' SHAHID KARIM, J. --- The connected petitions, a list of which is attached with this judgment as Annexure 'A' are being decided by this common judgment as similar issues of law have been raised.
' RELEVANT FACTS:
2. The challenge in these petitions which has been brought forth, is encapsulated in the order of this Court dated 5.5.2014, passed by my learned brother (Amin-udDin Khan, J.) which is reproduced as under: --- "Through this writ petition petitioner has challenged, the vires of Section 29 of the Gas (Theft Control & Recovery) Ordinance, 2014. Learned counsel states that it is ultra vires to the Constitution of Islamic Republic of Pakistan, 1973. Further states that his suit for declaration, wherein the bill imposed by the respondent company has been challenged, was pending before the Civil Court.
The interim injunction granted by the Court was confirmed afterwards. States that petitioner has deposited near about 4.7 million under the orders of the Court, whereas at the time of the suit, the disputed amount was near about 11 million. States that under the new enactment the orders passed by the Court have been vacated which is not permissible under the law. Relies upon "Dr. Mobashir Hassan and others v. Federation of Pakistan and others (PLD 2010 Supreme Court 265).
Further argues that as the "Court" mentioned under Section 2(j) of the Ordinance established under Section 3 of the Ordinance does not include the High Court but in Section 4(2) the High Court has also been mentioned. States that as the disputed amount in this case is more than 5 million, therefore, jurisdiction vests with which Court is still not clear, therefore, states that petitioner has been forced to file this petition before this Court"
3. As is reflected in the said order, the provisions of Gas (Theft Contra! And Recovery) Ordinance, 2014 (the Ordinance, 2014), were challenged as being ultra vires the Constitution and non-est. It is not relevant to revert to the facts in each petition. However, suffice it to say that all of these petitions arise from proceedings which are pending before the Gas Utility Courts, set up under the Ordinance, 2014. The grievances substantially arise from different orders passed by those Courts, yet they have now converged to challenge the very legality of the Ordinance, 2014. The question therefore, before this Court, which required determination was whether the Ordinance, 2014 is ultra vires Constitution of Islamic Republic of Pakistan, 1973 or not.
4. During the course of the proceedings, it was brought up that the Ordinance, 2014 stood repealed by efflux of time as it was lastly extended by a resolution of the National Assembly on 14.5.2014 under proviso to subparagraph (ii) of paragraph (a) of clause (2) of Article 89 of the Constitution of Islamic Republic of Pakistan, 1973 for a further period of 120 days. It stands repealed on the expiry of the said extended period on 23.9.2014. The question arises as to whether the Ordinance, 2014 was still a valid law or not as also whether it stood repealed or had it been enacted as an Act of the Parliament.
5. On 26.11.2014 the Deputy Attorney General for Pakistan was required to seek instructions in the matter and to apprise this Court of the current status of the Ordinance, 2014. In response, the Deputy Attorney General, Mr. Amir Rehman has produced a copy of the report of the Standing Committee of the Senate on Petroleum and Natural Resources according to which deliberations have been held by the said Committee and it is recommended that the bill of the Ordinance, 2014 may be passed by the Senate. However, the learned D.A.G. Submits that the bill is pending in the Senate and has not yet been passed into an Act of the Parliament.
6. From the forgoing discussion, it is clear that the Ordinance 2014 has, at the expiry of 120 days from its promulgation, repealed in terms of Article 89 of the Constitution of Islamic Republic of Pakistan, 1973.
7. An Ordinance is, by its very nature, a temporary statute. A temporary statute as distinguished from a permanent one, remains in force for a limited period and ceases to operate without a repeal. The power to make and promulgate Ordinance is a legislative and not an executive power.
Article 89 of the Constitution which gives the law making power by Ordinance to the President reads:- "89. Power of President to promulgate Ordinances.--(1) The President may, except when the [Senate on National Assembly is in session, if satisfied that circumstances exist which render it necessary to take immediate action, make and promulgate an Ordinance as the circumstances may require.
(2) An Ordinance promulgated under this Article shall have the same force and effect as an Act of [Majlis-e-Shoora (Parliament)] and shall be subject to like restrictions as the power of [Majlis-e- Shoora (Parliament)] to make law, but every such Ordinance:---
(a) shall be laid:-
(b) before the National Assembly if it [contains provisions dealing with all or any of the matters specified in clause (2) of Article 73], and shall stand repealed at the expiration of [one hundred and twenty days] from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by the Assembly, upon the passing that resolution: [Provided that the National Assembly may by a resolution extend the Ordinance for a further period of one hundred and twenty days and it shall stand repealed at the expiration of the extended period, or if before the expiration of that period a resolution disapproving it is passed by the Assembly, upon the passing of that resolution: ' Provided further that extension for further period may be made only once].
(ii) before both Houses if it [does not contain provisions dealing with any of the matters referred to in subparagraph (i)], and shall stand repealed at the expiration of [one hundred and twenty days] from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by either House, upon the passing of that resolution: [Provided that either House may by a resolution extend it for a further period of one hundred and twenty days and it shall stand repealed at the expiration of the extended period, or if before the expiration of that period a resolution disapproving it is passed by a House, upon the passing of that resolution: ' Provided further that extension for a further period may be made only once; and]
(b) may be withdrawn at any time by the President."
8. As to the true nature of Ordinance, suffice it to ' refer to Sabir Shah v. Shad Muhammad Khan (PLD 1995 SC 66) followed in Federation of Pakistan v. Muhammad Nawaz Khokhar (PLD 2000 SC 26, 36). "From an examination of Article 89 , so observed Saiduzzaman Siddiqui, J: "it is quite clear that the legislative power conferred by this Article on the President to promulgate Ordinance is circumscribed by these conditions. Firstly, at the time the Ordinance is promulgated by the President, the National Assembly must not be in session and circumstances exist which render it necessary to take immediate action for promulgation of the Ordinance. The Ordinance so promulgated by the President is only a stopgap arrangement and a temporary measure, as this Ordinance has to be placed before the National Assembly if it pertains to matters specified in Article 73(2) of the Constitution and in all other cases before the Parliament, within 4 months of the date of its promulgation unless it is earlier withdrawn by the President or disapproved by the National Assembly or Parliament as the case may be. It is, therefore, quite clear that the power to promulgate an Ordinance by the President under Article 89 of the Constitution of 1973 is designed to meet a situation when the legislation is required urgently and the Assembly is either not in session or is unable to function for reasons of having been dissolved in accordance with the provisions of the Constitution of 1973. But the Ordinance so promulgated by the President does not acquire the status of a permanent Act of Parliament as it loses its validly on expiry of 4 months period from the date of its promulgation if the National Assembly or Parliament as the case may be, does not approve the legislative measure within that period."
' Reference may also be made to Federation of Pakistan through Secretary Ministry of Law, Justice and Parliamentary Affairs, Islamabad v. Dr. Mobashir Hassan and others (PLD 2012 SC 106) and the following observations at page 128:- "24. In terms of Article 89 of the Constitution, the President may promulgate an Ordinance and it shall have the same effect as an Act of the Parliament. However, the Article inter alia provides that it shall stand repealed if not extended by the National Assembly within the period stipulated in the said Article."
' In Govt. Of Punjab through Secretary, Home Department v. Zia Ullah Khan and 2 others (1992 SCM R 602), the Honble Supreme Court had, once again, the occasion to deal with the issue and observed as under:--- "We may state that, if we were to accept Mr. Irfan Qadir's above contention, the same would be violative of Article 89 of the Constitution, which envisages that, if an Ordinance of the type in issue is not approved by both the Houses before the expiry of four months from its promulgation, the same shall stand repeal. The above clear Constitutional mandate cannot be defeated by pressing into service any rule of construction of statutes or a provision of a statute which cannot pressed in aid while construing a Constitutional provision. We may further observe that our Constitution is a written Constitution based on Federal System. It envisages trichotomy of powers between the three limbs of the State i,e, that Legislature, the Executive and the Judiciary. In the above political set up the power to legislate is vested in the Parliament. However, Article 89 of the Constitution empowers the President to promulgate an Ordinance when the National Assembly is not in Session or stands dissolved and he (President) upon being satisfied that the circumstances exist which render it necessary to take immediate action. Such an Ordinance is to last, at the most, for four months, if not approved or if not rejected by the Parliament earlier or withdrawn by the President in terms of sub-clause (a) of clause (2) of the above Article 89 of the Constitution.
' The rational behind providing an outer limit of four months for an Ordinance seems to be that even if the National Assembly or a Provincial Assembly stands dissolved at the time of promulgation of an Ordinance, the election of it is to take place within 90 days from the date of its dissolution in terms of clause 5 of Article of 48 of the Constitution. Since Ordinance XIX of 1988 was not placed for approval before the Parliament within the above time limit of four months in terms of sub-clause (a) of clause (2) of the Article 89, it stands repealed with the amendments contained therein upon the expiry of four months from the date of its promulgation."
9. In these cases, the statement made and the document relied upon by the D.A.G. Brings home the fact that the Ordinance stands repealed at the expiration of one hundred and twenty days from its promulgation. It has not been extended by either the Senate or the National Assembly for a further period by a resolution and thus it follows indubitably that it loses its validity, on the expiry of that period since it has not been made an Act of the Parliament within that period. At best, it shall be deemed to be a Bill introduced in the House where it was first laid.
10. In view of the above, no proceedings can be commenced or continued in the Gas Utility Courts set up by the Ordinance, 2014 as the law which was the provenance of their powers does not occupy the field any more. Thus any proceedings initiated, commenced or continued will be without lawful Authority and ultra-vires.
11. It is, therefore, held that since the Ordinance, 2014 stands repealed, the Gas Utility Courts set up under that Ordinance shall cease to have effect and would become functus officio.
' CONSEQUENCES
12. There are certain unsavory and unpalatable consequences that flow from the repeal of the Ordinance. Since the Ordinance loses its validity and has ceased to have effect, the Gas Utility Courts set up by that Ordinance shall cease to function having been denuded of that special power under the Ordinance. All cases pending with these Courts, heretofore, shall stand transferred to the ordinary Courts of plenary jurisdiction to be adjudicated upon their respective merits. The proceedings in these cases can be continued from the stage at which they had reached before the Gas Utility Courts. All of these cases shall be tried and continued under the relevant law relating to such matters. I described it as unsavory and unpalatable consequences for the litigants as the vortex of litigation does not bring the end closer but only eclipses it. In order to alleviate the litigants suffering, this order shall be communicated to all the District and Sessions Judges who shall put steps into motion to transfer the cases pending before formerly Utility Courts within their respective jurisdiction to ordinary Courts (according to each case) and shall complete the process within fifteen days from the receipt of this judgment.
' With the above observations, all these petitions are disposed of.