YOUSUF ALI SAYEED, J.---The Plaintiff is a company said to operate a textile manufacturing unit in Kotri, Sindh, and in terms of this Suit has preferred a claim, principally on the touchstone of Article 158 of the Constitution, for allocation of natural gas in order to fuel a captive power plant it proposes to establish for meeting its energy needs.
2. It has been submitted on behalf of the Plaintiff that due to persistent energy shortages the industrial units located in Kotri, are in crisis, and that, prompted by such circumstances, the Plaintiff has taken decisive steps in collaboration with a foreign investor towards installation of a Captive Power Plant intended to have a generational capacity of 34 Megawatts (the "Project").
3. It has been submitted that in taking steps for the purpose of bringing the Project to fruition, the Plaintiff has proceeded on the basis of various assurances, which include the approval accorded to the Plaintiff's request for "extension in gas connection for captive power generation" from 0.9 MMCFD to 6.9 MMCFD (the "Enhanced Load") in terms of a letter dated 05.09.2011, and the Supplemental Agreement-Captive Power subsequently executed inter se the Plaintiff and Defendant No,2 (i,e, Sui Southern Gas Company Limited) in that regard in supplement to the earlier Contract for the Supply of Gas for Industrial Use, both undated (collectively the "Supply Agreement").
4. It has been submitted that notwithstanding such assurances and despite various reminders, the Defendant No,2 has failed to meet its obligations towards the Plaintiff and has failed to provide an estimate for the laying of the requisite gas pipeline for supplying the enhanced quantity of gas to the Plaintiff for the purposes of the Project. It is contended that the Defendant No,2 is obligated to issue the said estimate, and after payment thereof, is further obligated to lay the necessary gas pipeline and commence supply of gas pursuant to the Supply Agreement. Hence the instant Suit wherein it has inter alia been prayed as follows:
(a) Declare that failure of the Defendant No,2 to provide the estimate and then take steps for the provision of 6.9 MMCFD as additional gas load for the purposes of Plaintiff's captive Power Plant are completely without jurisdiction, illegal, mala fide, unconstitutional, void ab-initio and of no legal effect.
(b) Direct the Defendant No,2 to issue the estimate for the installation of the gas pipelines for the additional gas load of 6.9 MMCFD, whereafter payment made by the Plaintiff in relation thereto may be directed to be accepted;
(c) Direct the Defendants to, after the receipt of the payment the Plaintiff of the estimate of the additional gas load of 6.9 MMCFD, to lay down gas pipelines and thereafter commence the gas supply for the said additional gas load of 6.9 MMCFD.
5. Whilst the Defendant No,2 provided the estimate for the Enhanced Load under a Statement dated 02.07.2015 in compliance of an Order made on 27.05.2015, the question of the Plaintiff's entitlement to the Enhanced Load as a matter of right remained disputed, and, as will be seen, it is this aspect that principally falls to be determined.
6. In terms of its written statement the Defendant No,2 took the plea that it is not a 'producer of natural gas and is merely a distributor thereof. As such, it is itself dependent on purchases made from independent producers/wellheads, and it is axiomatic that it can only supply gas to the extent that the same is available. It was also pleaded that, contrary to the Plaintiff's assertions, it had not made any firm commitment to supply the additional gas load to the Plaintiff, as in Para-2 of the letter dated 05.09.2011 (on which reliance has been placed by the Plaintiff) it had been categorically stated that "the gas would be supplied on as and when available basis and would be disconnected when SSGC faces shortfall in meeting the requirements of priority consumers".
Furthermore, it has also been highlighted that in Para 5 the said letter it was stated that "If Government decides at any stage not to allow supply of gas to Power Generation units/subject power unit, the gas connection will be disconnected immediately" and with reference thereto it was stated that the Plaintiff's case fell within a category of industry in respect of which a moratorium had been imposed by the. Government of Pakistan in the year 2011 as regards new gas connections or extension of gas load.
7. It is in this backdrop that it was jointly submitted by learned counsel for the Plaintiff and Defendant No,2 on 05.10.2016 that the matter be disposed of on the basis of pleadings, documents and entitlement as per law and the Constitution, and by consent the following issues were framed:
(i) Whether the plaintiff is entitled for an additional supply of gas for running captive power plant to the extent of 6.9 MMCFD?
(ii) Whether the defendants are justified in refusing the supply of gas to the extent of 6.9 MMCFD or any other volume and/or whether such refusal constitutes violation of Article 158 of the Constitution of Islamic Republic of Pakistan?
(iii) What should the decree be?
Since, substantial questions of law and interpretation of the Constitution were considered to be involved, notice was issued to the learned Attorney General for Pakistan.
8. In support of the claim, learned counsel for the Plaintiff focused his arguments towards Article 158 of the Constitution, which reads as follows: Priority of requirement of natural gas:-- The Province in which a well-head of natural gas is situated shall have precedence over other parts of Pakistan in meeting the requirements from the well-head, subject to the commitments and obligations as on the commencing day.
He submitted that as per the Constitutional mandate of the said Article, a Province has first right to consume and meet its requirement of natural gas from well-heads situated within its boundaries before any part of the gas produced from such well-heads being transmitted to the other Provinces.
9. He further submitted that whereas the Province of Sindh produces 69 percent of the nation's gas, its consumption stands at only 43 percent. In this regard, he placed reliance on extracts from the official Pakistan Energy Year Book, 2013 issued by the Ministry of Petroleum and Natural Resources Hydro Carbon Development Institute of Pakistan, Islamabad dated April, 2014.
10. On this basis, he sought to contend that Sindh has more than 44% of surplus gas and the same is to be utilized in terms of Article 158 of the Constitution within the Province. He further submitted that the Constitutional right of the Province of Sindh in respect of indigenous gas, and that of consumers based within Sindh ought not to be compromised at any level, and, as such, the needs of the Plaintiff ought to be accorded primacy.
11. Learned counsel for the Plaintiff also submitted that the Project was embarked upon by the Plaintiff in reliance on the New Captive Power Policy of 2009 (the "NCPP") approved by the Pakistan Electric Power Company ("PEPCO") and endorsed by the Ministry of Water and Power, pursuant to which the Plaintiff addressed the Defendant No,2 (i,e, Sui Southern Gas Company Limited) seeking additional supply of natural gas for the purpose thereof over and above the then sanctioned gas load of 0.9 MMCFD. He further submitted that the Defendant No,2 accorded its approval to the Plaintiff's request in terms of its letter dated 05.09.2011, and contended that the sanctioned load accordingly stood enhanced to 6.9 MMCFD. Thereafter, the Supply Agreement, as aforementioned, was executed inter se the Plaintiff and the Defendant No,2, and it is said that subsequently the Defendant No,2 issued a NOC to the Plaintiff vide letter dated 03.12.2012 to sell surplus power to Hyderabad Electric Supply Company ("HESCO") from the gas load up to the maximum of 4.9 MMCFD.
12. He submitted that acting in reliance on the commitments of the Defendant No,2, the Plaintiff took the following definitive steps:
(a) The Plaintiff applied to the National Electric Power Regulatory Authority ("NEPRA") for the issuance of a Generation License, and in relation thereto the Defendant No,2 vide letter dated 30.1.2014 also confirmed to NEPRA that it had approved the load of 6.9 MMCFD to the Plaintiff for captive power generation and that it would sell surplus load up to 4.9 MMCFD to HESCO. It is said that the license was granted to the Plaintiff on 11.03.2014, and, additionally, HESCO issued a Letter of Intent (LOI) vide letter dated 30.06.2014 to purchase 12.5 MW (Gas based) power at 11 KV from the Plaintiff. It has also been stated that the Plaintiff through letter dated 02.12.14 filed a Tariff Petition before NEPRA, which was approved for Publication/Hearing vide letter dated April 03, 2015.
(b) The Plaintiff commenced negotiations with General Electric, through its agent, Orient Energy Systems, for the purchase of gas generators and the balance of plant and design for the main building of its proposed power plant, and also established a letter of credit in favour of the machinery supplier.
13. Learned counsel submitted that whilst it has been provided in terms of the letter dated 05.09.2011 issued by the Defendant No,2 that gas would be supplied on "as and when available" basis, up till the filing of the present Suit the Defendant No,2 never expressed any reservations as to its ability to supply the agreed quantity of gas.
14. In support of his contentions in relation to Article 158, learned counsel for the Plaintiff placed reliance on the Judgments of this Court in the cases reported as Engro Fertilizers Limited v. Islamic Republic of Pakistan and Federation of Pakistan, Islamabad and others PLD 2012 Sindh 50, Ramesh Kumar Ukrani v. Federation of Pakistan through Secretary Ministry of Petroleum and Natural Resources and 3 others 2016 CLC 1152, Muhammad Nasir through Authorized Representative and others v. Ministry of Petroleum and Natural Resources through Secretary, Islamabad and others 2016 MLD 1830, as well as a unreported Judgment in Suit Number 67 of 2016 titled Fashion Knit Industries and others v. Sui Southern Gas Company Ltd. Additionally, he also relied on two Judgments of the Peshawar High Court in the cases reported as Messrs Lucky Cement Limited through General Manager v. Federation though Secretary Ministry of Petroleum and Natural Resources, Islamabad and others PLD 2011 Peshawar 57, and Messrs Cherat Cement Company Ltd.
Nowshera through Manager Accounts v. Pakistan through Secretary Ministry of Petroleum and Natural Resources, Islamabad and 3 others PLD 2016 Peshawar 32.
15. The learned AAG appearing on behalf of the Federation (i,e, Defendant-No,1), as well as learned counsel for the Defendant No,2 (i,e, SSGC), strongly controverted the contentions of learned counsel for the Plaintiff, and submitted that the Suit was baseless and misconceived.
16. It was submitted by the learned AAG that the subject of natural gas and its allocation are presently governed under the Natural Gas Allocation and Management Policy 2005 (the "Subject Policy"), as per which gas, a depleting and yet much sought after resource, is prioritized between the different classes of consumers and is allocated accordingly.
17. He pointed out that the Plaintiff, as per its own pleadings, owns and operates a Textile Mill comprised of plant and machinery that operate on electricity. He submitted that the Project was admittedly a captive power plant, the purpose of which was to principally generate electricity to meet the needs of the Plaintiff's mill. He submitted that as referred to in the plaint, a policy has been formulated by the Government. He submits that this policy is necessary for managing this natural resource and ensuring supply to those consumers for whom the regular uninterrupted supply of natural gas is a fundamental right.
18. A perusal of the Subject Policy reveals that in terms of Para 4.1 thereof, the following hierarchy is stipulated for the purpose of allocation of gas in terms thereof: S.No Category of ConsumersPriority
1 Domestic and Commercial Sectors.First 2 i) Fertilizer Sector; and ii) Industrial Sector to the extent of their process gas.Second 3 Independent Power Plants as well as WAPDA and KESC's Power Plants having firm gas supply commitment under GSAs.Third 4 General Industrial and CNG Sectors.Fourth 5 i) WAPDA's and KESC Power Plants other than those listed against S. No, 3 above. ii) Captive Power Sector.Fifth 6 Cement Sector. Sixth
19. The learned AAG contended that the stated object of this hierarchy is to ensure optimal utilization of natural gas for the best socio-economic development of the country, especially during high demand and/or short supply periods. He submitted that only those consumers, who fall in the first category of the Policy have a fundamental right to gas, and have therefore been accorded priority. He further submitted that no fundamental right has been or in fact could be asserted by the Plaintiff as per the case set up in the pleadings, and the substance of the case, as well as prayers, gravitated around the contractual rights, if any, arising from the relationship inter se the Plaintiff and the Defendant No,2, which fell to be determined on its own terms.
20.The learned AAG argued that the Subject Policy has been in the field since 2005, well prior to the conception of the Project, and the Plaintiff was or ought to have been fully aware that there was no guarantee of gas supply. He pointed out that the Subject Policy had not been assailed by the Plaintiff. He submitted that, even otherwise, the Courts do not normally interfere in matter of policy, and the only notable exception is where an infringement of fundamental rights is involved. In support of this argument he placed reliance on 2014 SCMR 220.
21 With reference to Articles 153 and 154 of the Constitution, pertaining to the Council of Common Interests (the "CCI"), he submitted that the any issues touching upon Article 158 fall within the domain of the CCI.
22. The learned AAG further submitted that as per this Constitutional mechanism, a Province may raise the issue of gas allocation in terms of Article 158 before the CCI and the Province of Sindh has in fact raised the same. In this regard, he referred to a letter of the Ministry of Petroleum and Natural Resources dated 17.10.2016. He contended that as the matter of gas allocation is therefore a live issue before the CCI, the approach of this Court under such circumstances ought to be in accord with the principles laid down by the honourable Supreme Court in its Judgment in the case reported as Gadoon Textile Mills and 814 others v. Wapda and others 1997 SCMR 641. He submitted that the terms "Self Adjudicatory" and "Self Executory", as used by the apex Court, serve to best describe the Constitutional dispensation in terms of this framework.
23. He contended that the jurisdiction of the Courts stands abated in respect of a dispute before the CCI. He further contended that in relation to matters that fall within the purview of the CCI, the jurisdiction of the Courts is a 'bridge', inasmuch as whilst there is no complete ouster of judicial scrutiny, the only ground for interference by the Court would be a violation of fundamental rights, which, according to him, is not the case in this matter.
24. In support of his argument as to 'abridgment', he placed reliance on the Judgment of the honourable Supreme Court in relation to Article 184(3) of the Constitution in Human Rights Case No,14392 reported at 2014 SCMR 220, where it was held that: "any dispute arising between one or more provinces inter se or between the Federation or a Province regarding the aforesaid subjects is referable to the Parliament in a joint session. This Constitutional arrangement even abridges the original jurisdiction of the Supreme Court under Article 184 of the Constitution."
25. As per the learned AAG, a rigid, 'originalist' interpretation to Article 158 of the Constitution would be to ignore the binding Full Bench judgment of the honourable Supreme Court in the case reported as Mahmood Khan Achakzai v. Federation of Pakistan PLD 1997 SC 426, where it was held that; "[a] Constitution is the aspiration of the people. It is the experience of the past, the desires of the present nation and last but not the least a hope for the future. A Constitution is a document for all times to come. It cannot be made rigid because such rigidity if confronted with social and political needs of the time, is likely to create cracks in it. The consistent view of the superior Courts of Pakistan is more real and should be followed and maintained."
26. It was contended that Article 158 of the Constitution has to be viewed in juxtaposition with the obligations imposed on the State in terms of Article 38(d), and the apparent conflict between these two Articles has to be reconciled, particularly in light of the fact that it is the fundamental right of every citizen of Pakistan to be provided gas. It was submitted that for such purposes the principles laid down by the honourable Supreme Court in the case reported as Pakistan Muslim League (N) v.
Federation of Pakistan PLD 2007 SC 642 have to be borne in mind, where it was held by the apex Court that fundamental rights enshrined in the Constitution cannot be interpreted in a light or casual manner but "while interpreting Fundamental rights guaranteed by the Constitution, a cardinal principle has always to be borne in mind that these guarantees to individuals are subject to the overriding necessity or interest of the community. A balance has to be struck between these rights of individuals and the interests of the community. If in serving the interests of the community, an individual or number of individuals have to be put to some inconvenience and loss by placing restrictions on some of their rights guaranteed by the Constitution, the restrictions can never be considered to be unreasonable."
27. It was also submitted by the learned AAG that the inter-Provincial allocation of gas is thus regulated in terms of the Subject Policy. He argued that the Plaintiff cannot by any stretch of imagination be characterized as a member of a "less privileged class" who is being deprived of his right to a share of gas. He further submitted that the rights being claimed by the Plaintiff emanate from a contract, which cannot be matched against or take precedence over the Constitutionally guaranteed fundamental rights of citizens in each Federating unit. He also drew attention to the very Supply Contract and submitted that it is evident that even in terms thereof the Plaintiff is not guaranteed a steady and continuous supply of gas.
28. Learned counsel for the Defendant No,2 endorsed and adopted the arguments of the learned AAG as to Article 158 and the Subject Policy.
29. Additionally, he submitted that the Defendant No,2 is no a producer of gas and is only a distribution and transmission company. As such, it itself procures gas on payment from independent producers/wellheads, which are various other companies completely independent of any control by the Defendant No,2. He submitted that if gas is not available with the Producers in sufficient quantities the Defendant No,2 is then unable to satisfy the needs of consumers to the fullest extent. He submitted that due to the ever-burgeoning demand the Defendant No,2 consistently faces a short fall and measures consequently have been adopted in order prioritize supply.
30. He further submitted that the Defendant No,2 has not given any assurances or made any firm commitment to continually supply the Enhanced Load, and pointed out that in para-2 of its letter dated 05.09.2011, the Defendant No,2 categorically stated in terms of Para 2 thereof that "gas would be supplied on as and when available basis and would be disconnected when SSGC faces shortfall in meeting the requirements of priority consumers".
31. Learned counsel for the Defendant No,2 also invited attention to the following excerpts from the Supply Agreement: Clause 14(iv) of the Agreement of 27.04.2012: The gas shall be supplied as per the Natural Gas Allocation Policy or any other relevant policy issued by the Government or any other Authority from time to time.
Clause 1 of the Supplemental Agreement: It is a condition precedent to the providing of Gas connection by the Company to the Consumer under the said Contract that gas supply to the above noted premises shall be subject to "as and when available basis" during the period from 1st March to 30th November of each year and during peak season i,e, 1st December to 28/29th February each year or such extended or any other period as may be considered necessary by the Company when gas supply may be discontinued to any class of consumer(s) in region(s), under Company's Load Management Program, Clause 2 of the Supplemental Agreement: The Consumer shall make dual firing arrangements during the period mentioned above entirely at his cost and risk to run its plant on alternate fuel to avoid loss of production as and when gas is not provided by the Company during the period mentioned above.
32.Furthermore, he pointed out that in the letter dated 05.09.2011 relied upon by the Plaintiff it was categorically stated in para 5 that "If Government decides at any stage not to allow supply of gas to Power generation units /subject power unit, the gas connection will be disconnected immediately". He submitted that in the year, 2011 the Government of Pakistan imposed a moratorium on commissioning of new gas connections and on extension of gas to industries and others, and that the Plaintiff's case falls within the scope of such moratorium. He drew attention to the fact that the Plaintiff has not challenged either the Subject Policy or the moratorium and even otherwise has not claimed any relief against the Defendant No,1 (i,e, the Federation). He contended that the plea of the Plaintiff that it has been discriminated is misconceived because the moratorium on the supply of Sui gas has been implemented throughout the country. He maintained that the plea for supply of additional gas load cannot be allowed as the case set up by the Plaintiff in that regard ran contrary to the Subject Policy, which had not been challenged. In this regard, he placed reliance on the judgments in the cases reported as Messrs Mian CNG Filling Station through Managing Partner v. SNGPL and others 2011 YLR 1491, Messrs Shandar Petroleum/CNG and 46 others v. Federation of Pakistan through Ministry of Petroleum and 2 others 2012 YLR 1529, and Messrs Geo Power Associates through Senior Managing Director v. Sui Northern Gas Pipe Lines Limited through Managing Director, Lahore and 6 others 2016 YLR Note 105.
33. He averred that without prejudice to the matters of availability and the priority, it is also apparent from the letter dated 03.12.2012 that the allocation for additional load to the Plaintiff was even otherwise a provisional allocation subject to complete all pre-requisites within six months regarding co-generation and installation of proposed additional spinning machinery of 60,000 spindles. He stated that whilst the Plaintiff was required to complete all the formalities up to 03.05.2013, as per the Plaintiffs own correspondence it was evident that the same- was still incomplete. He referred to certain letters, including one dated 28.01.2015, and denied that any substantial expenditure. had been incurred by the Plaintiff towards the Project and submitted that Plaintiff has tried to mislead this Court by stating incorrect facts in that regard, and was thus disentitled from any relief on that ground alone.
34. He referred to the Judgments in the petitions filed before the High Courts in the wake of the 18th Constitutional Amendment, as relied upon on behalf of the Plaintiff, and asserted that the Judgments allowing the petitions in those cases were under challenge before the honourable Supreme Court, where leave to appeal had been granted as to the interpretation of Article 158 and a larger bench had been constituted for deliberating upon the matter. As per learned counsel, this matter was still pending before the apex Court. He also averred that the honourable Supreme Court has taken cognizance of the shortfall in gas in the Country and has directed that measures be taken in order to utilize gas as best possible. He also pointed out that in the case reported at 2014 SCMR 220 it has been held that "However, as far as Captive Power Plants are concerned, the policy must be revised and without any justification they cannot be allowed supply of gas to produce electricity".
35. Learned counsel for the Defendant No,2 maintained that in terms of the instant Suit, over and above the basic load already being provided, the Plaintiff was essentially seeking the supply of a further dedicated gas load to the detriment of all other consumer, including those receiving only a basic load and for whom such provision met a basic fundamental need. He submitted that the Suit was mala fide and liable to be dismissed with costs.
36. In rebuttal, learned counsel for the Plaintiff refuted the interpretation placed on Article 158 by the learned AAG, and argued that if words in the Constitution admit of no ambiguity then a literal interpretation of the Constitutional provisions is to be adopted. He submitted that the contention of the Defendants that a wider and non-literal interpretation of the Article 158 of the Constitution is to be given, is incorrect, for the simple reason that the same admits of no ambiguity, and is to be construed in its literal sense. In this regard, he relied on Judgments of the Honourable Supreme Court in the cases reported as Mahmood Achakzai v. FOP PLD 1997 SC 426 and District Bar Association, Rawalpindi and others v. Federation of Pakistan and others PLD 2015 SC 401.
37. He submitted that the contention of learned counsel for the Defendant No,2 that the Courts can only strike down a governmental policy on the touchstone of a violation of fundamental rights alone is not the complete legal principle, and contended that governmental policy can also be validly challenged if it is mala fide or is a colourable exercise of discretion or result is in an abuse of power or jurisdiction or is unreasonable or arbitrary.
38. He further stated that the contention of the learned counsel for the Defendant No,2 that the Plaintiff only has a contractual right, which is itself a very diluted one, is misconceived, and argued that, as in this case, the Plaintiff can seek enforcement of Constitutional provisions such as Articles 9, 14 and 158 of the Constitution, in a civil suit. He also submitted that the plea taken on behalf of the Defendant No,2 as to the Plaintiff having delayed the project and gas having become unavailable over the period of the delay is fallacious, in as much as the Defendant No,2 had not addressed any correspondence to the Plaintiff alleging delay on its part, and even otherwise, there was ample gas available from wellheads in the Province of Sindh which was liable to be diverted to the Plaintiff in preference to any consumer outside the Province.
39. I have considered the record and the submissions made by learned counsel for the parties, as well as the learned AAG. As regards the issues raised as to whether the Plaintiff is entitled to the supply of gas to the extent of the Enhanced Load for the purposes of the Project and, conversely, whether the Defendant No,2 is justified in refusing such supply, it merits consideration that the basic document underpinning the Plaintiff's case in relation to its claim in this regard is evidently the Supply Agreement, and the entitlement of the Plaintiff stems therefrom. Therefore, it is in this framework that the issues raised in the Suit have to be examined and addressed.
40. From a plain reading of the documents comprising the Supply Agreement, it is apparent that the same do not encapsulate any representation or warranty as to guaranteed or uninterrupted supply of the Enhanced Load or otherwise confer an unqualified contractual right on the Plaintiff in that regard. On the contrary, as pointed out, it has unequivocally been mentioned in the Supply Agreement that the provision of gas would be provided "as and when available", and that too only during the period March to November each year. Furthermore, it has been specifically mentioned that during the remaining months of the year (i,e, December to February) supply would remain disconnected. In respect of either period, the Supply Agreement requires the Plaintiff to make 'dual firing arrangements', which connotes the arrangement of an alternate fuel source for powering the generation apparatus entailed in the Project. As such, the Supply Agreement itself contains a caveat, and it is manifest from the terms thereof as well as the prior correspondence inter se the Plaintiff and Defendant No,2 that the former was made well aware of the fickle nature of supply, as well as the impact of governmental policies regulating gas allocation.
41. Thus, as regards the Issue No,1, it is manifest that the entitlement of the Plaintiff to the Enhanced Load is not absolute or guaranteed, but is marked by and subject to various contingencies, as envisaged in the Supply Agreement, and such entitlement of the Plaintiff can at best be as per its terms, and subject to the reservations envisaged.
42. Turning to Issue No,2, as to whether the refusal to uninterruptedly supply the Enhanced Load is justified or not, it merits consideration that there has apparently been no blanket refusal on the part of the Defendant No,2 in that regard, and, instead, the plea of the Defendant No,2 is that it is willing to supply the same subject to availability of the requisite quantity of gas so as to enable it to meet the Plaintiff's requirement, as per the terms of the Supply Agreement.
43.Faced with this stance, the Plaintiff has contended that prior to the filing of the instant proceedings, the Defendant No,2 had never cited unavailability of gas as a reason for its inability to supply the Enhanced Load contracted for. Furthermore, as a counter to the plea of non-availability, the Plaintiff has sought to invoke Article 158, and contended that there is sufficient gas produced from wellheads situated within Sindh to meet the indigenous needs of the Province, and that the lack of availability, which is cited by the Defendant No,2 as the reason for its inability to supply the Plaintiff the Enhanced Load, arises due to the supply of gas produced within Sindh to persons and parties situated outside the Province as per the Subject Policy. As per the Plaintiff, this runs contrary to Article 158 of the Constitution, and various judgments, as aforementioned, have been cited in an endeavour to show that the violation thereof is a justiciable right enforceable through judicial process. It is towards a consideration of these judgments that one must now turn, commencing with those emanating from this Court.
44. In Engro's case (Supra), a learned Division Bench of this Court was pleased to allow a Petition filed under Article 199, where the Petitioner had sought directions to the effect that 100 MMSCFD of gas be supplied to its fertilizer plant. However, it merits consideration that unlike the matter at hand, in that case the petitioner was possessed of a firm contractual commitment in terms of the Gas Supply and Purchase Agreement executed between it and SNGPL whereby the latter had guaranteed the supply of the aforementioned quantity of gas to the petitioner for a period of 20 years, as opposed to its general agreements with other industrial undertakings which were bereft of any such assurance, as in the instant case. The said agreement had been executed on the basis of and incorporated the assurances and guarantees that had been extended by the Government of Pakistan as an incentive for establishment of a new fertilizer plant, and thus envisaged the dedicated supply of 100 MMSCFD of gas from the Qadirpur gas field situated in the Province of Sindh, and in case of production dipping below that amount, the shortfall was to therefore be supplied from the SNGPL system.
45. Indeed, in the said judgment it was inter alia observed by the learned Division Bench with reference to the judgment of the Peshawar High Court in Lucky Cement's case (Supra) that "When Article 158 and Article 172 are read together leave no doubt in mind, that mineral, oil and natural gas produced in any province vest in the Province producing it and the Federal Government jointly and equally. However, Article 158 clearly mandates that in case of natural gas, as against the mineral and oil, the Province in which a well head is situated shall have precedence over other parts of Pakistan in meeting the requirement from the well head situated in that particular Province...". However, from a reading of the judgment it is apparent that the disposal of the petition in favour of the petitioner was not predicated on Article 158 alone, and instead hinged primarily on the terms of the agreement, which appears to be the reason that SNGPL was directed to supply the guaranteed quantity of 100 MMSCFD of gas strictly in accordance with the contract during the term thereof and subject to fulfilment of contractual obligations on the part of the petitioner. Ergo, the essence and ratio of this judgment does not appear to be that Article 158 confers a justiciable right of itself, but, instead, that the Court will act so as ensure performance of sovereign obligations undertaken by the State in the form of assurances, commitments, guarantees which are relied and acted upon by the subject.
46. The case of Ramesh Kumar Ukrani (Supra), which similarly came up before a learned Division Bench of the Court in a Petition under Article 199 of the Constitution, pertained to the commissioning of gas supply to a CNG station, which fell within a class of establishments in respect of which a moratorium had earlier been imposed. Upon lifting of this moratorium by the Federal Government, a case was set up on the basis that gas ought to be provided to the CNG station of the petitioner when other stations were receiving the same. Whilst reference was indeed made by the learned Bench to the earlier Judgment in Engro's case (Supra), the case cannot be said to have been decided on the touchtone of Article 158, and appears instead to have proceeded on considerations touching upon Article 25 of the Constitution.
47. The case of Muhammad Nasir (Supra) similarly pertained to a case where a moratorium had been imposed on the provision of gas to high-rise buildings, which was set aside by a learned Division Bench on the touchstone of Articles 9 and 25 of the Constitution. There was no discussion as to Article 158 and the case is even otherwise -distinguishable from the matter at hand as the subject of that Petition was the gas connections to occupants of residential units in a particular high-rise building, which was accordingly held to be a matter of basic need.
48. Turning to the judgments of the Peshawar High Court in Lucky Cement's case and in Cherat Cement's case (Supra), in those cases there was no dispute that KPK Province was possessed of surplus gas and a case of discrimination appears to have been made out inasmuch as cement plants situated outside KPK were apparently being provided gas to the detriment of the petitioners.
Furthermore, in Lucky Cement's case (Supra), it appears that the case was one of disruption of existing supply rather than provision of an enhanced load, whereas in the latter case later entrants in the cement sector were being provided connections and supplied gas whilst the petitioner's prior application for a gas connection and supply had been ignored.
49. Conversely, it merits consideration that in the matter at hand the Plaintiff is not vested with a firm contractual right of guaranteed/ uninterrupted supply of the Enhanced Load, let alone a fundamental right in that regard. Nor has any case of discrimination been made out, and it has not been contended by the Plaintiff that other captive power plants situated outside Sindh are being supplied gas by the Defendant No,2 to the Plaintiff's detriment or been demonstrated that captive power plants within Sindh are receiving gas from the Defendant No,2. Instead, the claim of the Plaintiff to indigenous gas is one on the professed basis of absolute first right predicated on Article 158, irrespective of the class of consumers outside Sindh that may stand deprived. However, as discussed herein above, the precedents cited on behalf of the Plaintiff do not serve to establish such an entitlement on the basis of Article 158 per se, which cannot of itself be invoked by the Plaintiff under the given circumstances so as to provide the basis for the directions elicited in terms of the prayer clause, as reproduced in Paragraph 4 above, which are tantamount to a mandatory injunction to supply the Enhanced Load and essentially seek to elevate the status of the Plaintiff and place it on a higher plane than what is envisaged in the Supply Agreement itself. Furthermore, this Court will even otherwise generally not compel ongoing co-operation between commercial parties in circumstances where, to ensure the proper performance of the agreement, the Court would be required to continually supervise performance. It also bears consideration that in the instant case there is no admission as to a present gas surplus in Sindh, and the Plaintiff has sought to demonstrate such surplus by reference to various documents by way of source material placed on record as well as the observations recorded in the earlier Judgment of this Court in Engro's case (supra).
50. It is also pertinent to note that 'Article 158 is placed under Chapter 3, in Part V of the Constitution, which sets out special provisions as to relations between the Federation and the Provinces in terms of Articles 153 to 159 of the Constitution. As per Article 154, formulation and regulation of policies in relation to matters in Part II of the Federal Legislative list, which includes the subject of natural gas, falls within the domain of the CCI, which is also to exercise supervision and control over related institutions. The Subject Policy falls within this constitutional framework, and in the absence of some inherent element of unreasonableness that results in a demonstrable violation of a fundamental right, Article 158 cannot of itself be agitated by the Plaintiff as an actionable ground in these proceedings, and it is the prerogative of the Province to agitate the issue of its rights thereunder before the CCI, which process is apparently already underway.
51. In view of the foregoing discussion in respect of Issues Nos.1 and 2, I am of the opinion that the Plaintiff has failed to make out a case for issuance of directions as prayed. Hence this Suit fails and is dismissed accordingly. There is no order as to costs.