' ASAD MUNIR, J.---The facts of the case, being not in dispute, are that on 18-1-2002 a Petroleum Concession Agreement ("PCA") for exploration in the Safed Koh Block, District Dera Ghazi Khan, was entered into between the President of Pakistan and a Joint Venture, operated by the petitioner- company. Fortunately, the Joint Venture was successful in making a commercial discovery of gas in March, 2005 at Salsabil (Rodho) located in the concession area of the Safed Koh Block.
Thereafter, upon Government of Pakistan's approval of the Commercial Discovery and Development Plan, a Development and Commercial Lease was executed on 23-1-2006 in favour of the Joint Venture operated by the petitioner-company.
2. In accordance with Article 10.2(d) and (e) of the PCA, the Government of Pakistan vide its letter dated 19-6-2006 nominated Sui Northern Gas Pipelines Limited ("SNGPL") as the purchaser of gas from the petitioner company. However, as soon as the petitioner-company commenced its sale of gas to SNGPL in 2006, a dispute arose about the well-head price of gas because of the difference over the interpretation of Article 10.2(f) of the PCA which sets out the formula for fixation of the gas price. There being no resolution of the dispute as to the fixation of gas price by reference to Article 10.2(f), since 2006 gas is being sold to SNGPL at a provisional well-head price advised from time to time by the Ministry of Petroleum and Natural Resources ("the Ministry") and notified by the Oil and Gas Regulatory Authority ("OGRA") under section 6(2)(w) of the Oil and Gas Regulatory Authority, Ordinance, 2002.
3. In order to settle the dispute as to the fixation of the gas price by reference to Article 10.2(f), it appears that the matter was discussed between the parties including the Prime Minister who with the mutual consent of the petitioner-company and the Ministry decided to refer the issue for the opinion of the Attorney General. Thereafter, vide letter dated 21-11-2006, the Secretary, Ministry of Petroleum and Natural Resources through the Ministry of Law and Justice referred the dispute for the advice of the Attorney General. Pursuant to the reference, the Attorney General vide letter dated 13-11-2007, gave his opinion the operative apart whereof is reproduced below:- "4. According to Messrs Dewan Petroleum (Pvt.) Limited, the price is to be computed in the manner that first market price in respect of various zones is to be determined then the discounts to the marker price are to be applied to the marker price in the manner provided in the agreement itself.
On the other hand, the view of the Government is that first the discounts are to be applied and then the marker price is to be determined.
5. In my opinion, the viewpoint of the Dewan Petroleum is supported by the Agreement, therefore, the stand taken by the Dewan Petroleum has more merits than the stand of the Government. The agreement itself provides that first the marker price is to be determined and then the discounts are to be applied to the marker price. If the stand taken by the Government is accepted then the word "first" in the relevant clause becomes redundant.
6. Accordingly, I am of the view that on correct interpretation of Article 10.2(f) first marker price is to be determined and then the discounts applied."
4. It is the stance of the petitioner-company that the dispute over the interpretation of Article 10.2(f) of PCA stood resolved by the afore-said opinion of the Attorney-General but respondent No,1, has refused to accept the binding opinion of the Attorney-General for Pakistan and consequently has not fixed the price of gas in the light of the said opinion. It is contended by Messrs Waseem Sajjad, Sami Zafar and Malik Qamar Afzal, learned counsel for the petitioner-company that the petitioner- company agreed with the respondents to refer the matter to the Attorney-General before whom there were many hearings attended by each side supporting its respective interpretation of Article 10.2(f) of the PCA. The said reference was by way of an amicable settlement as visualized in Article 28 of the PCA prior to invoking the arbitration clause. They also argued that the opinion of the Attorney-General, having been made under Rule 14(2) of the Rules of Business, 1973, is binding on the Ministry for having not been over-ruled in accordance with Rule 14(3) ibid. Learned counsel have also contended that the opinion of the Attorney-General holds the field for having not been challenged before any forum by the Ministry who is otherwise bound by it on account of promissory estoppel as the reference to the Attorney-General was proposed by the respondents and agreed to by the petitioner-company at considerable risk.
5. ' On the other hand, a number of preliminary objections have been raised by Mr. Yousaf Khosa, the learned counsel for respondents Nos.1 and 2, who has submitted that a host of remedies are available to the petitioner-company where for this writ petition is not maintainable. In this regard, he has referred to Article 28 of the PCA, which provides that any question or dispute arising out of or in connection with the PCA must be referred to arbitration after the parties fail to reach an amicable settlement. Secondly, it is contended that the remedy of a suit for specific performance is also available to the petitioner-company to redress its grievance of the gas price not being fixed in accordance with Article 10.2(f) of the PCA. Thirdly, reference has also been made to section 12 of the OGRA Ordinance, 2002, to contend that the petitioner company can challenge the gas price notification issued by OGRA for being not in accordance with the PCA. Exercise of constitutional jurisdiction by this Court has also been objected to on the ground that petitioner-company is not an aggrieved person as its grievance stems out of an agreement in the absence of any plea of violation of any law and that the writ of mandamus, being sought, cannot the issued under Article 199 of the Constitution as there is no lapse on the part of the public functionary to do anything he is required by law to do.
6. Mr. Yousaf Khosa has also painstakingly argued against the interpretation of Article 10.2(f) of the PCA espoused by the petitioner-company and supported by the Attorney-General. According to him, the issue is complex and there are at least 4 if not more interpretations of Art.10.2(f) of the PCA in circulation, each one of them having its own logic and appears to be a correct interpretation of Article 10.2(f) of the PCA and resultantly, the complex issue of gas price can be resolved by means of bilateral negotiations only. Mr. Khosa has also discarded opinion dated 11-7-2007, rendered by the Attorney-General, for not being given by a petroleum industry expert and for being incomplete, in-exhaustive, in-determinative and for failing to address the issues referred to him. It is further pleaded that the Attorney-General's opinion is not binding as it is neither an award nor an amicable settlement nor is the Government bound by it under the Rules of Business, 1973, nor is there any law or rule as suggest that the Attorney-General's opinion is binding on the Government.
7. Article 10.2(1) of the PCA, being the cause of discord between the parties, is reproduced below:-- "Whenever a Working Interest owner is selling pipeline quality Natural Gas of Acceptable specification to nominated buyers, it shall subject to Article 10.3, receive a price per Million British Thermal Unit (MMBTU). The price to be paid to a Working Interest Owner shall be determined for a six (6) monthly period (hereinafter referred to as 'the Price Notification Period') starting at eight (8) a.m. P.S.T. On 1st January and 1st July each year except the first period which may commence from the start of Commercial production till 30th June or 31st of December as the case may be.
' The price of acceptable pipeline quality Natural Gas to be notified per MMBTU shall be computed as follows:--
(i) First determine the "Marker Price" which shall be 67.5% for Zone III, 72.5% for Zone II and 77.5% for Zone 1 of the weighted average C & F price per barrel (based on quoted FOB prices) of the basket of Crude Oils imported into Pakistan during the first six Months period of the seven Months period immediately preceding the relevant Price Notification Period.
' Apply following discounts to Marker Price.
' Floor and ceiling will be US$ 10/barrel and US$ 36/barrel of C & F price, respectively with following discounts:-- ' Over US$ 10/barrel and upto US$16/barrel: 100% of Marker Price ' Over US$ 16/barrel and upto US$21/barrel: n Plus 50% of incremental Marker Price.
' Over 21/barrel and upto US$26/barrel: plus 30% of - incremental Marker Price; and ' Over and above US$26/barrel upto the ceiling: plus 20% of incremental Marker Price."
(ii) "Using the appropriate conversion factor, convert the discounted Marker Price to MMBTU rounding the quotient to four (4) decimal places to arrive at price per MMBTU"
8. As is evident from the foregoing narration, the legal effect on the opinion of the Attorney-General needs to be determined in order to answer the question as to whether in the circumstances of the present case such opinion is binding upon the parties particularly the Federal Government, who says it is not.
9.Before dealing with the status of his opinion, it will not be out of place to state that the Attorney- General for Pakistan is the Chief Law Officer and Chief Legal Advisor of the Federal Government who is appointed by the President under Article 100 of the Constitution "to give advice to the Federal Government upon such legal matters, and to perform such other duties of a legal character as may be referred or assigned to him by the Federal Government, and in the performance of his duties he shall have the right of audience in all Courts and Tribunals in Pakistan." Being not a member of the Senate or the National Assembly, the Attorney-General is non-political yet has an exalted status as he has the right, under Article 57 of the Constitution, to address and advise either House on a constitutional and legal issue that may arise in the course of a debate. Besides, whenever there is a challenge to the constitutionality to any legislative enactment, Order XXVII-A, rule 1, Civil Procedure Code, mandates that a notice must be issued to the Attorney-General to appear and represent the Federal Government.
10. Although giving of advice to the Federal Government is a duty the Attorney-General has to perform under the Constitution, there is no express provision in the Constitution or any enactment which provides that such advice is to be followed by the Government or is binding on the Government. There is also no precedent on the point at least in our Jurisdiction probably because there have been no instances where the Government has publicly disowned or discarded the advice or opinion of its Attorney-General. It would, thus, be safe to assume that consistent with his status as the Chief Legal Advisor of the Federal Government, the advice or opinion of the Attorney- General merits to be honoured by the Federal Government.
11. It would also be pertinent to refer to the Rules of Business, 1973, framed by the President under Article 99 of the Constitution, to see if any primacy is attached to the advice or opinion of the Attorney-General. Rule 14(2) envisages that the Attorney-General shall be consulted but only through the Law and Justice Division, previously called Human Rights Division. Rule 14(3) provides as under:-- "If there is disagreement between the views of the Attorney-General and Human Rights Division, the case shall be submitted to the Minister for Human Rights for opinion. If the Minister disagrees with the Attorney-General, the case shall be referred to the Prime Minister for orders who may refer the matter to the Cabinet if he so desires".
12. It is evident from Rule 14(3) that primacy is attached to the advice or opinion of the Attorney- General as even the Law Minister cannot over-rule it but only disagree with it in which event the matter is to be referred to the Prime Minister who has the discretion to take a decision himself or refer the matter to the Cabinet. Accordingly, it follows that the opinion of the Attorney-General is to prevail unless it is over-ruled by the Prime Minister or the Cabinet. In the instant case, there is nothing on record to suggest any disagreement of the Law Minister or that the Prime Minister had over-ruled the opinion of the Attorney-General with the result that the opinion had acquired primacy within the Federal Government.
13. Apart from the primacy that the Attorney-General's opinion had acquired under Rule 14(3) of the Rules of Business, 1973, it is admitted on record that the dispute over the gas price was referred for the opinion or advice of the Attorney-General by the Prime Minister with a promise or representation made or understanding given to the petitioner company that the opinion of the Attorney-General would be binding on both the parties. This undisputed fact is borne out by letter dated 29-3-2007, written by M. Zaheer Alam, director (Gas), Ministry of Petroleum and Natural Resources, which is reproduced below:-- "Subject:- GAS SALE AND PURCHASE AGREEMENT (GSA) WITH SNGPL.
' Reference President's Secretariat (Public) Aiwan-e- Sadr, Islamabad U.O.No,6 (181) / Directed (B- 1)06 dated 27-9-2006 on the above ' subject.
2. The case, which involves interpretation of Petroleum Policy, 2001 and the Petroleum Concession Agreement, has been referred to the Attorney-General of Pakistan as advised by the Prime Minister, for seeking his opinion which will be binding on both the parties. The opinion of the Attorney- General is still awaited. President's Secretariat (Public) will be apprised of the decision taken in this case as soon as the advice received.
14.
14. The afore-said promise, representation or understanding only shows that the mode or means proposed by the Prime Minister was mutually agreed upon by the parties to settle their outstanding dispute. The mode or means agreed was the opinion of the Attorney-General which having been declared to be binding when rendered amounted to a settlement of the dispute. In the face of this position, respondents Nos.1 and 2 cannot discard the opinion of the Attorney-General by saying that he was not qualified to give the opinion as he was not a petroleum industry expert or that his opinion is otherwise deficient. Having been given pursuant to the mutual agreement that it would be binding on the parties, the opinion must qualify to be regarded as an amicable settlement visualized under Article 28.1 of the PCA, which also does not prescribe any particular mode or form of settlement leaving it open to the parties to adopt any means as would achieve the objective of amicable settlement.
15. Given the undisputed facts of the case, it has to be said that the Attorney-General's opinion is also binding on the Federal Government on account of promissory estoppel, a principle which has been consistently recognized and enforced by the Superior Courts in Pakistan wherever a person has acted on the faith of a promise or representation made by the Government who is not allowed to resile from it. In the present case, admittedly a promise or representation was made by the Federal Government that the Attorney-General's opinion would be binding and it is in pursuance of the promise that the petitioner-company submitted itself and its case to the Attorney-General who after many hearings gave his opinion. In other words, the petitioner-company was induced by the promise to take part in the proceedings before the Attorney-General and by doing so, the petitioner-company took a risk and also gave up the other options it could seek for the resolution of the dispute. After having made the promise which has also been acted upon, the Federal Government also has no locus poenitentiae to resile from its promise and take the position that the opinion of the Attorney-General is not binding.
16. Mr. Khosa has also urged that Article 10.2(f) of the PCA is complex and is capable of at least four
(4) different and equally logical interpretations and that in view thereof it is only through negotiated settlement by the parties that the fixation of gas price can be achieved. Such an ambiguous stance is of no help and only emphasizes that the opinion of the Attorney-General was called for to find the correct interpretation of Article 10.2(f) of the PCA.
17. As regards the objection to the maintainability of the writ petition, it has been contended by Mr. Khosa that the remedy of reference of dispute to arbitration is available under Article 28 of PCA.
The argument of the learned counsel seems to be misconceived considering that the opinion of the Attorney-General, being the correct interpretation of Article 10.2(f) of the PCA, is a settlement of the dispute under Article 28.1 ibid. As such, after the settlement of the dispute, no dispute exists that can be referred to arbitration. The grievance, which is subject- matter of this writ petition, does not relate to the dispute over the interpretation of Article 10.2(0 of PCA but arises out of failure of the Federal Government to abide by the opinion of the Attorney-General. The remedy of suit for specific performance of contract suggested by the learned counsel is also based on a misconception that the dispute is over the interpretation of Article 10.2(f) of PCA and is not about the status of the Attorney-General's opinion. The remedy under section 12 of the OGRA Ordinance, 2002, is also of no avail to the petitioner-company as OGRA in its parawise comments has stated that it has not fixed the gas price but has only notified it on the advice of the Ministry and has also expressed its inability to rule on the binding effect of the Attorney-General's opinion. In view thereof, the afore-said objections to the maintainability of the writ petition are not tenable.
18. There is yet another objection to the maintainability of the writ petition as it has been contended that the petitioner-company cannot being a constitutional petition in respect of a contractual matter. This contention also cannot be sustained as it disregards the nature of the grievance raised in this writ petition. Though linked to the interpretation of the contract, the grievance arises out of failure of the Ministry to follow the opinion of the Attorney-General. It is not about a contract involving the determination of disputed questions of fact b pertains to the status of the opinion of the Attorney-General. In any case, it is settled law that constitutional jurisdiction can be exercised even in contractual matters provided no controversial questions of fact requiring detailed inquiry are involved. In this regard, it would be relevant to refer to Messrs Airport Support Services v. The Airport Manager Quaid-e-Azam International Airport Karachi and others (1998 SCM R 2268) wherein it was held as under:-- "It has consistently been held that while routine contractually, disputes between private parties and public functionaries are not open to scrutiny under the Constitutional jurisdiction, breaches of such contracts, which do not entail inquiry into or examination of minute or controversial questions of fact, if committed by Government, semi-Government or Local Authorities or like controversies if involving dereliction of obligations, flowing from a statute, rules or instructions can adequately be addressed for relief under that jurisdiction."
' I may also refer to Hazara (Hill Tract) Improvement Trust through Chairman and others v. Mst.
Qaisra Elahi and others (2005 SCM R 678) wherein the plea that no writ petition was maintainable for enforcement of contractual obligations was rejected by the honourable Supreme Court.
19. In the light of the afore-said discussion, I am of the view that the Attorney-General's opinion dated 13-11-2007 as to the interpretation of Article 10.2(f) of the PCA is binding on the Federal Government and amounts to a settlement contemplated under Article 28.1 of the PCA. As a consequence, the writ petition is allowed and the respondents Nos.1 and 2 are directed to fix the well-head price of gas at Salsabil (Rodho) at the earliest in the light of and in accordance with the opinion dated 13-11-2007 rendered by the Attorney-General. Parties are left to bear their own costs.