MIRZA VIQAS RAUF, J. Through instant petition, the petitioner has challenged the vires of order dated 06th of January, 2015 passed by the respondent No.3, whereby the No Objection Certificate issued to the petitioner for Compressed Natural Gas (CNG) Station has been withdrawn.
2. Precisely, the facts necessary for the adjudication of instant petition are that the petitioner firm is engaged in the business of patrol as well as compressed natural gas (CNG) since 2007 at its filing station situated at Khadim Ali Road, District Sialkot. As per averments of the petition, the petitioner obtained necessary NOCs from various Local Government Offices before issuance of license for his business. After obtaining the requisite certificates, the license was granted to the petitioner to establish the CNG Pump. In this regard, he also obtained No Objection Certificate from Zila Nazim, Sialkot. After fulfillment of all the codal formalities, a license was issued to the petitioner by the respondent No.1 on 15th of November, 2007 allowing him to operate CNG facilities for supply of fuel to motor vehicles. The petitioner was also subsequently issued license dated 01st of August, 2011 by the respondent No.2 for sale and storage of petrol. It was on 13th of October, 2014 at night, a fire broke out on the premises of the petitioner, following which the respondent No.3 constituted a three-member Enquiry Committee to ascertain the cause of the fire and through the same order dated 14th of December, 2014, the premises of the petitioner was sealed. The Enquiry Committee concluded that the No Objection Certificate was issued to the petitioner on the basis of forged NOC from the neighbours and it was constructed illegally in the residential area. It was further observed in the enquiry report that the fire had erupted as a result of negligence of the management of the petitioner. The Committee recommended the cancellation of No Objection Certificate and initiation of criminal proceedings against the owner and management of the filling station. The respondent No.3, on the basis of recommendation of the enquiry committee, vide order dated 06th of January, 2015 withdrew the No Objection Certificate granted to the petitioner by the Zila Nazim, Sialkot.
3. Vide order dated 26th of January, 2015, pre-admission notice were issued to the respondents for submission of reply and parawise comments which were accordingly submitted by them. Since the case is at pre-admission stage, so with the concurrence of both the parties, the same is treated as pacca case and shall be decided as such.
4. Learned counsel for the petitioner submitted that the No Objection Certificate (NOC) was issued to the petitioner on 16th of June, 2007 after fulfillment of all the codal formalities and this aspect is even affirmed by the stance of the respondents taken in their respective parawise comments. He maintained that the respondent No.3 had no lawful authority to cancel the NOC of the petitioner. In support of his contentions, learned counsel has drawn the attention of this Court to the Rule 115 of The Petroleum Rules, 1937 which as per his contentions regulates the grant of license and matter ancillary thereto. Learned counsel also referred Rule 6 of The Compressed Natural Gas (CNG)
(Production and Marketing) Rules, 1992. Learned counsel argued that after issuance of No Objection Certificate and license in pursuant thereto, the petitioner has a vested right to operate its business and the respondent No.3 was precluded to recall the No Objection Certificate on the basis of principal of locus poenitentiae. In support of his contentions, learned counsel for the petitioner relied upon BURMAH SHELL OIL STORAGE & DISTRIBUTING Co. PAKISTAN Ltd. And another Versus THE DEPUTY COMMISSIONER (DISTRICT MAGISTRATE), KARACHI Law notes 1969 S.C. 25 and MUHAMMAD ARSHAD MEHMOOD versus GOVERNMENT OF PAKISTAN, MINISTRY OF INDUSTRIES, LAHORE through Inspector of Explosive and 4 others (PLD 2009 Lahore 608).
5. Conversely, learned Legal Advisor appearing on behalf of respondent No.4 submitted that No Objection Certificate was withdrawn on the basis of powers conferred on respondent No.3 by way of letter dated 20th of January, 2006 which relates to grant of provisional license to the petitioner firm. He submitted that the respondent No.3 was competent to withdraw the No Objection Certificate (NOC) issued by him to the petitioner as his premises are situated in a residential area.
6. Learned Additional Advocate General adopted the arguments advanced by the learned counsel for the respondent No.3 and defended the impugned order.
7. On the other hand, learned Standing counsel representing the respondents No.1 & 2 submitted that the license was issued to the petitioner after fulfillment of all the codal formalities and the same can only be revoked by the licensing authority after its issuance. Learned Standing counsel reiterated the stance of the respondents as taken in the parawise comments.
8. I have heard the learned counsel for the parties as well as learned Law Officers and perused the record with their assistance.
9. Before dilating upon the merits of the petition, it would be advantageous to observe that the moot question arises from the matter in issue is whether No Objection Certificate (NOC) once issued by the respondent No.3 can be withdrawn in the circumstances. In order to properly appreciate the moot point, it is necessary to have a glance on the relevant provisions regulating the business activity of the petitioner firm. Since the petitioner is running two businesses in the form of Patrol Pump and CNG Station, so the laws regulating both these businesses are relevant. In this back ground, it would be advantageous to first see Rule 115 of The Petroleum Rules, 1937 which deals with the grant of license for storage and business of petrol. The same is reproduced below:- "115. Grant of licence.-(1) Licence for importation and storage may be granted by the licensing authorities set forth in Schedule 1 in the forms, for the purposes, and on payment of the fees, specified therein.
(2) A licence in From H may be granted for such period as the licensing authority may deem necessary subject to a maximum of twelve months. Every other licence granted or renewed under these rules shall remain in force until the 31st day of December of the year for which the licence is granted or renewed.
(3) Where the licensing authority is the Chief Inspector, an applicant for a new licence may apply to the District Authority for a certificate to the effect that there is no objection to the applicant receiving a licence for the site proposed and the District Authority shall, if he sees no objection, grant such certificate to the applicant, who may forward it to the Chief Inspector with his application in Form D.
(4) The Chief Inspector may refer an application not accompanied by a certificate granted under sub-rule (3), to the District Authority for his observations.
(5) If the District Authority, either on a reference being made to him or otherwise, intimates to the Chief Inspector that any licence which has been applied for, should not in his opinion be granted, such licence shall not be issued without the sanction of the Federal Government.
(6) No licence in Form H shall be granted except to a person holding a licence in Form-I.
(7) In the case of a licence granted for storage one copy of the plan or plans of the storage premises signed in token of approval by the licensing authority shall be attached to the licence and one copy shall be filed for record in the office of the licensing authority.
[(9) For installation of a CNG station at any existing petrol pump, no additional NOC shall be required except permission for construction and installation and licence for its operation, from the Department of Explosives.
(10) For installation of a stand-alone CNG station at raw sites or new locations, NOCs from the following authorities shall be required, namely:--
(a) Gas Utility Company;
(b) Civil Defence; and
(c) Tehsil Municipal Officer.
(11) The permission for construction and installation of CNG station alongwith plan approval shall be granted by Chief Inspector of Explosives under the Petroleum Act, 1934 (XXX of 1934) and the Explosives Act, 1884 (IV of 1884).
(12) All authorities concerned for the issuance of permission or NOCs or licences or otherwise shall decide the case within one month of the receipt of the request for installation of a CNG Station.] It is manifestly clear from the above rule that for issuance of license for the business of petrol, the competent authority is the Chief Inspector which is defined in Rule 3 (b) of the Rules, ibid. The license under this rule is to be issued in the Form "K" of Schedule I by the Chief Inspector of Explosives. Rule 121 of The Petroleum Rules, 1937 empowers the licensing authority to cancel the license for any contravention of The Petroleum Act, 1934 or of any rule thereunder, or of any condition contained in such license.
10. Chapter IV of The Petroleum Rules, 1937 deals with the storage of petroleum requiring license and Rule 90 regulates the issuance of license for the purpose of storage which reads as under: "90. License for storage.-Save as provided in Section 7, 8 and 9 of the Act by rule 109 on one stall store any petroleum except under a licence granted under these rules: Provided that no licence shall be necessary for storage in a well-head tank.
11. Similarly, there are corresponding rules called as Compressed Natural Gas (CNG) (Production and Marketing) Rules, 1992 which regulate the activity of storing, filling or distribution of Compressed Natural Gas (CNG). In terms of Rule 6 of the said Rules, the Oil & Gas Regulatory Authority (OGRA) is vested with the powers to grant a license for the compression of natural gas for the purpose of storing, filling or distribution of CNG in accordance with the said rules and it is empowered to specify in the license such terms and conditions as it may think fit to impose on the licensee. The petitioner was issued license for the compression of natural gas for the purpose of storing, filling or distribution of compressed natural gas (CNG) by the Oil & Gas Regulatory Authority on 04th of January, 2008, whereby in clause (vi), a condition was placed that the petitioner will obtain all necessary NOCs, if required at any stage, for operating the Station as may be required by the concerned Federal, Provincial and Local Authorities. In view thereof, the petitioner applied for the requisite NOC which was accordingly issued to him whereafter he started his business on the terms mentioned therein. It is evident from the above that role of the Local Government/District Authorities is confined to the extent of issuance of no objection certificate. It has nothing to do with the issuance or recall of licence or regulating the activity under the licence issued by the competent authority. The case of the petitioner falls under sub rule 9 of Rule 115 of The Petroleum Rules, 1937 which provides that for installation of a CNG station at any existing petrol pump, no additional NOC shall be required except permission for construction and installation and licence for its operation, from the Department of Explosives. This sub rule was added vide notification S.R.O.1(KE)/2007, dated 22nd of December, 2006 whereas sub Rule 11 prescribes that the permission for construction and installation of CNG Station alongwith the plan approval shall be granted by Chief Inspector of Explosives under Petroleum Act, 1934 (XXX of 1934) and Explosives Act, 1884 (IV of 1884).
12. There is no cavil that in presence of a special law when a question arises about the applicability of the same to its subject, special law will exclude the general law. The Petroleum Act, 1934 and The Oil & Gas Regulatory Authority Ordinance, 2002 were framed for this very purpose. The role of the Local Government/District Authorities is limited to the extent of issuance of No Objection Certificate, which relates to the activity prior to the issuance of licence under The Petroleum Rules, 1937 and Compressed Natural Gas (CNG) (Production and Marketing) Rules, 1992. The petitioner was granted a No Objection Certificate by the respondent No.3 on 09th of January, 2007 which followed the grant of licence by the respondents No.1 & 2. The powers withdrawing the No Objection Certificate are purportedly exercised on the basis of letter dated 20th of January, 2006, carrying the conditions for grant of provisional licence to install CNG filling station issued by the Oil & Gas Regulatory Authority in the name of petitioner. It is the stance of the respondent No.3 that the said powers were exercised on the basis of note which is available at the end of the said letter which reads as follow:- "Please ensure before grant of NOC that the site of the CNG Station does not fall in residential area and that the site is suitable from Public safety angle."
It is manifestly clear from the bare reading of above referred note that the same relates to the activity prior to the issuance of a licence by the OGRA Authorities. The respondent No.3 once issued the NOC has become functious-officio to withdraw the same. Even otherwise, it is admitted position on the record that the area where the CNG station is situated is of commercial character, so respondent No.3 was not vested with the authority to withdraw the NOC. As already observed that in case of any contravention of the Act, rule or any terms of licence, it is either the Chief Inspector of Explosives under The Petroleum Rules, 1937 or Authority established under The Oil & Gas Regulatory Authority Ordinance, 2002 which can proceed against the licensee. The Hon'ble Supreme Court of Pakistan while dealing with similar proposition in the case of BURMAH SHELL OIL STORAGE & DISTRIBUTING Co. PAKISTAN Ltd. And another Versus THE DEPUTY COMMISSIONER (DISTRICT MAGISTRATE), KARACHI Law notes 1969 S.C. 25 held that: "9. But the real point that arose in the case and which was pointedly made the subject of grievance by the appellants in the Writ Petition was missed by the learned Judges. It was that the suspension of the "No Objection Certificate" could not affect the operation of the licence for the storage of petrol which the appellants had duly obtained although on the very basis of the "No Objection Certificate". While it was necessary to obtain the certificate from the District Authority or if it refused to give it from the Central Government under rule 115(5) of the Petroleum Rules for getting the licence for the storage of the petrol; the continued validity of the licence did not depend on the certificate itself. In fact, the District Authority became functious officio in that respect after it issued the certificate. It does not under the law have any powers to control the operation of the licence during the period for which it is granted. The suspension or the revocation of the "No Objection Certificate" was thus a futile effort if it was intended also to stop the operation of the storage licence. Similarly, even assuming that the suspension was rightly made although the High Court itself agrees that it was not so after the stage for locus poenitentiae for the respondent was over, the respondent had no power to step the installation and construction of the pump which had been started after due sanction by relevant authorities. This part of the order of the respondent was obviously without any legal authority."
Even this Court in the case of MUHAMMAD ARSHAD MEHMOOD versus GOVERNMENT OF PAKISTAN, MINISTRY OF INDUSTRIES, LAHORE through Inspector of Explosive and 4 others (PLD 2009 Lahore 608) has reiterated the same principles.
13. In the light of above referred provisions of law and the judgments cited above, there is no cavil left that the role of respondent No.3 was limited to the extent of issuance of NOC prior to the grant of licence to the petitioner by the Chief Inspector of Explosives. Thus after issuance of No Objection Certificate (NOC), the respondent No.3 has become funtious officio. Even otherwise, No Objection Certificate (NOC) was issued on 09th of January, 2007 which was acted upon and in pursuant thereto a licence for the said business was issued by the competent authority to the petitioner, so on the basis of principle of locus poenitentiae as contained in Section 21 of The General Clauses Act, 1897, the respondent No.3 was precluded under the law to revoke or to withdraw the NOC, as vested right was created in favour of the petitioner. Reliance in this respect can be placed on Constitution Petition No.127 of 2012 (REGARDING PENSIONARY BENEFIT OF THE JUDGES OF SUPERIOR COURTS FROM THE DATE OF THEIR RESPECTIVE RETIREMENTS, IRRESPECTIVE OF THEIR LENGTH OF SERVICE AS SUCH JUDGES), H.R.C. No.40927-S of 2012 (APPLICATION BY ABDUL REHMAN FAROOQ PIRZADA), Civil Miscellaneous Appeal No.176/2012 in Constitution Petition No.Nil of 2012 (BEGUM NUSRAT ALI GONDA V. FEDERATION OF PAKISTAN and others) (PLD 2013 Supreme Court 829). The relevant extract from the same is reproduced below:- "In the context of the plea that the right of pension can sustain, I intend to analyze the doctrine of locus poenitentiae; my learned brother in his judgment has defined and elucidated the principle of locus poenitentiae, however at the cost of repetition, it is held that locus poenitentiae conceptually connotes, that authority which has the jurisdiction to pass an order and take an action, has the due authority to set aside, modify and vary such order/action, however there is an exception to this rule i.e. If such order/action has been acted upon, it creates a right in favour of the beneficiary of that order etc. And the order/action cannot thereafter be set aside/modified HYPERLINK http://etc.So etc. So as to deprive the person of the said right and to his disadvantage. However, it may be pertinent to mention here, that as pointed out in the preceding part, no valid and vested right can be founded upon an order, which by itself is against the law. In this regard, reference can be made to the judgment reported as The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin (PLD 1992 SC 207), the relevant part whereof reads as under:-- "It was further observed that locus poenitentiae is the power of receding till a decisive step is taken but it is not a principle of law that order once passed becomes irrevocable and past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of such an illegal order. "
Further dictas in this behalf are :- Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others (2000 SCM R 907) and M/s Excell Builders and others vs. Ardeshir Cowasjee and others (1999 SCM R 2089). Besides, the principle of locus poenitentiae (with its exception), in my view, primarily has the nexus and application to administrative orders and actions, and would not apply to the judicial decisions. The judicial decision can only be invalidated, quashed and annulled, through the process of appeal, revision and review, if such remedies are available to an aggrieved party under the express provisions of law. And once such decision has attained finality it operates as res judicate inter se the parties to the lis (note: the decisions however rendered by the superior Courts in so far enunciating the law has the binding effect also on all the concerned). Therefore, such a decision until the law declared therein is altered in the appropriate jurisdiction of the Court or the decision is declared as incuriam, and is squashed it shall have the due effect. But where the judgment is set aside as in this case; the rule of locus poenitentiae, along with the exception, shall not applicable, because as mentioned earlier, the doctrine primarily belongs to the administrative domain of the State and is restricted to administrative orders/actions alone."
The principle laid down in the judgment supra leaves no room except to hold that the respondent No.3 was stripped of its power to withdraw the N.O.C when once he had issued the same after due observance of law. Even otherwise after the grant of valid license by the competent authorities under the relevant laws this was not in the domain of respondent No.3 to transgress his authority.
14. The nutshell of above discussion is that the business of the petitioner can only be regulated under The Petroleum Rules, 1937 or The Compressed Natural Gas (CNG) (Production and Marketing) Rules, 1992 by the authorities specified therein and it is in their exclusive domain to revoke or cancel the licence, if in their opinion the petitioner offends any of the provision of law or condition of licence. Thus the impugned order dated 06th of January, 2015 passed by the District Co-ordination Officer, Sialkot withdrawing the NOC of the petitioner is set aside, being coram non- judice and illegal. Resultantly, the instant petition is allowed.