IJAZ UL AHSAN, J.---The appellant is a private limited company engaged in the business of running hotels. It established a hotel under the name and style of Days Inn claiming to be holder of a franchise from Days Inn Worldwide Inc. of USA. On 18.10.2003, it filed an application with Respondent No,1 requesting for provision of a connection for running its power generating set on gas having a capacity of 200 KW for use during periods of load shedding or unavailability of power from the grid. Such request was declined on the ground that gas connection for power generation could be provided only to an export oriented industries having sizable foreign investment which was required to be confirmed by the Board of Investment. The appellant was also informed that the export oriented industry to be entitled to such gas connection must have 70% export target of its production. In this regard, reference was made to the decision of Economic Coordination Committee (ECC) of the Federal Government and power policies/ priorities for supply of gas to Captive Power Units. This policy was in vogue since 27th September, 2000.
2. It appears that in the meanwhile a meeting was held on 19.06.2004 at the Ministry of Petroleum and Natural Resources under the chairmanship of the Secretary, Ministry of Petroleum. In the said meeting amongst others it was decided as follows:- "Gas to captive power projects would be supplied strictly in accordance with the ECC's decision to industrial units only and not to the Hotels, Shadi Halls, Banks and other commercial organizations."
3. The appellant was aggrieved of the decision of Respondent No,1 whereby its application was declined. It filed a complaint before Oil and Gas Regulatory Authority (OGRA). The designated officer of the OGRA allowed the complaint of the appellant and directed Respondent No,1 to provide a gas connection to it within 30 days. Respondent No,1 first filed an appeal and thereafter a review petition under the provisions of the Oil and Gas Regulatory Authority Ordinance, 2002. Both of which were rejected vide orders dated 21.07.2005 and 26.12.2005 respectively.
4. Respondent No,1 challenged the aforenoted orders before the High Court of Sindh at Karachi through Constitution Petition No,D-91 of 2006. The said petition was allowed by the learned High Court, vide impugned order dated 21.04.2008. The orders passed by the OGRA, referred to above, were set aside.
5. Being dissatisfied with the impugned order of the High Court, the appellant approached this Court through Civil Petition for Leave to Appeal No,344-K of 2008. Leave to appeal was granted by this Court on 25.11.2008 in the following terms:- "Mr. Rasheed A. Rizvi, learned ASC for the petitioner, has placed on record a copy of the order dated 3.6.2008 to submit that leave to appeal has already been granted by this Court against the judgment impugned through this petition having been filed by Oil and Gas Regulatory Authority
(OGRA) being Civil Petition No,620/2008.
2. In addition to the points raised in the above mentioned leave granting order, learned counsel for the petitioner has raised the following questions concerning the case of the petitioner:- i) That the learned High Court failed to appreciate that discriminatory treatment has been meted out to the petitioner as more or less in the identical set of circumstances, Respondent No,1 (SSGC) has provided gas for Captive Generation to National Bank of Pakistan, Muslim Commercial Bank Limited; simultaneously to PIA Training Center, Karachi, HEJ Research Institute of Chemistry Karachi and Dream World Resort Karachi (i,e, two banks and three non export oriented industries). ii) That the learned High Court erred to appreciate that the case of the petitioner was governed under the prior/old government policy dated 30.12.2003 which related to the granting of sanction for permission of gas connection for Captive Power Generation on the basis of sizable investment of foreign exchange and not as per the amended policy dated 29.01.2005 of the Ministry of Petroleum where under the foreign exchange has been quantified.
3. Accordingly, leave to appeal is granted in the present petition to consider the questions arising therein. It is directed that both the appeals shall be fixed together for hearing. The parties shall be at liberty to produce further documents, if they so choose."
6. The learned counsel for the appellant submits that the appellant had filed an application on 18.10.2003 which was to be decided on the basis of the policy prevailing at that time namely letters dated 27.09.2000 and 30.12.2003. The said letters provided that gas upto 10 MMCDF in a year for captive power plants of an export oriented unit could be provided on the recommendations of their respective Chambers of Commerce and Industry. He has also drawn our attention to a letter dated 30.12.2003 issued by the Government of Pakistan, Ministry of Petroleum and Natural Resources. It provides that gas companies may be allowed to clear the backlog of Captive Power Units (underlining is ours) installed in industries having sizable foreign investment and export oriented companies having 70% export target of their production. He has urged that the appellant had foreign exchange investment of US $ 3.122 million and squarely fell within the definition of, "industries having sizable foreign investment". He therefore maintains that refusal on the part of Respondent No,1 to allow a gas connection for captive power generation to the appellant was illegal and without lawful authority. He argues that the regulatory authority had rightly accepted the claim of the appellant and issued appropriate directions for supply of gas for its captive generating unit.
7. The learned ASC for the appellant further submits that the amendment in the policy by Ministry of Petroleum vide its letter dated 29.01.2005, wherein the amount of foreign investment was quantified at a minimum of Rupees Five Hundred Million being subsequent in time was inapplicable to the case of the appellant. He further argues that Respondent No,1 had provided gas for Captive Power Generation to a large number of other companies, which were neither export oriented units nor had foreign investment exceeding Rupees Five Hundred Million. He therefore maintains that the appellant was unduly and unlawfully discriminated against which is violative 01 fundamental rights guaranteed to the appellant. In this regard, the learned ASC also submitted a list of 790 units to which according to him gas had been provided for running Captive Power Units. He claimed that most of the said Units did not meet the aforesaid criteria, yet they were provided gas connections while the appellant was singled out for denial of such connection.
8. Vide order dated 29.03.2018 we directed the learned ASC appearing on behalf of Respondent No,1 to file a comprehensive reply furnishing justification on the basis of which the aforenoted 790 Units were provided gas connections. He was also directed to spell out the criteria and policy on the basis of which such gas connections were provided along with particulars/data/material on account of which the said Units qualified for gas connections whereas others including the appellant were denied such connection. The requisite material has been placed on record by the learned counsel for Respondent No,1 by way of a Civil Miscellaneous Application which has been examined. The stance taken by Respondent No, 1 is that all 790 connections were granted in accordance with the policy applicable at the relevant time and criteria applicable to them. There were no deviations or exceptions and the appellant was neither singled out nor discriminated against.
9. The learned counsel for Respondent No,1 further submits that the appellant never complied with the requirements necessary for providing a gas connection for Captive Power Generation. Its application was rightly rejected. He maintains that gas connections for Captive Power Generation were governed by the power policy of the Federal Government and no decision could be taken by Respondent No,1 contrary to the same. He has pointed out that the Government had specifically prohibited provision of gas connections for Captive Power Generation to Hotels, Shadi Halls, etc and the business of the appellant is admittedly that of running a Hotel. He has further pointed out that the appellant's Hotel neither has sizable foreign investment nor did it fall within the definition of the term "export oriented unit". The learned ASC has also categorically denied the allegation levelled by the learned counsel for the appellant that the appellant has been discriminated against. He has taken us through his response and other document; placed on record relating to 790 units which had been provided gas for Captive Power Units in the past. He has taken the stance that all of them without exception met the criteria applicable to them at the relevant time and were covered by the policies and directions issued by the Federal Government from time to time. The appellant did not meet the said criteria. He further submits that the learned High Court had valid reasons and lawful justification for setting aside the orders passed by the OGRA and allowing the Constitution Petition filed by Respondent No,1.
10.We have heard learned counsel for the parties and gone through the record with their assistance. Supply of gas to Captive Power Units was initially governed by letter dated 27.09.2000 which envisaged that gas upto 10 MMCDF in a year could be provided to Captive Power Plants of export oriented units on recommendations of their respective Chambers of Commerce and Industry. It however appears that vide letter dated 30.12.2003 the Government decided to allow amongst others Respondent No,1 to clear the "backlog" of Captive Power Units which had already been set up by supplying gas upto 10 MMCDF per year. It was however, stated that the previous allocation policy may also continue with the modification that industries having sizable foreign investment may be included in the scheme to encourage foreign investment. Further, the gas supply to export oriented companies having 70% export target of their production could also be given gas on the recommendation of the Export Promotion Bureau.
11. The record indicates that in a meeting held on 19.06.2004, the ECC decided that gas to Captive Power Projects would be supplied strictly in accordance with ECC's decision to industrial units only and not to Hotels, Shadi Halls and other commercial organizations. On examination of the record, we are not convinced that the appellant fulfilled the requirements prevalent at the relevant time for grant of gas connection for power generation. The appellant applied for gas connection on 18.10.2003 which was rejected by Respondent No,1 vide its letter dated 24.11.2003 in terms of Government Policy issued through letter dated 27.09.2000 on the ground that the appellant was not an export oriented unit. Thereafter, several other policies were formulated by the Government prohibiting the supply of gas for power generation to Hotels, Shadi Halls, Banks and other commercial originations which lacked foreign investment of Rupees Five Hundred Million or above.
12.The learned counsel for the appellant has argued that it was governed by the Policy of 30.12.2003 and by subsequent policies. We however notice that the first policy dated 30.12.2003 related only to "backlog" matters. The application of the appellant already stood rejected on 24.11.2003 and it did not constitute a "backlog" matter. The appellant could not claim the benefit of subsequent policies in view of the fact that there was no application of the appellant pending before Respondent No,1. Even otherwise, it did not fulfill the criteria of sizable foreign investment of Rupees Five Hundred Million or above and was obviously not an export oriented unit, which were the two main requirements of the criteria for entitlement of supply of gas for running captive power generation units.
13.The argument of the learned counsel for the appellant alleging discrimination has also been found by us to be untenable. The learned ASC for Respondent No,1 on being directed by us vide order dated 29.03.2018 has provided sufficient justification supported by the documents on the basis of which the entities mentioned in the list furnished by the learned counsel for the appellant were provided gas connections for Captive Power Generation Units. The learned counsel for the appellant was unable to show us otherwise by producing any other document or to point to any unit or entity which had been provided gas connection for running Captive Power Generation Unit in violation C of Government Policies and directives issued from time to time pursuant to decision of the ECC. Therefore, the argument of the learned counsel for the appellant alleging discrimination against Respondent No,1 fails.
14. For reasons recorded above, we do not find any merit in this appeal. It is accordingly dismissed with no order as to costs.