' MAMOON RASHID SHEIKH, J.--- The instant petition (W.P.No,8862/2015) and W.Ps. Nos.8857, 8858, 8859, 8860, 8863, 12987 and 12988 of 2015 are proposed to be decided through this single order as common questions of law and facts arise therein.
2. The private respondents in W.Ps. Nos. 8859, 12987, and 12988 of 2015 were proceeded against ex parte through orders dated 17.06.2015. The private respondents in W.Ps. Nos.8860 and 8863 of 2015 have been proceeded against ex parte through separate orders of even date (30.06.2015).
3. For the sake of convenience, insofar as the context so permits, the parties shall hereinafter be referred to as given in the title of the instant petition.
4. The learned counsel for the petitioner submits that all the petitions pertain to issuance of detection bills by the petitioner-SNGPL to the private respondents/consumers in respect of the gas connections installed at their respective premises. All the private respondents upon issuance of the detection bills approached the learned Wafaqi Mohtasib (respondent No,2) by filing complaints under Article 2(2) read with Article 11 of the Wafaqi Mohtasib (Ombudsman) Order, 1983 (the Order).
Respondent No,2 assumed jurisdiction in the matter and found in favour of the private respondents, inter alia, in the terms that the detection bills were declared to be unjustified and were directed to be withdrawn/cancelled. Any excess amounts paid by the private respondents were directed to be credited to them against future bills. The petitioner-SNGPL was directed to file the compliance report within 30-days of the passing of the order by the respondent No,2.
5. Further submits that feeling aggrieved the petitioner-SNGPL filed representations before the President of Pakistan under Article 32 of the Order. The petitioner-SNGPL's representation were, however, rejected by the President.
6. Submits that the impugned orders have been passed by respondent No,2 without jurisdiction and lawful authority. Further submits that the Regulatory Authority in the matter, is the Oil and Gas Regulatory Authority (OGRA) which was established by the Federal Government under the Oil and Gas Regulatory Authority Ordinance, 2002 (the Ordinance). Further submits that Section 42(e) of the Ordinance provides for establishment of a complaint resolution mechanism. Such a mechanism has been established by OGRA and is known as the Complaint Resolution Procedure [for Natural Gas, Liquefied Petroleum Gas (LPG) and Compressed Natural Gas (CNG)] Regulations, 2003 (the Regulations).
7. Further submits that the Ordinance and the Regulations are a special law which provide for a mechanism for dispute resolution between a consumer and the licensee/gas supplier (the petitionerSNGPL) vis-a-vis overbilling, detection bills, disconnection, removal of meters etc. As such OGRA has exclusive jurisdiction in the matter. The jurisdiction of respondent No,2 is, therefore, ousted in such matters. These disputes do not come within the purview of maladministration as defined in Article 2(2) of the Order.
8. Contends that in view thereof the impugned orders have been passed by respondent No,2 without jurisdiction and are of no legal effect.
9. Relies on the judgment dated 26.11.2014 passed by a learned Single Judge in Chambers of this Court in W.P.No,19826/2013 (2015 M LD 1029), entitled "SNGPL v. Wafaqi Mohtasib and others" and the judgment dated 03.06.2015 passed by a learned Division Bench of this Court in ICA No,146\ of 2015, (2016 YLR 1 entitled) "M/s Rana Textiles Limited v. Sui Northern Gas Pipelines Limited etc.".
10. Submits that the question of jurisdiction of respondent No,2 was directly and substantially in issue in W.P.No,19826/2013 (2015 M LD 1029) and other connected petitions. The judgment dated 26.11.2014 conclusively dealt with the said question and it was declared that:- "40
(1) The ombudsman does not have the authority and power under section 9 of the Order in matters covered by the special laws and the powers of the Ombudsman are excluded to that extent.
(2) The proceedings pending before the Ombudsman with regard to SNGPL and LESCO and impugned herein are without lawful authority and of no legal effect.
(3) Proceedings for an alleged maladministration can only be undertaken in the limited circumstances alluded to in this judgment."
11. Further submits that the private respondents in the afore-referred petitions filed appeals which were dismissed through the judgment dated 03.06.2015 passed in ICA No,146/2015 (2016 YLR 1) and the connected appeals with the result that the judgment dated 26.11.2014 passed in W.P.No,19826/2013 (2015 M LD 1029) was maintained.
12. Further submits that ICA No,146/2015 (2016 YLR 1) was in part decided on the statement of the learned counsel for the Office of respondent No,2 which was to the following effect:- "21. As regards the other appeals, as the learned counsel for the office of the Ombudsman has admitted that the office of the Ombudsman can only deal with the cases pertaining to maladministration as contemplated in the Order and cannot transgress or interfere with the matters falling within the ambit of dispute resolution mechanism provided under OGRA Ordinance and NEPRA Act, it is, therefore, clarified that the cases, to the extent of maladministration can be looked into and decided by the office of the Ombudsman, however, the issues which fall within the ambit of dispute resolution mechanism provided under the OGRA Ordinance and NEPRA Act, the same are to be adjudicated upon and decided by the available fora."
13. Contends that since the question of jurisdiction stands conclusively decided in favour of the petitioner, therefore, the impugned orders are liable to be set aside.
14. The learned counsel for respondent No,1 in W.P.No,8862/2015 submits that the instant petitions are not maintainable inter alia for the reason that the question of jurisdiction of respondent No,2 has been raised for the first time through these petitions. The jurisdiction of respondent No,2 was not questioned by the petitioner either before respondent No,2 or respondent No,3. The petitioner, therefore, cannot maintain that respondent No,2 does not have jurisdiction in the matter.
15. Submits that the judgments dated 26.11.2014 and 03.06.2015 passed in W.P.No,19826/2013 and ICA No,146/2013 respectively are not attracted to the facts and circumstances of the case. Further submits that the petitioner failed to appreciate that respondent No,1 was running a restaurant.
Respondent No,1, however, closed (down the restaurant in the month of March, 2009 and was, therefore, not consuming gas at the previous rate. The petitioner, however, issued a detection bill in the sum of Rs,441,040/- to respondent No,1 which was far in excess of the petitioner's actual consumption. Feeling aggrieved respondent No,1 filed a complaint before respondent No,2 under Article 2(2) read with Article 9 of the Order. Contends that the matter in issue between the petitioner and respondent No,1 was duly considered by respondent No,2 and decided in accordance with the Order/law.
16. Contends that the acts of omission and commission of the petitioner come under the purview of maladministration as defined through Article 2(2) of the Order. Further contends that there was no dispute relating to the meter, therefore, the matter was one of maladministration. The jurisdiction, therefore, lay with respondent No,2. Reiterates that the judgments dated 26.11.2014 and 03.06.2015 passed in W.P.No,19826/2013 and ICA No,146/2015 respectively are not attracted in the facts and circumstances of the case.
17. The learned counsel for respondent No,1 in W.P.No,8857/2015 adopts the arguments of the learned counsel for respondent No,1 in W.P.No,8862/2015 vis-a-vis the jurisdiction of respondent No,2 in the matter.
18. The learned counsel for respondent No,1 in W.P.No,8858/2015 also adopts the arguments of the learned counsel for respondent No,1 in W.P.No,8862/2015.
19. The learned counsel for the office of respondent No,2 contends that respondent No,2 has jurisdiction, in the matter. Further contends that the petitioner is estopped from raising the question of jurisdiction in the present proceedings as the petitioner had not raised the question of jurisdiction earlier. Also contends that the judgments dated 26.11.2014 and 03.06.2015 passed in W.P.No,19826/2013 and ICA No,146/2015 respectively are not attracted in the facts and circumstance of the case.
20. The learned counsel for the petitioner submits in rebuttal that it is settled law that there is no estoppel and waiver qua jurisdiction. Mere submission to a forum does not confer jurisdiction. A void or an illegal order is to be attacked like a legal order. The petitioner is within its rights to challenge the jurisdiction of respondent No,2 before this Court even though the matter was not raised before respondents Nos.2 and 3. Relies on the judgments reported as "Munawar Hussain and 2 others v. Sultan Ahmad" (2005 SCM R 1388), and "Multan Electric Power Company Ltd. Through Chief Executive and another v. Muhammad Ashiq and others" (PLD 2006 SC 328).
21. Reiterates that the Ordinance/Regulations provide for a comprehensive mechanism for dispute resolution in matters pertaining to detection bills, excessive billing, etc. In any event the private respondents were involved in tampering of meters and theft of gas, therefore, the detection bills were issued for recovering the pilfered amount.
22. The learned D.A-G. Also relies on the judgments dated 26.11.2014, and 03.06.2015 passed in W.P.No,19826/2013 and ICA No,146/2015 respectively to contend that respondent No,2 does not have jurisdiction in the matter, therefore, the, remedy, if any, of all the private respondents lies in approaching the OGRA under the Ordinance/Regulations.
23. Heard. Record perused.
24. On the basis of the arguments of the learned counsel for the parties and the learned D.A-G. Two questions arise which require determination by this Court.
25. The first question being whether the petitions are maintainable in view of the admitted position that the question of respondent No,2's jurisdiction has been raised for the first time in these petitions?
26. The second question which arises is that whether respondent No,2 has jurisdiction in the matter?
27. Adverting to the first question I find that, "... Even in execution proceedings questions relating to the executeability of an order or decree can be raised and it is open to the party against whom it is sought to be executed to show that it is null and void or had been made without jurisdiction or that it is incapable of execution. This has been so held by the Hon'ble Supreme Court of Pakistan in the judgment reported as "Islamic Republic of Pakistan v. Muhammad Saeed" (PLD 1961 SC 192). It would, therefore, follow that if the arguments of the learned counsel for the petitioner vis-a-vis the lack-of jurisdiction of respondent No,2 in the matter are accepted then the petitioner would be within its rights to object to the enforcement of the impugned orders.
28. There is another aspect of the matter which is to the effect that where a Court or forum lacks inherent jurisdiction then no amount of consent or acquiescence in the proceedings can invest such. Court or forum with the requisite jurisdiction. In such circumstances (as has been contended by the learned counsel for the petitioner) the question of waiver or estoppel shall not arise.
However, where a Court does not lack in its inherent jurisdiction but the procedure or mode of hearing adopted by it is defective or irregular then if a party submits to the jurisdiction of such Court or forum without raising any objection as to such defect or irregularity which touches upon the Court's or the forum's jurisdiction, that party cannot be subsequently allowed to challenge the jurisdiction of the Court or forum when the result of the case goes against it. Reliance in this regard is placed on the judgment reported as "Muhammad Hussain and another v. Muhammad Shafi and others" (2004 SCM R 1947). The above judgment has been followed and reinforced through the judgment relied upon by the learned counsel for the petitioner and reported as "Munawar Hussain and 2 others v. Sultan Ahmed" (2005 SCM R 1388).
29. It is a further settled proposition of law that jurisdiction of a Court or Tribunal is to be conferred by law and not by consent of parties express or implied. Parties to a lis by way of their consent cannot take away or confer jurisdiction upon a Court and/or forum. "Munawar Hussain's case (supra) refers. Reliance is also placed upon the judgment cited by the learned counsel for the petitioner and reported as "Multan Electric Power Company Ltd. Through Chief Executive and another v. Muhammad Ashiq and others" (PLD 2006 SC 328).
30. However, before I proceed to answer the first question a reply to the second question is required on the basis of the ratio of "Islamic Republic of Pakistan's case (supra). The inherent jurisdiction of respondent No,2 in the matter has been challenged by the petitioner on the touchstone of the afore-referred judgments dated 26.11.2014 and 03.06.2015 passed in W.P.No,19826/2013 and ICA No,146/2015 respectively. The said judgments have dealt with the question of respondent No,2's jurisdiction and it has been held that respondent No,2 does not have jurisdiction in the matter at hand. Indeed, the judgment in ICA No,146/2015 has in no small measure been rendered on the basis of the admission of the learned counsel for the office of respondent No,2. The relevant portions of both the said judgments have been reproduced in Paras 10-and 12 above and are self-explanatory.
31. Under the circumstances I hold that respondent No,2 does not have jurisdiction in the matter.
The second question posed in Para-25' above is answered accordingly.
32. On this view of the matter I further hold that albeit the petitioner had not raised the question of respondent No,2's jurisdiction earlier that is to say either before respondent No,2 or respondent No,3 yet on the basis of the judgments of the Hon'ble Supreme Court cited hereinabove the petitioner is not estopped from raising the question of respondent No,2's lack of jurisdiction for the first time before this Court. The first question (posed in Para-24 above) is, therefore, answered in the affirmative.
33. As a consequence, all the petitions mentioned in Para-1 above are accepted and the impugned orders are set aside with the observation that the private respondents in all the petitions may approach the OGRA for redress of their respective grievances, if so advised.
' There is no order as to costs.