1. Domestic and commercial Sectors First
2. Power Sector Second
3. General Industrial, Fertilizer and Third Captive
4. Cement Sector including its captive Fourth Power CNG Sector Fifth Yours sincerely, Shahab Alam Director General (Gas)
No, NG(1)-7(158)/12-LS Vol-IV Government of Pakistan Ministry of Petroleum and Natural Resources (Policy Wing)
Directorate General Gas.
Islamabad, the 1st March, 2013 ' The Managing Director, ' Sui Northern Gas Pipelines Limited, Lahore.
' The Managing Director, ' Sui Southern Gas Company Limited, Karachi.
' Subject:- NATURAL GAS LOAD MANAGEMENT. Dear Sir(s)
' I am directed to refer to this Ministry letter of even number dated 06.02.2013 and to state the Economic Coordination Committee of the Cabinet vide Case No, ECC32/04/2013, dated 22nd February, 2013, has revised sectoral priority order as under:--- S# Category of Consumers Priority
Domestic and commercial Sectors First Power Sector Second General Industrial, Fertilizer and Third Captive Cement Sector including its captive Fourth Power CNG Sector Fifth Yours sincerely, (Dr. Shahab Alam) Director General (Gas)
56. In lieu of the above reasoning and analysis, it is clear that the Federation of Pakistan without adopting the aforesaid procedure through CCI, which is the competent Constitutional body authorized to regulate the interests of provinces, Federal Capital, regarding natural gas and all regulatory authorities referred in Item No, 6 Part II of the Federal Legislative List, created an 'authority under the name and style of ECC of the Cabinet, which has not been empowered nor has any jurisdiction under the mandate of the Constitution of Pakistan to devise any policy on the regulative activity as provided in the OGRA Ordinance 2002. The ECC of the Cabinet was not empowered to nor had the jurisdiction under the mandate of Constitution of Pakistan to devise any policy on the regulatory/activity as provide in the OGRA Ordinance, 2002.
' There can be no cavil to the principle that "When law required a thing to be done in a particular manner, the same must be done accordingly and if the prescribed procedure was not followed, it would be presumed that the same had not been done in accordance with law'. Hence, when law mandates a procedure to be followed, than that procedure must be blindly, unquestionably, indisputably, absolutely and strictly respected and abided with, and any deviation therefrom shall be deemed unlawful and illegal. Soneri Bank Limited v. Azeem Match (Pvt.) Ltd. (2013 CLD 1504); Sharafat Kaleem v. Additional District Judge, Bahawalnagar (2013 CLC 185); Gac Pakistan (Pvt.) Ltd. v. E.F.U. General Insurance Ltd. (2013 CLD 1568); HASNAIN COTEX LTD. v. JASIM KHAN (2012 YLR 2743); Muhammad SaleemNawaz v. Additional District Judge, Chishtian (PLD 2012 Lah. 217); Syed Bhais (Pvt.) Ltd. v. Government of Punjab through Secretary Local Government (PLD 2012 Lah. 52).
' It is therefore held that the 'Load Management Plan' dated 29.01.2013 alongwith the impugned subsequent orders of ECC titled 'Natural Gas Load Management' dated 06.02.2013 and 01.03.2013 respectively, have been passed against the mandates and stipulated procedure laid down in the Constitution and therefore held to be ultra vices to the Constitution and void ab initio.
(v) When a policy which is meant to be approved by the CGI has not been passed through the stipulated due course of law, and at the same time, no Province has bothered to invoke the CCI to arbitrate over the matter, then can an aggrieved person of this act be deemed to have locus standi to knock at the doors of this Court to issue writ of mandamus directing the Federal Government to place the matter before the CCI?
57. The answer to this question is provided in Gadoon v. WAPDA Case wherein the Supreme Court in 1997, the time when the CCI was not as strengthened, powerful and important as it is today after the 18th Amendment, observed that:--- 'Any attempt to obtain decisions in respect of referable to CCI, by any other person, authority Government or corporation will be in violation of the Constitution lacking legal sanctity.
' Hence, a policy that has been passed in violation of the Constitutional mandate is deemed ultra vires to the Constitution and in this regard if no Province has invoked the jurisdiction of the CCI to arbitrate upon the matter, causing citizens to be aggrieved due to such indolent inaction by the provinces, then such an action is deemed as an infringement of the aggrieved person's Constitutional fundamental right. The framers of the Constitution have not left such lope holes, ensnares and swindles for the Provinces to play around with. If a matter is to be placed before the CCI, and is not placed before it causing great hardship to the citizens and their fundamental rights then the Federation is duty bound to address such a matter and this Court can under its jurisdiction order a writ of mandamus directing the Federation to invoke CCI in order to protect and safeguard fundamental rights of the citizens.
58. Another aspect during the pendency of the case at hand was brought on record during hearing of the case on 03.01.2014 that a public hearing issued by OGRA through which stakeholders were invited at Lahore as well as Karachi for making their submissions on the proposed changes in the license which evidently suggests that the OGRA authorities have taken notice of the matter and realize essentiality in resolving the same. However, same was withdrawn subsequently. The Contents of the proclamation are reproduced herein below:--- Licence Proposed Changes in Licence Conditions. Condition No, 12 Non-Discrimination: 12.1. The Licence shall not exercise discrimination against or show undue preference towards any consumer, producer of natural gas or any class of consumers or producers and will interrupt, reduce or restrict natural gas supply to the consumers in accordance with Gop Policy regarding gas load management.
34 Security and Continuity of Supply:34.2. The licence shall not interrupt it service to its consumers other than to comply with the requirements of the Ordinance and the Rules and Gop Policy regarding gas load management or and to the extent expressly provided for in the contract with such consumer.
35 Priority During Interruption of supply: ' Priority licence shall comply with the gas load management programme of Federal Government conveyed to them from time to time.
59. In view of the aforesaid, it is hereby held that the Load Management Plan dated 29.01.2013 and other subsequent two Natural Gas Load Management revised sectoral priority policies issued dated 06.02.2013 and 01.03.2013 placed on record by Respondent No, 8 are ultra vires to the procedure laid down in the Constitution of the Islamic Republic of Pakistan, and are hereby declared as void ab initio. Respondents cannot be allowed to substitute or let ECC assume the role of a Constitutional Body such as the Council of Common Interest and blatantly surpass the same.
Moreover, the Respondents cannot rely on the argument that the instant matter concerns a 'contract' or 'contractual obligations' which is out of the scope of judicial review as the impugned orders on the face of it is alien to, and against the mechanism provided by the Constitution and the procedure laid therein. Even, otherwise through an omnibus order all consumers, irrespective of their sector cannot be taken by surprise through an exercise of authority by a commercial entity, operating for profit. For the sake of repetition, it is to be noted that Respondents are free to make any policy on merits they deem fit provided that such policy is promulgated through due process of law by the competent authority. The Respondents are therefore directed to take the matter to the CCI within 90 days and devise a policy in accordance with the facts and circumstances of the matter which time the arrangement established prior to the impugned Load Management Plan dated 29.01.2013 shall come into force. Accordingly, all the Petitions mentioned in Para-1 of this judgment are hereby allowed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.