MOHSIN AKHTAR KAYANI, J.---Through this writ petition, the petitioner has assailed the order dated 03.01.2017, passed by the President of Pakistan on the representation against the decision/findings of Wafaqi Mohtasib (Federal Ombudsman) dated 29.03.2016.
2. Brief facts, which necessitated filing of instant writ petition are that gas meter of respondent No,2/International Islamic University, Islamabad was wrongly configured since 01.12.2002 i,e, billed in cubic feet instead of cubic meter and after rectification by the Billing Department of SNGPL, a volume of 14676.82 HM3 amounting to Rs,26,067,278.56/- was calculated with effect from 01.12.2002 to 26.03.2015 and included in the billing month of May, 2015 as per gas sales contract approved by OGRA. Respondent No,2 filed a complaint before Federal Ombudsman challenging calculation of gas consumption, which was rejected by Federal Ombudsman vide decision dated 09.11.2015.
Against the said decision, review petition was filed by respondent No,2, which was also dismissed vide order dated 29.03.2016. Respondent No,2 then filed representation against the said order before the President of Pakistan in terms of Establishment of Office of Wafaqi Mohtasib Order, 1983 read with Federal Ombudsman Institutional Reforms Act, 2013. The President of Pakistan accepted the representation and set aside the findings of Federal Ombudsman vide impugned order dated 03.01.2017.
3. Learned counsel for the petitioner contends that respondent No,1 has no jurisdiction to decide such kind of complaints, even otherwise, clause 20 of contract for supply of gas provides Dispute Resolution Mechanism, whereby if any dispute arises between the parties, the same shall be settled through OGRA authorities. It has further been argued that besides the Dispute Resolution Mechanism of OGRA, Gas Utility Courts have been established in pursuance of section 3 of the Gas (Theft Control and Recovery) Act, 2016, which can adjudicate upon and hear the matters relating to gas theft control and recovery and Federal Ombudsman has no jurisdiction to proceed with the matter. It has further been argued that Complaint Resolution Procedure (for Natural Gas, LPG, CNG), Regulations, 2003 and OGRA Ordinance, 2002 provide complete adjudication mechanism between petitioner company and consumers, even hierarchy of same provides complaint, appeal and review for settlement of issues and section 43 of the OGRA Ordinance, 2002 overrides other laws.
4. Conversely, learned counsel for respondent No,2 contends that General Manager SNGPL, who signed instant writ petition was not authorized through Board Resolution to represent SNGPL. It has further been argued by learned counsel for respondent No,2 that question of wrong configuration of gas dues falls within ambit of maladministration, which can only be settled through Federal Ombudsman. It has further been argued by learned counsel for respondent No,2 that SNGPL did not raise question of jurisdiction before Federal Ombudsman, therefore, such kind of plea cannot be permitted after decision of Federal Ombudsman on the complaint against SNGPL.
5. Arguments heard, record perused.
6. From the perusal of record, it has been observed that respondent No,2/International Islamic University, Islamabad is situated in Sector H-10, Islamabad and in hostels for students gas meters have been installed, whereas gas meter No,75023333 was wrongly configured since 01.12.2002 as billed in cubic feet instead of cubic meter, however, after rectification by the billing department of SNGPL, a volume of 14676.82 HM3 amounting to Rs,26,067,278.56/- was calculated against respondent No,2 w,e,f, 01.12.2002 to 26.03.2015, which was included in the bill of May, 2015.
7. Respondent No,2/International Islamic University, Islamabad filed a complaint before Federal Ombudsman challenging above referred bill, which was contested by the petitioner, however, Federal Ombudsman rejected the complaint vide decision dated 09.11.2015. Feeling aggrieved of the said order, respondent No,2 filed review petition before Federal Ombudsman, which was also rejected vide order dated 29.03.2016.
8. Respondent No,2 filed representation before the President of Pakistan under Establishment of Office of Wafaqi Mohtasib Order, 1983 read with Federal Ombudsman Institutional Reforms Act, 2013, which was accepted vide order dated 03.01.2017 and findings of Federal Ombudsman were set aside. The representation was accepted with the following observations:- "10. In the circumstances the impugned findings of the Wafaqi Mohtasib and also the disputed bill raised by the Agency are not sustainable. Consequently, the representation of the complainant university is liable to be accepted. The Agency is required to withdraw the claim of arrears, issue current bills within fifteen days for the months of May to August, 2015 when gas supply was disconnected and to restore the connection of the complainant university on payment of current bill for the month of May, 2015 and to recover the remaining bills for the months of June to August, 2015, without surcharge, in three equal installments along with current bill of the complainant university.
11. Accordingly, the Hon'ble President of Pakistan has been pleased to accept the representation of the complainant university and set-aside the impugned findings of the Wafaqi Mohtasib to the extent of condoning the delay of 13 years and remarks against complainant university as discussed above, with the direction to the Agency to take action in light of above observation without being influenced of its earlier stance in the matter."
9. Basic stance taken by the petitioner/SNGPL in the instant writ petition is that under Establishment of Office of Wafaqi Mohtasib Order, 1983 read with Federal Ombudsman Institutional Reforms Act, 2013, the President of Pakistan has no jurisdiction to deal with complaints relating to gas theft or other offences relating to recovery of dues and other outstanding amounts, as they are covered by Gas (Theft Control and Recovery) Act, 2016. Gas (Theft Control and Recovery) Act, 2016 referred by learned counsel for petitioner deals with prosecution of case of gas theft and other offences relating to gas and provides procedure for recovery of amounts due.
10. This Court has established two Courts as Gas Utility Courts in term of section 3 of the said Act.
Section 4 of the said Act provides exclusive jurisdiction with respect to all matters covered by this Act, therefore, Gas Utility Courts have jurisdiction under this Act to deal with the matters relating to Gas Utility Company, consumer, gas producer or offender, as the case may be. Section 31 of the said Act provides overriding effect notwithstanding anything to the contrary contained in any other law for the time being in force.
11. Mechanism to resolve the disputes is provided in clause 20 of the contract for supply of gas, which shows that in case of any difference or disputes arising out between the consumer and the company, which cannot be amicably resolved, it shall be referred to the authority (OGRA) for its resolution in pursuance of section 6(2)(k) of OGRA Ordinance, 2002. Similarly, OGRA Ordinance 2002 provides regulations, which are called as Complaint Resolution Procedure [for Natural Gas, Liquefied Petroleum GAS (LPG) and Compressed Natural Gas (CNG) and Refined Oil Products] Regulations, 2003 and the same provide absolute and complete mechanism to resolve the disputes. OGRA Ordinance, 2002 also provides other remedies of appeal and review in the hierarchy of OGRA under the said regulations. Even Regulation No,3 of the said Ordinance provides the nature of complaint and their redressal, which covers billing, over charging and metering.
OGRA Ordinance, 2002 has also over-riding effect. It is settled proposition of law that Special Law excludes application of General Law. Reliance is placed upon 2012 SCM R 669 (Capt. (Retd.) Nayyar Islam v. Judge, Accountability Court No,Ill and others), 2007 SCM R 298 (Attaullah Khan and others v. Samiullah and others) and 2010 SCM R 27 (Ismaeel v. The State).
12. It has also been observed from record that Federal Ombudsman also issued notification No,6(29)WMS/ COORD/2016 dated 22.11.2016 notifying that billing disputes between consumer and gas utility company shall be adjudicated by the Gas Utility Courts from the date of commencement of the Act and in such matters jurisdiction., of Federal Ombudsman has been barred, whereas Federal Ombudsman in contravention of its own notification entertained the complaint filed by respondent No,2.
13. Learned counsel for respondent No,2 raised objection that instant writ petition was filed by one Ijaz Ahmed Choudhry General Manager, SNGPL, who was not authorized to file the same as in the minutes of 378th meeting of Board of Directors dated 27.04.2011 authority was delegated to Muhammad Arif Hameed Managing Director. Arif Hameed, Managing Director after assuming the said authority, executed general power of attorney on 22.04.2014, which was registered on the even date and was executed on behalf of SNGPL by Muhammad Arif Hameed, Managing Director in favour of Ijaz Ahmed General Manager. Extracts of minutes of 378th meeting of Board have also been placed on record, which clearly prove that Muhammad Arif Hameed Managing Director is authorized person of SNGPL, therefore, objection raised by respondent No,2 has no force. Even otherwise, authority delegated to Muhammad Arif Hameed is by virtue of its designation and instant writ petition has been filed by Ijaz Ahmed General Manager on the basis of general, power of attorney, which is still in field.
14. The only question before this Court is to consider two special laws in juxtaposition i,e, Federal Ombudsman Institutional Reforms Act, 2013 and the Gas (Theft Control and Recovery) Act, 2016.
Both the laws have their own special provisions. Section 18 of Federal Ombudsman Institutional Reforms Act, 2013 provides bar of jurisdiction and it starts from word 'No' which is a negative word.
Similarly, section 24 of the said Act has overriding effect on any other law. The Federal Ombudsman Institutional Reforms Act, 2013 is an Act to make institutional reforms for standardizing and harmonizing the laws relating to Federal Ombudsmen institution and the matters ancillary or akin thereto. Intention of legislature is to provide speedy and expeditious relief to citizens by redressing their grievances to promote good governance. Similarly, P.O. No,1 of 1983 regarding Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 deals with maladministration, which includes a decision, recommendation, act of omission or commission contrary to law, rules or regulations or is a departure from established practice or procedure unless it is bona fide and for valid reasons or perverse, arbitrary or unreasonable, unjust, biased, oppressive or discriminatory and also deals with cases of neglect, intentional delay, incompetence, inefficiency of different officials. However, section 9 of the said Act provides the jurisdiction of Wafaqi Mohtasib excluding cases sub judice before a Court of competent jurisdiction, relating to external affairs of Pakistan, relating to or connected with the defence of Pakistan or relating to public servants regarding their terms and conditions of service.
15. Section 2 of Gas (Theft Control and Recovery) Act, 2016 provides definitions, wherein Section 2(h) means Gas Utility Company i,e, Sui Southern Gas Company Limited, Sui Northern Gas Pipelines Limited and such other companies. Section 2(b) of the said Act provides definition of consumer, which means a person, who receives a supply of gas under a gas sales agreement for the specific purpose of consumption and at the same time section 2(g) of the said Act covers the concept of gas sales agreement for sale and purchase of gas, however, the disputes between gas consumer and the utility company regarding sums due, tampering and unauthorized use of gas have been referred in sections 2(0), 2(r) and 2(s) of the said Act, which are reproduced as under:-
(o) "sums due" means any or all such amount, inclusive of applicable Government taxes, recoverable from a person who purchases or receives gas for self consumption or sale for vehicular use or a person whose premises is connected with the network of the Gas Utility Company, lawfully or unlawfully including but not limited to arrears of gas charges, meter rental, late payment surcharges or any other incidental charges for services including fixed and variable charges, gas theft claims determined in accordance with the Gas Utility Companies laid down procedures and any amount recoverable on account of any land dispute, rentals, damages, fines, penalties, violation charges and or on account of any other dispute.
(t) "tampering" or "tamper" includes interfering or creating hindrance in flow or metering of gas power by unauthorized entry of access into metering system or transmission and distribution lines either by breaking the seals or damaging or destructing the same or in any manner interfering with the gas meter or transmission line or distribution line or interfering with its original condition.
(s) "unauthorized use of gas" includes the acts or receiving, consuming or providing a supply of gas from a pipeline or a meter of Gas Utility Company other than that contracted for by any person, the unauthorized receipt of more gas than is registered by the meter or other measurement device, tampering to increase metering pressure, unauthorized enhancement of gas loads other than contracted for, consuming gas through bypassing of a meter or other measurement device and gas usage by direct tapping to the gas supply of a Gas Utility Company."
16. The said Act also provides mechanism to cater situation like sums due, tampering and unauthorized use of gas through Gas Utility Court, whereas Gas Utility Courts have been defined in section 3 of the said Act and section 5 of the said Act describes the powers, which shall be exercised in its civil jurisdiction vested in a Civil Court under the Code of Civil Procedure, 1908 and in criminal jurisdiction, try offences punishable under this Act and shall for this purpose have the same powers as are vested in a Court of Session under the Code of Criminal Procedure, 1898. Under section 4 of the said Act, Gas Utility Court have exclusive jurisdiction with respect to all matters covered by this Act including the dispute in question. Similarly, section 5(6)(a) of the said Act provides that nothing in subsection (5) shall be deemed to affect the right of a Gas Utility Company and a gas consumer to seek any remedy before any other Court, tribunal or forum including official liquidator or receiver that may otherwise be available to it under the law. Section 5(7) of the said Act provides that all proceedings pending in any other Court, including suits for recovery, shall stand transferred to, or be deemed to be transferred to, and heard and disposed of by the Gas Utility Court having jurisdiction under this Act.
17. The above referred background of the entire' scheme of Gas (Theft Control and Recovery) Act, 2016 confirms that it deals with all kind of issues based upon gas sales agreement, tampering, sums due, arrears of gas charges, meter rental, late payment surcharges or any other incidental charges under proper mechanism, which cannot be adjudicated by any other forum. Even otherwise, the said Act provides a fair chance for protection of legal rights to every individual, company or consumer, which is very basis of administration of justice in terms of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973.
18. In view above discussion on two special laws, it can safely be concluded that when two special laws deal with similar situation, then question of jurisdiction has to be seen in the light of its nature, object scope and remedial portion provided therein in ordinary meaning which is called as literal approach of reading a statute to understand its true legislative intent. It is also settled proposition of law that special statute prevails over general statute and similarly, general provisions and special provisions in same statute would have different effect, when the plain and simple meaning of a provision of law is clearly understandable without any ambiguity then nothing is to be presumed or imported from outside. Reliance is placed upon 2014 SCM R 671 (The State v. Syed Ali Baqar Naqvi and others). Even otherwise, the Courts have to decide any question in accordance with law and every citizen has right to be dealt in accordance with law under Article 10-A of the Constitution of Islamic Republic of Pakistan 1973. It is also settled proposition of law that in construing and interpreting a special law, the Court has to look at the reasons and background, which influenced the mind of the legislature in enacting the special law and the history of events, which had occurred preceding the enactment of the special law. Similarly, in construing and interpreting Statute, the fundamental principle is to discover the true intent of the legislature enacting a particular law to meet a particular situation and to confront a specific emerging threat or situation. Reliance is placed upon 2017 5CMR 1572 (Waris Ali and 5 others v. The State).
19. It is also settled proposition of law that when there is conflict between two special laws containing overriding clauses, generally statute later in time would prevail over the statute prior in time. Reliance is placed upon 2017 SCM R 1218 (Syed Mushahid Shah v. Federal Investment Agency and others).
20. Similarly, another rule of interpretation of statutes is that if two special enactments contain provisions, which give overriding effect to the provisions contained therein, then the Court is required to consider purpose and the policy underlying the two Acts and the clear intendment conveyed by the language of the relevant provisions. Reliance is placed upon AIR 2012 SC 11 (Employees Provident Fund Commissioner v. 0. L. of Esskay Pharmaceuticals Limited) and 1956 SCR 603 (Shri Ramah Narain v. The Simla Banking and Industrial Co., Ltd.). The apex Court while considering all the case laws has rendered following principles in judgment reported as 2017 SCM R 1218 (Syed Mushahid Shah v. Federal Investment Agency and others).
(i) If the provisions of a later Act are so inconsistent with those of an earlier Act that both cannot stand together, the earlier stands impliedly repealed by the later. This principle is based on the maxim leges posteriores priores contrarias abrogant. In other words, it means that the latest expression of the will of the Legislature must prevail. This, of course, is subject to the condition contained in the next principle. That is: if the prior enactment is special and the subsequent enactment is general, the earlier special Legislation will not be, indirectly, repealed, altered or derogated from merely by force of the general words of the later statute, without any indication of a particular strong intention to do so.
(ii) A general later law does not abrogate, by mere implication, an earlier particular or special law which deals with a special object or a special class of objects. This principle is based on the maxim generalia specialibus non derogant. But when a general Act is incorporated into a special one, the provisions of the latter would prevail over any of the former with which they are inconsistent. If one statute enacts something in general terms, and afterwards another statute is passed on the same subject, which, although expressed in affirmative language, introduces special conditions and restrictions, the subsequent statute will usually be considered as repealing by implication the former, for "affirmative statutes introductive of a new law do imply a negative".
However, if a subsequent statute merely creates an exception from the operation of a previous statute, the previous statute is not necessarily repealed.
(iii) When the later of two general enactments is couched in negative terms or in such affirmative terms which unequivocally involve negative which proves fatal to the earlier enactment, the earlier one is impliedly repealed.
(iv) When the two statutes are expressed in negative terms, they may be affirmative inter se and may not be contradictory to each other; though the effect of both may be that they are negative as regards a third statue 'at which both of them may have made some inroads'. When seen in this light, an apparent conflict of two statutes is found as without any reality. Because they (sic) objects may be different and both may be parallel; and each may be restricted to its own particular subject or locality.
(v) If the co-existence of the two inconsistent statutes would be destructive of the object for which the later was passed, the earlier would be deemed to have been repealed.
(vi) In so far as the Penal Acts are concerned, if a later statute again describes an offence created by a former one, and provides a different punishment, creates a new jurisdiction and remedy and varies the procedure-modifying the manner or changing the forum of trial or appeal, the earlier statute is impliedly repealed by the later unless, of course, both of them can exist in parallel application to different localities, subjects or objects.
(vii) When the words are clear and capable to proper operation, the revocation or alteration of a statute by construction is not permissible. The Legislature is normally not presumed to have intended to keep two contradictory enactments on the statute-book with the intention of repealing the one with the other, without expressing an intention to do so. Such an intention cannot be imputed to the Legislature without some strong reasons and unless it is inevitable.
Before adopting the last-mentioned course, it is necessary for the Courts to exhaust all possible and reasonable constructions which offer an escape from repeal by implication.
(viii)All other consideration being equal, if the inconsistency, in spite of applying all general principles of interpretation of statutes, cannot be resolved, a statute more beneficial in remedy or method of taking action will override the statute which is not so beneficial."
21. In the light of above referred principles, I have gone through the Gas (Theft Control and Recovery) Act, 2016, which shows that it fulfills the purposes and special needs of the time keeping in view the disputes amongst the consumers and gas supplying company, even it provides proper mechanism, through which a dispute can be resolved after recording of evidence. If Gas (Theft Control and Recovery) Act, 2016 is compared with Federal Ombudsman Institutional Reforms Act, 2013, later has different procedure, especially under the said Act Federal Ombudsman cannot record evidence and cannot allow the parties to lead their evidence in terms of Qanun-e- Shahadat Order, 1984. The entire comparison gives rise to a situation that Gas (Theft Control and Recovery) Act, 2016 has been meant for special purpose, which would prevail.
22. In view of above discussion, this Court has come to the conclusion that after enactment of special legislation i,e, Gas (Theft Control and Recovery) Act, 2016 the application of general law i.e Federal Ombudsman Institutional Reforms Act, 2013 stands excluded. Therefore, I am of considered view that President of Pakistan as well as Federal Ombudsman under Federal Ombudsman Institutional Reforms Act, 2013 have no authority to adjudicate upon the complaint between consumer and gas supply company after promulgation of Gas (Theft Control and Recovery) Act, 2016, whereby special jurisdiction has been vested in Gas Utility Courts to deal with such kind of affairs. Although issue in hand to some extent falls within concept of maladministration but entire dispute revolves around factual controversy, which requires recording of pro and contra evidence and same can only be done by Gas Utility Courts in terms of special law of Gas (Theft Control and Recovery) Act, 2016, in which Civil Procedure Code, 1908 and Qanun-e-Shahadat Order, 1984 apply for redressal of such kind of issues. Resultantly, instant writ petition is accepted and order dated 03.01.2017, passed by the President of Pakistan is declared as coram non judice and is hereby set aside. Respondent No,2 may approach the Court of competent jurisdiction for redressal of its grievance, if so, desired.