MUHAMMAD SAJID MEHMOOD SETHI, J. Through instant appeal, appellant has assailed order dated 27.10.2021, passed by respondent No.2 / Oil and Gas Regulatory Authority ("OGRA"), whereby appellant's licence was revoked and it was directed to refund the fees / franchise fee received from its retail outlets franchises and release the sites / issue NOC in favour of another Oil Marketing Company ("OMC"), on the ground that appellant has not developed the volumetric storage infrastructure as per its commitment and has no backup storage for 20 days, thereby violating condition (ii) of Provisional License.
2. During proceedings of the appeal, this Court vide order dated 14.07.2022 directed the appellant to file an appropriate application before respondent-OGRA, for extension of provisional license in the light of letter dated 01.02.2022. For ready reference, aforesaid order dated 14.07.2022 is reproduced hereunder:- "Learned counsel for appellant has placed on record copy of letter dated 01.02.2022, to contend that respondents have granted extension in time period for completion of work till 31.12.2023, for grant of provisional license of OMCs. Relevant part of sect letter is reproduced below:-
2. It is informed that the Authority has examined the cases of extension under the applicable Law / Rules and current scenario vis-e-vis pending Litigation before Honorable Lahore High Court, Lahore in ICA-47386/2021 titled Byco Petroleum Pakistan v. FOP and connected ICAs. The Authority has now, in principle, decided that extension / renewal in provisional licenses of OMCs be granted till 31- 12-2023 for completion of the work programme in exercise of powers conferred vide Section 22 of OGRA Ordinance read with Rule 35(2) of Pakistan Oil Rules, 2016. Accordingly, cases of renewal said provisional licenses are being processed after completion of formalities."
Further submits that he will be satisfied if respondents are 'directed to consider the application of appellant, if any filed, in the light of aforesaid letter and if case of appellant is at par with others whom said relief has already been granted, the same treatment may also be granted to appellant.
2. When confronted, learned counsel for respondent-OGRA has not opposed the above request of learned counsel for appellant.
4. In view of above, I am inclined to district appellant to file an appropriate application before respondent-OGRA for extension of provisional license in the light of afore-referred letter and if any such application is moved, the same shall be decided strictly in accordance with law, without any discrimination and without being influenced by the findings recorded in impugned order. Needless to say that if case of appellant is at par with others whom said relief has already been granted, the same treatment shall be given to appellant as well. Compliance report in this regard shall be submitted before this Court on the next date of hearing:
5. Relist."
Pursuant to the aforesaid order, respondent-OGRA passed order dated 04.10.2022, whereby it refused to grant extension in, the Provisional License to the appellant being not at par with others whom such relief was granted. Relevant portion of- said order is reproduced hereunder: - DECISION Having perused the documents on record, arguments heard, the Authority hereby decides the matter of grant of extension in provisional license of M/S AOSPL as under:- It has been alleged by F.I.A. in F.I.R. No.80/2021 dated 29.10.2021 that, "7th and 8th extensions were granted by OGRA to M/s Askar Oil Service; contrary to rule 35 of the Oil Rules, 2016 and in violation of Licensing conditions relating to 20 days storage facility". The allegations levelled in the FIR No.80/2021 cannot be resolved by the Authority having no jurisdiction under the OGRA Ordinance, 2002. It may not be out of context to mention here that pursuant to aforesaid F.I.R. former Member Oil and Member Gas were arrested by F.I.A. and remained under custody for about three months.
Therefore, in the given circumstances, we are not inclined to grant extension in the Provisional License to M/s Askar Oil Services as the case of M/s Askar Oil Services is proved to be not at par with others whom such relief was granted. Accordingly, application dated 04.08.2022 filed by M/s Askar Oil Service is hereby turn down."
3. Learned counsel for appellant submits that despite remission of the matter to respondent-OGRA, the issue regarding discriminatory treatment having been meted out to appellant, has not been addressed in spite of the fact that similarly placed 24 other companies have already been granted extension of provisional license. He argues that appellant has been declined the extension mainly on two grounds i.e. registration of FIR No.80/2021 by the F.I.A. alleging therein that 7th and 8th extensions were granted by respondent-OGRA to the appellant in contravention to Rule 35 of the Oil Rules, 2016 and in violation of Licensing conditions relating to 20 days' storage facility. He reiterates that case of the appellant is at par with those to whom call up notices were issued and the Hon'ble Division Bench of this Court granted injunctive order, however, unfortunately appellant could not timely approach the Court and in the meanwhile, FIR was registered. He adds that in terms of the aforesaid injunctive order, 'similarly placed other companies have already been granted identical relief, however, this aspect of the matter has not been properly thrashed out by respondent-OGRA while passing impugned order. In support, he has referred to Shaukat Ali and others v. Government of Pakistan through Chairman, Ministry of Railways and others (PLD 1997 Supreme Court 342), Province of Punjab through Secretary Punjab Public Prosecution Department and another v. Muhammad Rafique and others (PLD 2018 Supreme Court 178), Ch. Ahmed Nadeem v. Abdul Qayyu m and another (PLD 2016 Islamabad 98) and Muhammad Khalid Javed and others v. Lahore Development Authority and others (PLD 2021 Lahore 211).
4. Contrarily, learned Legal Advisor for respondent-OGRA as well as learned Law Officer defends the impugned order by contending that pursuant to this Court's direction vide order dated 14.07.2022 supra, appellant's application has been decided and if appellant still feels aggrieved, it should have assailed OGRA's order by filing separate proceedings instead of filing objections. He adds that even otherwise, appellant's case is distinguishable from other companies as previously eight extensions were granted to it and even otherwise, an FIR has been registered in this regard by the Federal Investigation Agency, whereof two of the former members of OGRA were arrested and remained behind the bars for about three months. While negating the impression of discrimination, learned Legal Advisor for respondent OGRA contends that the only OMC, against whom criminal proceedings are pending, is M/s Fossil Energy (Pvt.) Limited and no extension of, license has been granted to said OMC in line with the policy letter dated 01.02.2022.
5. Arguments heard. Available record perused:
6. Perusal of record shows that action for violation of various provisions of law was taken by the F.I.A. against as many as 14 companies and they approached the Court and in Intra Court Appeal No.47386 of 2021; the Hon'ble Division Bench of this Court vide consolidated order dated 24.08.2021, granted injunctive order restraining the respondents from taking any adverse action against the appellants therein.
7. Later on, in ICA No.67758 of 2021, filed by the appellant herein, the Hon'ble Division Bench of this Court, vide order dated 01.11.2021, passed injunctive order to the effect that following the rule of consistency in the meanwhile, no coercive measures shall be taken against the Appellant till the next date of hearing, therefore, prima fade it appears that the cases of all OMCs; including those whose appeals were pending, without any distinction of having FIR been lodged or not, were to be taken at par and given extension in the provisional licence accordingly. Apparently, issue regarding discriminatory treatment has not been properly addressed and looked into by respondent-OGRA while passing impugned order. So far as OGRA's reference to the case of M/s Fossil Energy (Pvt.)
Limited, is concerned, suffice it to say that action against the other OMCs was taken pursuant to the inquiry against all of them, however, appellant has not been treated alike while passing order for revocation of its licence.
8. At this stage, it would not be out of context to mention here that while granting extension to the other OMCs, certain time was also granted to them to complete their work programme/storage, which would, be followed by third party inspection, and most importantly, aforesaid extensions were granted subject to the decision of pending ICAs filed by the OMCs. Appellant is also seeking similar relief of extension of its provisional licence subject to the decision of its pending ICA.
9. Needless to observe here that every citizen and every person for the time being in Pakistan enjoys protection of laws of the land. Such laws and the Constitution are like a protective shield guarding life, liberty, reputation, body and property of persons within Pakistan. Any action adverse to rights of a person must, therefore, be through the mechanism or in accordance with laws which protect such persons. To be treated in accordance with law is to proceed against a person strictly under the law which provides protection to the person in the first place. Right to fair trial under Article 10-A of the Constitution further buttresses Article 4 of the Constitution. Right to fair trial provides for determination of civil rights and obligations of a person through a fair trial and due process. Executive action, instructions or policy, no matter how well intentioned, cannot hold ground, unless those are backed by law. In this case, appellant's licence has been revoked without issuing due notice of revocation, which must have been given to the licensee. Reference is made to FLEX-O-SIGN through Managing Director v. Liaqat Chaudhry and another (2006 CLC 1534) and Ch. Muhammad Nazir Cheema v. Mujahid Sher Dil DCO/Chairman, District Task Force Sialkot and 3 others (2012 CLC 764). While dealing with somewhat similar situation, another learned Bench of this Court, in the case reported as MCR (Pvt.) Ltd. Franchisee of Pizza Hut v. Multan Development Authority and others (2021 CLD 639), aptly observed as under:- "28. Undoubtedly freedom of trade, business and commerce is a fundamental right guaranteed under Article 18 of the Constitution which states that every citizen shall, have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business. One of the basic purposes behind provision of this fundamental right is certainly to advance culture of socio- economic progress and to protect and promote business and trade activities and at the same time, to encourage simplification of the process of establishing and carrying out new business ventures throughout the country because activities of business and trade create opportunities for the masses around and provide job options, financial stability and progress in the area."
[emphasis supplied]
10. As concerns OGRA's argument regarding separate proceedings/appeal against order dated 04.10.2022 passed against appellant during proceedings of instant appeal instead of filing objections, undoubtedly, this Court can take notice of the events which took place during pendency of the proceedings, however, where due to subsequent events, the original relief sought becomes inappropriate for deciding the controversy the amendment can be allowed to shorten the litigation but neither any such request was made by learned counsel for appellant nor any separate appeal was filed against said order. In such situation, vires of aforesaid order cannot be examined in the instant appeal, however since the direction passed by this Court was not complied with vis-a-vis discriminatory aspect. I am inclined to remit the matter to respondent-authority to reconsider in the light of observations recorded in this order.
11. In view of the above and technical objection raised by respondents noted in the preceding paragraph, instant appeal is allowed to the extent that case of the appellant shall be reconsidered and finalized in the light of observations noted hereinabove, without being influenced by the previous orders, and if need be, proper opportunity of hearing to appellant and all concerned shall be provided. The aforesaid exercise shall be completed within a period of fifteen days from the date of receipt of certified copy of this order. Compliance report shall be furnished to this Court through Deputy Registrar (Judicial).