1. ' ARSHAD NOOR KHAN, J.---This constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has been filed by the petitioner to question the demand of the respondent No,2 vide letter, dated 2-7-2008 to the tune of Rs,2,764,361 towards the claim being the value of gas consumption on account of passing unregistered gas through the meter from October, 2007 to January, 2008..
2. ' The facts giving rise to the present petition in brief are that the petitioner is the proprietor of Messrs UNIFAB which deals in dying of gray cloths and has established a dying processing plant at the address mentioned in the petition. She obtained gas connection from the respondent No,2 after payment of necessary charges. It is further contended that after the receipt of bills for each and every month and same were deposited regularly but to the utter surprise of the petitioner, some officers of the respondent No,2 visited the room where the apparatus of the respondent as well as meter are installed, which were lying under the lock and key available with the respondent No,2 and after visiting the site and checking of the meter, they removed the meter and issued letter, dated 2-7-2008 thereby demanding Rs,2,764,361 within 15 days being the value of the gas consumption on account of passing unregistered gas (PUG) failing which the supply will be disconnected. On receipt of the said demand from respondent No,2 the petitioner was shocked and disappointed with the demand of the respondent No,2 and has filed the present petition to question the legality and validity of the demand of respondent vide their letter, dated 2-7-2008 to the tune of Rs,2,764,361.
3. ' The respondent No,2 have filed objections to the petition, stating therein that Suit Southern Gas Company Limited is functioning as limited company incorporated under the Companies Act, 1913 and Companies Ordinance, 1984 and the petition against the respondent is not maintainable. It is further stated in the objections that disputed question of facts are involved in the petition which could not be answered in writ jurisdiction of this Court. It is further stated in the objection that, in case, if the petitioner have any grievance against the demand of respondent No,2, then a remedy under section 11 of ORGA Ordinance, 2002 is available to her to file appeal. It is further stated that on visit the gas was found passing unregistered from the meter therefore the meter was removed and sent to the laboratory test and on receipt of the report it was declared that the meter was tampered with, therefore, the bill amounting to Rs,2,764,361 being the value of the gas consumption on account of meter (PUG) for the period from October, 2007 to January, 2008 was issued to the petitioner and that the petitioner is not maintainable and is liable to the dismissed.
4. ' We have heard Mr. Ansar Hussain, advocate for the petitioner, and Mr. Asim Iqbal, Advocate for respondent No,2.
5. ' Mr. Ansar Hussain, advocate for the petitioner vehemently, contended that since after installation of gas connection, the petitioner was paying gas charges immediately on receipt of bill regularly and the meter of the gas remained in a room which is in possession under lock and key of respondent No,2 and therefore the question of tampering with the meter in any way could not be made and the respondents abruptly removed the meter and issued impugned bill, which is illegal and mala fide on their part. It is further contended that the Chairman of the respondent No,2 has been appointed by the government as such respondent No,2 is functioning under the supervision of the government and petition is therefore very much competent. According to him the petitioner had not been afforded an opportunity to participate in the test procedures of the meter. According to him respondent No,2 have arbitrarily issued the bill without just and sufficient reasons as such the same is liable to be declared illegal under the constitutional jurisdiction of this Court. In support of his contention he has relied upon the case of Muhammad Aslam Saleemi v. Pakistan Television Corporation and another reported in PLD 1977 Lah. 852 and the case of Nagina Bakery v. Sui- Southern Gas Co. Ltd. Reported in 2001 CLC 1559.
6. ' Mr. Asim Iqbal, Advocate for the respondent No,2 while refuting the arguments advanced on behalf of the petitioner has contended that the petition is not maintainable against the respondents for the reasons that the respondent company has been registered under the Companies Act, 1913 and the Companies Ordinance, 1984 and the share of company are floating in the Stock Exchange, therefore, the petition against the private person or company is not maintainable. He further contended that the petitioner was stealing the gas by tampering the meter and on testing of the said meter, it transpired that the gas was passing unregistered from the meter, therefore, the bill towards the actual consumption of the consumed gas was issued to the petitioner vide letter impugned herein. According to him the tampering of the meter is admittedly a disputed question of fact, which could not be decided in the writ jurisdiction of this Court. In support of his contention he has relied upon the case of Maqsood Ahmed Toor v.
7. Federation of Pakistan through Secretary to Government of Pakistan, Ministry of Housing and Works, Islamabad and another reported in 2000 SCMR 928 and has also relied upon the case of Nagina Bakery, which has also been relied upon by the learned counsel for the petitioner.
8. ' We have considered the arguments advanced on behalf of the parties and have gone through the material available before us.
9. ' It is not disputed that new gas connection was allowed by respondent No,2 to the petitioner vide letter, dated 30-11-2004 and thereafter the petitioner was consuming the gas but on the visit of the official of respondent No,2, they found the partial passing of unregistered gas from the meter, therefore, the meter was removed and sent for testing. The meter was tested by the authorized department of A respondent No,2 and found the meter "Jerky", meter index assembly intermediate gear found worn out and partial passing unregistered gas (PUG). On receipt of the said report, the respondent issued the bill being the value of gas consumption on account of meter (PUG) for the period from October, 2007 to January, 2008. The petitioner has half-heartedly challenged the report of the meter, and has disputed the quantum of the bill against her, but the disputed quantum of the bill or the report regarding tampering of the meter admittedly are disputed question of facts, which could not be examined in the writ jurisdiction of this Court. If any authority is needed, reference may be had to the case of Secretary, Government of Punjab v. Ghulam Nabi, reported in PLD 2001 SC 415, wherein it has been observed that the disputed question of facts could not be decided in constitutional petition.
10. ' Learned counsel for the respondent has also raised the question of maintainability of the present petition on the ground that the respondent company is functioning under the provisions of Companies Act, 1913 and Companies Ordinance, 1984 and the shares of the Sui Southern. Gas Company have been floated in the Stock Exchange as such for all practical purposes and jurisdiction the respondent No,2 is private limited company and the petition against a private limited company or a person is not maintainable. While dealing with objections raised by the learned counsel for the respondent No,2, the learned counsel for the B petitioner vehemently contended that the Chairman of the respondents company is appointed by the government and the gas company has not been registered under the Companies Act, as such, the government is running the affairs of respondent No,2, therefore, the petition is maintainable. The contention raised by the learned counsel for the petitioner seems not to be attractive for the reasons that the Sui Gas company has also been registered under the provisions of Companies Act, 1913 and Companies Ordinance, 1984 and the company is not performing the functions in connection with the affairs of Federation etc. The submissions of the learned counsel for the petitioner is against the observations made in the case of Nagina Bakery, supra, relied upon by him which is a complete answer to the proposition advanced by him. In the case of Nagina Bakery, the learned Division Bench of this Court while dealing with the same proposition of law was pleased to observe that admittedly the Sui Gas company is a public limited company incorporated under the Companies Act, 1913 (now Companies Ordinance, 1984) and is quoted for Karachi, Lahore and Islamabad Stock Exchanges. The observation made by the learned Division Bench of this Court is fully attracted to the circumstances of the present case and we do not find any justification to express contrary view to the view expressed by this Court in the case of Nagina Bakery.
11. ' In the case of Maqsood Ahmed Toor, supra, the Hon'ble Supreme Court while dealing with the same proposition was pleased to observe that after hearing the question as to the maintainability of the writ petition being of crucial importance and touching the roots of the case was posed to the learned counsel for the petitioners and for this purpose short adjournment was allowed but he was unable to convince us as to how a constitutional petition can be maintained against the respondent foundation who is company limited by guarantee not performing sovereign functions in connection with the affairs of the Federation, Province or a local authority. The observation made by the Hon'ble Supreme Court in the aforesaid case is reproduced herein below for the sake of convenience:-- "That private organizations or persons as distinguished from Government or Semi-Government agencies and functionaries cannot be regarded as persons performing functions in connection with affairs of Federation or Province simply because their activities happen to be regulated by laws made by State. It was observed that persons, including body corporate, can be regarded as person performing functions in connection with affairs of Federation etc. If functions entrusted to them are indeed functions of State or if control of organization vests substantially in hands of Government. Evidently respondent No,2 has not been entrusted with performance of State functions."
12. ' From the observation made by this Court in the case of Nagina Bakery and in the case of Maqsood Ahmed Toor by the Hon'ble Supreme Court, it is crystal clear that the writ petition is not maintainable against private limited companies, who are not performing their duties under the supervision and control of Federal Government, Provincial Government or any other body functioning with the government and since the Sui Gas company is functioning under the provisions of Companies Act, 1913 and Companies Ordinance, 1984, as such the Sui Gas company in any way could not be treated to be a company functioning under the authority of the government. The petition on this score alone, in our humble opinion, is not maintainable.
13. ' For the aforesaid reasons and circumstances, we are of the view D that the petition involved disputed question of facts which could not be answered in the writ jurisdiction of this Court and that the Sui Gas company is purely functioning as public limited company under the provisions of Companies Ordinance, 1984 and is not performing the functions under the government or State, therefore, the petition E against the private limited company is not maintainable. The petition was dismissed in limine vide short order, dated 16-2-2009 for the reasons to be recorded later on and the above are the reasons for the same.