' SYED SAEEDUDDIN NASIR, J.--- Through this petition the petitioner has impugned the validity of non-commissioning of supply of gas by the respondents to the petitioner's CNG station located at Plot No,123, Survey No,259, Deh Sandki Tapoo and Taluka Sujawal, District Thatta Sindh and has sought direction to the respondents for. Commissioning the supply of gas to the aforesaid CNG station of the petitioner.
2. Brief facts of the case are that the petitioner obtained a Provisional License bearing No,OGRA- CNG-18 (4246)/2006 [hereinafter referred to as the "Provisional License] on 01.8.2006 from the respondent No,4 Oil and Gas Regulatory Authority (OGRA) to install a Compressed Natural Gas
(CNG) Filling Station under rule 6 of the CNG Rules. The petitioner in compliance with the term and conditions of the aforementioned Provisional License, proceeded with constructing/ establishing CNG Station. The Provisional License was extended by the respondent No,4 (OGRA), through letters dated 08.9.2008, 16.11.2011 and 18.11.2011 up to 03.01.2013. Pursuant to the terms and conditions of the Provisional License.
3. In Suo Motu Case No,1 of 2013, the Hon'ble Supreme Court of Pakistan, through Order dated: 15.5.2014, observed that the petitioner's CNG Station, is 100% complete and the inspection of the regulator [i.e, the respondent No,4 (OGRA)] has also been carried out. The Hon'ble Supreme Court of Pakistan, through the above-mentioned order dated; 15.5.2014, also directed the respondent No,4
(OGRA) to issue a license to the petitioner's CNG Station. The respondent No,4 (OGRA) issued a license dated 04.6.2014 to the petitioner under Rule 7 of the CNG Rules for a period of fifteen (15) years i.e, up to 31.7.2021. The respondent No,4 (OGRA) has noted in the aforementioned license that the petitioner has complied with all the terms of the CNG Rules and the Provisional License. Through letter dated 04.06.2014, the respondent No,4 (OGRA) has informed the respondent No,2 (SSGCL) that in pursuance of the abovementioned order dated 15.5.2014 passed by the Hon'ble Supreme Court of Pakistan, the license granted to the petitioner, and the fact that all formalities have been completed for the commissioning of gas supply to the petitioner's CNG Station, the respondent No,2 (SSGCL) should proceed further accordingly. However, upon non-commissioning of gas supply by the respondent No,2, the petitioner has approached this Court.
4. Mr. Faisal Siddiqui, learned counsel for the petitioner has placed on record statement dated 20.4.2015 along with letter of respondent No,4, dated 6.10.2011 in respect of lifting of moratorium on CNG Gas Stations of the following categories:- ' 1st CNG Station where meters have been installed but gas supply have not been commissioned.
(Priority 1 and with immediate effect).
' 2nd CNG station who have paid the connection charges/security deposit but meters have not been installed. (Priority 2 and the process to be completed within a period of three months).
' 3rd CNG station where gas pipelines have been laid with 100% cost recovery, in advance, from stations but demand notices have not been issued (Priority .3 and the process to be completed within a period of six months.)
5. Per counsel the petitioner's CNG Station falls within category-2 which is in respect of CNG Stations where meters have not been installed and gas supply has not been commissioned whereas connection charges/ security deposits have been paid.
6. Controverting the arguments of the learned counsel for the petitioner, Mr. Asim lqbal, learned counsel for the respondents Nos.2 and 3 has inter alia contended that the instant petition is not maintainable under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 inasmuch as the respondent No,2 (SSGCL), incorporated under the Companies Act, 1913 (now Companies Ordinance, 1984), is a Public Limited Company which is managed by the Board of Directors elected under the provisions of the Companies Ordinance, 1984 and its Articles of Association. He next contended that the respondent No,2 does not perform functions in connection with the affairs of the Federation, a Province or a Local Authority, therefore, is not amenable to writ jurisdiction of this Court. He further submitted that with the passage of time, respondent No,2 (SSGCL) faced huge gas short fall on its system following severe depletion of the major gas fields of the country. The gap between demand and supply has widened so much that the transmission system of respondent No,3 is being operated at the critical level with a gas pack below minimum requirement. On 18.4.2011, the respondent No,1 imposed moratorium on new gas connection.
Following the directives of the then Prime Minister, the respondents Nos.2 and 3 immediately stopped commissioning of gas to its new Industrial and Commercial Consumers.
7. Learned counsel for the respondents Nos.2 and 3 further contended that Clause-VIII of the license dated: 04.6.2014 issued to the petitioner by the respondent No,4 clearly contemplates that issuance of license in no manner shall establish the right of the licensee for supply/allocatiort of any particular quantity of natural gas which is to be governed under the terms of Gas Supply Contract executed between the licensee and the gas utility company.
8. Learned counsel for the respondents Nos.2 and 3 next contended that no cause of action has accrued to the petitioner for filing the instant petition and the petitioner has suppressed a very material fact about the imposition of moratorium dated 18.4.2011 by the Government of Pakistan.
9. In order to substantiate his arguments on the maintainability of this petition, the learned counsel for the respondents Nos.2 and 3 has placed reliance upon the judgment of this Court as well as of Supreme Court in the cases of: (1) Inam Ali Bhutto and others v. Sui Southern Gas Company Ltd and others [2000 PLC (C.S) 459], (2) Nagina Bakery v. Sui Southern Gas Limited and 3 others [2001 CLC 1559], (3) Punjab Public Service Commission and another v. Mst: Aisha Nawaz and others (2011 SCMR 1602) and (4) an unreported judgment of this Court in Constitutional Petitions No,D-1905 of 2011 and No,D-1998 of 2011.
10. In rebuttal, the learned counsel for the petitioner, on the point of maintainability, has vehemently argued that since the respondent No,2 is a state instrumentality/agency of the state performing functions in connection with the affairs of the Federation or a Province, therefore, respondent No,2 Company is subject to judicial review under Article 199 of the Constitution of 1973. Reliance has been placed on the judgment of (1) Huffaz Seamless Pipe Industries Ltd. v. Sui Northern Gas Pipelines Ltd. [1998 CLC 1890 (Lahore)], (2) Muhammad Azam lshtiaq v. Managing Director, Sui Northern Gas Pipelines Ltd. [2000 YLR 1510 (Lahore)] (3) Engro Fertilizers Limited v. Islamic Republic of Pakistan and Federation of Pakistan [PLD 2012 Sindh 50 and (4)] and M/s. Ramna Pipe and General Mills (Pvt.) Ltd. v. M/s. Sui Northern Gas Pipe Lines (Pvt.) and others 2004 SCMR 1274.
11. Since we have heard the learned counsel for the parties at length, perused the material available on record and the case law with their able assistance, therefore, we would decide this Constitutional Petition at Katcha Peshi stage by converting it in to Regular Hearing.
12. Upon pleadings of the parties and arguments extended thereon at length by the learned counsel for both the parties two basic controversies have arisen in this petition which need to be addressed to in this judgment i.e,
(i) Whether the instant Constitutional Petition is maintainable against the respondents Nos.2 and 3 under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973?
(ii) Whether due to lifting of moratorium of CNG Gas connections as per policy of the Government dated 04.10.2011 on certain categories, priority-wise the petitioner is entitled to commissioning of gas supply to his CNG Station?
13. In order to address the aforesaid two controversies formulated by the Court, we first take up the arguments of the learned counsel for the respondents Nos.2 and 3 on the point of maintainability.
14. In the judgments relied upon by the counsel for the respondents Nos.2 and 3, on the point of maintainability, it is held that since Sui Southern Gas Company is incorporated under the Companies Ordinance, 1984 and is not performing functions in connection with Federation, Province or a Local Authority, therefore, Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is not maintainable against it.
' In the case of Inam Ali Bhutto and others v. Sui Southern Gas Company Ltd. And others [2000 PLC (C. S) 459], relied upon by the learned counsel for respondents Nos.2 and 3, it is held that: "The Company's status as that of "Public Limited Company" is not disputed. It is also not disputed that it is managed by the Board of Directors elected under the provisions of the Companies Ordinance, 1984 and its Articles of Association. Though the Company, like other companies, has framed Service Rules for the benefit of its employees, but they are not statutory rules and in absence of such rules the relation between the company and its employees is that of Master and Servant. It being so, it cannot be treated like statutory corporations."
' In the case of Nagina Bakery v. Sui Southern Gas Limited and 3 others [2001 CLC 1559], relied upon by the learned counsel for respondents Nos.2 and 3, it is held that: "The contention that SSGC is owned and controlled by the Government of Pakistan and as such it is a department of the Government is incorrect. Admittedly. SSGC is a public limited company incorporated under the Companies Act, 1913 (now the Companies Ordinance, 1984) and is quoted on the Karachi, Lahore and Islamabad Stock Exchanges."
"The petitioner has filed the petition against the designations and titles of officers of SSGC who are not legal or natural persons and, therefore, the petition to the extent is bad in form and not maintainable."
' In the case of Punjab Public Service Commission and another v. Mst: Aisha Nawaz and others (2011 SCMR 1602), relied upon by the learned counsel for respondents Nos.2 and 3, it is held that: "The policy of the Government cannot be interfered with unless it is shown that such policy was violative of the fundamental rights."
15. In the judgments relied upon by the learned counsel for the petitioner, on the point of maintainability, it is held that Company which was performing function in connection with affairs of the Federation or a Province, is amenable to Constitutional jurisdiction of High Court. Mere fact that company was a Limited Company by shares was not sufficient to hold that Constitutional petition could not be maintained against it.
' Since, Sui Southern Gas Company is incorporated under the Companies Ordinance, 1984 and is performing functions in connection with Federation, therefore, Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is maintainable against it.
' In the case of Huffaz Seamless Pipe Ind. Ltd., law relied upon by the learned counsel for the petitioner reported in 1998 CLC 1890, it was held that: "Seen from the above angle, we are clear in our mind that this Company possesses all the attributes of State instrumentality/agency of State and so is subject to Constitutional limitations as other functionaries of Federal and Provincial Government, while performing their functions in connection with affairs of Federation or a Province. We are, therefore, in complete agreement with the findings of the learned Single Judge that this Company is subject to judicial review under Article 199 of the Constitution."
' Whereas, in the case of Muhammad Azam Ishtaiq (supra), it was held that: "Company which was performing function in connection with affairs of Federation, was amenable to Constitutional jurisdiction of High Court --- Mere fact that company was a Limited Company by shares was not sufficient to hold that Constitutional petition could not be maintained against it"
In the third case i.e, Engro Fertilizer Limited cited by the learned counsel for the petitioner it was held that: "Under Article 199 of the Constitutional Jurisdiction High Court directed the authorities to supply guaranteed quantity of natural gas to the petitioner's plant in accordance with contract, and allowed the petition in circumstances."
"It is not denied that SNGPL is owned managed and controlled by the respondent No,1 [Government of Pakistan] and any commitment, assurance and guarantee held out by the respondent No,1 and based on such sovereign commitment, assurance, and guarantee any of the public functionary or corporate entity owned and controlled as to majority share and management of the State it is no more an ordinary contractual commitment obligation but become State of Sovereign obligation and duty, which cannot be avoided or excused except in extreme cases or force majeure, which is to be strictly construed."
' Likewise, in the case of Ramna Pipe and General Mills (Pvt.) Ltd. v. Sui Northern Gas Pipe Lines (Pvt.) reported in 2004 SCMR 1274, relied upon by the learned counsel for the petitioner it is held by they Hon'ble Apex Court that: A contract carrying element of the public interest is open for judicial review. A contract carrying element of public interest, concluded by functionaries of the State has to be just, fair, transparent, reasonable and free of any taint of mala fides, all such aspects remaining open for judicial review. The rule is founded on the premises that public functionaries, deriving authority from or under law, are obligated to act justly, fairly equitably, reasonably, without any element of discrimination and squarely within the parameters of law, as applicable in a given situation.
Deviation if of substance, can be corrected through appropriate orders under Article 199 of the Constitution."
"High Court could interfere in respect of a transaction which had been concluded by the Public Limited Company with a third party in order to safeguard the interest of the public who have got the shares in the Company by exercising powers of judicial review under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973."
16. We have carefully examined the case law cited as above with the able assistance of the learned counsel for the parties and our observations with regard to the same are as under:--
17. First of all we take up the cases cited by the learned counsel for the respondents No,2 and 3 on maintainability of the instant petition, wherein it is held that Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is not maintainable against SSGC.
18. In the case of Inam Ali Bhutto and others v. SSGC supra, it was held that since SSGC is a public limited company, managed by the Board of Directors and not a Statutory Corporation having no Statutory Rules, therefore, writ under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 cannot be issued against it and that a Constitutional Petition is not maintainable against such a Corporation.
19. A similar view has been taken in the case of Nagina Bakery v. SSGC supra wherein it is held that mere fact that SSGC is owned and controlled by the Government of Pakistan does not make it a department of Government inasmuch as SSGC is a public limited company incorporated under the Companies Act, 1913 (now the Companies Ordinance, 1984). Moreover, it was observed that the Petition was filed against the designations and titles of officers of SSGC, who are neither legal or natural persons nor Government employees, therefore, the Petition was held to be not maintainable.
20. Turning now to the case law relied upon by the learned counsel for the petitioner on the point of maintainability; we see that a totally contrary view has been adopted by the Hon'ble Supreme Court in the case of Ramna Pipe and General Mills (Pvt.) Ltd. v. SNGPL supra wherein it is held that a Constitutional Petition under Article 199 of the Constitution is maintainable against Sui Northern Gas Pipe Lines on the premises that an incorporated body being custodian of public interest is bound to carry out its functions in a legal and highly transparent manner and that public functionaries, deriving authority from or under the law vis-a-vis such an incorporated body, which is owned, managed and controlled by the Federal Government, are obligated to act justly, fairly, equitably, reasonably without any element of discrimination and squarely within the parameters of law, deviation from such rules of equity, equality and good conscience can be corrected through orders under Article 199 of the Constitution. In other words the Hon'ble Supreme Court in this judgment has recognized the Sui Northern Gas Pipeline Limited as a body corporate performing function in connection with the Federation of Pakistan, and, therefore, amenable to writ jurisdiction under. Article 199 of the Constitution.
21. Similarly, in the case of Haffaz Seamless Pipeline Ltd. v. SSGC supra, it was held by the Division Bench of Lahore High Court that SNGPL, a company which is northern wing of SSGC, possesses all the attributes of a state organ/agency of the state and so is subject to constitutional limitations as other functionaries of Federal and Provincial governments, while performing functions in connection with Federation or a Province, therefore, this company is subject to judicial review under Article 199 of the Constitution.
22. In the case of Muhammad Azam Ishtiaq v. M.D. SNGPL supra the Divisional Bench of Lahore High Court has also held that where the Company was performing functions in connection with affairs of Federation, regardless of the fact that it was a company limited by shares, it is amenable to constitutional jurisdiction of the High Court under Article 199 of the Constitution.
23. Again in the case of Engro Fertilizer Limited v. Federation of Pakistan, a Division Bench of this Court, while treating the Constitutional Petition under Article 199 of the Constitution as maintainable on account of the fact that the SNGPL, a company which is northern wing of SSGC, is owned, managed and controlled by the