SHAHID WAHEED, J:- In this judgment, we will consider these two appeals from different companies as not only their facts are the same but also the orders that are attacked by them are selfsame which raise a common question, and that is, whether the appellants, who are consumers of natural gas, are liable to pay late payment surcharge (LPS) on the natural gas dues, payment of which was not made on or before the due date in view of interim orders passed by the learned Single Bench of this Court in the writ petitions filed by them challenging the Notification enhancing the natural gas tariff rates, after the writ petitions have been dismissed.
2. The facts bringing forth the above-stated question are not in dispute. The appellants are industrial concerns and consumers of the Sui Northern Gas Pipelines Ltd. (the SNGPL), a licensee under the Oil and Gas Regularity Authority Ordinance No.XVII of 2002 (the Ordinance). In 2013, the SNGPL under Section 8 of the Ordinance applied to the Oil and Gas Regulatory Authority (the OGRA) for review of its total revenue requirement and determination of prices of natural gas. On review, the OGRA advised the Federal Government for revision of pricing for retail consumers for natural gas. The Federal Government rendered its advice and acting upon it, the OGRA in exercise of the powers conferred by sub-section (3) of Section 8 of the Ordinance issued Notification dated 31 August, 2015 prescribing the sale prices and minimum charges in respect of natural gas sold by the SNGPL to various categories of its retail consumers. As the appellants are industrial consumers, it is important to mention that with this Notification the sale price for them had been increased from Rs.464.940 per MMBTU to Rs.600.000 per MMBTU. This price hike was challenged through Writst Petition No.15645 of 2015 which was disposed of vide order dated 1 February, 2017 by remitting a copy thereof to the OGRA with the direction to treat it as review in terms of Section 13 of the Ordinance and decide it within six weeks. It was also observed in that order that the SNGPL would continue to issue gas bills to the consumers on the basis of the previous year subject to deposit of surety bonds by them with the SNGPL. On remand, the OGRA reviewed the matter but decided to uphold its earlier determination of sale price vide decision dated 6th July, 2020. The consumers/appellants then challenged the Notification dated 31st August, 2015 and the decision dated 6th July, 2020 through number of writ petitions before this Court. At the peremptory hearing, this Court had suspended the said notification and the decision of the OGRA, but after about a year, the petitions were dismissed through a consolidated judgment dated 19th February, 2021 made in Writ Petition No.35089 of 2020[1]. Upon dismissal of writ petitions, the SNGPL remitted bills to the appellants against tariff difference arrears which included LPS. Now comes the third round of litigation. The appellants brought fresh petitions (i.e. W.P.Nos.19011 of 2021 and 16802 of 2021) voicing that they were ready to pay tariff difference arrears but the SNGPL had arbitrarily levied LPS on them in respect of the period during which their previous petitions remained pending in this Court and payment of the gas bills were not made on account of stay/interim order. The contentions raised by the appellants were found misconceived, for, their basic claim against Notification dated 31st August, 2015 and the decision dated 6 July, 2020 had been dismissed, and resultantly their failure to pay as per revised gas tariff entailed their liability to pay LPS. The petitions were dismissed vide two orders of even date, that is, 21st September, 2021, and so these appeals, which have been filed after paying the difference amount between pre-revised and the revised gas tariff but without depositing LPS.
3. As the question to be answered and the facts from which it emerges are all related to the levy of LPS, it is important to state, at the outset, its rates and the conditions under which it applies, and for it, a reference to the Notification dated 18 July, 2006 will become essential because through it the OGRA in exercise of the powers conferred by Section 7 of the Ordinance read with sub-rule (1) of rule 3 of the Natural Gas Tariff Rules, 2002 has prescribed both of them in the following terms: - "1.5% per month of the amount overdue during the first year in default and 2% per month of the amount overdue thereafter."
4. The appellants are aggrieved by the levy of LPS at the above-stated rate and have sought from us to set aside the orders of the learned Single Bench by canvassing a quadruple argument, to wit, firstly, as the operation of the Notification dated 31 August, 2015 and decision dated 6th July, 2020, whereby the sale price and minimum charges in respect of natural gas were enhanced, were suspended by this Court, the appellants were not liable to pay LPS; secondly, the delay under the Notification dated 18th July, 2006 means deliberate and conscious delay and it does not contemplate delay which is caused due to the orders of the Court; thirdly, as the Notification dated 31 August, 2015 and decision dated 6 July, 2020 were suspended by this Court, the rate/price prescribed by the earlier Notification stood revived and remained in operation during the effectiveness of the interim order on account of which there was no default on the part of the appellants; and lastly, the appellants could not be made to suffer for the acts of the Court.
5. In opposition to the above-stated argument, the respondents, relying upon the case of Kanoria Chemicals and Industrial Ltd. and others v. U.P. State Electricity Board and others[2] have taken the stance that (a) after the writ petitions brought by the appellants were dismissed and the interim orders, whereby the operation of the Notification dated 31 August, 2015 and decision dated 6 July, 2020 were suspended, were discharged, liability of the appellants to pay revised price/rates for natural gas stood revived, and (b) the principle that no man can suffer for the acts of the Court, can be pressed into service in favour of the SNGPL only and this cannot be takenst th th st st th st th advantage of by the appellants, otherwise the appellants will be getting benefit of their wrongful acts.
6. Before we go any further, it will be important to point out that the set of appellants' arguments derives its origin from an unreported judgment dated 21st November, 2021 of another learned Single Bench of this Court, made in W.P.No.16071 of 2021 (titled Suraj Cotton Mills Ltd. & 6 others v.
Federation of Pakistan & others), in which, while dealing with similar facts and by deducting analogy from Messrs. R.C.D. Ball Bearing Ltd. v. Sindh Employees Social Security Institution, Karachi[3] it has been held that in such like situation the consumer could not be asked to pay LPS.
7. Inasmuch as the decision in the case of R.C.D. Ball bearing (supra) constitutes the sheet-anchor of the appellants' case, we are obliged to closely examine the facts and ratio of the said decision.
Before doing so, there are two observations of a general character which we wish to make, and one is that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expansions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides[4] Now, we go over to the case of R.C.D. Ball Bearing, which was a public limited company and it had raised a dispute over the demand of contribution in respect of certain payments being made by it to its workers, with the Sindh Employees' Social Security Institution (SESSI). Upon the dismissal of its complaint, the matter came in appeal before the High Court, which initially stayed the recovery of disputed amount subject to furnishing of security but eventually dismissed the appeal, and the company tendered the payment due on account of the disputed item of contribution. The SESSI, provisionally accepting the amount, demanded the increased amount payable on account of failure on the part of the company to pay the contribution on the due date.
And that demand gave rise to a fresh round of litigation between the parties for the determination of the question whether an aggrieved party who withheld the payment of disputed amount of contribution claimed to be payable to the SESSI, after obtaining a proper stay order from the Appellate Court exercising jurisdiction under the Social Security Ordinance, 1965 could be held to have failed to pay the amount so as to be liable to the payment of increase as provided by Section 23 of the said Ordinance, in case the appeal was subsequently dismissed. The argument of the company was that since the Appellate Court had stayed the recovery of the contribution, it could not justifiably be held that there was deliberate or willful failure on its part to pay the amount on the due date during the operation of the stay, so as to be burdened by the penalty provided by Section 23 of the Social Security Ordinance, 1965. Agreeing with the argument of the company, it was held that reading the provisions of Section 23 of the Social Security Ordinance, 1965 with Sections 64 and 65, it became abundantly clear that the scheme of the said Ordinance itself provided that in case of a stay, until the final adjudication of the dispute, the obligation to pay the dues did not arise and thus, the company was not liable to pay the increased amount during the period in which the stay order was in force. Now, this round-up brings us to mull over whether the judgment in the case of R.C.D. Ball Bearing Ltd. could be considered as the relevant authority for determining the question before us in the present case. We do not think so, for, the one obvious reason that the scheme of law, under which the case of R.C.D. Ball Bearing Ltd. was decided by the Supreme Court, provides a provision for the stay of payment pending appeal, and that had become the pivot to hold that the company was not liable to pay increased amount during the period in which stay order was in force, while on the contrary, the law applicable to the question posed in the present appeals is the Oil and Gas Regulatory Authority Ordinance, 2002 and the rules and regulations made thereunder, which though envisage the hierarchy of authorities and Courts for correction of errors and redress of grievance made by the consumer, but does not provide such like provision for staying of payment pending appeal before the High Court, and thus any analogy. drawn from the said precedent would be imperfect, and its application to the facts of the case in hands would be erroneous.
8. We now turn to the merits of each facet of the argument presented by the appellants. The admitted facts are that by virtue of Notification dated 31 August, 2015 and decision dated 6th July, 2020 the sale price and minimum charges in respect of natural gas were enhanced by the OGRA and that the appellants had been able to obtain interim orders, from this Court by filing writ petitions, by which the said Notification and decision were suspended. Based on these facts the first argument of the appellants is that since the non-payment of the amount as per the revised rates was on account of the interim order granted by this Court, there could be no question of failure on their part to pay the amount on due date and, therefore, levy and demand of LPS was illegal. We find no weight in this argument. It is a well-settled principle of law that whenever a party applies and obtains an interim/stay order from a Court, it is always at the risk and responsibility of the party applying. Mere passing of an interim/stay order cannot be construed as granting any additional rights to the litigant, but rather it ceases with the dismissal of substantive proceedings, and then becomes the duty of the Court in such cases to ensure that a party who had suffered on account of a decision that is finally reversed should be put back in the same position as far as the same is practicable, in which it would have been if the decision of the Court adversely affecting it had not been passed[5]. In the light of the above-stated principle, when we look at the facts of the present case, it appears that the obligation of the appellants to pay the gas bills as per the new rates had come into play, the moment Notification/decision enhancing price/tariff was issued but they resorted to challenging it through writ petitions and thus, put off the payment. Although the Notification/decision was initially suspended, this Court, after final hearing, dismissed the writ petitions on merits, and consequently the effect of restraint placed by the interim order on the recovery of the amount, totally disappeared and was wiped out, with the result, we are of the view, the liability of the appellants, as it existed on the day of the grant of the interim order, stood revived, and since it was not liquidated on the due date, they were under a burden to pay it alongwith LPS and no leniency could be shown for this because otherwise it would seriously affect the credibility of the judicial system. Needless to observe here that litigation should not be permitted to turn into a fruitful industry, and perhaps for this reason, the Ordinance also does not confer any power or jurisdiction on any authority to condone the failure on any ground whatsoever or to extend the time so as to prevent devious litigants from taking undue advantage by invoking jurisdiction of the Court.
9. The second argument is that the LPS could have been imposed only if the bill as per revised rates had not been paid deliberately and maliciously on the due date. We are not impressed by this argument, and we are of the view that this submission also lacks merit. Item No.9 of Category-A of the Notification dated 18 July, 2006, which has been reproduced hereinabove in para 3, imposes liability to pay LPS in the event of any bill not being paid by the due date. Whether the delay in making the payment within time is deliberate and conscious or not is not relevant because liability to LPS is attracted immediately after due date for payment expires. The reasons for non-payment by the consumers are not relevant. As mentioned earlier the effect of the interim/stay order was that the Notification dated 31 August, 2015 and the decision dated 6 July, 2020 became inoperative, but after dismissal of the writ petitions their liability revived with retrospective effect.
10. The next plea also deserves the same fate. In the instant case the latter Notification of the OGRA dated 31 August, 2015 was not declared ultra vires and in fact its validity was upheld and the writ petitions were dismissed. In such a situation the principle of revival of the old Rule/Law[6] cannot be applied. It is true that the learned Single Bench while initially entertaining the writ petitions had suspended the Notification dated 31 August, 2015, but it did not mean that it was wiped out. It had just become inoperative, and continued to exist despite the interim order. As the Notification datedst th st th st st 31 August, 2015 continued to exist in spite of interim order, passed by the learned Single Bench, the principle of repeal and revival cannot be extended to the present case.
11. Lastly, it was passionately argued that the appellants could not be made to suffer for the acts of the Court and they could not be compelled to pay LPS on the gas dues, the payment of which was not made within time. The underpinning for this argument is the maxim "Actus Curiae Nemi-nem Gravabit" which means that the act of the Court shall prejudice no man. This contention is totally misconceived and thus, liable to be rejected. The quintessence of the above-stated maxim is to undo the wrong done to a party by the act of the Court, for by the law of nature it is fair that no one becomes richer by the loss and injury of another. In legal parlance, this is called restitution and sometimes this is expressed as reversing a transfer of value. This is a tool of corrective justice. The factor attracting the applicability of restitution is not the act of the Court being wrongful or a mistake or error committed by the Court; the test is whether an act of the party persuading the Court to pass an order held at the end as not sustainable, has resulted in one party gaining an advantage it would not have otherwise earned, or the other party suffering an impoverishment which it would not have suffered but for the order of the Court and the act of such party. There is nothing wrong in the parties demanding to be placed in the same position in which they would have been, had the Court not intervened by its interim order, when at the end of the proceedings, the Court pronounces its judicial verdict which does not match with and countenance its own interim order. The injury, if any, caused by the act of the Court then shall be undone and the gain which the party would have earned unless it was interdicted by the order of the Court would be restored to or conferred on the party by suitably commanding the party liable to do so, otherwise the party would continue to get benefit of the interim order even after losing the case in the Court[7].Mindful of the above position of law, we now have to see who had suffered due to the interim order granted by the learned Single Bench in the writ petitions, filed by the appellants challenging the Notification dated 31st August, 2015 and the decision dated 6th July, 2020 made by the OGRA. The answer is obvious, it is the SNGPL and not the appellants. It now stands established that though the appellants had liability to pay on the basis of revised tariff, they had not paid on such basis because of the interim order of the learned Single Bench. The appellants are ongoing business concerns and must have utilized the money, saved on account of the interim order, gainfully in their commercial activities. The SNGPL had to suffer financial loss because of the interim order. The SNGPL required funds to meet its expenses for supply of the gas. The appellants being consumers of the SNGPL were required to pay the bills promptly and any delay in making the payment caused loss to the SNGPL. By the interim order granted by the learned Single Bench, the SNGPL could not get the payment of gas as per revised tariff from the appellants by the due date.
After the writ petitions were dismissed and the Notification dated 31st August, 2015 was upheld by this Court, the SNGPL was entitled not only the balance of the gas charges but also to LPS to meet its financial commitments. The above-stated maxim, as such, cannot be pressed into service in favour of the appellants, rather it is to be applied to protect the interest of the SNGPL.
12. In the result, these appeals fail and are hereby dismissed.
1. M/s. Suraj Cotton Mills Ltd. through Mr. Adil Bashir, etc. v. Federation of Pakistan, etc. (PLD 2021 Lahore 483)
2. (1997) 5 SCC 772
4. Quinn v. Leathem (1901 AC 495)
5. Rodger v. Comptoir D' Escompte de Paris (1871) LR 3 PC 465 Style (Dress Land) v. Union Territory, Chandigarh (1999) 7 SCC 89st
6. Baz Muhammad Kakar and others v. Federation of Pakistan (PLD 2012 SC 870)
7. Rodger v. Comptoir D' Escompte de Paris (1871) 3 PC 465 Peel (Regional Municipality) v.
Canada (1992) 3 SCR 762 Kingstreet Investments Ltd. v. New Brunswick 2007 SCC1