' SHAHID KARIM, J.---Through this consolidated judgment, I intend to decide the instant writ petition (Writ Petition No.19826 of 2013) as well as connected petitions, which are primarily being divided into two sub-groups, one brought by Sui Northern Gas Pipelines Ltd. (SNGPL) and the other by Lahore Electricity Supply Company (LESCO), as all of these petitions involve similar question of law.
' SNGPL Petitions:
(i) Writ Petition No.18962/2014
(ii) Writ Petition No.16627/2013
(iii) Writ Petition No.16626/2013
(iv) Writ Petition No.27294/2011 ' LESCO Petitions:
(i) Writ Petition No.28195/2013
(ii) Writ Petition No.12729/2012 ' However, there is a third set of petitions in which the orders of the Wafaqi Mohtasib are under challenge, by private persons. It is not necessary to go into the details of the facts of each case.
Suffice to say that the jurisdiction of the Wafaqi Mohtasib to take cognizance of such matters is at the heart of these petitions as well and so have been clubbed to be decided together. This set comprises of:--
(i) Writ Petition No.17869 of 2013 (ii). Writ Petition No.21873 of 2009
2. The question which arises for determination is a vexed question of law and is encapsulated as follows:-- "Whether the Ombudsman in the exercise of powers under the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order 1983 (Order I of 1983) (Order) has the jurisdiction with regard to the disputes between the consumers and the, gas/electricity companies, licensed by OGRA and NEPRA as the case may be or its jurisdiction stands ousted by the provisions of Oil and Gas Regulatory Authority Ordinance 2002 (OGRA Ordinance, 2002) and in relation to electricity by the provisions of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 (Act of 1997) (cumulatively referred to as the special laws).
RELEVANT FACTS
3. There are varying facts in all of these petitions, however, since the challenge is to the assumption of jurisdiction by the Ombudsman in the circumstances which gave rise to disputes between SNGPL and LESCO on the one part and its consumers on the other, those facts are not relevant to be reproduced. Suffice it to say that in all these petitions, the proceedings are pending before the Ombudsman and the Ombudsman intends to assume jurisdiction and to decide upon the complaints filed with it by the petitioners.
4. By way of illustration, the learned counsel for the petitioner has drawn the attention of this Court to the complaint filed by respondent No.3 with the Ombudsman and in particular, the ground "B" at page 12 of the file (the subject matter of Writ Petition No.19826/2013), which is reproduced as under: - "(b) According to the OGRA's Gas Theft Rules, an Industrial Gas Meter is required to be Flow Proved within 5 working days, but our said meter was Flow proved after 23 days. Thus, OGRA's Gas. Theft Rules were violated by SNGPL."
' According to him, as per the showing of the respondent No.3 herein (the complainant before the Ombudsman) the dispute relates to billing on the basis of theft and for which the said respondent had approached the Ombudsman's office. According to him, violation of the OGRA Rules has been urged in the above reproduced paragraph. He has also referred to the grounds 'E, F, G, H, I, J, K & M' of his petition in support of his contentions which, in a nub, is that the exclusive jurisdiction to try disputes with regard to the meter tampering and billing, are the domain of OGRA under the OGRA Ordinance, 2002 and for which special rules have been framed which are called Complaint Resolution Procedure Rules, 2003.
5. Learned counsel for the petitioner-SNGPL relies on section 43 of the OGRA Ord. 2002 which, according to him, is a non obstante clause and gives exclusive jurisdiction for such matters to be tried under the OGRA Ordinance, 2002. He further submits that the OGRA Ord. 2002 is later in time and is a special law and will therefore, override the general law; He has relied upon Sheikh Khalid Mehmood v. Banking Tribunal, N. W.F.P., Peshawar and another (1997 CLC 1812), WAPDA and another v. Muhammad Arshad Qureshi (1986 ,SCMR 18) and an unreported judgment passed in Writ Petition No.26925 of 2013 decided on 3-2-2014. He has further relied on Multan Electric Power Company Ltd.
Through Chief Executive and another v. Muhammad Ashiq and others (PLD 2006 SC 328), Water and Power Development Authority and others v. Messrs Kamal Food (Pvt.) Ltd. Okara and others (PLD 2012 SC 371) and. Brig. Sher Ali Baz and another v. The Secretary, Establishment Division and others (PLD 1991 SC 143). With respect to LESCO petitions, the learned counsel has invited this Court to rely on section 45 of the Act of 1997 for a complete ouster of the Ombudsman's jurisdiction. The two provisions are in pari materia.
RESPONDENTS SUBMISSIONS
6. Learned counsel for respondent No.3 has supported the proposition that the Ombudsman retains the jurisdiction in matters of such nature notwithstanding the ouster and special nature of these laws as the jurisdiction of the Ombudsman arises from a plea of maladministration which if, within the ambit of the Order, is cognizable by the Ombudsman. He submits that the jurisdiction being exercised by the Ombudsman is parallel and exclusive of the jurisdiction exercised by the forums under the special laws. By no stretch of imagination do the special laws oust the jurisdiction of the Ombudsman in matters relating to SNGPL and LESCO. According to him, it is not disputed that SNGPL and LESCO are agencies within the meaning of the term as used in the Order and any complaint regarding maladministration is justiciable by the Ombudsman. He makes a reference to Article 37 of the Order to submit that by this provision the Order will override all other laws. He refers to subsection (1) of section 6 of the OGRA Ordinance, 2002 to support the plea that only with regard to the regulated activity is the jurisdiction of OGRA exclusive while in all other matters it runs concurrently with the Ombudsman's jurisdiction under the Order. According to him, the instant matter is not a case which is related to a regulated activity and it simply alleges bad faith against an individual officer of SNGPL, which gave rise to maladministration. He has referred to Capital Development Authority through Chairman and another v. Zahid lqbal and another (PLD 2004 SC 99), Shafaatullah Qureshi v. Federation of Pakistan (PLD 2001 Supreme Court 142), Allied Bank of Pakistan Ltd. v. The Wafaqi Mohtasib (Ombudsman) and others (PLD 2001 Kar. 203) and Rahat Hussain v. Collector of Customs (Prey.), Customs House, Karachi and 2 others (2003 CLC 1860) in support of his submissions.
OMBUDSMAN'S SUBMISSIONS
7. The submissions on behalf of the Ombudsman are not required to be reproduced extensively. In short, a reproduction of paragraph of the comments filed in this regard will suffice. It is to the following effect:-- "(j) Same as explained at paras 8/a, H & I. Furthermore, the dispute arising out of excess billing or alleged neglect, inefficiency, unjust, arbitrary, discriminatory or an act of commission or omission on the part of the Agency does fall within the definition of mal-administration as defined under Article 2 of the PO No.1 of 1983. After the same time, it does not mean that the mal-administration is confirmed against the Agency unless it is concluded after hearing of the case by the Investigation Officers of the Ombudsman's Secretariat."
8. Written formulations on behalf of Wafaqi Mohtasib Secretariat have already been filed which is a response to a questionnaire which was developed by this Court in its order dated 15-10-2014 in Writ Petition No.12729 of 2013. The learned counsel representing the office of the Ombudsman has relied upon the judgments, copies of which have been submitted with the written formulations on their behalf. They shall be dealt with in due course of time.
THE RELEVANT PROVISIONS ARTICLE 37 OF ORDER OF 1983 "Order to override other laws. ---The provisions of this Order shall have effect notwithstanding any thing contained in any other law for the time being in force."
FEDERAL OMBUDSMAN INSTITUTIONAL REFORMS ACT, 2013.
' Section 2(a)
(a) "Agency" means, the Agency defined in the relevant legislation and in relation to the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 (P.O.No.1 of 1983) shall include an Agency in which the Federal Government has any share or which has been licensed or registered by the Federal Government and notified by the Federal Government in the Official Gazette.
' Section 18 ' Bar of jurisdiction.---No Court or authority shall have jurisdiction to entertain a matter which falls within the Jurisdiction of an Ombudsman nor any court or authority shall assume jurisdiction in respect of any matter pending with or decided by an Ombudsman.
OGRA ORDINANCE, 2002 "11. Complaints.---(1) Any interested person may file a written complaint with the Authority against the licensee for contravention of any provision of this Ordinance or of any rule or regulation.
(2) The Authority shall, on receipt of a complaint, provide an opportunity to the complainant as well as to the licensee, or any other person against whom such complaint has been made to state its case before taking action thereon."
"43. Ordinance to override other laws.---(1) The provisions of this Ordinance, the rules and the regulations, and any licenses issued hereunder shall have effect notwithstanding anything to the contrary contained in any other law, rule or regulation, for the time being in force, and any such law, rule or regulation shall, to the extent of any inconsistency, cease to have any effect on the commencement of this Ordinance and the Authority shall, subject to the provisions of this Ordinance, be exclusively empowered to determine the matters in its jurisdiction as set out in this Ordinance.
(2) Nothing in this Ordinance, or any repeal effected thereby, shall affect or be deemed to affect anything done, action taken, proceedings commenced, directions given, instruments executed or orders, rules or regulations issued under or 'in pursuance of any law repealed are amended by this Ordinance and any such things, actions, proceedings, directions, instruments or orders shall, if in force on the commencement of this Ordinance, continue to be in force and have effect as if the same were respectively done, taken, commenced, given executed or issued under this Ordinance."
' NEPRA Act of 1997 "45. Relationship to other laws. The provisions of this Act, rules and regulations made and licenses issued there under shall have effect notwithstanding anything to the contrary contained in any other law, rule or regulation, for the time being in force and any such law rule or regulation shall, to the extent of any inconsistency, cease to have any effect from the date this Act comes into force and the Authority shall, subject to the provisions of this Act, be exclusively empowered to determine rates, charges and other terms and conditions for electric power services:- ' Provided that nothing in this Act shall affect the jurisdiction, powers or determinations of the Corporate Law Authority or the Monopoly Control Authority."
IS THERE AN OUSTER OF JURISDICTION OF THE OMBUDSMAN IN THE MATTERS OF SNGPL AND LESCO.
9. In any inquiry or determination, the first step is always to ask the right question. The right question in this case is whether the jurisdiction of the Ombudsman under the Order stands ousted by the provisions of the special laws and not whether said disputes are within the definition of maladministration given in the Order and thus justiciable by the Ombudsman? For, in my opinion, the issue in these petitions will not turn upon whether it is maladministration or not as in that case it will be well-nigh impossible to dissect in each case the instances of maladministration. The learned counsel for the petitioner, as I understand, has raised a challenge to a complete ouster of the Ombudsman's jurisdiction in all matters relating to the SNGPL and LESCO with its consumers may they be billing disputes or others regarding meters, detection bills, tampering, theft etc. Learned counsel for the petitioner pleads a total and complete lack of jurisdiction on the part of the Ombudsman to adjudicate upon these cases.
10. The learned counsel for the respondent Mr. Shahzad Shaukat has cited the following rulings for support:-- ' Capital Development Authority through Chairman and another v. Zahid labal and another (PLD 2004 SC 99); ' Rahat Hussain v. Collector of Customs (Prey.), Customs House, Karachi and 2 others (2003 CLC 1860).
' Allied Bank of Pakistan Ltd. v. The Wafaqi Mohtasib (Ombudsman) and others (PLD 2001 Kar. 203).
' Shafaatullah Qureshi v. Federation of Pakistan (PLD 2001 Supreme Court 142).
' The Prince Wass Works Ltd. v. National Beverages Ltd and Another (PLD 1987 Kar. 49).
' These rulings are not relevant for the purposes of resolution of the present controversy. None of these judgments had the occasion to deal with the issue in these petitions viz. The Basis Authority Question. PLD 2004 SC 99 is relevant so far as the observations as regards the raison d'etre of establishing the office of Ombudsman, which were:-- "
17. Needless to add here that object of establishing the Office of WAFAQI MOHTASIB was to diagnose, investigate, redress and rectify any injustice done to a person through maladministration on the part of any agency. The purpose thus was to undo the administrative excesses from within the administration so that justice could be made available to the wronged persons without such persons being forced to knock at the doors of the Courts of law. Therefore, wide powers had been conferred on the Ombudsman through section 9 of President's Order No.1 of 1983 and the only matters which were kept out of his jurisdiction were the matters which were sub judice before some Court or Tribunal etc. Of competent jurisdiction; matters which related to the external affairs of Pakistan or matters which related to or were connected with the defence of Pakistan. All other matters irrespective of the fact whether they stemmed out of contractual obligations or otherwise were well within the powers of the Ombudsman and a complainant consequently could not be thrown out only because a complained matter emanated from contractual dispute."
' In PLD 2001 SC 142, the Hon'ble Supreme Court of Pakistan settled the proposition that Ombudsman/Wafaqi Mohtasib was not a court or judicial tribunal within the meaning of Art. 175 of the Constitution.
11. The learned counsel for the petitioner has, in respect of SNGPL cases, relied upon the following precedents:- ' Sheikh Khalid Mehmood v. Banking Tribunal, N. -W. F. P, Peshawar and another (1997 CLC 1812)
' Samina Anwaar Ullah Khan v. General Manager, SNGPL, Lahore (PLD 2012 Lah. 554).
' Secretary Wafaqi Mohtasib and 6 others v. Capital Steel Re-Rolling Mills through Partner and 2 others (PLD 2012 Lah. 493).
' In PLD 2012 Lah. 554, the Court was merely concerned with the question of exercise of delegated powers to the consultant during the vacancy in the office of Ombudsman. This was a different proposition altogether. PLD 2012 Lah. 493, too, is not relevant to this case.
' 1997 CLC 1812, however, is a paradigm case. Perhaps for the first time the respective jurisdictions of Ombudsman with a special law, viz. Banking Tribunals Ordinance, 1984 were compared. The finding returned was thus: "It is a settled proposition of law that if two provisions of two different enactments are in clash with each other and cannot be reconciled, then the latter in date shall prevail. The Banking Tribunal Ordinance was effective from 31st December, 1984 while the Presidential Order 1 through which the office of Ombudsman was created was promulgated on 24th January, 1983. This being the legal position, the provisions of the Banking Tribunal Ordinance shall prevail upon the President Order 1 referred above. Even otherwise, the Banking Tribunal Ordinance is a special law on the subject while the President Order 1 is a general law and on this view too, the Banking Tribunal Ordinance had an overriding effect on the Presidential Order 1 of 1983."
12. It is clear that the Ombudsman's jurisdiction was held to be ousted by the Banking Law on the grounds firstly that it was later in time and secondly that it was a special law. No further discussion or reasoning preceded this finding.
13. The learned counsel for the office of Ombudsman made a passionate defence of the powers of the Ombudsman in this regard. He almost jealously guarded these powers. It is not necessary to reproduce or refer to all those submissions made. In a word, the counsel's submission was that if there was an allegation of maladministration, the Ombudsman would have the power to enter upon the dispute and that matters relating to gas detection bills, direct theft/meter tampering etc. Are cognizable by the Ombudsman if the essential jurisdictional fact exists; that is, allegation of maladministration. He further submitted that neither the OGRA Ordinance, 2002 nor NEPRA Act, 1997 were intended to deal with matters of maladministration.
14. The counsel for the office of Ombudsman has referred to a cluster of judgments, yet none of them would strengthen his case in a substantial manner. They are not directly in point and have not dealt with the present issue. The precedents of the Hon'ble Supreme Court, relied upon by both the learned counsel for SNGPL and LESCO on one hand and of Wafaqi Mohtasib on the other, viz. PLD 2006 SC 328 and PLD 2012 SC 371 are authorities in respect of the powers of Electric Inspector under the Electricity Act, 1910 and did not involve the complexity which afflicts the present cases as regards the powers of the Wafaqi Mohtasib to intervene in these matters.
15. Pakistan Water and Power Development Authority through Executive Engineer MEPCO Ltd. v.
Messrs Husnain Industries (Pvt.) Ltd. Through Managing Director Amir Azwar Khan and 3 others (2005 MLD 1979), a judgment by this Court, is a precedent in which, upon refusal to implement the orders of the Electric Inspector and Advisory Board, a complaint was filed before the Wafaqi Mohtasib to seek their implementation. However, the petition was dismissed in limine on the ground that a remedy lay under Article 32 of the Order of 1983 and the constitutional petition was not maintainable. This precedent, though not applicable directly, gives some actuality to the analysis in the present petition. For that, I shall revert to this judgment in respect of the conclusion that I wish to draw in this case.
16. A prefatory regarding some basic theories of interpretations which will be engaged in the discussion that follows can be made in the words of Professor Lawrance H. Tribe in his well-known treatise `American Constitution Law' as follows: - "(1) Textualism, the "determined and primary focus on Constitutional language, whether or not to the exclusion of other interpretative sources.
17. According to the recent book "Reading Law---The Interpretation of Legal Texts" by Antonin Scalia, a Justice of the Supreme Court of America, and Bryan A. Garner, who can be said to be the modern exponents of texualism, "The words of a governing text are of paramount concern, and what they convey, in their context, is what the text means".
' But the Textualists reject the view that textualism is antonym of purposivism. According to them words are given meaning by their context and the context includes purpose. They also object to being called strict constructions (See "Reading Law p 355)."
"(2). Structure; the effort to discern meaning through constitutional structure and the architecture of government established by the Constitution."
"(3). History, "the supplementation of text and structure with historical considerations including various forms of inquiry into original meaning or original intent"
"(4). Values, the "elucidation of meaning through attempts to discern which interpretation best accords with the ethos or moral and political character and identity of the nation."
18. I may add to this list purposive interpretation. According to Aharon Barak, Justices of the United States Supreme Court are divided on the task of constitutional interpretation, and it is his view "that purposive interpretation provides a proper solution to this interpretative dilemma". (See his Foreword to Harvard Law Review 2002). According to Aharon Barak, "one should not give the constitution a meaning that its express or implied language cannot sustain A constitution is a unique legal document. It enshrines a special kind of norm and stands at the top of the normative pyramid The key question is what is the proper system of interpretation in the context of a particular system of government, in the context of a particular society"? In his view, "purposive interpretation is that proper system. Purposive interpretation is based, of course, on the concept of purpose. Purpose is a normative concept that the law constructs".
19. As was said by Lord Griffith in the famous case of Pepper v. Hart, (1993) 1 All ER 42, 50, (quoted in Gadoon Textile Mills v. WAPDA 1997 SCMR 641, 829): ' The days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach to give effect to the true purpose of legislation".
' Statutes should, said Lord Roskill in Anderson v Ryan (1985) 2 All ER 355, 359, be given what has become known as a purposive construction, that is to say, the courts should when possible identify the mischief which existed before the passing of the statute and then if more than one construction is possible favour that which will eliminate the mischief so identified".
In short, purposive interpretation rests on the straightforward premise that law is enacted to fulfill a purpose.
20. The controversy will have to be analyzed on the basis of purposive interpretation, conflict between special and general laws and that the two laws must be reconciled. At the very outset, firmly believe that the competing non obstante clauses in the laws do not have the unholy effect of completely ousting or rendering ineffective the other law. These have to be reconciled and can be made to operate in their respective spheres. This is a principle that can be culled out from a long line of judgments. If the non obstante clause were to have sway then the matter would simply be resolved on the touchstone of S.24 of the Act of 2013 which is as under:-- "24. Overriding effect.---(1) The Provisions of this Act shall have effect notwithstanding anything contained in any other law for the time being in force.
(2) In case there is a conflict between the provisions of this Act and the relevant legislation, the provisions of this Act to the extent of inconsistency, shall prevail."
' This provision, in my opinion, simply means that where maladministration is alleged and made out then the Ombudsman can take cognizance of the matter. Yet this has to be squared against the laws which cover special subjects and provide specialist forums. The two have to be balanced and reconciled. OGRA Ordinance, 2002 and NEPRA Act, 1997 are on special subjects and in that sense are special laws without a doubt.
21. In my opinion, the significance of a non obstante clause or an overriding provision becomes all too apparent in the context of special and general laws: In the setting of a special law, a non obstante clause will represent indubitably the will of the legislature, its parliamentary intent. This is where the purposive interpretation will be put to use. What was the purpose of enactment of OGRA Ordinance, 2002 and NEPRA Act, 1997? Quite obviously to provide for specialized forums for the resolution of a special nature. This is one of the functions of the Authorities set up under those laws.
There are other equally important functions impacting the areas of oil and gas in case of OGRA and electricity in case of NEPRA. Here, this Court is not concerned with those functions of both the Authorities but only with the procedures relating to complaints etc. In which the Ombudsman claims to have jurisdiction, too and thus justiciable by the office of Ombudsman. I will here pause to bear in mind the immutable principle of interpretation ttat the laws are presumed to be valid and the legislature does not commit a mistake and also does not waste its words. Disputes in the nature of detection bills, tampering of meters, determination of bills vis-a-vis tariffs, pricing and for line losses and myriad such disputes of a like nature are covered by the special laws. Before the promulgation of the OGRA Ordinance, 2002 and NEPRA Act, 1997, these were perhaps covered by the term maladministration and thus cognizable by the Ombudsman. Section 6 of the OGRA Ordinance, 2002 and section 7 of the NEPRA Act, 1997 can be regarded as blazing a new trail in the laws relating to oil, gas and electricity. These provisions delineate and lay down a conspectus of the powers and functions of the respective authorities. The exclusivity is at once apparent by the preamble of these provisions. They are referred to as under: ' OGRA Ordinance, 2002 "6 "Powers and functions of the Authority.---(1) In addition to such others powers and functions as may be imposed on it or transferred under this Ordinance, the Authority shall be exclusively responsible for granting licenses for the carrying out of regulated activities and regulating such activities."
NEPRA Act, 1997.
"7 "Powers and functions of the Authority.---(1) The Authority shall be exclusively responsible for regulating the provision of electric power services."
' The intention of the legislature is too obvious to ignore. These laws, after their promulgation, carved out special forums and set them up for determination of such disputes and the powers under the general law stood restricted to that extent. A glance, at this stage, on the substance and practical operation of general and special statutes will be in order; and how they have been treated in different treaties: Interpretation of Statutes by Bindra (11th Edition).
"In Corporation of Madras v Electric Tramways Ltd, the Court was considering the apparent conflict between the Madras City Municipality Act(general) and the Tramways Act(Special)."
"Reily J. Incisively observed: "Having made the general Act, if the legislature afterwards makes a special Act in conflict with it, we must assume that the legislature had in mind its own general Act when it made the special Act and made the special Act, which is in conflict with the general Act as an exception to the general Act."
"Where a general intention is expressed, and also a particular intention which is incompatible with the general one, the particular intention is considered to be an exception to the general one."
"When the legislature has given its attention to a separate subject, and made provision for it, the presumption is that the subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly."
"In Maruti Udyog Ltd v Ram Lai, the Supreme Court observed that while pronouncing on the competing reach of overriding clauses in special statutes, it is well-settled that when both statutes containing non obstante clauses are special statutes, an endeavor should be made to give effect to both of them. In case of conflict, the later in time shall prevail."
The Construction of Statutes by Crawford (Reprint 2014).
"70. General and Special or Local Acts. ---A general law is one which embraces a class of subjects or places and does not omit any subject or place naturally belonging to such class, while a local Act is one whose operation is confined to the property and persons of a limited portion of the state. Similarly, a special act is one which relates to particular persons or things of a class."
"In determining whether a law is public, general, special or local, the court should look to its substance and practical operation rather than to its title, form, or phraseology. Substance rather than form is the determining factor."
Reading Law: The Interpretation of Legal Texts by Antonin Scalia and Bryan A. Garner.
"The general/specific canon, like the irreconcilability canon (see S 29), deals with what to do when conflicting provisions simply cannot be reconciled---when the attribution of no permissible meaning can eliminate the conflict. Which provision must yield? Or must they both be disregarded? Under this canon, the specific provision is treated as an exception to the general rule. Jeremy Bentham supplied the rationale: Mhe particular provision is established upon a nearer and more exact view of the subject than the general, of which it may be regarded as a correction." Or think of it this way: the specific provision comes closer to addressing the very problem posed by the case at hand and is thus more deserving of credence."
"But what about contradictory provision in two separate statutes--an earlier general prohibition (or permission) contradicted by a later specific permission (or prohibition), or an earlier specific permission (or prohibition) contradicted by a later general prohibition (or permission)? Does the rule apply to these? And does its applicability depend on which provision is enacted later?
' The reason why the canon might be thought inapplicable to seeming contradictions in successive statures is simple: No one (or almost no one) thinks that the way contradictions are to be resolved in single instruments, including single statutes, is that the provision appearing later in the instrument prevails. But it is a principle of statutory construction that a later-enacted stature that contradicts and earlier one effectively repeals it (see S 55). So where there is a conflict between a general provision and a specific one, whichever was enacted later might be thought to prevail. But that analysis disregards the principle behind the general/specific canon-namely, that the two provisions are not in conflict, but can exist in harmony. The specific provision does not negate the general one entirely, but only in its application to the situation that the specific provision covers. Hence the canon does apply to successive statures. Indeed, that is perhaps its most common application, since legislators are often---despite the presumption to the contrary- --unfamiliar with enactments of their predecessors. They unwittingly contradict them."
22. Applying the standard rule defining general statutes that 'a general statute is presumed to have only general cases in view and not particular cases which have otherwise been already provided for by a special or local law', the Order comes across as a general statute conferring wide ranging and polycentric powers on the Ombudsman to undertake any investigation into any allegation of maladministration on the part of any Agency or any of its officers or employees. A reference to section 9 of the Order and the definitions of 'Agency' and 'maladministration' in the Order will be useful here; "9. Jurisdiction, functions and power of the Mohtasib.---(1) The Mohtasib may, on a complaint by any aggrieved person, on a reference by the President, the Federal Council or the National Assembly, as the case may be, or on a motion of the Supreme Court or a High Court made during the course of any proceedings before it or of his own motion undertaking any investigation into any allegation of maladministration on the part of any Agency or any of its officers or employees.
Provided that the Mohtasib shall not have any jurisdiction to investigate or inquire into any matters which:
(a) are sub-judice before a court of competent jurisdiction or tribunal or board in Pakistan on the date of the receipt of a complaint, reference or motion by him; or
(b) relate to the external affairs of Pakistan or the relations or dealing of Pakistan with any foreign state or government; or (c)relate to, or are connected with the defence of Pakistan or any part thereof, the military, naval and air forces of Pakistan, or the matters covered by the laws relating to those forces."
(1)"Agency" means a Ministry, Division, Department, Commission or office of the Federal Government or statutory body, corporation or other institution established or controlled by the Federal Government but does not include the Supreme Court, the Supremo Judicial Council, the Federal Shariat Court or a High Court; (2)"Maladministration" includes: (i)a decision, process, recommendation, act of omission or commission which: (a)is contrary to law, rules or regulations or is a departure from established practice or procedure, unless it is bona fide and for valid reasons; or (b)is perverse, arbitrary or unreasonable, unjust, biased, oppressive, or discriminatory; or (c)is based on irrelevant grounds; or (d)involves the exercise of powers of the failure or refusal to do so, for corrupt or improper motives, such as, briber, jobbery, favouritism, nepotism and administrative excesses; and (ii)neglect, inattention, delay, incompetence, inefficiency and ineptitude, in the administration or discharge of duties and responsibilities."
23. It can be seen from the foregoing that the Order embraces a class of subjects and does not omit any subject naturally belonging to such class. It is, as opposed to the special laws which relates to particular persons or things of a class. The Ombudsman is generally concerned with the subject of maladministration in any Agency and the term Agency is so broad as to include all ministries, departments, divisions, statutory bodies etc. Of the Federal Government with a few exceptions of the superior courts. And the definition of maladministration too is all-pervasive to include any decision etc. Which offends the criteria so broadly explicated in section 2(2) of the Order. The complaint before the Ombudsman is a public law remedy. The Ombudsman legislation has clearly defined characteristics. The person who makes a complaint can do so directly to the Ombudsman's office; the office is independent, the jurisdiction of Ombudsman is widely defined attempts are made to redress complaints quickly. Generally speaking, it is a positive weapon in the citizen's armoury against arbitrary administrative action.
24: The non .Obstante clauses viz. Section 37 of the Order of 1983, section 24 of the Act of 2013, section 43 of OGRA Ordinance, 2002 and section 45 of NEPRA Act, 1997 make an interesting study in contrast as between Order 1983 and Act of 2013 on the one hand and OGRA Ordinance, 2002 and NEPRA Act, 1997 on the other. The provisions in the former simply provide that the provisions should have effect notwithstanding anything contained in any other law for the time being in force. While the latter provisions, without equivocation and in clear terms, declare all laws, to the extent of inconsistency, to cease to have effect on the commencement of these Ordinances and the Authorities under these cases have been extensively empowered to determine the matters in its jurisdiction. There could not have been a clearer expression of the legislative intention and the purpose of these laws. It is as if, the distant oracle has spoken. Here, a reference to the informed interpretation rule can usefully be done.
Bennion on Statutory Interpretation (sixth edition)
"(1) It is a rule of law (in this Code called the informed interpretation rule) that the person who construes an enactment must infer that the legislator, when settling its wording, intended it to be given a fully informed, rather than a purely literal, interpretation (though the two usually produce the same result).
(2) Accordingly, the court does not decide whether or not any real doubt exists as to the meaning of an enactment (and if so how to resolve it) until the court has first discerned and considered, in the light of the guides to legislative intention, the context of the enactment, including all such matters as may illumine the text and make clear the meaning intended by the legislator in the factual situation of the instant case.
(3) For this purpose Parliament intends the court to permit the citation of any publicly-available material which, in accordance with the interpretative criteria, the court considers it proper to admit (whether unconditionally or de bene esse). "
Non obstante clause: Summary of case law:
25. The discussion must begin by the general principle that statutes have to be construed so that every word has a place and every thing is in its place. No part of a statute and no word of a statute can be construed in isolation. (AIR 2012 SC 11). It was observed in that judgment that:-- "38. Another rule of interpretation of Statutes is that if two special enactments contain provisions which give overriding effect to the provisions contained therein, then the Court is required to consider the purpose and the policy underlying the two Acts and the clear intendment conveyed by the language of the relevant provisions.
"39 In Shri Ram Narain v. Simla Banking and Industrial Co. Ltd. 1956 SCR 603, this Court was considering the provisions contained in the Banking Companies Act, 1949 and the Displaced Persons (Debts Adjustment) Act, 1951. Both the enactments contained provisions giving overriding effect to the provisions of the enactment over any other law. After noticing the relevant provisions, the Court observed: "Each enactment being a special Act, the ordinary principle that a special law overrides a general law does not afford any clear solution in this case."
"It is, therefore, desirable to determine the overriding effect of one or the other of the relevant provisions in these two Acts, in a given case, on much broader considerations of the purpose and policy underlying the two Acts and the clear intendment conveyed by the language of relevant provisions therein."
"41 In Ashok Marketing Limited v. Punjab National Bank (1990) 4 SCC 406, the Constitution Bench considered some of the precedents on the interpretation of statutes and observed: "The principle which emerges from these decisions is that in the case of inconsistency between the provisions of two enactments, both of which can be regarded as special in nature, the conflict has to be resolved by reference to the purpose and policy underlying the two enactments and the clear intendment conveyed by the language of the relevant provisions therein."
' In Morgan Securities and Credit (Pvt.) Ltd. v. Modi Rubber Ltd. (AIR 2007 SC 683): 2006(12) SCC 642, it was declared that:-- "40 Both the Acts contain non-obstante clauses. Ordinary rule of construction is that where there are two non-obstante clauses, the latter shall prevail. But it is equally well-settled that ultimate conclusion would depend upon the limited context of the stature. [See Allahabad Bank v. Canara Bank and Another, (2000) 4 SCC 406 - para 34]."
In Messrs Maruti Udyog Ltd. v Ram Lal and others (2005) 2 SCC 638) the law is stated in the following terms:- "The said Act contains a non obstante clause. It is well-settled that when both statutes containing non obstante clauses are special statutes, an endeavour should be made to give effect to both of them. In case of conflict, the latter shall prevail."
' In Solidaire India Ltd. v. Fairgrowth Financial Services Ltd. And others (2001)3 SCC 71), it is stated: "9. It is clear that both these Acts are special Acts. This Court has laid down in no uncertain terms that in such an event it is the later Act which must prevail. The decisions cited in the above context are as follows: Maharashtra Ltd., Sarwan Singh v. Kasturi Lal; Allahabad Bank v. Canara Bank and Ram Narain v. Simla Banking & Industrial C. Ltd."
' Two other judgments from the Indian jurisdiction viz. State of Bihar v Bihar Rajya (AIR 2005 SC 1605) and Sarwan Singh v Kasturi Lal (AIR 1977 SC 265), reiterate the same principles.
' Two judgments on the interpretation of these provisions by the Hon'ble Supreme Court of Pakistan shall suffice. They virtually encapsulate the law on the subject. The said rulings are an authority for the treatment of general and special law as well I begin by referring to Muhammad Mohsin Ghuman and others v, Govt. Of Punjab through Home Secretary, Lahore and others. (2013 SCMR 85), wherein it was observed that:--
10. The question of applicability of General and Special Laws was also considered by the Privy Council in Montreal Corporation v. Montreal Industrial Land Company (AIR 1932 PC 252) wherein it was laid down as follows:-- "When the legislature had given its attention to a separate subject and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly. Each enactment must be construed in that respect according to its own subject-matter and its own terms.'
11. The afore-referred. View was reiterated in Tahira Hag v. A. R. Khan Niazi, Additional Commissioner (Revenue) Multan (PLD 1968 Lah. 344) and it was held as under:-- "The principle that the general law would not prevail over a specific enactment is now well-settled and one may refer in this behalf to AIR 1921 Lah.280; AIR 1941 Lah. 364; AIR 1936 Sindh 89; AIR 1934 Bom. 16 and AIR 1936 Nag.
180. The principles which emerge from these authorities are that where special provision is made in a special statute that special provision excludes the operation of a general provision in the general law."
12 ................
13. This brings us to the argument raised regarding the non obstante clause raised by appellants' learned counsel. One of the foundational principles governing the interpretation of non obstante clause is that it has to be read in the context of what the legislature intended in the enacting part of the provision. In 'Interpretation of Statutes' by NS Bindra, the author with reference to specific precedent case-law precisely addresses this issue and comments as follows:- "It has to be read in the context of what the legislature conveys in the enacting part of the provision. It should first be ascertained what the enacting part of the section provides on a fair construction of words used according to their natural and ordinary meaning and the non obstante clause is to be understood as operating to set aside as no longer valid anything contained in relevant existing law which is inconsistent with the new enactment. The enacting part of a statute must, where it is clear, be taken to control the non obstante clause where both cannot be read harmoniously, for even apart from such clause a later law abrogates earlier laws clearly inconsistent with it.
' The proper way to construe a non obstante clause is first to ascertain the meaning of the enacting part on a fair construction of its words. The meaning of the enacting part which is so ascertained is then to be taken as overriding anything inconsistent to that meaning in the provisions mentioned in the non obstante clause. A non obstante clause is usually used in a provision to indicate that that provision should prevail despite anything to the contrary in the provision mentioned in such non obstante clause. In case there is any inconsistency between the non obstante clause and another provision one of the objects of such a clause is to indicate that it is the non obstante clause which would prevail over the other clauses. It does not, however, necessarily mean that there must be repugnancy between the two provisions in all such cases.
The principle underlying non obstante clause may be invoked only in the case of "irreconcilable conflict".
14.............
15.............
16. In the instant appeals, on the contrary, we are seized of the import and effect of special law vis-a-vis a general law and the argument being raised by appellants learned counsel is that the general law would override the special law in terms of Rule 3(v) of the Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976. This interpretation of non obstante clause appearing in a general law is not only against the legislative intent reflected in the said provision but is also against the law declared. In R.S. Raghunath v. State of Karnatak (AIR 1992 SC at 81 at page 89), the Court was seized of a similar issue and held as follows:- "A special enactment or rule cannot be held to be overridden by a later general enactment or simply because the latter opens up with a non obstante clause. There should be a clear inconsistency between the two before giving an overriding effect to the non obstante clause. '.
17. The principle of law reiterated in the precedent case law is that special statute overtakes the operation of general statute.
' In Packages Limited through its General Manager and others v. Muhammad Maabool and others (PLD 1991 Supreme Court 258); it is stated. Thus:-- ' In our opinion a 'non obstante' clause operates as an ouster of the earlier provisions only where there is a conflict and inconsistency between the earlier provisions and those contained in the later provision and, therefore, must be read in the context in which it is operating.
' Accordingly, a non obstante clause will operate as ouster only if an inconsistency between the two is found to exist.
26. It is a truism, therefore, from the principles culled out from above, that:-- a special law will override a general law and this is based on the maxim generalia specialibus non derogant---special provisions will control general provisions.
A non obstante clause must be given effect to 'to the extent the parliament intended and not beyond the same.'
The endeavour of the court should always be to adopt a rule of harmonious construction.
The conflict has to be resolved by reference to the purpose and policy underlying the two enactments and the clear intendment conveyed by the language of the relevant provisions.
The Office of Ombudsman--its origin
27. Though the origin and history of the concept of the Office of an Ombudsman worldwide is not bound to exercise a gravitational pull on the present petition yet a brief reference will not be out of context:-- "b. History and origin of office of Ombudsman:---"The concept is very old. First Nations communities have for a long time had a variety of mechanisms to mediate between decision makers and the people. Muslims offer the ancient Mohtasib who toured through the cities, towns and marketplaces on a daily basis to ensure that officials were acting correctly and morally, that customers were not cheated, and to offer resolution of disputes. The Mohtasib had the authority to reverse an official order which they deemed to be unjust. The word Mohtasib is derived from the term Hisba, or accountability, not only before society, but to one's self and before higher powers. In ancient time, China had an institution known as the Censorate. Its mandate was to monitor government administration to detect any maladministration which threatened the rights of the people. Many cultures in the Pacific offer examples. In Hawaii there is a practice known as Ho'oponopono, which has respected elders who resolve disputes according to principles of unity known as Lokahi. In Guam, the Ombudsman is called the Suruhanu, a term meaning a wise and capable healer who is regard as special capacities to resolve grievances. When the Swedish King Charles XII was in self-exile in Turkey after the battle of Poltava in Russia, he learnt about the second Muslim Caliph, Umar (634-644) and the concept of Qazi-ul-Quzat ("judge of judges") developed in the Islamic law of the Ottoman Turks. When King Charles returned to Sweden in 1713, he created the Office of Supreme Ombudsman to make Government, Administratives more accountable. There followed fifty years of disputes between the King and Parliament about who the Chancellor of Justice would report to. The outcome was that in 1809, an Ombudsman was established in the Swedish Constitution linked to Parliament, not the executive. It was designed to be a supervisory agency impendent of the executive branch of government, charged with the responsibility of protecting the rights of the people. It was not until a century and a half later that the Swedish model begin to attract the attention of English-speaking word. Some people react to the "man" in Ombudsman, thinking this loads the term as the property of males, as in the term "manpower" or "mankind". However, the term Ombudsman comes from an entirely different construction.
' The origin of the word is found in an Old Swedish term, Ombuds man, meaning "representative of the people". In the sixteenth century, there was the Norwegian "Ombudsmann" and the Danish "Ombudsmand".
"By 2001 the institution of Ombudsman on the national level had spread to approximately 110 countries of the world. In many countries there are also regional, city and provincial Ombudsmen, and some countries have Ombudsmen on the national, regional and sub national level. The institution of Ombudsman enjoyed its greatest popularity in the 1960s,. When it was established on a mass scale by the Commonwealth countries and by other, mainly European countries. In the middle of 1983 approximately 21 countries had the institution of Ombudsman on the national level, and 6 had the institution on the provincial/state or regional level. In recent years the wholesale expansion of the institution of Ombudsman has been taking place as a consequence of the transition of many countries to democracy and to democratic structures of government. The transition to democracy accompanied by reforms of governMents, has been observed primarily in Latin America, Central and Eastern Europe and also in parts of Africa and pacific Asia. The countries that established their own Ombudsmen during this time comprise, Argentina, Cost Rica, Columbia, Guatemala, Peru, Namibia, South Africa, Poland, certain francophone African countries, Hungry, Lithonia, Slovenia, the Czech Republic, Thailand and the Philippines. Building on this, under the principles of the Maastricht Treaty, the European Union established the European Ombudsman. The first of these was appointed in 1995."
28. Pakistan, too, has not remained on the fringes of such a significant development in this global phenomenon. It has established the following offices of Ombudsman, thus far:-- ' Wafaqi Mohtasib ' Provincial Ombudsman Banking Ombudsman ' Federal Insurance Ombudsman ' Federal Tax Ombudsman (The significance of this fact on the 'present petition will be reverted to in the later part of this judgment).
Are SNGPL & LESCO, Agencies within the Order of 1983:
29. The learned counsel for the parties did not dwell on the issue nor contest the proposition that SNGPL and LESCO were in fact included in the definition of the term 'Agency' as given in the Order of 1983 read with the Act of 2013. College of Physicians and Surgeons Pakistan v. Wafaqi Mohtasib and others (PLD 2003 Kar. 667), Tariq Majeed Chaudhry v. Lahore Stock Exchange (Guarantee) Ltd.
Through President and 3 others (PLD 1995 Lah. 572) and Sindh Industrial Trading Estate. Ltd. v.
Provincial Ombudsman and others (1993 SCMR 948) are directly on the point and conclusively deal with the issue. The term Agency has further been extended and clarified by the. Act of 2013 to include an. Agency in which the Federal Government has any share or which has been licensed or registered by the Federal Government and notified by the Federal Government in the official gazette. The sweep of this definition is wide enough to include SNGPL and LESCO within it, both being Government instrumentalities.
Is the Order of 1983, a general law, silently excluded:
30. There can perhaps be no two opinions on whether the OGRA Ordinance, 2002 and the NEPRA Act, 1997 are special laws or not. They are covered by the statement in respect of special laws brought forth by the Hon'ble Supreme Court of Pakistan in Sher Ali Baz v. Secretary, Establishment Division (PLD 1991 SC 143).
"This principle of interpretation found recognition in Fitzgerald v. Champneys (2J & H 31,54 QUOTED WITH APPROVAL IN Re Smith's Estate, Clements v. Ward, 35 Ch D 389; Marbury v. Plowman, 16 CLR 468, 473 by Wood, V. C. In the following words:-- "In passing the special Act, the Legislature had their attention directed to the special case which the Act was meant to meet, and considered and provided for all the circumstances of that special case; and, having so done, they are not to be considered by a general enactment passed subsequently, and making no mention of any such intention, to have intended to derogate from that which, by their own special Act, they had thus carefully supervised and regulated."
' And in WAPDA v. Muhammad Arshad Qureshi (1986 SCMR 18), while relying on Maxwell on Interpretation of Statutes:-- "Having already given its attention to the particular subject and provided for it, the legislature is reasonably presumed not to intend to alter that special provision by a subsequent general enactment unless that intention be manifested in explicit language, or there be something which shows that the attention of the legislature had been turned to the special Act and that the general one was intended to embrace the special cases provided for by the previous one, or there be something in the nature of the general one making it unlikely that an exception was intended as regards the special Act. In the absence of these conditions, the general Statute is red as silently excluding from its operation the cases which have been provided for by the special one."
31. This much is also evident from the extracts from various treaties brought to fore in the preceding paragraphs. In the words of Maxwell on Interpretation (Ninth Edition, P.185), 'having' already given its attention to the particular subject and provided for it, the legislature is reasonably presumed not to intend to other that special provision by a subsequent general enactment ' The Authorities under the OGRA Ordinance, 2002 and NEPRA Act, 1997 perform highly skilled and technical functions.
Under NEPRA Act, 1997 for example, the Authority grants licenses to generation and distribution companies which require knowledge and expertise of a special nature. Likewise under section 31 of the Act, it determines tariffs and which again is an expert's domain and beyond a layman's power.
The Authority under the OGRA Ordinance, 2002 for its part, performs the extremely specialized function of inter alia, granting license for any regulated authority, specify performance and service standards, administer, enforce and certify standards, administer or establish prices, determine the well-head gas prices for producers of natural gas etc. This is the first set of functions being performed by these Authorities, the most important of which is the regulation of matters connected to regulated activity in both cases. All these matters require the authorities to engage in determination and decision-making. It is nobody's case that these decisions of the Authorities are challengeable on grounds of mal-administration. Yet broadly conceived, any decision by an Agency which is contrary to law or rules, is perverse arbitrary or unreasonable etc. Can form a subject of challenge before the Wafaqi Mohtasib. The counsel for Wafaqi Mohtasib, too, did not show any inclination to stretch the powers of Wafaqi Mohtasib to include the taking of cognizance of any complaint raising these issues of technical and complex nature. The only reason that comes to mind for doing this is the lack of capacity of the office of Wafaqi Mohtasib to grapple with and decide those issues. The respondents, including the Wafaqi Mohtasib, are however, extremely keen to retain for the Wafaqi Mohtasib the power to adjudicate on complaints as between the licensees/Utility companies and the consumers. This is blowing hot and cold. On the same touchstone and premise as the power is barred in respect of decisions of policy, pricing, tariff, grant of licenses etc., the power is barred in respect of complaints against licensees by consumers, too.
These are two planks of the same edifice and a bifurcation will be unreasonable and otiose. It requires no emphasizing that any such decision as between the licensee and the consumer will involve as many intricate and complex technical details as any other decision. The section 11 of OGRA Ordinance, 2002 and section 39 of NEPRA Act, 1997 do not make such a distinction and thus this Court will not read anything into those provisions to the contrary. This is based on the foregoing discussion regarding special laws and since OGRA Ordinance, 2002 and NEPRA Act, 1997 are special laws operating in their special areas, the general statute is 'silently excluded from its operation' .
The exclusion has to be complete and in toto and not piecemeal or in parts.
32. Regarding Public Utilities, the following excerpt from the book 'Regulating Public Utilities' a Constitutional approach by Cosmo Graham will be pertinent:-- "In a sense utility regulation is now a case of trying to find a "Third Way" between the lost post- Second World War social democratic consensus within which nationalized industries played an important part, and the discredited extreme forms of the New Right project of imposing free markets in various areas. The trick is to find an institutional structure which avoids the dangers of inefficient bureaucratic approaches but is able to mitigate the harshness of unregulated markets.
This is a constitutional issue because it means creating new public agencies, making them accountable for their activities and creating a new relationship between the state and its citizens, particularly those most disadvantaged by poverty."
33. Applying the test of purposive interpretation, it is a forgone conclusion that the parliament wanted a separate and distinct regulatory regime for the oil, gas and electricity sectors. They all become regulated activities thereby and specialized regulatory framework was put in place by the laws. It is not denied that members composing these bodies were specialties in these fields and elaborate qualifications were laid down for their appointments. The intention and purpose of setting up these special bodies was very clear and admitted of no ambiguity. These were to deal with all matters relating to special laws, including adjudication of complaints and disputes within their remit. There was no scope for bifurcation of those powers and the sharing of some of those with the Wafaqi Mohtasib. The entire concept would be eroded if parallel proceedings were allowed to be held or continued at the two different forums. There are a myriad of scenarios which could arise leading to extremely awkward and mutually contradictory situations. Courts and agencies would be confronted with the unsavory situation of which order to follow and of which forum.
34. If I may venture to add to the category of special laws, a further sub category of laws on subjects requiring special skills and expertise, just like the laws under consideration here. In all those laws on subjects requiring specialists to perform certain functions, it becomes more imperative to give effect to the purpose of that law. The courts should interpret those laws in such a way that that purpose is served. We live in an era of specialization and it is best to leave these questions of intricate and technical nature to specialists.
35. A reference was made in the earlier part of the judgment to the special office of Ombudsman which have been carved out of the office of the Wafaqi Mohtasib provided in the Order. We now have specialist Ombudsmen for banking, insurance etc. This lends credence to the argument that firstly, the Order is a general law and secondly, that the legislature recognizes the importance of special laws for special subjects and thus the sub classes of Ombudsmen. By holding that the powers of the Ombudsman under the Order stand excluded is merely giving effect to the intention of legislature.
36. This is important from another viewpoint. Certainty in laws is of paramount importance.
Consumers and utility sector alike should be certain about their remedies and where they lie. Also they should know whom to be accountable to The observations of Tom Bingham in the Rule of Law (said about the judges) equally applies to the Ombudsman. It is:-- "They have, in all probabilities, no expertise in the subject matter of the decision they are requiring.
They are auditors of legality: no more, but no less".
Does the maladministration trigger at all in these matters.
37. The question still remains as to whether the powers of the Ombudsman are engaged and trigged at any stage of the proceedings in respect of special laws. This is necessitated owing to general rule expounded by Maxwell that. 'the general statute is read as silently excluding from its operation the cases which have been provided for by the special one'. It does no more than that.
The general stature is' not' repealed thereby and it is on the principle of harmonious reading of the two and by reference to the purpose and policy of the special laws that the operation of the provisions of the Order stand excluded. However, in any opinion there may be a situation which would reignite 'that power to be. Validly exercised as a case of maladministration. Before I proceed to do that, a brief summary of the various ways in which the term maladministration has been expounded are as follows:-- "Lord Denning MR in R v. Local Commissioner for Administration for the North and East Area of England, ex parte Bradford Metropolitan City Council (1979) 2 All ER 881; (1979) QB 287 has dealt with the matter thus: "This brings me to the substantial point in this case. Has there been a sufficient claim of maladministration such as to justify investigation by the local commissioner? ................... So this is the guide suggested to the meaning of the word maladministration. It will cover 'bias, neglect, inattention, delay, incompetence, inaptitude, perversity, turpitude, arbitrariness and so on'. It would be a long and interesting list, clearly open-ended, covering the manner in which a decision is reached or discretion is exercised: but excluding the merits of the decision itself or of the discretion itself It follows that a 'discretionary decision, properly exercised, which the complainant dislikes but cannot fault the manner in which it was taken, is excluded."
' S. H. Bailey and Brian Jones in their work "Cases, Materials and Commentary on Administrative Law "1 have this to say: "The courts have considered the scope of the term "maladministration" in relation to several ombudsman jurisdictions, but have not been in a position to offer a detailed definition. The Court of Appeal in Eastleigh held that it concerned the manner in which decisions are reached or implemented not the nature, quality and reasonableness of the decision itself. This position has been firmly maintained by the courts in a battle with the previous Pensions Ombudsman, Dr Julian Farrand, over the scope of his jurisdiction over complaints of maladministration. See further R.
Nobles, (2001) P.L.
308. Beyond this, the courts have not provided guidance. In R. v Parliamentary Commissioner for Administration Ex.p. Balchin (No.1) (1998] 1 P.L.R. 1, Sedley J.Said that: "So far as a court of judicial review is concerned the question is not how maladministration should be defined but only whether the Commissioner's decision is within the range of meaning which the English language and the statutory purpose together make possible. For the rest, the question whether any given set of facts amounts to maladministration-or by parity of reasoning, to injustice-is for the Commissioner alone".
' Justice (Retd.) Saleem Akhtar, as Federal Tax Ombudsman defined and explained the term in a decision titled Faqir Muhammad Masoom v. Secretary, Revenue Division, Islamabad reported as 2007 PTD 1936 thus:-- ' Thus in most general terms bad or poor management or regulation of public affairs is maladministration. Bad or poor management/regulation of public affairs will remain bad notwithstanding that it is bona fide and for valid reason because goals of good management or regulation of public affairs cannot be achieved without eradication of such reasons/ causes. This is the pronounced objective in the Preamble of the Establishment of the Office of Federal Tax Ombudsman Ordinance, 2000 reproduced hereunder--- ' Whereas it is expedient to provide for the appointment of the Federal Tax Ombudsman to diagnose, investigate, redress and rectify any injustice done to a person through maladministration by functionaries administering tax laws; "(Emphasis provided)"
38. And here-under is reiteration of the passage from Reading Law which will bring home the point. It is-- "But what about contradictory provisions in two separate statutes-an earlier general prohibition (or permission) contradicted by a later specific permission (or prohibition), or an earlier specific permission (or prohibition) contradicted by a later general prohibition (or permission)? Does the rule apply to these? And does its applicability depend on which provision is enacted later?
The reason why the canon might be thought inapplicable to seeming contradictions in successive statutes is simple: No one (or almost no one) thinks that the way contradictions are to be resolved in single instruments, including single statutes, is that the provision appearing later in the instrument prevails. But it is a principle of statutory construction that a later-enacted stature that contradicts an earlier one effectively repeals it (see S 55). So where there is a conflict between a general provision and a specific one, whichever was enacted later might be thought to prevail. But that analysis disregards the principle behind the general/specific canon--namely, that the two provisions are not in conflict, but can exist in harmony. The specific provision does not negate the general one entirely, but only in its application to the situation that the specific provision covers.
Hence the canon does apply to successive statutes. Indeed, that is perhaps its most common application, since legislators are often-despite the presumption to the contrary---unfamiliar with enactments of their predecessors. They unwittingly contradict them."
39. What follows indubitably is that the two provisions, viz the Order and the special laws can exist in harmony and the special laws do not negate the Order entirely, but only in its application to the situation that the special laws cover. I can well visualize a situation where a decision has been made and delivered by the Authorities under the special laws, yet the licensees are refusing to implement it. This, in my opinion, gives rise to the case of maladministration cognizable by the Ombudsman. Pakistan Water and Power Development Authority through Executive Engineer MEPCO Ltd. v. Messrs Husnain Industries (Pvt.) Ltd. Through Managing Director Amir Azwar Khan and 3 others (2005 MLD 1979) was perhaps a case in point. In that precedent the consumer had approached the Ombudsman in similar circumstances. This, to my mind, is the limited extent to which the Ombudsman can interfere in these matters on the basis of maladministration. But the primary decision making process remains the exclusive province of the Authorities under the special laws and the jurisdiction of the Ombudsman stands excluded.
' At this juncture and by way of a coup de grace, an extract of the annual report made by the Wafaqi Mohtasib to the President of Pakistan in 2005 is being reproduced to illustrate the promulgation of the special laws was likely to have on the role of the Ombudsman:- ' In the year 2005, the most significant development concerning this Office was the entrusting as of 15th March of the, complaints against Wapda and the Sui Gas companies to the National Electric Power Regulatory Authority (NEPRA) and the Oil and Gas Regulatory Authority (OGRA) in terms of the law on the subject---Regulation of Generation, Transmission and Distribution of Electric Power Act 1997 and Oil and Gas Regulatory Authority Ordinance, 2002 respectively. Since such complaints in the past constituted about 60% of the entire workload of this office, the effect on the statistics of registration and disposal of complaints during the calendar year has been very significant."
40. I would accordingly allow these petitions and hold as under:--
(1) The Ombudsman does not have the authority and power under section 9 of the Order in matters covered by the special laws and the powers of the Ombudsman are excluded to that extent.
(2) The proceedings pending before the Ombudsman with regard to SNGPL and LESCO and impugned herein are without lawful authority and of no legal effect.
(3) Proceedings for an alleged maladministration can only be undertaken in the limited circumstances alluded to in this judgment.
41. Before I part with this judgment, a word of gratitude is owed to the Research Centre of this Court for compiling research work in the preparation of this judgment. It has greatly added value to the judgment.