Messrs SUI SOUTHERN GAS COMPANY LIMITED through Attorney vs

ARSHAD HUSSAIN KHAN, J.---These High Court Appeals have been filed by the appellant against the consolidated Judgment dated 18.05.2016 and Decree dated 20.08.2016, passed by learned Single Judge of this Court in Suit No.1978 of 2015, and all other connected suits (subject suits) as mentioned in the impugned judgment filed by the respondents Nos.3 to 1418 against the appellant as well as respondents Nos.1 and 2, whereby the Price Notification dated 31.08.2015 (subject notification) in respect of the price of gas was declared as null and void.

2. Brief facts leading to the filing of the present appeals as stated therein are that the respondents (plaintiffs in subject suits) filed Civil Suits, against the appellant as well as respondents Nos.1 and 2 for declaration and injunction with the following prayers:-- "(i) Declare that the impugned Notification dated 31.08.2015 is ultra vires Section 8 of the 2002 Ordinance, in violation of the 2002 Rules and therefore illegal and void ab initio:

(ii) During the pendency of this suit, suspend the operation of the impugned Notification:

(iii) Restrain the defendants their agents-representatives and assigns from taking any coercive action against the plaintiffs for paying its utility bills in accordance with the old tariff rates;

(iv) Restrain the respondent No.3 from raising any utility bills on the basis of the prices being unlawfully enforced through the impugned Notification.

(v) Grant any further and better relief that may be appropriate:

(vi) Grant costs of the suit."

Upon service of notice of the above said suits the appellant (defendant No.3 in the subject suits) filed its written statement denying the allegations made in the Suit No.1978 at 2015. It was stated that Respondents (plaintiffs in the subject suits) have maliciously tried to challenge the Gas Price Notification dated 31-8-2015 on the false and fabricated grounds. Further stated that respondent No.2 (defendant No.2 in the subject suits) being the Statutory Regulator has notified the gas price notification dated 31.8.2015 after complying with all requisite provisions of law. Further stated that the appellant is supplying natural gas to the respondents/plaintiffs and all other its consumers strictly in accordance with the terms and conditions of the gas supply agreement duly entered into between appellant/defendant No.3 and respondents plaintiffs (consumers). Further stated that the gas price notification was issued on the advice of respondent No.l. i.e. Federal Government, in terms of Section 8(3) of OGRA Ordinance, 2002, after taking into consideration the decision given by OGRA on 03.07.2014, on the revenue petition filed by the appellant for the determination of its Estimate Revenue Requirement (ERR) for the Financial Year 20142015. The appellant filed the said petition in accordance with Section 8(1) of the OGRA Ordinance 2002, asking for the increase of Rs.108.89 per MMBTU in the gas price which was in the field at the relevant time, vide gas price notification dated 01.01.2013 for all general consumers and gas price for Captive Power vide notification dated 23.08.2013. Further stated that in terms of the decision dated 03.07.2014, if the price notification had been issued, then it would have been effective from 01.07.2015. Furthermore,- the delay in issuance of notification hugely benefited the respondents/plaintiffs in the manner that they would have paid a much higher price than the price notified vide price notification dated 31.08.2015 for the financial year 2014-2015, thus the respondents/plaintiffs had enjoyed low/less gas price without any increase for almost 20 months till the issuance of the price notification dated 31.08.2015 for the financial year 2014-2015. It is also stated that though the appellant according to law, had filed its petition (ERR) before respondent No.2 (OGRA) for the determination of its revenue requirement for the respective financial years so that the notification in respect of price of gas could be issued by respondents Nos.1 and 2, but the notification was issued after delay of approximately 13 months. Further stated that it is the appellant who has suffered losses and not the respondents/plaintiffs as allegedly claimed by them in their subject suits. It is also stated that the claim of the respondents/plaintiffs about a massive increase in gas tariff is absolutely false. As per the law the price of gas was/is supposed to be increased biannually but this increase did not came in field due to the reluctance of respondent No.1 in order to avoid putting financial burden on the general public at that relevant time which resulted massive financial losses worth millions of rupees caused to the appellant as the appellant had to purchase gas at a higher price from the gas wells and sell the same at a lower price during that period. It is also stated in the written statement that the subject notification had been issued after complying with all the requirements as stated in the relevant rules and law and on the advice of respondent No.1 after due consideration of the revenue requirement of the appellant as well as losses of the two gas companies involved in transmission, sale and distribution of gas to the whole country and too after a period of 20 months i.e. January 2013 to August 2015, thus the allegation of collusion or mala fide cannot be attributed towards respondents Nos.1 and 2. Further stated that the appellant is lawfully authorized to charge its consumers in accordance with the gas price notifications issued by respondent No.2 on the advice of respondent No.1 prospectively. It is also stated that as per the decision of the Hon'ble Supreme Court, reported in 2014 SCMR 220, the gas supply to the Captive Power should be kept at the lowest priority and that too after catering the need of all other priority consumers except captive power, therefore, the gas supply to the respondents for captive power is subject to disconnection because the appellant was is facing a shortfall of supply of gas from the gas well and is facing hardship in catering to the need of the consumers which are on higher priorities and lastly the appellant prayed for the dismissal of the suits filed by the respondents plaintiffs.

3. Since the question of law was involved in the subject suits filed by the respondents/plaintiffs, and as such no evidence was required to be adduced, therefore, by consent of the parties, for deciding the matter the learned Single Judge framed the following issues:

(i) Whether the impugned notification dated 31.08.2015 is issued in accordance with law?

(ii) What should the decree be?

4. The learned Single Judge of this court after hearing learned counsel for the parties passed a consolidated judgment whereby decreed all suits filed by the respondents/plaintiffs. The said consolidated judgment and decree is impugned in the present High Court Appeals.

5. Upon service of the notice of the present appeals, the respondents/plaintiffs filed their objections taking preliminary legal objections regarding maintainability of the appeals on the grounds that:

(i) appeals are barred by the statutes of limitation. (ii) On the date of presentation of the appeal it was accompanied only by one decree as against the fact that there were in all 162 suits, and in each of them separate and independent decree was passed and (iii) Court fee was to be affixed on the date of presentation of the appeal as per the numbers of decrees and since the appellant failed to place requisite fee on the date of presentation hence the appeals were filed with deficient court fee, and denied the allegations levelled in the memo of appeal. It is also stated in the objections that the respondents/plaintiffs challenged the determination made by the OGRA on 03.07.2014 of the SSGC's estimated revenue requirement (ERR ) for the financial year 2014-2015 and the illegal and unconstitutional increase in the tariff of natural gas notified by OGRA through subject notification on the basis of the Determination. Further stated that appellant had submitted a petition to OGRA for the financial year 2014-2015 on 03.01.2014 under Section 8 of the Ordinance.

OGRA admitted the petition and invited public objections to which Karachi Chamber of Commerce filed detailed objections on behalf of industrial concerns based in Karachi including the respondents. OGRA, however. did not take these facts into account while issuing its determination of the total revenue requirement of SSGC on 20.07.2014. It approved a revenue requirement of Rs.191.069 for SSGC for FY 2014-2015 and a prescribed price of Rs.600/MMBTU fo industrial concerns and for captive power plants (the two categories in which the respondents fall). It is also stated in the objections that in accordance with Section 8(2) of the Ordinance, SSGC had to advise the federal government of the prescribed prices. Under Section 8(3) of the Ordinance, the federal government was then required to give its views within forty days. If the federal government failed to do so, OGRA was required to notify the new prescribed prices after forty days pursuant to Section 8(4) of the Ordinance. The determination was issued on 03.07.2014, SSGC would have advised the federal government of the prescribed prices soon thereafter. The respondents/plaintiffs were/are not aware as to whether the federal government provided its view to OGRA within forty days. In either case, however, OGRA did not notify the prescribed prices until 31.08.2015, which is almost 14 months after the determination was issued. It is also alleged that the notification of the prescribed prices 14 months after the issuance of the determination was contrary to the Ordinance and renders the notification illegal. Further alleged that the appellants through the subject notification seek to apply a tariff determination on the basis of estimated revenue requirements for financial year 2014-15 to a completely different year i.e. financial year 2015-16, for which the estimated revenue requirement is yet to be determined. It is also stated that after the 18th Amendment to the Constitution in accordance with Article 172(3) of the Constitution, the ownership of all natural gas found within a province vests equally in the province and the federation. The province of Sindh is, therefore, a joint and equal owner of the gas found in the province of Sindh, which is supplied by OGRA to the respondents. The subject of natural gas is also listed in part II of the Federal Legislative List. In accordance with Article 154 policies in relation to subjects mentioned in Part II of the Federal Legislative List are to be formulated and regulated by the Council of Common Interest (CC1). In view of the fact that the province of Sindh is a joint and equal owner of the natural gas found in Sindh and that the policy in relation to natural gas is to be formulated by the CCI, the federal government and OGRA cannot unilaterally set the prescribed price of natural gas. Allowing the Federal Government and OGRA to do so would render the constitutional provisions such as Articles 154 and 172(3) redundant. The determination and notification having been issued by OGRA without consulting the provinces are, therefore, illegal and unconstitutional.

6. At the time of hearing of the arguments of the present appeals, learned Additional Attorney.

General through an application under Order XLI, Rules 27 and 28 read with Section 107, C.P.C. (C.M.A.

No.971 of 2017) sought permission from this court to produce documents viz. (i) letter bearing No. DGO(AC) 5 (26)/2015, dated August 31, 2015, issued by Government of Pakistan Ministry of Petroleum and Natural Resources (Policy Wing) Directorate General of Gas, Islamabad, whereby respondent No.2 was communicated the approval of the competent authority to notify the category -wise revised gas sale w.e.f. 1st September 2015, (ii) letter bearing No.GDO(AC)-5(26)/2013-14, dated August 23, 2013 issued by Government of Pakistan Ministry of Petroleum and Natural Resources (Policy Wing) Directorate General of Gas, Islamabad, (iii) letter bearing No.DGO(AC)5(26)/15, dated 26th April 2016, issued by Government of Pakistan Ministry of Petroleum and Natural Resources (Policy Wing) Directorate General of Gas, (iv) Office Memorandum bearing No. F.4(26) CF-V/2015, dated 27th April 2016, issued by Government of Pakistan. Finance Division (C.F.Wing), Islamabad, (v) letter bearing No. DGO(AC)-5(26)/14-15, dated 20th May, 2016, issued by Government of Pakistan Ministry of Petroleum and Natural Resources (Police Wing) Directorate General of Gas, Islamabad (vi) letter bearing No. DGO(AC)-5(26)/14-15, dated 23rd May, 2016, issued by Government of Pakistan Ministry of Petroleum and Natural Resources (Policy Wing) Directorate General of Gas, Islamabad and (vii) advice dated 30 December 2016 issued by Government of Pakistan Ministry of Petroleum and Natural Resources (Policy Wing) Directorate General of Gas, Islamabad as the said documents were not produced before the learned single judge at the trial of the suits filed by the respondents (plaintiffs). The respondents/plaintiffs though filed counter affidavit to the said application, however, subsequently on 10.04.2017 by consent of parties the said application was allowed and the documents sought to be produced were taken on record.

7. Learned counsel for the appellant during the course of arguments has contended that learned Single Judge while passing the impugned judgment and decree has failed to appreciate the facts, circumstances and the law involved in the case. He further contended that the subject notification did not cause any harm to the respondents. Conversely, it is the appellant who has suffered losses in collection of its legitimate revenue requirement due to the delay in issuing the subject notification furthermore, due to the said delay the respondents/plaintiffs have enjoyed lower rates for a long duration of twenty months. Further contended that the learned Single Judge has also failed to interpret the provisions of law in its true perspective as in Section 8(4) of the OGRA Ordinance, 2002, there is no time limit given to the OGRA by the legislatures for the issuance of price notification and this aspect of the law was totally ignored and misunderstood by the learned single Judge while deciding the instant matter. Furthermore, learned Single Judge has also failed to appreciate that the delay caused by respondent No.1 in advising respondent No.2 within stipulated period as mentioned in Section 8(1), (2) and (3), the respondent No.2 on its own has the power to issue the price notification under Section 8(4) but this crucial aspect of the law has not been appreciated by the Single Judge while passing the impugned judgment and decree, Further contended that respondent No.2 while issuing the subject notification has not committed any illegality. Conversely, the same has been issued strictly in accordance with the provisions of law. It is also contended that the learned Single Judge has erroneously come to a conclusion that the gas price recommended by respondent No.2 in its ERR determination as Rs..469.04 per MMBTU for the year 2014-2015 and the same is less than the prevailing price of Rs.488.23 per MMBTU for the year 2013-14. This fact is not at all correct as Rs.469.04 per MMBTU is only the determination made by respondent No.2 which is yet to be finally decided or determined by respondent No.1 being the final authority and whereas Rs.488.23 MMBTU was the final price duly advised by respondent No.1 thereby notified by respondent No.2 for the year 2013-2014. It is also contended that learned Single Judge has failed to appreciate the decisions of ERR and FRR which clearly reflect that appellant company is selling the gas to its consumer at a lesser price whereas the same is/was being purchased by the appellant company on higher price. The said fact of the case was totally ignored by the learned Single Judge while passing the impugned judgment and decree, which resulted in huge monetary loss to the appellant company. Further contended that if the impugned judgment and decree remain in the field and the appellant company is not allowed to recover the legitimate price of the gas which gas the appellant company has already supplied to its consumers following the notification dated 31-8-2015, then the appellant company shall suffer huge financial losses and will not be in a financial position to pay the gas charges to the Gas Well Heads and as a consequence the appellant company will not be in a position to continue with its supply to the respondents/plaintiffs as well as other consumers. Further contended that if the impugned judgment and decree remain in the field, it would amount to clear discrimination as Sui Northern Gas Pipeline Ltd. whose area of business for supplying and transmitting gas to the consumers of the Provinces of Punjab and KPK, is charging the gas prices as per the subject notification and whereas the appellant company has been restrained through impugned judgment and decree to charge its consumer as per the subject notification. Furthermore, by virtue of impugned judgment and decree the respondents/plaintiffs are continuously gaining illegal monetary benefits to the disadvantage of the appellant company which is suffering huge revenue losses. Further contended that the learned Single Judge also failed to appreciate that the subject notification was notified for the whole of Pakistan and not only for the appellant company as the same was notified by respondent No.2 in accordance with law after considering thoroughly the revenue requirements petitions filed by the appellant as well as Sui Northern Gas Pipeline Ltd., and that too after inviting objection from the respondents/plaintiffs and general public and thereafter hearing all the concerns and considering the facts as mentioned in both the revenue requirements petitions, strictly in accordance with law. Further contended that the learned Single Judge also did not consider any of the contents submitted by the appellant company as well as respondent No.2 in their written statements and counter affidavits nor a single word of their arguments was incorporated or discussed in the impugned judgment and decree. It is also contended that learned single judge has failed to appreciate that where plain language has been used in the statute its interpretation in detail was not necessary.

8. Learned Additional Attorney General during his arguments has supported subject notification and has contended that the subject notification was issued in accordance with law and upon the advice of the Federal Government. Further contended that at the time of hearing of subject suits, the document viz. 2015 advice, issued by respondent No.1, in respect of gas sale price pursuance to section 8(3) of OGRA Ordinance 2002, could not be filed due to inadvertence before the learned Single Judge resulting which the learned Single Judge failed to correctly determine the issues involved in the subjects suits and while passing the impugned judgment he presumed that there was no advice of respondent No.1, therefore, in absence of said document foundation of the impugned judgment rests on incorrect appreciation of the facts and the law, hence the same is unsustainable in law. Further contended that the learned Single Judge has wrongly interpreted the average prescribed price to mean the prescribed price and therefore incorrectly equated 'average prescribed price' with the sale price. Further contended that the learned Single Judge has also failed into account that the average prescribed price for the financial year 2013-2014 was PKR 413.25 per MMBTU, whereas the average prescribed price for the financial year 2014-2015 was PKR 469.04 per MMBTU. Thus, the average prescribed price for the financial year 2014 and 2015 was also higher than the average prescribed price of the previous financial year. Further contended that there is no time limit provided under the OGRA Ordinance and the rules framed thereunder for OGRA for issuance of price notification once the federal government advice (re-advice) the OGRA or even otherwise and hence, the Notification cannot be set aside simple on the basis of delay in its issuance beyond prescribed statutory deadlines. Further contended that after expiry of the time- frame, stipulated in the OGRA Ordinance and rules framed thereunder, Respondent No.1 would not become 'functus officio' and no longer having the authority to issue any advice to OGRA. It is also contended that due to delay in issuance of subject notification no prejudice has been caused to the respondents/plaintiffs. Conversely, they got the benefit of lower rates for a long period. Learned Additional Attorney General in support of his arguments has relied upon following judgments of Hon'ble Supreme Court and High Court, however, following extracts from some of the decision are reproduced hereunder:-

(i) 2005 SCMR 1802 Najam-uz-Zaman and others v. Engineer-in-Chief, G.H.Q. Rawalpindi and 2 others In this case learned counsel for the petitioner inter alia, raised the issue that the Tribunal, after hearing the arguments in the appeals reserved the judgment and announced it with a delay of about one year such delay renders the judgment impugned in the proceedings is improper and the same is liable to be remanded back for a decision afresh in the light of judgment reported in 1996 SCMR 669 Iftikhar-ud-Din Haider Gardezi v. Central Bank of India Ltd.

The Hon'ble Supreme Court while dealing with above issue has held under: "In principle, there can be no departure to the rule that if due to the unnecessary delay in the announcement of the judgment, any prejudice was caused to any party, the 'case should be sent back to the lower Court/forum for rehearing and decision afresh. It may be seen that the Civil Procedure Code as a whole is not applicable to the proceedings in the appeals before the Tribunal but the Tribunal following the basic norms of justice must announce the judgment within reasonable time in terms of Order XLI, rules 30 and 31, C.P.C. The delay even of a lesser period in announcement of judgment in a case may cause prejudice to a party or defeat the ends of justice, therefore, all forums discharging judicial and quasi-judicial functions, are supposed to follow the law in letter and spirit and must discharge their functions in a judicious manner. In the present case, we find that the Tribunal has dealt with all the points and contentions raised in the appeals before it in proper manner and we having perused the judgment have not been able to find out any legal defect or factual infirmity in the judgment causing any prejudice to the petitioners on merits and consequently, we would not be inclined to remand the case on this ground. However, we while disapproving the practice of late announcement of judgments, hold that all judicial or quasi-judicial forums must announce the judgments within reasonable time. The proposition under discussion was earlier considered by this Court in Muhammad Bakhsh v. State 1989 SCMR 1473, Sarni-ul-Haq v. Maqbool Hussain Butt 2001 SCMR 1053 and All Khan Subanpoto v. Federation of Pakistan 1997 SCMR 1590 and the ratio of the above judgments were that the Courts and Tribunal must announce the judgment within reasonable time but the mere delay in announcement of judgment would not be considered sufficient to set aside the same and remand the case if no prejudice was caused to any party on the merits..."

(ii) 2011 YLR 2941 PRINTEK (PVT) LTD. through Executive Director and 3 others v. SHAHID NABI MALIK and 4 others.

In this case the court held that Constitutional notification introducing amendments in Karachi Building and Town Planning Regulations, 2002 regarding approval of building plan-Non- publication or delayed publication of such notification in Official Gazette would not render same to be invalid. Also held that onus would lie on petitioner to satisfy the court as to what manner he was prejudiced/affected or his rights/liabilities were affected by mere delayed publication or non publication of such notification in Official Gazette. In absence of such proof, High Court would not strike down such notification. Further held that amended Regulations would apply prospectively from date of publication of its notification in Official Gazette and not from the date on the title of the notification.

(iii)2011 SCMR 408 MUHAMMAD NADEEM ARIF and others v. INSPECTOR-GENERAL OF POLICE PUNJAB,LAHORE and others The Hon'ble Supreme Court while dealing with various other issues invoked in the case, inter alia, held that "5. We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record. It is an admitted fact that date of hearing as mentioned in the impugned judgment is 26-8-2008 whereas it was announced on 6-3-2009. It is the duty of the petitioners to bring on record the order of the High Court wherein the judgment was reserved or copy of the relevant register wherein the intimation was sent by the staff of the High Court to the concerned branch that the judgment in question was reserved. However, in the interest of justice and fair play we have considered the contentions of the learned counsel for the petitioners to find out prejudice caused to the petitioners as the impugned judgment was announced after six months. The afore-said proposition of law was considered and decided by this Court in Muhammad Rukhsh's case (1989 SCMR 1473) and laid down the following principle:-- "No doubt the judgment was announced one year after it had been reserved but we find that the learned Judge adverted to all the points as mentioned above. Nevertheless it is proper that once the arguments conclude and the judgment reserved, it has to be announced within reasonable period. We are sure that in future no unnecessary delay will take place in announcement of judgments."

The aforesaid principle was reaffirmed by this Court in Juma Khan's case (PLD 2002 SC 823) by observing that merely because of the delay in pronouncement of judgment, decision, itself is not vitiated unless and until prejudice has caused to the petitioners. It is also observed that Order XX, rule 1(2). C.P.C., is directory in nature and not mandatory in nature as observed by this Court in Juma Khan's case. The afore-said principle was also upheld in Samiul Haq's case (2004 SCMR 1053) in the following terms:-- "While interpreting rule 31 of Order XLI, C.P.C. the learned Division Bench has dealt with all the contentions of the petitioner's counsel in the judgment, therefore, no prejudice was caused to the petitioner. But it is always proper and advisable that after pronouncement of judgment, the High Court would write the judgment without unnecessary delay."

The aforesaid principle has also been followed in Ali Khan Subanpoto's case (1997 SCMR 1590) as depicted from para 10 wherein it is specifically mentioned that no prejudice seems to have been caused to the petitioner. Rule 30 and Rule 31 of Order XLI, C.P.C. were examined by this Court in Raja Hamayun Sarfraz Khan's case (2007 SCMR 307) and laid down the following principle:-- The examination of the above provisions of law and ingredient show that where a law provides for writing, announcing and signing a judgment, all that must be done in a way to give validity to the judgment."

This Court has also considered the afore-said provisions of Rules 30 and 31 of Order XLI, C.P.C. wherein the impugned judgment was set aside as the same was not announced within six months.

See Syed Iftikhar-ud-Din Haider Gardezi's case (1996 SCMR 669 at 673). Even in this case, this Court has observed as under:- "It is not possible for this Court to determine this matter finally because substantial evidence available on record could not be considered by the High Court to come to some conclusion one way or the other. In other words, it could safely be held that the dispute between the parties was not decided keeping in view the evidence on record."

Similarly at page 675 it has been observed as under:- "This case is also hit by rule 31 as all the points which were argued and relied upon by the learned counsel for the appellants were not considered for their proper determination on the basis of available evidence.....We would also hold that evidence of Saeed Ahmad D.W. was not considered by the High Court for the just decision of the appeal. This being so, the appeal of the appellants shall be deemed to be still pending decision before the High Court."

The fundamental issue which arose in the case was that whether Contrary view has been taken by this Court in Muhammad Ovais' case (2007 SCMR 1587). Even in this case, the Court observed in para 8 as under:- "In the lengthy arguments addressed before us on merits, we were referred to a bulk of documentary evidence going to the very root of the case which was never found mentioned in the impugned judgment of the High Court. This omission seems to be caused only and only due to the delay of ten months in question."

It is proper to mention here that in the case in hand all the-contentions raised before the learned High Court in the impugned judgment were noted, considered and rejected with cogent reasons coupled with the fact that the petitions were heard in the Lahore High Court on 26-8-2008 and judgment was announced on 6-3-2009. The petitioners have not brought on record any document to show that the judgment was reserved on 26-8-2008 by annexing with the petition interim order of the High Court or copy of the concerned register of the Lahore High Court. It is settled-law that each and every case is to be decided on its own peculiar circumstances and facts."

(iv) AIR 2014 SC 1963 Securities and Exchange Board of India v. M/s Akshya Infrastructure Pvt.

Limited. an open offer voluntarily made through a public announcement for purchase of shares of the target company can be permitted to be withdrawn at a time when the voluntary open offer has become uneconomical to be performed. The Supreme Court of India while dealing with the issue of delay of 13 months to offer comments by appellant (SEBI) on the draft letter of offer, inter alia held that "26. With regard to delay, we do not find much substance in the submission in the submission of Mr. C.U. Singh. Mr. Singh has sought to explain the delay on the ground that information sought by the appellant was not given by the respondent. In our opinion this was no ground for the appellant to delay the issuance of the comments on the letter of offer, especially not for period of 13 months. In the event the information was not forthcoming, the appellant had the power to refuse the approval of the public offer. It is true that under Regulation 18(2), SEB1 was required to dispatch the necessary letters to the shareholders within reasonable period. It is a matter of record that the comments were not offered for 13 months. Such kind of delay is wholly inexcusable and needs to be avoided. It can lead to avoidable controversy with regard to whether such belated action is bona fide exercise of statutory power by SEBI. By adopting such a lackadaisical, if not callous attitude, the very object for which the regulation have been framed is diluted, if not frustrated. It must be remembered that SEBI is the watchdog of the securities Market. It is the guardian of the interest of the shareholders. It is the protective shield against unscrupulous practice in the securities Market. Therefore. SEBI like any other body, which is established as a watchdog, ought not to act a lackadaisical manner in the performance of its duties. The time frame stipulated by the Act and the Takeover Regulations for performing certain functions is required to be maintained to establish the transparency in the functioning of SEBI.

27. Having said this we are afraid such delay is of no assistance to the respondent. It will not result in nullifying the action taken by SEBI, even though belated. Ultimately, SEBI is charged with the duty of ensuring that every public offer made is bona fide for the benefit of the shareholders as well as acquirers. In the present case SEBI has found that permitting the respondent to withdraw the public offer would be detrimental to the overall interest of the shareholders. The only reason put forward by the respondent for withdrawal of the offer is that it is no longer economically viable to continue with the offer......"

(v) 2012 PLC (CS) 101 Mst. UBAIDA MANZOOR v. GOVERNMENT OF THE PUNJAB through Secretary Education (Schools), Lahore and 4 others In this case a larger Bench was constituted to consider question raised in the petition that if a married daughter of a deceased civil servant, who dies while in service or is declared invalidated or incapacitated for future service is entitled to the benefit of Rule 17-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules. 1974 as added through Notification No.SOR-III-2- 42/92 dated 288-1991. The full bench of Lahore High Court while with issue, inter alia, held as under: "While interpreting the statute or Rules made there-under, it is to be read by giving the words used by the Legislature or Rules Making Authority its ordinary plain, simple and grammatical meanings.

The meaning, which may render any portion of it ineffective has to be avoided as the same would be against the settled principles of interpretation of statutes. The unambiguous language used in the principal or subordinate legislations should not be construed in a manner to defeat its object.

Addition or subtraction in the words used by the Law Makers is not considered desirable while interpreting any statute or Rules made there-under as the assignment of different meanings may defeat the object for which the law is enacted. No doubt the Courts have the inherent powers to interpret the statutes but this power is to be exercised to discover the intent of the Legislature, without importing or borrowing words by unnecessarily applying the principle of reading in and reading down. In this respect reliance is placed on Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others (PLD 2011 SC 260), Qaiser Javed Malik v. Pervaiz Hameed and 2 others (2009 SCMR 846) and Muhammad Ijaz-ul-Haq v. Executive District Officer and others (2006 SCMR 989)."

(v) PLD 2015 SC 77 ZAHID REHMAN v. The STATE In this case law regarding Qisas in cases of murder and bodily hurt and distinction between Qisas and Ta'zir and applicability of the two concepts to different kinds of cases has been discussed.

By a majority of three against two the opinion recorded by Hon'ble Mr. Justice Asif Saced Khosa was declared to be the judgment of the Court. In the judgment it is held as under: "29. After hearing the learned counsel for the parties intently examining all the relevant statutory provisions minutely and going through all the relevant precedent cases exhaustively I have found as already observed above that in view of the provisions of section 304, P P.C. a case is one of Qisas only if the accused person makes before a court competent to try the offence a voluntary and true confession of commission of the offence or the requisite number of witnesses are produced by the prosecution before the trial court and their competence to testify is established through Tazkiya- tul-shahood (scrutiny of the witness before trial of the accused person) as required by Article 17 of the Qanun-e-Shahadat Order, 1984. I also find that the cases not fulfilling the requirements of section 304. P.P.C. are cases of Ta'zir and the provisions relating to Qisas have no relevance to the same. It is also evident to me that the cases covered by the provisions of sections 306 and 307, P.P.C. are primarily cases of Qisas but because of certain considerations the punishment of Qisas is not liable or enforceable in those cases and instead some alternate punishments for such offenders are provided for in section 308, P.P.C. I, thus feel no hesitation in concluding that the provisions of and the punishments provided in section 308, P.P.C. are relevant only to cases of Qisas and that they have no relevance to cases of Ta'zir and also that any latitude or concession in the matter of punishments contemplated by the provisions of sections 306, 307 and 308, P.P.C. and extended to certain categories of offenders in Qisas cases mentioned in such provisions ought not to be mistaken as turning those cases into cases of Ta'zir with the same latitude or concession in the punishments. Upon a careful consideration of the legal issue at hand I endorse the legal position already declared by this Court in the second category of the precedent cases referred to above as on the basis of my own independent assessment and appreciation I have also reached the same conclusions as were reached in the said cases. I, therefore, declare that Qisas and Ta'zir are two distinct and separate legal regimes which are mutually exclusive and not overlapping and they are to be understood and applied as such. I expect that with this categorical declaration the controversy at hand shall conclusively be put to rest.

While agreeing with main judgment of Hon'ble Mr. Justice Asif Saeed Khan Khosa, Hon'ble Mr. Justice Dost Muhammad Khan in his additional reasons, inter alia, held that "8. With utmost respect to the view held by my brother (Mr. Justice Ejaz Afzal Khan, J) putting a different construction on the relevant provisions of the Pakistan Penal Code referred to above is not in conformity with the fundamental principle relating to construction of Statute rather it amounts to legislation and an attempt has been made to extend the scope of these provisions of penal law to cover the cases expressly omitted to be covered by the same.

9. It is not the province of the Courts to supply the omissions or to repair the defect in the Statute because that role and authority is undeniable vested in the law makers. The maxim, "A Causus Omissus" can in no eventuality be supplied by a Court of law as that would amount to make laws. A Court is not entitled to read words into an Act of Parliament unless unavoidable circumstances provide a clear reasons for acting in that manner. It is also not the domain of a Court to add to nor to take from a Statute anything unless there are very strong grounds for holding that the Legislature intended something which it has failed to express however, in the course of such exercise no undue inference could be drawn to that effect. Similarly, a Court has no power to fill up any gap in any Statute as doing so would amount to usurp the function and to encroach upon the constitutional power of the Legislature, whether the omission is intentional or inadvertent is not the concern of the court and a "Causus Omissus" cannot be supplied by a Court of law. It is better to leave the same for the wisdom of the Legislature and the Court has to point out the defect or omission in any Statute. It is not the function of the Court to repair the blunders found in any Statute enacted by the Parliament rather those must be corrected by the Legislature itself. There is no reported decision where Court has added words to a Statute to fill up apparent omissions or lacunas while exercising such jurisdiction.

Similarly, it is not for the Court to change the clear meaning of the Statute for the reason that it would cause hardship to the accused or would bring about inconvenient consequences. Such considerations are alien to the science of construction of Statute and even in this kind of Statute the meaning cannot be departed from by the Court on the ground of public policy because it is the exclusive business of the Legislature and not of the Judges to remedy the defects in a particular Statute. The Court is neither supposed nor vested with powers to subvert the true meaning of a Statute by putting on it more liberal construction to cover the cases which were never intended by the Legislature."

9. Learned Addition Attorney General, besides above, also relied upon the case law of foreign jurisdiction on the point of 'Element of prejudice caused as a result of administrative delay' And 'Consequence of delay where no statutory timelines are prescribed' which are as under: Decisions of: U.S. Court of Appeals for District of Columbia Circuit -750 F.2d 70 (D.C.) in the case of Telecommunications Research and Action Center et al. v. Federal Communications Commission and United. States of America.

U.S. District Court, District of Colombia in the case of Sadoz Inc. v. Michael Leavitt, Secretary of Health and Human Services and Andrew Von Eschenback, Acting Commissioner, Food and Drug Administration.

Court of Appeals of California in the case of California Trout. Inc. v. Superior Court (Dept. of Water and Power of the City of Los Angeles.

U.S. District Court for the Northern District of Georgia in the case of Equal Employment Opportunity Commissioner v. Moor Group Inc.

California Court of Appeal in the case of Fahmy v. Medical Bd. Of California, (1995)

Supreme Court of Appeal of South Africa in the case of Mohammed Cassimjee v. The Minister of Finance.

10. Conversely, learned counsel for the respondents/plaintiffs while supporting the impugned judgment and decree, besides referring various provisions of OGRA Ordinance and rule framed thereunder, have argued that Section 7 of the Ordinance empowers respondent No.2 (OGRA) to determine and approve the tariff for regulated activities in respect of the sale of natural gas to consumers and in terms of Rule 4(2) of the Natural Gas Tariff Rules 2002, a licensee such as Appellant, is required to file a petition before respondent No.2 on the first day of December of each year for the purpose of estimating its total revenue requirement for the upcoming financial year.

Once such a petition is admitted, respondent No.2 invites public objections pursuant to Rule 5(4) of the Rules from persons and stakeholders who may be affected by the tariff. After hearing any objections and considering the petition filed by the licensee, respondent No.2 then determines the total revenue requirement of the licensee in accordance with Section 8(1) of the Ordinance. On the basis of this determination it advises the Federal Government of the prescribed price of natural gas for each category of consumers. Under Section 8(3) of the Ordinance the federal government must accept, advice upon or raise objections to the prescribed price within forty days of receipt of the same. If the federal government fails to advise respondent No.2 in the required time, then under Section 8(4) respondent No.2 has to notify the prescribed price in the official gazette. It is also argued that in the present case the appellant had submitted a petition to respondent No.2 for the financial year 2014-2015 on 03.01.2014 under Section 8 of the ORGA Ordinance whereupon respondent No.2 invited public objections. In response thereto, Karachi Chamber of Commerce filed detailed objections on behalf industrial concerns based in Karachi including the respondents/plaintiffs, however, Respondent No.2. did not take said objections into consideration and approved the revenue requirement of the appellant for Financial Year 2014-2015 and a prescribed price of Rs.600/MMBTU for industrial concerns and for captive power plants. Further argued that as per Section 8(2) of the OGRA Ordinance, the appellant had to advise the federal government of the prescribed prices. It is also argued that under Section 8(3) of the Ordinance, respondent No. 1 was required to give its advice within forty days, however, the Federal Government (respondent No.1) failed to do so, upon which the OGRA was required to notify the new prescribed prices after forty days pursuant to Section 8(4) of the OGRA Ordinance. However, respondent No.2 also did not notify the prescribed prices with-,n the prescribed time and instead issued the same on 31.08.2015, which is almost 14 months after the determination was issued. It is also argued that Rule 4 of the National Gas Tariff Rules [NGTR] clearly reflects that every licensee is to submit by the first day of December its ERR for that financial year only. Once a petition is admitted and notices are issued by respondent No.2 pursuant to Rule 5(4) of the Rules, inviting public objections, a determination is issued by OGRA. Such a determination can only to be used and applied for that particular financial year and not for the next financial year(s). It is also argued that price determination, determined the prescribed price for Financial Year 2014-15, was ended on 30.06.2015. The prescribed price in the determination cannot be imposed for Financial Year 2015- 2016, a completely different financial year for which the total ERR of respondent No.2 was to be determined. It is also argued that the notification of the prices prescribed on the basis of a determination for Financial Year 2014-2015, a year after the actual determination and for a different financial year, was contrary to the Ordinance and the Rules and as such the same is not sustainable in law. It is further argued that after the 18th Amendment to the Constitution, in accordance with Article 172(3) of the Constitution, the ownership of all natural gas found within a province vests equally in the province and the federation. The province of Sindh is, therefore, a joint and equal owner of the gas found in the province of Sindh, which is supplied by respondent No.2

(OGRA) to the respondents/plaintiffs. It is also argued that keeping in view of 18th amendment to the Constitution of Pakistan, the price determination and subject notification having been issued by respondent No.2 without consulting the provinces were illegal and unconstitutional. It is also argued that the advice dated 31.08.2015 given by respondent No.1 was neither brought on record nor the same was mentioned in any of the pleadings filed by the appellant and or official respondents before the learned Single Judge. The purported advice was placed before this appellate court only on 01.03.2016, over six mouths after filing of the appeal and eighteen months after filing of the suit, that too without any supporting document. The conduct of respondent No.2

(OGRA) and the inordinate delay in producing this document, casts grave doubt on the authenticity and genuineness of this document. It is also argued that the purported advice was issued on 31.08.2015, more than twelve months after OGRA issued its determination that too after the passage of Financial Year 2014-2015, hence the same was issued in violation of the statutory procedure and further it also does not contain any reasoning. It has been further argued that respondent No. 1 along with OGRA is attempting to illegally enrich the appellant (SSGC) at the expense of the private respondents. The learned counsel for the respondents/plaintiffs, in support of their contention, have placed reliance on number of reported decisions of Hon'ble Supreme Court as well as the judgment of High Court, however, following extracts from some of the relevant decisions are reproduced hereunder: 1981 SCMR 1181 MUHAMMAD RAFI Ere. V. ADDITIONAL COMMISSIONER (REV), SARGODHA In this case the Hon'ble Supreme Court while dismissing the petition for special leave to appeal has held under:- "The High Court noticed the fact that Assistant Collector Grade I Sargodha had decided the case before him after the maximum period of 60 days prescribed in this behalf and according to rule 4(5) of the Punjab Land Reforms (Procedure for Ejectment Suits) Rules, 1977 the case. on the expiry of 60 days stood automatically transferred to the file of the Assistant Commissioner/Collector and consequently the order of the Assistant Collector be without jurisdiction the case, is.deemed to be pending before Assistant Commissioner and this was indeed the effect of the order impugned before the High Court. The legal position pointed out by the High Court that must prevail on the facts of this case is unassailable: the learned counsel for the petitioners to the contrary pointed indeed nothing out to us.

There is, therefore, no merit in this petition and it is dismissed in limine. Petition dismissed."

(ii) 1988 SCMR 74: ASHFAQ KHALID and others v. MUHAMMAD HANIF and 9 others In these petitions for special leave to appeal the petitioner challenged the order passed by Lahore High Court in constitutional jurisdiction whereby set aside the orders of the Board of Revenue and restored those of the Additional Commissioner, Sargodha, whereby the decrees of ejectment obtained by the petitioners against their tenants were set aside and the suits remanded to the Collector for fresh decision on the ground that on the day the decrees were passed the Court concerned was not seized of the proceedings. In this case under rule 4(4), Punjab Land Reforms (Procedure for Ejectment Suits) Rules, the Assistant Collector was required to dispose of the suits within 60 days of the receipt of the plaint. Under rule 4(5) the suits were to stand automatically transferred to the Court of Collector in the event the Assistant Collector failed to decide them within the said period. The Assistant Collector did not decide the suits within 60 days: however, despite an objection taken by the tenants, he passed decrees for their ejectment after the stipulated time. The tenants preferred appeals before the Collector but without any success. They then filed revision petitions before the Additional Commissioner. Relying upon the provisions of rule 4(5) ibid, the Additional Commissioner accepted the revision petitions, set aside the decrees of ejectment and remanded the suits to the Collector for fresh decision in accordance with law. The petitioners challenged the decision of the Additional Commissioner in revision before the Board of Revenue. By a common order the Board of Revenue set aside the orders of remand and restored the decrees of ejectment. The tenants questioned the legality of the order of the Board of Revenue in constitutional jurisdiction in the High Court. The learned Single Judge in the High Court declared the said order to be without lawful authority and legal effect. The Hon'hle Supreme court while deciding the case held that the decision recorded after the expiry of 60 days by the Assistant Collector in an ejectment suit was without jurisdiction and the High Court was right in accepting the constitutional petitions of the tenants declaring the order of the Board of Revenue to be without legal effect.

(iii) PLD 2012 SC 132 MUHAMMAD YASIN V. FEDERATION OF PAKISTAN through Secretary, Establishment Division In this case the appointment of Mr. Tauqir Sadiq to the office of Chairman of the Oil and Gas Regulatory Authority (OGRA) was questioned. The Hon'ble Supreme Court while dealing with various issues raised in the petition has held that "56. Based on the foregoing discussion, it is clear that in order to enforce the fundamental rights of the People of Pakistan, it is essential that good governance in OGRA is ensured. To achieve this objective it is crucial that 'highly qualified' persons of 'known competence and integrity' are appointed as Chairman and Members of OGRA. This can only happen if the highest and most exacting standards of diligence, transparency and probity are employed in the selection of these persons. This quite obviously has not been done. We are clear, therefore, that the selection process seriously and irretrievably undermined merit. It is such actions which potentially result in direct harm to the people of Pakistan and also contribute towards heart- burn and disillusionment amongst genuine and competent aspirants for public office. The direct impact of ignoring merit and the eligibility criteria prescribed by the Ordinance also has the potential of causing harshly adverse consequences including unjustified inflation in retail prices for consumers, thus depriving the people of Pakistan of their incomes, assets, quality of life and dignity.

Among many other harmful consequences thrown up by cases such as the present one is the unnecessary clogging of Court dockets thus reducing the Court resources available for resolution of other cases. It is clear this case would not have arisen if the selection process had been designed and implemented to ensure fulfillment of the requirements of the Ordinance. Civil servants and other holders of public office have to remain conscious that in terms of the Constitution "it is the will of the People of Pakistan" which has established the Constitutional Order under which they hold office. As such they are, first and foremost fiduciaries and trustees for the People of Pakistan. And, when performing the functions of their Office, they can have no interest other than the interests of the honourable People of Pakistan in whose name they hold office and from whose pockets they draw their salaries and perquisites."

(iv) PLD 2013 SC 224 Engineer IQBAL ZAFAR JHAGRA and others v. FEDERATION OF PAKISTAN and others In this case the Hon'ble Supreme Court while dealing with issue of determination of sale price of Compressed Natural Gas (CNG), inter alia, has held that Oil and Gas Regulatory Authority (OGRA), instead of intervening to protect the public interest, simply chose to enforce the said Memorandum of Understanding entered into between the Government and CNG Associations and CNG station owners, which constituted a blatant abandonment of its duties and abdication of its statutory role as protector of the interests of the citizens who had to bear the brunt of unjustifiable prices. Further held that OGRA had been envisaged as an independent body, which was supposed to protect the public interest and its failure to protect ordinary consumers from oligopolistic and monopolistic activities could not be condoned. Supreme Court directed the OGRA to come up with a pricing formula for Compressed Natural Gas (CNG), based on evidence and in accordance with the prescribed process and to do so in a swift manner, after obtaining all necessary feedback from the stakeholders.

(v) PLD 2016 SC 808 Messrs MUSTAFA IMPEX, KARACHI and others v. The GOVERNMENT OF PAKISTAN through Secretary Finance, Islamabad and others.

The Hon'ble Supreme Court, in this landmark judgment, discussed in detail the concept of the term 'Federal Government" in relation to five different phases before and after creation of Pakistan. It is held that Federal Government did not have the discretion to not follow the provisions of the Rules of Business, 1973. Further held that following the Rules of Business, 1973 was mandatory and binding on the Government and a failure to follow them would lead to an order lacking any legal validity.

Also held that Constitutionally mandated rules (such as the Rules of Business, 1973) were closely intertwined with the concept of good governance for and in the public interest and allowing a departure therefrom would be detrimental to open and transparent forms of governance. The Hon'ble Supreme Court while summarizing the case has held under:-- "84. We may now summarize our conclusions --

(i) The Rules of Business, 1973 are binding on the Government and a failure to follow them would lead to an order lacking any legal validity.

(ii) The Federal Government is the collective entity described as the Cabinet constituting the Prime Minister and Federal Ministers.

(iii) Neither a Secretary nor a Minister and nor the Prime Minister are the Federal Government and the exercise, or purported exercise, of a statutory power exercisable by the Federal Government by any, of them especially, in relation to fiscal matters, is constitutionally invalid and a nullity in the eyes of the law. Similarly budgetary expenditure or discretionary governmental expenditure can only be authorized by the Federal Government i.e. the Cabinet and not the Prime Minister on his own.

(ix ) Any Act or statutory instrument (e.g. the Telecommunication (Re-Organization) Act, 1996) purporting to describe an entity or organization other than the Cabinet as the Federal Government is ultra vires and a nullity.

(v) The Ordinance making power can only be exercised after a prior consideration by the Cabinet.

An Ordinance issued without the prior approval or the Cabinet is not valid. Similarly no bill can be moved in Parliament on behalf of the Federal Government without having been approved in advance by the Cabinet. The Cabinet has to be given a reasonable opportunity to consider, deliberate on and take decisions in relation to all proposed legislation, including the Finance Bill or Ordinance or Act. Actions by the Prime Minister on his own in this regard. are not valid and are declared ultra vires.

(vi) Rule 16(2) which apparently enables the Prime Minister to bypass the Cabinet is ultra vires and is so declared.

(vii) Fiscal notifications enhancing the levy of tax issued by the Secretary, Revenue Division, or the Minister are ultra vires. (it is clarified, in passing, that this court has in the past consistently held that a greater latitude is allowed in relation to beneficial notifications and that principle still applies).

(viii) In consequence of the above findings the impugned notifications are declared ultra vires and are struck down."

(vi) PLD 2014 Sindh 443 Messrs FAROOQUI ICE FACTORY GAMBAT through Proprietor and 24 others v.

REVENUE OFFICER SEPCO (WAPDA) RANIPUR DISTIRCT KHAIRPUR and 14 others In this case petitioners have challenged the notification issued by the Federal Government whereby Fuel Adjustment Charges were levied retrospectively, inter alia, on the ground the same was depriving them of their fundamental right to carry out their businesses. The Division Bench of this Court while dealing with the issue has held that proviso to S.31(4) of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 provided that review in fuel charges in view of variation of fuel price and the approval of tariff had to be made on monthly basis and not later than a period of seven days, which meant that period in all should not exceed a month and seven days. It was observed in. the case that Fuel Price Adjustment charges in the case had been made part of the electricity bill many months after it became due as per determination and electricity bills pertaining to current months included (Fuel Price Adjustment) charges of previous months, and such recovery was being made under notifications, issued by the Federal Government. It was held that notification impairing existing or vested right could not be given retrospective effect.

Further held that notifications whereby Fuel Price Adjustment charges were being levied did impair existing rights of petitioners as they put an obligation upon them to pay the said charges, therefore, such notifications could only be given prospective effect (and not retrospective effect).

Also held that electricity bills issued under notifications issued by the Federal Government, having Fuel Price Adjustment charges of previous months, announced to retrospective recovery. The Court directed that NEPRA should adjust the retrospective charges, if the same had been paid by the petitioners through their electricity bills.

11. We have heard the learned counsel for the parties and the Additional Advocate General, perused the impugned judgment and record with their assistance and have also examined the relevant provisions of OGRA Ordinance, 2002 as well as the case law on the point. Before we may dilate upon subject controversy, it would be appropriate to examine the relevant provisions of Oil and Gas Regutatory Authority (OGRA) Ordinance 2002 and Rules (Natural Gas Tariff Rules 2002), which read as follows:- OGRA Ordinance, 2002 "Section:

2. Definitions;--

(vi) "decision" means an order determination, direction or decision of the Authority made in accordance with this Ordinance, rules and regulations and 'decide' shall mean the action taken by the Authority to arrive at such decision:

(ix) "financial year" means the period beginning on the first day of July in a calendar year and ending on the thirtieth day of June in the next following calendar year:

(xxvi) "policy guidelines" means policies of the Federal Government covering or related to any or all of the regulated activities which are issued in writing pursuant to a decision of the cabinet of the Federal Government of any committee thereof:

7. Tariff.-(1) Subject to policy guidelines, the Authority shall determine or approve tariff for regulated activities whose licences provide for such determination or such approval or where authorized by this Ordinance.

(2 ) The criteria for determination, Approval, modification and revision of tariff shall be prescribed in the rules and in the terms and conditions of each licence and shall, inter alia include ---

(a) provision for the protection of users of regulated activities and consumers against monopolistic or oligopolistic pricing:

(b) cost of research, development and capital investment programme:

(c) provision of reasonable returns to attract investment of the quantitative and qualitative improvements of regulated activities:

(d) encouragement and reward of efficiency:

(e) sending of appropriate price signals regarding the relative abundance or scarcity of supply of such regulated activity:

(f) minimizing economic distortions: and

(g) keeping in view the costs of alternate or substitute sources of energy.

8. Pricing for retail consumers for natural gas.-(1) The Authority shall determine an estimate of the total revenue requirement. Of each licensee for natural gas engaged in transmission, distribution and the sale of natural gas to a retail consumer for natural gas in accordance with the rules, and on that basis advise the Federal Government the prescribed price of natural gas for each category of retail consumer for natural gas.

(2) A licensee for natural gas referred to in subsection (1), shall submit for review by the Authority its total revenue requirement after incorporating the actual changes in the well-head prices as notified by the Authority and other relevant factors and the Authority shall advise the Federal Government promptly of the revised prescribed prices for the licensee for natural gas.

(3) The Federal Government shall within forty days of the advice referred to in subsections (1) and (2), advise the Authority of the minimum charges and the sale price for each category of retail consumer for natural gas for notification in the official Gazette by the Authority of the prescribed price as determined in subsections (1) and (2), the minimum charges and the sale prices for each category of retail consumers for natural gas.

(4) If the Federal Government fails to advise the Authority within the time specified in subsection

(3) and the prescribed price for any category of retail consumer for natural gas determined under subsections (1) and (2) is higher than the most recently notified sale price for that category of retail consumers for natural gas, the Authority shall notify in the Official Gazette the prescribed price as determined by the Authority under subsections (1) and (2) to be the sale price for the said category of retail consumers for natural gas.

(5) Each licensee for natural gas shall pay to the Federal Government the development surcharge in respect of each unit of natural gas sold during the calendar month within two months of the close of that month and any amount paid by a licensee under this subsection shall be an expenditure for which allowance shall be made in computing profits or gains under section 23 of the Income Tax Ordinance 1979 (XXXI of 1979): Provided that when the Income Tax Ordinance, 2001 (XLIX of 2001). comes into force the provisions of the said Ordinance shall apply for the purposes of this subsection.

(6) In this section--

(a) "category of retail consumers for natural gas" means a category of retail consumers for natural gas designated as such by the order of the Federal Government:

(b) "development surcharge" means the amount payable by each licensee for natural gas and calculated in accordance with the rules and which represents in respect of each category of retail consumer for natural gas to which it is applicable, the amount if any, by which the sale price exceeds the prescribed price:

(c) "licence for natural gas" means a licence for transmission, distribution or sale of natural gas to a retail consumer for natural gas granted pursuant to subsection (1) of section 23:

(d) "licensee for natural gas" means a holder of a licence for natural gas:

(e) "minimum charges" means the amount a licensee for natural gas may charge a retail consumer for natural gas as notified, from time to time, under this section:

(f) "prescribed price" means the amount determined under this section which represents the amount a licensee for natural gas would be entitled to receive from each category of its retail consumers for natural gas in order to achieve its total revenue requirement:

(g) "sale price"-means the price notified under this section at which a licensee for natural gas is authorized under this Ordinance and licence to sell natural gas to that category of retail consumer for natural gas:

(h) "total revenue requirement" means for each financial year that total amount of revenue determined by the Authority for each licensee for natural gas so as to ensure it achieves the rate of return provided in its licence for natural gas.

[Underling is to add emphasis] National Gas Tariff Rule 2002 Rule 2. Definitions.-

(f) "petition" means petition made to the Authority, in accordance with the provisions of these rules, for determination, modification or revision of rate of return, total revenue requirement or tariff;

(g) "pleadings" means the petition, the replies to the petition and rejoinders:-

(h) "proceedings" means the process beginning with the filing of a petition and ending when the Authority makes its final determination and includes the process of a review by the Authority of its final determination:

4. Filing.--(1) Any consumer or person interested in the tariff may file petition with the Authority by filing it with the Registrar along with the fees specified in schedule. The Authority may also initiate proceedings suo motu.

(2) Every licensee shall, by the first day of December of each year, file petition with the registrar, along with the fees specified in Schedule II, to enable the Authority to determine an estimate of such licensee's total revenue requirement for one financial year, or for a number of financial years, and inform the Federal Government pursuant to these rules. The Authority may, for reasons to be recorded in writing exempt a licensee from filing a petition required to be filed pursuant to this sub- rule.

(3) ..............

(4) ................

5. Admission of petition.---(I) As soon as may be, but not later than fourteen days of the date of filing of the petition, it shall be placed before the Authority for admission.

(2) The Authority may call for submission by the petitioner of any further supporting communication for the purposes of evaluation of the petition for admission, within such time as it specifies. The Authority shall not be required to entertain or admit any petition until such supporting communication is furnished.

(3) The Authority may, if a prima facie case for evaluation exists, admit the petition for consideration without requiring attendance of the petitioner. The Authority shall not pass an Order refusing admission without giving the petitioner an opportunity of being heard or making a written representation.

(4) In case the Authority admits the petition, it may give such Orders and directions for the service of notices as it deems appropriate to--

(a) all persons affected by or interested in the petition, who in the opinion of the Authority are likely to be affected or interested : and

(b) persons who, by reason of their calling or expertise, may be of assistance to the Authority in arriving at a just and informed determination of the proceedings.

(5) The Authority may, if it deems appropriate, direct the advertisement by publication of the title and brief description of the petition in any one or more newspapers specified for the purpose by the Authority. Such publication shall also contain a notice of the availability of a copy of the petition at the office of the Authority upon payment of the fee determined for the purpose by the Authority.

(6) In any publication Ordered by the Authority under sub-rule (5), if the petition is by a licensee, the publication shall in addition to the information directed to be published by the Authority, contain the following information, namely:--

(a) Total rupee amount of the rate change:

(b) typical bill impact of the proposed tariff on each category of consumers:

(c) the telephone number of a representative of the licensee who can be called for further information; and

(d) if applicable a statement indicating that the Authority has ordered immediate application of the whole or part of the tariff proposed by the licensee.

(7) The Authority may, while admitting a petition, allow the immediate application of the whole or a part of the tariff proposed by the petitioner, while the proceedings are pending before the Authority, subject to an order for refund for the protection of consumers or an order of satisfactory security to be provided for such refund.

10. Hearing by the Authority.--(1) After the filing of the pleading, the authority shall examine the same and determine whether a hearing is required to arrive at a just and informed decision. For the purposes of determining the same the Authority may administer discoveries and interrogation to any person: make information direction: or require the appearance of any person.

(2)...........

(3).............

Rule 15. Decisions of the Authority.-(1) All Orders, determinations and decisions of the Authority shall be taken in writing and shall identify the determination of the Chairman and each member.

(2) The Authority shall decide a petition filed pursuant to sub-rules (1) and (2) of rule 4, within five- and one half months of the date of filing of the petition: Provided that the Authority may, only for causes beyond its control extend the aforesaid five and one half months period by a further period of one month: Provided further that the Authority shall not extend the time for its final determination in such proceedings beyond an aggregate period of six months.

The reasons for such extension in time shall be recorded in writing.

(3) The Authority shall decide a petition, filed pursuant to sub-rule (3) of rule 4, within three months of the date of filing of the petition: Provided that the Authority may, only for causes beyond its control extend the aforesaid three months period by a further period of fifteen days: Provided further that the Authority shall not extend the time for its final determination in such proceedings beyond an aggregate period of three months. The reasons for such extension in time shall be recorded in writing.

(4) Copies of all orders determinations and decisions made or issued by the Authority, shall be certified under the signature on the Registrar and the seal of the Authority and shall be made available to any person on payment of such fees as the Authority may determine from time to time. Copies of all such orders, determinations and decisions shall be available at the principal office of the Authority for public inspection free of cost."

Rule 17. Evaluation criteria.-- (1) All petitions filed under these rules shall be evaluated by the Authority on the basis of and in accordance with the following criteria, namely --

(a) In order to minimize economic distortions, tariffs should reflect the average cost of service of each licensee except where otherwise provided under the policy guidelines of the Federal Government:

(b) Tariffs should clearly identity and inter-class or inter-region subsidies resulting from the policy guidelines of the Federal Government and should be set in a manner so as to provide such subsidies transparently,

(c) tariffs should include a mechanism to allow licensees a benefit from and penalties for failure to achieve benchmarks set by the Authority through yardstick regulation for, inter alia and without limiting the generality of such regulation, capacity utilization, operation and maintenance costs and unaccounted for natural gas:

(d) tariffs should be determined in a manner which promote continued reasonable investment in equipment, facilities and research and development for qualitative and quantitative improvement in the provision of regulated activities;

(e) tariffs should be determined in a manner that takes into account the covenants contained in agreements, relating to regulated activities, with international institutional lenders;

(f) tariffs should be determined on the basis of a return on assets, however, the Authority may after consultation with licensees, and the Federal Government determine tariffs on the basis of other regimes, including without limitation, return on equity and tariffs may be determined on the basis of disparate regimes for different types of licensees:

(g) tariffs should be determined in a manner that protects consumers against monopolistic and oligopolistic pricing:

(h) tariffs should generally be determined taking into account a rate of return as provided in the licence, prudent operation and maintenance costs, depreciation, government levies and if applicable financial charges and cost of natural gas;

(i) while determining the value of a licensee's fixed assets in operation, the value of assets funded wholly or partially on a non-refundable basis by a person other than the licensee, should be excluded to the extent of such contribution:

(j) only such capital expenditure should be included in the rate base as is prudent, cost effective and economically efficient:

(k) depreciation of a licensee's assets should be allowed on the basis of their useful life as may be determined from time to time by the Authority:

(l) tariff should be comprehensible and should explicitly state each component thereof: (m)tariff should be set to facilitate the sending of appropriate price signals regarding the relative abundance or scarcity of supply of the relevant regulated activity: and

(n) tariffs should keep in view the cost of substitute or alternate sources of energy.

(2) In evaluating a petition, the Authority shall strike a balance, to the extent possible, among the criteria, specified in sub-rule (1) in order to optimize the benefits to all persons likely to be affected by the Authority's determination on the petition.

Rule 18. Pricing for retail consumers for natural gas. (1) As soon as may be but not later than three days of each determination by the Authority of the total revenue requirement of a licensee, the Authority shall advise the Federal Government the price which should apply to each category of retail consumers for natural gas of that licensee.

(2) The Federal Government shall consider the Authority's determination referred to in sub-rule (1) and as soon as may be but not later than forty days of receiving the same, advice the Authority of the minimum charges and the sale price for each category of retail consumers for natural gas which shall apply in relation to that licensee.

(3) The Authority shall, as soon as may be but no later than three days of receiving the advice from the Federal Government, notify in the official Gazette, the price applicable to a licensee and the minimum charges and maximum sale prices, which that licensee shall be permitted to charge each category of its retail consumers for natural gas.

(4) If the Federal Government fails to advise the Authority within time specified in sub-rule (2) and the price for any category of retail consumers for natural gas determined by the Authority under sub-rule (1) is higher than the most recently notified sale price for each category of retail consumers for natural gas, the Authority shall notify, in the official Gazette, the price as determined by the Authority under sub-rule (1) to be the sale price for said category of retail consumers for natural gas.

(5) No licensee shall charge any consumer for the supply of natural gas, any sale price or minimum charge other than the sale price or minimum charge notified by the Authority pursuant to these rules and publicized by the licensee in the print and electronic media.

(6) Licensees shall be entitled to charge each retail consumer for natural gas the applicable minimum charges notified by the Authority pursuant to these rules notwithstanding that no gas has been taken by such retail consumer during the period for which such minimum charges are levied.

12. From the perusal of the above provisions it appears that licensees are required to file their respective petitions before OGRA in December each year for determining their estimated revenue requirements (ERR), in terms of Rule 4(2) referred above, regarding a particular financial year, or for a number of financial years: Financial year starts from 1st July and ends on 30th June of the following year, in terms of the Ordinance 2002. Upon one such petition of the Petitioner to Respondent OGRA a public notice under Rule 5 is required to be issued to all affected and interested persons who may have any interest in and or objection to the request of Petitioner. Since this requires a proceeding, thus a date of hearing in terms of Rule 10 ibid is given. After heaving the parties Respondent OGRA then determines the licensee's estimated revenue requirements in terms of Rule 15(2) of Rules 2002, which is a prescribed price for each consumer: whereafter within a period of three days of determination of such prescribed price. OGRA advises the Federal Government of such determination for each category of consumers of natural gas in terms of Section 8(1) of Ordinance, 2002 read with Rule 18(2) of Rules 2002: the Federal Government on receiving such advice from OGRA evaluate and re-advice OGRA within 40 (forty) days of receiving such determination for the issuance of notification of sale price of gas for each category of consumer in terms of Section 8(3) of Ordinance 2002 and Rule 18(2) of Rules 2002; On receipt of such re-advice from Federal Government, the OGRA is required to issue a notification of gas tariff for each category of consumer which is called a sale price of each category of consumer. In an event where the Federal Government fails to give any advice (re-advice) within the prescribed period of 40 days then if the gas tariff for any category of consumers determined by OGRA is higher than existing gas tariff and sale price for that category of consumer, OGRA is required to notify the new increased tariff in terms of Section 8(4) of Ordinance 2002 and Rule 18(3) of Rules 2002.

13. In the present case, from the perusal of the documents available on record, it appears that Appellant on 03-01-2014 filed its ERR petition for the year 2014-2015 with OGRA wherein the appellant proposed a price of Rs.596.63 per MMBTU for industrial captive power consumers (respondents plaintiffs): whereupon OGRA on 03.07.2014 issued its determination as 469.04 per MMBTU for all consumers for the said year, which decision/ERR determination of OGRA was sent to respondent No.1 (Federal Government) for their advice (re-advice), however, the Respondent No.1 failed to communicate its advise (re-advise) to the OGRA within the prescribed time similarly, OGRA too failed to notify the prescribed prices until 31.08.2015, when the OGRA did notify the prescribed price, however after more than a year from the date when ERR determination was issued in respect of financial year 2014-2015. The said Notification (impugned) of sale price was issued well beyond the financial year 2014-2015 that ended on 30.06.2015. It is also pertinent to observe that once a determination is made by OGRA on the ERR sent by Licencees (SSGC) for a particular period such a determination can be used and applied for that particular financial year and not for the next Financial year(s) for which the appellant licensee is required to file its fresh petition on the first day of December of each year for the purpose of estimating its total revenue requirement for the upcoming financial year. The record further reveals that at the time when the impugned Notification was issued, appellant SSGC had already filed its ERR petition for the year 2015-16. Thus, it cannot be held that the impugned Notification was issued for the financial year 2015-2016, starting from 01.07.2015 for which, fresh ERR has already been submitted. As regards the advice of the Federal Government issued on 31.08.2015 on the ERR filed by the Appellant on 03.01.2014 for the financial year 2014-2015 with. OGRA, it appears that the same was issued by some Financial Analyst, that too without referring to any of the documents/letters of OGRA on which the said advice was given. We are of the opinion that the Advice dated 31.08.2015 issued by the Federal Government and the Notification of even date issued by OGRA to this effect do not meet the Criteria as laid down by the Hon'ble Supreme Court of Pakistan in the case of MUSTAFA IMPEX KARACHI and others v. The GOVERNMENT OF PAKISTAN through Secretary Finance, Islamabad and others (PLD 2016 SC 808), therefore, the said advice of the Federal Government and the Notification issued by OGRA pursuant to such advice are constitutionally invalid and a nullity in the eyes of the law.

14. In view of hereinabove facts and circumstances of the instant case and from perusal of the impugned judgment, we are of the opinion that learned Single Judge while passing the impugned judgment has considered all the material facts and has also examined the relevant provisions of OGRA Ordinance and thereafter has correctly applied his judicial mind in deciding the case.

Accordingly, we do not find any factual infirmity or legal error in the impugned judgment, which depicts correct legal position as emerged from above discussion, therefore, these Appeals have no merit, and the same are dismissed with no order as to costs.