' MUHAMMAD FARRUKH IRFAN KHAN, J.---I propose to decide OGRA petition No,660 of 2011 and W.P.
No,19340 of 2011 through this single order. Through the former petitioner-SNGPL (hereinafter shall be referred as petitioner-SNGPL) calls in question the validity of impugned order dated 17-6-2011 whereby respondent No,1- OGRA (hereinafter shall be referred to as OGRA) accepted the review petition of respondent No,2/N.T Industries (hereinafter shall be referred to as respondent-N. T.
Industries) and through the latter respondent-N.T. Industries seeks implementation of said order of OGRA.
2. Concise backdrop of the case is that respondent- N.T. Industries filed a complaint under OGRA's Complaint Resolution Procedure Regulation, 2003 before the Designated Officer against petitioners SNGPL regarding gas theft charges of Rs,68.83 millions imposed by SNGPL for using gas through bye-pass. The said authority vide order dated 17-9-2010 observed as under:-- "In view of the information, record received from the complainant and the respondent, examination of documentary evidences and the discussions held during the meeting and the facts deliberated in the findings above, unauthorized utilization of gas by the complainant through direct bypass established. The respondent is justified to book violation charges against pilfered volume of 63496 HM3 gas. However, the respondent should ensure that the amount of Rs,68,828,559/- being claimed against the pilfered volume is based on the prevalent tariff of that period and correct. The complainant is liable to pay the same. "
' Being aggrieved the N.T. Industries-respondent filed an appeal before Full Bench of OGRA who vide order dated 4-5-2011 rejected the said appeal with a majority decision. N.T. Industries- respondent filed review against the said order which was accepted by OGRA through impugned order dated 17-6-2011 which is being assailed by SNGPL by filing instant OGRA petition.
3. Learned counsel for the petitioner-SNGPL submits that the impugned order is illegal, without lawful authority and without jurisdiction; that the impugned order is coram non judice as it has been passed by two members of OGRA which is clear cut violation of section 4(1) of OGRA Ordinance which provides that "Chairman and two other members shall constitute a quorum for a meeting of the Authority requiring a decision by the authority"; that the appeal was decided by three members bench which was subsequently reviewed by two members through the impugned order which is against the settled principles of law; that the respondent/N.T. Industries filed review application on 9-6-2011 which was decided by OGRA on 17-6-2011; that petitioner-SNGPL requested for adjournment through fax due to preoccupation of their counsel but OGRA did not consider this request of the petitioner-SNGPL and passed the impugned order within seven days from the date of its institution of review in a very hasty manner; that OGRA has not properly appreciated the oral and documentary evidence available on the record while passing impugned order; that the impugned order is a result of misreading and non-reading of material available on record.
4. Conversely, learned counsel for OGRA while defending the impugned order submits that the impugned order is well reasoned and with lawful authority; that section 4(4) of the Ordinance ibid provides that "No act, proceeding or decision of the Authority shall be invalid by reason only of the existence of a vacancy in, or defect in the constitution of the authority." That due to inquiry Chairman OGRA was sent on forced leave, therefore, two members decided the review filed by the respondent/ N. T. Industries keeping in view the aforesaid provisions of law; that petitioner-SNGPL moved application for adjournment with mala fide intention just to prolong the matter, therefore, it was rightly declined by the Authority.
5. Learned counsel for respondent-N.T Industries submits that the petitioner -SNGPL has failed to establish pilferage of gas through cogent evidence; that the site report on the basis of which the whole case was built by the petitioner- SNGPL was worthless because it had grossly violated the procedure laid down by OGRA; that the order of Designated Officer and Full Bench was contrary to the facts of the case which has rightly been reviewed through the impugned order; that section 13 of the OGRA Ordinance, 2002 empowers the authority to review, rescind, change, alter or vary any decision in the even of change in the circumstances or discovery of evidence which in the opinion of Authority could not have reasonably been discovered at the time of the decision; that the petitioner- SNGPL with mala fide intention is not implementing the orders of competent Authority which is causing grave injustice to the respondent- N.T Industries.
5A. I have heard the arguments advanced by the learned counsel for the parties and gone through the record.
6. Through the impugned order two members of the OGRA reviewed the order of three members. In order to justify this act of the members, learned counsel for OGRA tried to seek shelter of Section 4(4) of the OGRA Ordinance, 2002. Section 4 of the Ordinance ibid provides as under:-- "4. Meetings of the Authority.---(1) The Chairman and two other Members shall constitute a quorum for a meeting of the Authority requiring a decision of the authority.
(2) The decisions of the authority shall be taken by the majority of its members and in case of a tie, the member presiding shall have a casting vote.
(3) All decision of the Authority shall be in writing and identify the decision of the Chairman and other Members separately.
(4) No act, proceeding or decision of the Authority shall be invalid by reason only of the existence of a vacancy in, or defect in the constitution of the authority.
(5) The Chairman shall call all meeting of the Authority. The Chairman shall also call meetings of the Authority immediately on being requested in writing to do so by at least two Members of the Authority.
(6) Each member shall have reasonable notice of the time, place of the meeting and matter on which a decision shall be taken."
7. Bare perusal of subsection (4) of section 4 ibid makes it abundantly clear that only in circumstances of existing vacancy in or defect in the constitution of Authority no decision can be rendered as invalid. In the present case as per own version of the OGRA no vacancy was in existence at the relevant time and the Chairman of OGRA was on forced leave. Therefore, the argument of the learned counsel for OGRA has no force as OGRA cannot take benefit of the provision of the aforesaid section in order to justify its decision. Record shows that Full Bench consisting of three members had rejected the appeal of respondent-N.T Industries by a majority decision of two members. In the above scenario propriety demanded that the review arising therefrom must also be heard and decided by three members bench. Reliance in this regard is placed on case reported as Nisar Ahmad and others v. Naveedud-Din and others (2004 SCMR 604). In that case learned Single Bench of the Sindh High Court reviewed the decision of the Division Bench and the Hon'ble Supreme Court has observed as follows:- "Admittedly, the order sought to be reviewed had been passed by the learned Division Bench of the High Court, and therefore, in all propriety, the review arising therefrom ought to have been placed before the same Division Bench and the learned Single Judge should not have proceeded to hear and dispose of the same."
8. Learned counsel for OGRA has failed to convince this Court as to under what law a two members Bench can review the decision of a three member bench. The impugned order has been passed by an B incompetent authority in violation of section 4(1) of the OGRA Ordinance ibid, therefore, there is no need to discuss the merits/demerits of the impugned order lest it may prejudice the case of either party. Moreover, it is settled principle of law that if the basic order is passed by an incompetent authority then the whole superstructure built thereupon is liable to be fall automatically. Reliance is placed on case reported as Syed Shujat Hussain v. Capital Development Authority through Chairman and another (PLD 2001 Lahore 418) wherein it has C been observed as under:-- " It is settled law that if the basic order is without jurisdiction and without lawful authority, entire superstructure of orders built thereupon suffers from the same legal defect and infirmity from which the original order suffers."
9. Another glaring aspect of the matter is that undisputedly the respondent- N.T. Industries filed review application on 9-6-2011 which has been decided by OGRA within a short span of seven days vide impugned order dated 17-6-2011. It has also not been denied by the learned counsel for OGRA that there was no representation on behalf of the petitioner-SNGPL and its request for adjournment was not entertained by OGRA with the explanation that the petitioner-SNGPL was using delaying tactics to prolong the matter. It is evident from the record that the authority had fixed the review application on 15-6-2011 and short notice of just one day was issued to the petitioner- SNGPL and the case was fixed for 17-6-2011, therefore, the argument of the learned counsel for OGRA that the petitioner- SNGPL was using delaying tactics is misconceived, rather it appears that OGRA was in some haste to pass the impugned order and for that reason the entire exercise was completed by it within a period of one week while ignoring the written request of adjournment of petitioner- SNGPL. Impugned order is a sheer violation of the principle of natural justice vis-a-vis Audi Altrem Partem. Affording of an opportunity of hearing to a party affected by an order is a sine qua non for passing of any such order. Reliance is placed on case reported as Hazara (Hill Tract) Improvement Trust through Chairman D and others v. Mst. Qaisra Elahi and'others (2005 SCMR 678) wherein it has been laid down as under:- "The principle of natural justice enshrined in the maxim "audi alteram partem" is one of the most important principles and its violation is always considered enough to vitiate even most solemn proceedings. Reference in this behalf may be made to the case of Pakistan International Airlines Corporation and others v. Nasir Jamal Malik and others (2001 SCMR 934). In this judgment it has been held that where adverse action is contemplated to be taken against the person/persons, he/they has/have a right to defend such action, notwithstanding the fact that the statute governing their rights does not contain provision of principle of natural justice and even in absence thereof it is to be read/considered as a part of such statute in the interest of justice. It is important to note that the principle of natural justice is now made inbuilt part of civil contracts like the one under discussion. This principle originates from Islamic System of Justice as evident from historical episode when "lblees was scolded for having misled Hazrat Adam (A.S) into disobedience of Allah's command. Almight Allah called upon Iblees to explain his conduct and after having an explanation from him which was found untenable, he was condemned and punished for all times to come." Thus, it is held that the principle of natural justice has to be applied in all kinds of proceedings strictly and departure therefrom would render subsequent actions illegal in the eye of law. "
' In the present case this golden principle has not been observed by OGRA before passing impugned order as such the impugned order is not sustainable in the eyes of law.
10. For what has been stated above, instant Ogra Petition No,660 of 2011 is accepted as a result whereof impugned order of OGRA dated 17-6-2011 passed in review application of respondent-N.T Industries is declared illegal, without lawful authority and set aside and consequently Writ Petition No,19340 of 2011 seeking implementation of said order is dismissed.