchanged on the above subject and to convey the decision of the Government as follows:--
(I) The two gas companies may be allowed to clear the backlog of Captive Power Units having been thus far created due to restrictive allocation of 10 MMCFD gas per year.
(II) Thereafter, the previous allocation policy may continue with the following modifications:--
(a) The industries having sizeable foreign investment may also be included in this scheme to encourage foreign investment. Gas would be connected on the recommendations of BOI who would confirm the foreign investment.
(b) Gas supply to export-oriented companies having 70% export target of their production would be given gas on recommendations of EBP instead of Chamber of Commerce and Industries. In case the target is not met then the companies may disconnect the gas given for the purpose. You are requested to ensure compliance of the above decision and kept this office informed. Also please submit a unified Press Release at the earliest to disseminate the decision in the public by this Ministry.
13. Yours faithfully, (Sd.)
14. (Mansoor Muzaffar Ali) Deputy Director (Gas)" It is further revealed from the minutes of the meeting held on 19th June, 2004 regarding the policy of ECC for Gas availability for new Power Projects, clause (vii) provides as under:-- "(vii) Gas to Captive Power projects would be supplied strictly in accordance with the ECC's decision to industrial units only and not to the Hotel, Shadi Halls, banks and others commercial organizations." It is urged that the Respondent No, 3 was neither an Industry having sizable foreign investment not export-oriented company having 70% export target of their production, for such recommendation Export Promotion Bureau instead of Chamber of Commerce and Industries, was required to furnish requisite information. It is urged that the Respondent No, 3 had extended foreign exchange US$ 3.22 million whereas Avari Motels Ltd., had extended Rs, 193 million as foreign exchange likely to be extended to Rs, 374 million by the end of the year and Rs, 676 million by next 3 years. It is urged that the quantum of foreign investment was quantified was Rs, 500 million.
15. The petitioner has resorted to file Appeal No, 3 of 2005 under Section 12(1) of the Oil & Gas Regulatory Authority Ordinance, 2002 challenged the decision on the basis of the Government of Pakistan Policy regarding supply of Gas to Captive Power Units however, the appeal was dismissed.
16. Mr. Rashid Ahmed Razvi learned counsel for Respondent No, 3 has contended that at the time of filing of the complaint by the Respondent No, 3 before the Respondent No, 2 the policy yoke pertained to the existing policy referred to in accordance with the policy of Government prevalent prior to the amendment in policy before Ministry of Petroleum and Natural Resources Letter No, NG (II)-7(143) PS/04 dated January 29, 2005 whereas the foreign investment was quantified, whereas prior policy related to sizable investment. During this span the Hotel had entertained the status of investment earning foreign exchange, case of the Respondent No, 3 was recommended by Board of Investment which was mandatory requirement for obtaining a gas supply for Industries. It is next urged that the petitioner had provided gas for Captive Power Generation to National Bank of Pakistan, Muslim Commercial Bank Ltd., simultaneously PIA Training Centre Karachi, HEJ Research Institute of Chemistry Karachi and Dream World Resort Karachi. (2 banks and 3 non-export- oriented industries) thereby Respondent No, 3 has been discriminated despite of having status as that of Dream World Resort Karachi.
17. It is primarily contended by Mr. Rasheed Ahmed Razvi learned counsel for Respondent No, 3 that under the Ordinance XVII of 2002 in candid words refers to the expedient and 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 efficient regulations and for matters connected and for matters connected therewith or incidental thereto.
18. Section 3 refers to the Establishment of the Regulatory Authority by the Federal Government which is commonly known as Oil & Gas Regulatory Authority, prescribes it constitution in connection with resolution of any dispute between Respondents Nos,2 & 3. Section 2 sub-section (16) pertains to a Member of the Authority, including the Chairman for resolution of a dispute relating to regulatory. activities. It is next urged` that the petitioner has availed all the remedies available under Section 12 sub-section (2) of Ordinance, 2002 as after the decision in Complaint No, 85 of 2004 the petitioner has approached the competent forum for redress, sub-section (2) of supra provides that relation to any decision concerning a regulated activity, the High Court may, if it is satisfied that no other adequate remedy is provided, on application of an aggrieved party, make an order:--
(a) directing the Authority to refrain from doing anything it is not permitted by law to do, or to do anything the Authority is required by law to do; or
(b) declaring that any act done or proceedings taken by the Authority has been done or taken without lawful authority and is of no legal effect.
19. Appeal filed by the petitioner was dismissed, the remedy was availed by way of filing Review under.
20. Section 13 of Ordinance, 2002 whereby the Authority may review, rescind, change, alter or vary any decision, or may re-hear an application before deciding it is the event of a change in circumstances or the discovery of evidence which, in the opinion of the Authority, could not have reasonably been discovered at the time of the decision or (in the case of a re-hearing) at the time of the original hearing if consideration of the change in the circumstances or the discovery of evidence which is in the opinion of the Authority could not have been reasonably discovered at the time of the decision which was declined.
21. It is urged that the petitioner has no authority to file petition, authority vests in Respondent No, 2 to challenge the impugned judgment of interpretation of beneficial consideration of the statute. With reference to the above contention reliance is placed on (1) District Magistrate, Lahore and (2)
22. Commissioner, Lahore Division v. Syed Raza Kazim (PLD 1961 SC 178), Full Bench of the apex Court having regard to the limited scope of the powers vested in the High Courts and this Court by the Laws, (Continuance in Force) Order to issue the writs only of habeas corpus, mandamus prohibition, quo warranto and certiorari, we have to point out that the foundation for an application for a writ of mandamus (which alone is applicable in the present case as the function of the Licensing Authority is purely administrative) is that there must exist a legal right in the person seeking in writ to insist upon a clearly duty being performed by some public officer or authority in respect of that rightly. In the present case, this foundation does not exist, for, in our opinion, on a plain reading of the provisions of the Arms Act none has a right to possess or carry a gun. The legal right to do so is created only after the licence is granted. The grant of a licence amounts, in these circumstances, for all practical purposes to the conferment of a privilege. Hence the respondent cannot, in our opinion, maintain an application for a writ of mandamus in the absence of any such clear right in him to possess a revolver.
23. Referring to the above, it is urged that no legal right exists in favour of the petitioner to invoke provisions of Ordinance 2002, as available remedies were already exhausted. Adverting to the merits of the case complaint by Respondent No, 3 was lodged in the year 2003 on account of the policy of Government of Pakistan, the Licensing Authority was required to provide the connection to the Respondent No, 3 as the Hotel Industry was termed as "service industry" as was recommended by Chamber of Commerce and Industries, Government of Pakistan through circular dated 2nd August, 1999 No, 1-129/98-INV-IV the status of Tourism was changed to "Services" reproduced hereinbelow:- "No, 1-129/98-INV-IV Government of Pakistan Ministry of Industries & Production Islamabad, the dated 2nd August, 1999 CIRCULAR Sub: Restoration of the status of Tourism as Industry In pursuance of the Cabinet decision in Case No, 19/11/90, dated 4-6-1990, the Government of Pakistan declared tourism as an 'Industry' and extended in all those benefits which were available to the industry. (In this connection this Ministry circular letter No, 6(146)/09-P, dated 30th July, 1990 refer).
24. Subsequently the Board of Investment announced investment policy in 1997 in which the status of tourism was changed to that of 'Services'.
25. In pursuance of recent directive of the Prime Minister of Pakistan the status of (tourism as industry is hereby) re This will entitle the investors in Tourism projects to a ........such facilities/concessions which are presently available to......industries in this country.
26. (Sd.)
27. (Muhammad Anwar Khan) Chief Research Officer."
28. Director-General Board of Investment Karachi vide letter addressed to the Managing Director of the petitioner dated 5-4-2004 has appraised that Respondent No, 3 has invested US$ 3.122 million in the project of Messrs Days Inn Hotel, Karachi and has recommended for supply of Gas for operating the Standby generator, per policy on merits.
29. Learned counsel appearing for the Respondent No, 2 has supported the version of Respondent No, 3 regarding discrimination despite of having similar status as that of Dream World Resort Karachi, required to be treated at par as service Industry. Subsequent policy of Government of Pakistan cannot be retrospective in nature therefore, present policy will not come into operation while the case of the Respondent No, 3 was decided by the two competent forums on the question of applicability of the policy prevalent in the year 2003 as subsequent Government Policies were not attracted on the cut date when the Respondent No, 3 applied for availing facility.
30. We have heard the learned counsel for parties and examined the record and have considered the law and the policies of the Government on the subject. We are convinced that Respondent No, 3 did not fulfil the requirements for the grant of gas connection for power generation. The Respondent No, 3 applied for the gas connection on 18-10-2003 which was rejected by the petitioner vide letter dated 24-11-2003 in terms of Government Policy dated 27-9-2000. Thereafter, several other policies were formulated by the Government prohibiting the supply of gas for Power Generation, to Hotels, etc., or organization which lacked the foreign investment of 500 million rupees or above. The Respondent No, 3 claimed to be governed by policy dated 30-12-2003 and by subsequent policies but the first policy relied upon backlog matters only whereas application of Respondent No, 3 stood rejected on 24-11-2003 and was no longer a backlog matter. The other policies did not apply to the Respondent No, 3 as there was no application of Respondent No, 3 pending with the petitioner.
31. Mr. Rasheed A. Rizvi, Advocate argued that the petitioner discriminated the responded No, 3 as captive gas generation was allowed to others.
32. The argument is not tenable as gas connection has been provided to others after they have obtained specific permission from the Government having complied with requirements for the grant of such gas connections. Regarding the jurisdiction of Respondent No, 2, we agree with the submission of Mr. Asim Iqbal, Advocate that since there was no dispute regarding "regulated activity as defined in clause (xxxii) of Section 2 of the OGRA Ordinance, 2002 all proceedings before the Respondent No, 2 were irregular and without jurisdiction and of no effect and as such the petitioners have been entitled to file the instant petition.
33. In view of the above the petition is disposed of with no order as to costs. The Respondent No, 3 shall be at liberty to make a fresh application to the Respondent No, 1 who will decide the matter according to law and the Government Policies and if the permission is duly granted by Respondent No, 1, a concerned gas connection would be provided to Respondent No, 3.