IJAZ UL AHSAN, J.---This Civil Appeal with leave of the Court is directed against judgment dated 21.04.2008 passed by a learned Division Bench of the High Court of Sindh, Karachi. Through the impugned judgment, a Constitutional Petition bearing No.D-91 of 2006 filed by Respondent No.1 was disposed of with a direction that Respondent No.3 may file a fresh application with Respondent No.1 for grant of a gas connection for the purpose of running its electricity generating sets by way of captive power generation.
2. Briefly stated the facts of the case are that Respondent No.3 (Hotel Galaxy Private Limited (Days Inn) moved an application with Respondent No.1 (Sui Southern Gas Company Limited) for a gas connection for the purpose of captive power generation to run its power generating sets. Such request was refused, whereupon Respondent No.3 filed a claim before the appellate authority constituted under the Oil and Gas Regulatory Authority Ordinance, 2002 (Ordinance, 2002). After hearing the parties, the appellate authority directed Respondent No.1 to provide the requisite gas connection to Respondent No.3 within thirty days.
3. Respondent No.1 preferred an appeal before the appellant. However, the original order was upheld and a subsequent review petition was declined. Respondent No.1 was aggrieved of the said order and approached the Sindh High Court challenging order dated 21.03.2005. Vide its judgment dated 21.04.2008, the Constitution Petition was disposed of in the terms noted above. In the last paragraph of the impugned judgment, the learned Division Bench of the High Court recorded certain findings against the Appellant of which it is aggrieved.
4. At the very outset, Mr. Makhdoom Ali Khan, learned Sr. ASC, appearing for the appellant has submitted that he does not question the judgment of the High Court on merit. He is only aggrieved of the last paragraph thereof which relates to jurisdiction of the appellant to deal with matters involving "regulated activity" and its finding that all proceedings before the appellant were irregular, without jurisdiction and of no legal effect. He also submits that he does not claim any other relief against any other Respondent.
5. The learned counsel for the Appellant further submits that in terms of the Ordinance, 2002 the appellant enjoys exclusive jurisdiction over issues pertaining to regulated activity. He has referred to various provisions of the Ordinance, 2002 to argue that sale of natural gas being a licensed activity can clearly be classified as regulated activity which falls within the purview of the powers and functions of the appellant as the regulatory authority for the oil and gas sector. He maintains that the provisions of the Ordinance, 2002 and Complaint Resolution Procedure Regulations, 2003 (Regulations 2003) as well as the license issued in favour of Respondent No.1 clearly and indisputably empower the appellant to pass orders relating to any dispute arising out of transmission, distribution or sale of natural gas by a licensee. He submits that since the dispute involved a licensee and a consumer it fell within the exclusive pu view of the appellant as a regulator. The learned High Court therefore erred in law in coming to the conclusion that all proceedings initiated by Respondent No.3 before the appellant were illegal and without jurisdiction.
6. The leat ned ASC appearing for the Respondents has attempted to defend the impugned judgment but has not been able to convince us that the last paragraph thereof is sustainable.
7. We have heard the learned counsel for the parties and gone through the record as well as the relevant provisions of the law on subject. Section 2(xxxii) of the Ordinance, 2002 defines "regulated activity" as an activity requiring a license. Section 23 (1) of the Ordinance, 2002 deals with grant of license and provides as follows:- a) Construct or operate any pipeline for natural gas; b) Construct or operate any natural gas testing facility or natural gas storage facility; c) Construct or operrite any natural gas installation; or d) Undertake transmission, distribution or sale of natural gas, Unless a general or specific license to undertake such activity has been issued and is in full force and effect and the person is a licensee.
It is clear and obvious from a plain reading of the above provisions that transmission, distribution and sale of natural gas requires a license. A transaction inter alia involving sale of gas can clearly be classified as regulated activity.
8. Section 6(2)(k) read with section 43(1) of the Ordinance, 2002 provides that the appellant has the exclusive jurisdiction to hear and resolve all disputes arising out of activities between a licensee and any other person. Relevant provisions are reproduced below:- "6. Powers and functions of the Authority. - (2) Without prejudice to the generality of the foregoing, the Authority shall -
(k) resolve disputes between licensees, between licensees and any other person regarding a regulated activity.
43(1). The provisions of this Ordinance, the rules and the regulations, and any licenses issued hereunder shall have effect notwithstanding anything to the contrary in any other law, rule or regulation, for the time being in force, and any such law, rule or regulation shall, to the extent of any inconsistency, cease to have any effect on the commencement of this Ordinance and the Authority shall, subject to the provisions of this Ordinance, be exclusively empowered to determine the matters in its jurisdiction as set out in this Ordinance."
Perusal of section 43(1) of the Ordinance, 2002 shows that the provisions of Regulations, 2003 and any rules and licences promulgated/issued thereunder have an overriding effect on all conflicting provisions of any other law thereby clarifying that disputes relating to sale/supply of gas fall within the purview of the appellant.
9. The record indicates that Respondent No.3 filed a complaint before the Appellant under section 11 of the Ordinance, 2002 which provides that any person may file a written complaint before the appellant.
10.Regulation 3 of the Regulations, 2003 clearly establishes that the appellant has exclusive jurisdiction to entertain all complaints regarding the connection and disconnection of service. The said Regulation would undoubtedly be attracted in these proceedings as they pertain to connection of gas. For ease of reference, relevant provision is reproduced below:- "3. Any person may submit an application with the Registrar for- a. Any act or thing done or omitted to be done by a licensee or dealer in violation or alleged violation of the ordinance, rules, regulations, order of the Authority or terms and conditions of the licence; b. Non-compliance by the licensee or dealer with the service standards in the areas including but not limited to:
(i) Billing;
(ii) Connection and disconnection of service;
(iii) Metering;
(iv) Undue delay in providing service;
(v) Safety practices; or
(vi) Quantity and quality of natural gas, LPG or CNG being supplied; or c. Discriminatory practices of the licensee or dealer."
11.In addition to the above, a perusal of the terms and conditions of the licence issued by the appellant in favour of Respondent No.1 also confers exclusive jurisdiction on the appellant to determine whether a request by any person for a gas connection is reasonable. For convenience sake, the provisions of clause 33.6 are reproduced below:- "33.6. Any question arising under Condition 33.3 and 33.5 as to whether a request by any person is a reasonable request shall be determined by the Authority, after due consideration by it of any representation made to it by the Licensee and the person."
Furthermore, clause 33.1, obligates Respondent No.1 to respond to requests for service promptly and clause 33.3 states that Respondent No.1 shall be obliged to provide a gas connection to an owner or occupier upon payment of charges.
12. Perusal of the Ordinance, 2002 shows that its purposes include the regulations of activities of gas companies, protection of interests of the consumers and to ensure fair dealing and facilitation of the connections. Therefore, in our opinion to oust jurisdiction of the appellant in such matters would defeat the purpose of the law and leave the consumers remediless.
13. We also notice that the learned High Court has not provided reasons for the conclusions and finding recorded by it in last paragraph of the impugned judgment. Further it has nowhere been explained why the dispute between Respondent No.1 and Respondent No.3 did not concern a regulated activity. It also appears to have escaped the notice of the learned Division Bench that the Respondents accepted the jurisdiction of the appellant, participated in all proceedings before it without any objection or reservation whatsoever and were therefore estopped from challenging the same before the High Court. We have therefore found the impugned portion of the judgment of the learned High Court to be unsustainable and not in accordance with law.
14.For reasons recorded above, this appeal is partly allowed. The impugned judgment of the High Court, only to the extent of the following paragraph which appears at page 11 of the judgment is set aside, and shall be deemed never to have been a part of the impugned judgment:- "Regarding the jurisdiction of respondent No.2, we agree with the submission of Mr. Asim Advocate that since there was no dispute regarding 'regulated activity' as defined in clause (xxxii) of section 2 of the OGRA Ordinance, 2002 all proceedings before the respondent No.2 were irregular and without jurisdiction and of no effect and as such the petitioners have been entitled to file the instant Petition."
15.Since Respondent No.3 has filed a separate appeal against the impugned judgment, no finding is being recorded in this judgment that may in any manner, prejudice the appeal filed by Respondent No.3 separately. Such appeal shall be decided on its own merits and in accordance with law.