' SHAHID KARIM, J.---This petition is admitted to regular hearing and decided as pacca case.
2. The facts in this petition are simple and easily resolved. The primary and in fact the only ground of challenge in this petition is that the decision of the Oil and Gas Regulatory Authority (the Authority) set up under the Oil and Gas Regulatory Authority Ordinance 2002 (OGRA Ordinance) is non est and void as it contravenes the clear mandate of section 4 subsection (1) of the OGRA Ordinance. According to him the Chairman and two other Members shall constitute a quorum for a meeting of the Authority requiring a decision by the Authority. However, in this case, only the Chairman and a Member (Oil) constituted the quorum and proceeded to decide the appeal No.9 of 2013 filed by Sui Northern Gas Pipe Lines ltd. (SNGPL) on 22-7-2013. The fact that the decision has been passed by the Chairman and one Member is not denied by the learned counsel for the respondent. He, however, submits that, notwithstanding the decision having been made by the Chairman and one Member, it does not affect the legality of the said decision. It is not rendered unlawful merely for lack of quorum and relies upon subsection (4) of section 4 of the OGRA Ordinance.
3. The provisions which would come into play while determining the instant petition are reproduced as under:-- "4. Meeting of the Authority.---(1) The Chairman and two other Members shall constitute a quorum for a meeting of the Authority requiring a decision by the Authority.
(2) The decision 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 decisions 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 meetings 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."
' The provisions of sub section 1, reproduced above, bring forth ineluctably that for a decision by the Authority, a quorum of Chairman and two Members is a sine qua non.
4. This much is not denied by the learned counsel and the intention of the legislature is very clear in this regard. This. Court, therefore, does not need to go in the niceties of the interpretation of subsection (1) to return a different finding on the construction of the above provision. Support can also be had from a cluster of decisions by this Court in different cases. Learned counsel for the petitioner refers to a reported judgment of this Court SNGPL v. OGRA and others (PLD 2014 Lahore 167). However, this case turns on its own facts and is not relevant for determination of the present controversy. However, the learned counsel further referred to the orders made in Writ Petition No.6823 of 2013 and 6383 of 2013, by virtue of which, under identical circumstances, it was held that the decision by two Members of the Authority does not meet the requirements of section 4(1) of the OGRA Ordinance and therefore, the ,order must be set aside:
5. In view of the consistent decisions by this Court, referred to above, and the intent of law the setting aside of the impugned decision of the Authority would be a straightforward matter as having no legal legs to stand upon.
6. However, before I proceed to do that, I intend to deal with an argument, raised by the learned counsel for the respondent-OGRA to the effect that in all such matters, section 4 (4) provides a complete cover and condonation to any irregularity or unlawfulness that might be visited upon such an order.
7. As Plato said, 'Justice would be simple matter if men were simple'. The proposition would be simple and open and shut if we had section 4(1) of the OGRA Ordinance in isolation and without more. That, lamentably, is not the case and there are a few cobwebs which need to be cleared in order to reach a conclusion as the one which the learned counsel for the petitioner wants this Court to arrive at. The path to that conclusion is not easily mapped.
8. The learned counsel for the respondent OGRA submits that, notwithstanding subsection (1) and its clear prerequisites as to quorum, any decision by the Authority which does not meet the quorum is nevertheless valid and intra vires on the strength of subsection (4) of section 4, which, according to him, may well be labeled as a `condonation clause'. This argument, if accepted, will lead to dangerous results and will arm the Chairman with powers to be exercised with impunity and without regard to the spirit and intent of the law and the raison d'etre which permeates it. The subsection 4 of the OGRA Ordinance has been reproduced above.
9. In order to reach a just conclusion, a resort to purposive interpretation, as a principle of constitution will have to be made.
PURPOSIVE INTERPRETATION ' I will begin by the observations of Lord Hailsham LC during the second reading of interpretation of legislation Bill, 'the history of English Law and the interpretation of statutes consisted of a battle between two rival schools of thoughts'. Then is Kammins Ballrooms Co. Ltd. v. Zenith Investments (Torquay) Hd. 1971 AC 850, 879, it was said that one school looked at what the Act had said; this is called literal approach. The other school looked at what the Act was intended to be; this is what is recent years has come to be known as the purposive approach.
' The doctrine has found its way in our jurisprudence, too. Perhaps the first case which put the purposive interpretations to use was a Full Bench judgment of this Court as Muhammad Shafi v.
Deputy Superintendent of Police (Malik Gul Nawaz), Narowal and 5 others (PLD 1992 Lah. 178). I can do no better than to reproduce paragraphs from that judgment to elucidate what the concept means:-- "10. Under the literal rule, words of a statute are sufficient to determine every question that arises under it, no matter how absurd and unjust the consequences. Thus, under that rule, "the law relating to statutory interpretation was bedeviled by the notion that it was wrong for a Court to look beyond the words with which it was immediately concerned if their meaning was clear when they were considered in isolation". (Statutory Construction by Sir Rupert Cross (1976 Ed. At p.45).
11. On the other hand, the essence of the purposive approach is for the Judge to answer a series of questions: What is the subject-matter of the Act (or part of the Act) being interpreted? What object in relation to that subject-matter Parliament intended to achieve by the Act? And lastly, what part in the achievement of that object the section under construction was intended to play?
The particular section will then be interpreted according to the object which the Court deems the legislation is intended to serve. (Lord Diplock in Kammins Ballrooms Co. Ltd. v. Zenith Investments (1971) A. C. 850,881). The requirements of this approach, according to Lord Diplock, are that the Judge must impute "to Parliament an intention not to impose a prohibition inconsistent with the object which the stature was designed to achieve, though the draftsman has omitted to incorporate in express words any reference to that intention".
"13. In recent years, the modern Jurists and the Courts, and as has been seen, even the English Courts, are outgrowing "the superstitious awe of the printed word and its magic potency" and the literal approach has been gradually eroded and replaced by the purposive approach to statutory interpretation. As Lord Diplock said in Carter v. Bradbeer (1975) 3 All England Reporter 158, 161), "if one looks back to decisions on questions of statutory construction over the past thirty years, one cannot fail to be struck by the evidence of a trend away from purely literal towards the purposive construction of statutory provisions". (Also see Anderson v. Ryan (1985) 81 Cr.App. R. 166, 172, per Lord Roskill)."
"18. Therefore, not only is 'purpose' a legitimate aid to the interpretation of a statutory provision, contemporary canons of construction give primacy, if not total supremacy, to the purposive approach. This approach has, in my opinion, the great merit of preventing the Court, in this case, from failing in its primary task, namely, to interpret section 195, subsection (I), clause (c), 'according to the intent of them that made it', that is, "in the sense of the purpose which the legislature intended to achieve".
' Bennion on Statutory Interpretation (sixth edition) may usefully be cited on the subject:- "A purposive construction of an enactment is one which gives effect to the legislative purpose by- -
(a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose (in this Code called a purposive-and-literal construction), or
(b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in the Code called a purposive-and-strained construction)."
"Lord Will beforce said that consideration of the purpose of an enactment is always a legitimate part of the process of interpretation. Lord Diplock said "purpose" connotes an intention by some person to achieve a result desired by him'. "
"When judges speak of a purposive construction, they usually mean to refer to what this Code calls a purposive-and-strained construction. Thus we find Stoughton J referring to 'the power of the courts to disregard the literal meaning of an Act and to give it a purposive construction'. Lord Diplock spoke of 'competing approaches to the task of statutory construction - the literal and the purposive approach'. Nevertheless a purposive construction must obviously be in all cases a construction which gives effect to the legislative intention, whether or not the statutory language needs to be strained to achieve this."
"Although the term 'purposive construction' is not new, its entry into fashion betokens a swing by the appellate courts away from literal construction. Lord Diplock said in 1975: ' If one looks back to the actual decisions of [the House of Lords] on questions of statutory construction over the last 30 years one cannot fail to be struck by the evidence of a trend away from the purely literal towards the purposive construction of statutory provisions'. .. I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction ..."
' As regards deeming provisions of the kind in question here, the same author has the following to say:- "Deeming provisions Acts often deem things to be what they are not Sometimes a big leap of imagination is required. In one case Lord Hoffmann referred to an 'heroic piece of deeming'. On the other hand an enactment may deem something to be the case when it may or may not be the case. Here the question may arise as to whether the statutory presumption is rebuttable by evidence to the contrary.
' In constructing a deeming provision it is necessary to bear in mind the legislative purpose."
10. In recent times the tool of purposive interpretation has been employed in at least two judgments viz. Rab Nawaz Dhadwana, Advocate and others v. Rana Muhammad Akram, Advocate and others (PLD 2014 Lah. 591) and M. I. Sanitary Store through Proprietor and another v. Federation of Pakistan through Secretary Commerce and 2 others (PLD 2014 Lah. 583), both authored by Syed Mansoor Ali Shah, J.
11. In Reading Law: The interpretation of legal texts (by Antonin Scalia and Bryan A. Garner), the following observations (at p.56) are referred to in the context of purposive interpretation:-- "Of course, words are given meaning by their context, and context includes the purpose of the text.
The difference between textualist interpretation and so-called purposive interpretation is not that the former never considers purpose. It almost always does. The subject matter of the document (its purpose, broadly speaking) is the context that helps to give words meaning---that might cause draft to mean a bank note rather than a breeze. And even beyond that, it can be said more generally that the resolution of an ambiguity or vagueness that achieves a statute's purpose should be favored over the ,resolution that frustrates its purpose. But the textualist insists on four limitations: ' First, the purpose must be derived from the text, not from extrinsic sources such as legislative history or an assumption about the legal drafter's desires".
"Second, the purpose must be defined precisely, and not in a fashion that smuggles in the answer to the question before the decision-maker".
"Third, the purpose is to be described as concretely as possible, not abstractly".
"Fourth, except in the rare case of an obvious scrivener's error, purpose-even purpose as most narrowly defined-- cannot be used to contradict text or to supplement it".
12. What, truly, was the purpose and intent of subsection (4)? Was it to arm the Authority or its Chairman to thwart and frustrate all decisions made or acts performed to be so made or performed by throwing the requirement of a quorum to the winds? Certainly the purpose could not be to use it as a general defence at all times, to seek condonation and amnesty to all decisions, knowingly made, and with the intention to have it declared valid by taking refuge behind the said provision. Imagine the powers the Chairman could possibly wield in that case. Subsection (5) empowers the Chairman to call all meetings of the Authority. He could well call a meeting with himself alone and take a decision. If the learned counsel for the respondent were to have his way, the meeting would be validly held. Or the Chairman could just convene the meeting with one other like-minded member, takes a decision and the meeting would be valid on the touchstone of subsection (4).
13. We must bear in mind that 'The Chairman shall call all meetings of the Authority (subsection 5) and that the Authority consists of the Chairman and three other members (section 3). Therefore, here is the scheme of section 4. The Chairman should call a meeting of the Authority (himself and all the other three members) and the quorum shall be the Chairman and at least two other members. It is important, too, that all 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'. [subsection (2)].
Now if the Chairman chose to sit with himself and another member, the concept of a decision by majority is rendered nugatory.
14. We must, as Lord Dip lock said in (1971) AC 850, impute 'to the Parliament an intention not to impose a prohibition inconsistent with the object which the statute was designed to achieve'. Its purpose, to my mind, and the intention of the legislature that can be gathered from a reading of the law in its entirety is that it has to be used sparingly and not at all to avoid the provisions regarding quorum knowingly and with deliberate intent. It can only be relied upon if a defect is identified later and the acts done of the Authority cannot be reversed. It can certainly not be of any help if the Chairman convenes a meeting of the Authority knowing fully well that a quorum is incomplete and yet proceeds to hold a meeting without a quorum and take decisions. That would be ludicrous and be tantamount to making the mockery of law.
15. Moreover, upon a reading of subsection (4) it is clear that the said provision does not lend itself to the construction which the learned counsel for the respondent-OGRA invites this Court to put on it. It simply means that no act, proceedings 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. It does not mean at all that the A Authority could continue to function without a quorum. It simply means that there could be a vacancy in the Authority yet the Authority could do acts or take decisions but with a quorum. This provision relates to the Constitution of the Authority and not to the observance of quorum. This was inserted so that a vacancy should not invalidate day to day administrative functions of the Authority. The provision did not have the purpose of handing a license to take decisions of far reaching consequences by disregarding the quorum or on the flawed premise that the Authority could continue to take decisions even though vacancies occur which render the Authority incomplete otherwise.
16. The Authority is an independent regulator and it is said that such bodies are economic regulators whose major concerns are to prevent abuse of monopoly power and develop competitive markets in the industries for which they are responsible. (Foster on Privatization quoted in Regulating Public Utilities, A constitutional approach by Cosmo Graham). The powers and functions of the Authority are delineated in section 6 of the Ordinance. These are the primary duties of the Authority such as to ensure that reasonable demands are met and the companies finance their activities. It includes pricing for consumers for natural gas (section 8). Tariff determination for regulated activity (section 7) and the like. These are all administrative and policy decisions.
17. Apart from the above, the Authority is vested with quasi judicial powers to resolve disputes between licensees and any other persons regarding regulated activity. Sections 9, 10, 11 and 12 of the OGRA Ordinance have been enacted for the purpose. The question of quorum assumes greater importance in the context of the exercise of quasi judicial powers by the Authority. Fair hearing and due process are wedded to the notion of the determination of disputes. The question is would the Authority be acting compatibly with fair hearing and due process of law if the quorum set down in section 4(1) is not observed? Any person making a complaint has a legitimate expectation to be heard by the full quorum. For, otherwise, there is no stopping the Chairman from taking decisions singly or at his whim, with another member. Imagine the ludicrous position of the decision being made by the Chairman sitting alone in appeal against a decision by a bench of two delegates and setting aside that decision. In matters of exercise of quasi judicial powers, therefore, my reliance on section 4(4) of the OGRA Ordinance is anathema to the principles of fair hearing and due process.
In a nub, the argument runs counter to the rule of law. The basis of rule of law is 'Preserving fundamental rights of the individual against the form of elective despotism. (The Rule of Law---Tim Bingham). As Aristotle said: 'It is better for the law to rule than one of the citizens' and 'so even the guardians of the Laws are obeying the laws'.
' An unreported order of this Court in Writ Petition No.9570/2013 (by Mrs. Justice Ayesha A. Malik, J) also, while brushing aside the reliance on subsection (4), held as under: - "To my mind in order for the Authority to deliver a valid decision under Section 4 of the OGRA Ordinance the quorum shall consist of the Chairman and two other Members. Section 4(4) of the OGRA Ordinance merely provides that in the event that there is a vacancy or defect in the establishment of the Authority, the same shall not make any act, proceeding or decision of the Authority invalid. This means that if from amongst the four Members which constitute the Authority there is a vacancy in the Authority as contemplated under Section 3(10) of the OGRA Ordinance or there is a defect in the constitution of the Authority then notwithstanding the same any act, proceeding or decision of the Authority shall not be invalid on account of the vacancy in the Authority or defect in the constitution of the Authority. However, this does not mean that a decision taken by only two Members contrary to the required quorum under the OGRA Ordinance will be protected under Section 4(4) of the OGRA Ordinance. Moreover, in the instant case there is no vacancy in the Authority or defect in the constitution of the Authority. In fact the Respondent No.1 has failed to appoint the necessary members to constitute a valid Authority. This being the case, now the Respondent OGRA cannot rely upon Section 4(4) OF THE OGRA Ordinance to protect a decision which is coram non judice."
18. In view of what has been adumbrated, the impugned order dated 22-7-2013 passed by the Authority, is set aside. The Appeal No.9/2013 shall be dealt with by the Authority afresh in the light of the order passed herein by observing the requirement of quorum.