1. MIRZA VIQAS RAUF, J.--- The petitioner, through instant petition, has called in question the vires of order dated 6th of April, 2015, whereby his representation against the order dated 23rd of September, 2013 passed by the Wafaqi Mohtasib (Ombudsman) was dismissed.
2. 2.Precisely, the facts necessary for adjudication of instant petition, are that the respondent No.1 who was consumer of the petitioner, being dis-satisfied with the charges imposed upon him filed a complaint before Wafaqi Mohtasib (Ombudsman), Lahore challenging the levy of tampering charges amounting to Rs.1,71,120/-. The complaint was though contested by the petitioner but vide order dated 23rd of September, 2013, the same was allowed. The petitioner, feeling aggrieved, filed a review petition which was not acceded to and dismissed vide, order dated 19th of November, 2013. The petitioner then filed an appeal /representation before the Worthy President, Islamic Republic of Pakistan. The representation was also dismissed by way of order dated 06th of April, 2015, hence this petition.
3. 3.Learned counsel for the petitioner submitted that the respondent No.2 was not vested with any jurisdiction to entertain the complaint filed by the respondent No. 1. He added that order of the Ombudsman was without jurisdiction. Learned Legal Advisor on the strength of judgment reported in Sui Northern Gas Pipeline Ltd. through Authorized Attorney v. Wafaqi Mohtasib and 3 others"
4. (2015 M LD 1029) contended that the order of Ombudsman was not tenable under the law and review petition was wrongly dismissed. He maintained that representation was also dismissed in an illegal and unlawful manner.
5. 4.Conversely, learned counsel for the respondent No.1 submitted that matter in issue clearly falls within the jurisdiction of Ombudsman and he has rightly exercised his jurisdiction. Learned counsel contended that the petitioner did not raise any objection qua the jurisdiction of Ombudsman when the proceedings are underway before the said Authority. Learned counsel argued that the instant petition is not maintainable.
6. 5.I have heard the learned counsel for the parties and also perused the record.
7. 6.There is no cavil that the matter in issue relates to imposition of charges which were levied on account of tampering with the metering equipment. The moot question involved in the instant petition is the competency and jurisdiction of Wafaqi Mohtasib (Ombudsman) to entertain the complaint arising out of metering dispute. The said issue has already been resolved by this Court in the case of "Sui Northern Gas Pipeline Ltd. through Authorized Attorney v. Wafaqi Mohtasib and 3 others" (2015 M LD 1029) in the following words:- "37. The question still remains as to whether the powers of the Ombudsman are engaged and trigged at any stage of the proceedings in respect of special laws. This is necessitated owing to general rule expounded by Maxwell that the general statute is read as silently excluding from its operation the cases which have been provided for by the special one. It does no more than that.
8. The general statute is not repealed thereby and it is on the principle of harmonious reading of the two and by reference to the purpose and policy of the special laws that the operation of the provisions of the Order stands excluded. However, in any opinion there may be a situation which would reignite that power to be validly exercised as a case of maladministration. Before I proceed to do that a brief summary of the various ways in which the term maladministration .has been expounded are as follows:-- "Lord Denning MR in R v. Local Commissioner for Administration for the North and East Area of England, ex parte Bradford Metropolitan City Council (1979) 2 All ER 881; (1979) QB 287 has dealt with the matter thus: "This brings me to the substantial point in this case. Has there been a sufficient claim of maladministration such as to justify investigation by the local commissioner? So this is the guide suggested to the meaning of the word maladministration. It will cover "bias, neglect, inattention, delay, incompetence, inaptitude, perversity, turpitude, arbitrariness and so on". It would be a long and interesting list, clearly open-ended, covering the manner in which a decision is reached or discretion is exercised; but excluding the merits of the decision itself or of the discretion itself. It follows that a discretionary decision, properly exercised, which the complainant dislike but cannot fault the manner in which it was taken, is excluded."
9. S.H. Bailey and Brian Jones in their work "Cases, Materials and Commentary on Administrative Law"
10. I have this to say: "The courts have considered the scope of the term "maladministration" in relation to several ombudsman jurisdictions, but have not been in a position to offer a detailed definition. The Court of Appeal in Eastleigh held that it concerned the manner in which decisions are reached or implemented not the nature, quality and reasonableness of the decision itself. This position has been firmly maintained by the courts in a battle with the previous Pensions Ombudsman. Dr. Julian Fart-and, over the scope of his jurisdiction over complaints of maladministration. See further R. Nobles, (2001) P.L. 308. Beyond this, the courts have not provided guidance. In R. v.
11. Parliamentary Commissioner for Administration Ex.p. Balchin (No.1) (1998) 1 P.L.R. 1, Sedley J. said that: "So far as a court of judicial review is concerned the question is not how maladministration should be defined but only whether the Commissioner's decision is within the range of meaning which the English language and the statutory purpose together make possible. For the rest, the question whether any given set of facts amounts to maladministration or by parity of reasoning, to injustice-is for the Commissioner alone".
12. Justice (Retd.) Saleem Akhtar, as Federal Tax Ombudsman defined and explained the term in a decision titled Faqir Muhammad Masoom v. Secretary, Revenue Division, Islamabad reported as 2007 PTD 1936 thus:-- Thus in most general terms bad or poor management or regulation of public affairs is maladministration. Bad or poor management/regulation of public affairs will remain bad notwithstanding that it is bona fide and for valid reason because goals of good management or regulation of public affairs cannot be achieved without eradication of such reasons/causes. This is the pronounced objective in the Preamble of the Establishment of the Office of Federal Tax Ombudsman Ordinance, 2000 reproduced hereunder-- Whereas it is expedient to provide for the appointment of the Federal Tax Ombudsman to diagnose investigate, redress and rectify any injustice' done to a person through maladministration by functionaries administering tax laws. (Emphasis provided)."
38. And hereunder is reiteration of the passage from Reading Law which will bring home the point.
13. It is:-- "But what about contradictory provisions in two separate statutes--- an earlier general prohibition (or permission) contradicted by a later specific permission (or prohibition), or an earlier specific permission (or prohibition) contradicted by a later general prohibition (or permission)? Does the rule apply to these? And does its applicability depend on which provision is enacted later?
14. The reason why the canon might be thought inapplicable to seeming contradictions in successive statutes is simple: No one (or almost no one) thinks that the way contradictions are to be resolved in single instruments, including single statutes, is that the provision appearing later in the instrument prevails. But it is a principle of statutory construction that a later enacted stature that contradicts an earlier one effectively repeals it (see S.55). So where there is a conflict between a general provision and a specific one, whichever was enacted later might be thought to prevail. But that analysis disregards the principle behind the general/specific canon --- namely, that the two provisions are not in conflict, but can exist in harmony. The specific provision does not negate the general one entirely, but only in its application to the situation that the specific provision covers.
15. Hence the canon does apply to successive statutes. Indeed, that is perhaps its most common application, since legislators are often---despite the presumption to the contrary---unfamiliar with enactments of their predecessors. They unwittingly contract them."
16. 39.What follows indubitably is that the two provisions, viz the Order and the special laws can exist in harmony and the special laws do not negate the Order entirely, but only in its application to the situation that the special laws cover. I can well visualize a situation, where a decision has been made and delivered by the Authorities under the special laws, yet the licensees are refusing to implement it. This, in my opinion, gives rise to the case of maladministration cognizable by the Ombudsman. Pakistan Water and Power Development Authority through Executive Engineer MEPCO Ltd. v. Messrs Husnain Industries (Pvt.) Ltd. through Managing Director Amir Azwar Khan and 3 others (2005 M LD 1979) was perhaps a case in point. In that precedent the consumer had approached the Ombudsman in similar an circumstances. This, to my mind,' is the limited extent to which the Ombudsman can interfere in these matters on the basis of maladministration. But the primary decision making process remains the exclusive province of the Authorities under the special laws and the jurisdiction of the Ombudsman stands excluded. At this juncture and by way of a coup de grace, an extract of the annual report made by the Wafaqi Mohtasib to the President of Pakistan in 2005 is being reproduced to illustrate the promulgation of the special laws was likely to have on the role of the Ombudsma n:-- "In the year 2005, the most significant development concerning this Office was the entrusting as of 15th March of the complaints against Wapda and the Sui Gas companies to the National Electric Power Regulatory Authority (NEPRA) and the Oil and Gas Regulatory Authority (OGRA) in terms of the law on the subject --- Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 and Oil and Gas Regulatory Authority Ordinance, 2002 respectively. Since such complaints in the past constituted about 60% of the entire workload of this office, the effect on the statistics of registration and disposal of complaints during the calendar year has been very significant."
17. 40.I would accordingly allow these petitions and hold as under:--(1) The Ombudsman does not have the authority and power under section, 9 of the Order in matters covered by the special laws and the powers of the Ombudsman are excluded to that extent.
18. (2)The proceedings pending before the Ombudsman with regard to SNGPL and LESCO and impugned herein are without lawful authority and of no legal effect.
19. (3)Proceedings for an alleged maladministration can only be undertaken in the limited circumstances alluded to in this judgment."
20. The above referred judgment was though assailed in 2016 YLR 1, however, the view taken by the learned Single Judge in Chambers was affirmed by the learned Division Bench by way of judgment dated 03rd of June, 2015,
7. Since the matter in issue clearly falls within the domain of the Authority designated for the said purpose in terms of The Oil and Gas Regulatory Authority Ordinance, 2002 and Complaint Resolution Procedure [for Natural Gas, Liquefied Petroleum Gas (LPG), Compressed Natural Gas
(CNG) and redefined oil products] Regulations, 2003, so in view of principles laid down the judgment referred above, the Ombudsman was vested with no jurisdiction either to entertain the complaint or to decide the same by way of impugned order. As the basic order was without jurisdiction and coram non judice so the edifice built thereon in the shape of order dated 06th of April, 2015 will automatically falls down. It is further observed that if a forum does not possess the jurisdiction even consent or acquiescence of the parties is not sufficient to confer jurisdiction, which is not vested under the law. The parties to a lis by way of their consent cannot take away or confer jurisdiction upon a Court or forum. Guidance in this respect can be sought from "Multan Electric Power Company Ltd through Chief Executive and another v. Muhammad Ashiq and others (PLD 2006 SC 328).
21. 8.For the forgoing reasons, the instant petition is allowed and the impugned orders dated 06th of April, 2015 as well as 23rd of September, 2013 are set aside. Before parting it is observed that the respondent No.1 may approach the competent Court for redressal of his grievance, if any. With these observations, the instant petition is accepted.