WIQAR AHMAD, Through instant constitutional petition, petitioner has challenged legality of the order of Deputy Commissioner, Haripur, (herein respondent No.1), dated 6.3.2023 whereby he suspended No Objection Certificate dated 2.3.2006 earlier issued to the petitioner for grant of license for the establishment and operation of CNG Filling Station.
2. Facts, as stated in the petition are that petitioner and respondent No.8 entered into an agreement with respondent No.7 for lease of an area of 3 kanals for the installation of CNG Filling Station. Later on respondent No.8 surrendered his lease rights in favour of the petitioner, and he constructed CNG filling station at the demised area after getting license in pursuance to NOC dated 2.3.2005 from respondent No.!, the Filling Station started its function with the name and style of "Bismillah CNG Filling Station" . In the meanwhile, respondent No.7, entered into some transaction of sale of some area including some area beneath said CNG with petitioner, in which regard hefty amount was statedly paid to respondent No.7 and a deed was also executed on 30.8.2017. It is also contended in the petition that respondent No.7, was reluctant to get the deed registered in the name of petitioner and was doing shilly-shallying in this regard. Respondent No.7 was further alleged to have entered into an agreement to sell with a third party which compelled the petitioner to file a suit for Specific Performance of the agreement before civil court at Haripur which was pending adjudication. As a counter blast, respondent No.7 too filed a suit for recovery of rent etc against petitioner. During pendency of both suits, respondent No.7 moved an application to respondent No.1(Deputy Commissioner Haripur) for the cancellation of NOC and respondent No.1 after getting reports etc from respondents No.2 to 6, unilaterally issued impugned order on 6.3.2023 whereby NOC already granted to petitioner for installation of CNG Filling Station was suspended.
Petitioner has filed instant constitutional petition with the following prayer:- "It is, therefore, prayed that on acceptance of this writ petition, the impugned order of respondent No.1 may graciously be set aside"
Arguments heard and record perused.
3. Perusal of record reveal that the Deputy Commissioner Haripur, vide impugned order dated 6.3.2023 has ordered suspension of the NOC earlier issued to the petitioner on 2.3.2006. Petitioner in case in hand is aggrieved of suspension of the NOC by the Deputy Commissioner Haripur. It needs to be mentioned here that after issuance of NOC, other steps had also been taken in the shape of issuance of license to the petitioner by the OGRA authorities. Said license has also been kept intact and valid till date. It is also an admitted fact between the parties that a CNG Filling Station had been constructed and was doing its normal business when out of a blue, its NOC has been suspended. The tone and tenor of the order also indicates that operation of the CNG was apprehended to be likely to cause a dispute between the two conflicting parties and therefore, due to apprehension of breach of peace, operation of the CNG have also been stopped through the impugned order dated 16.3.2023 which is reproduced for ready reference :- "In light of the recommendations of the District Police Officer, Haripur vide Memo No.880 dated 23.2.2023 and Additional Assistant Commissioner-I, Haripur, vide report bearing No. 2633 dated 16.1.2023, No objection Certificate (NOC) issued by this office vide Memo bearing endorsement No.AII/PET/CNG /7/5641-47/DCO(H), dated 2.3.2006 in respect of M/s Bismillah CNG Filling Station C/O its partners Muhammad Akhtar Khan and Syed Mubashar Ahmad situated at Thana Chocha Lora Chowk Tehsil and District Haripur is hereby temporarily suspended due to dispute/ confliction between both the parties on the operation of the said CNG station which can also disturb the law and order situation in the area as per reports of the local police till final decision of the court and settlement of dispute between the parties."
4. Petitioner in the instant petition has alleged that initially respondents have intervened in a private dispute between the petitioner and respondent No.7 and that at the behest of the latter, they have stopped operation of the CNG with malafide intention in order to pressurise petitioner to surrender to the demands of respondent No.7, with whom he had been locked in civil litigation.
Learned counsel representing the respondents raised a preliminary objection qua maintainability of the instant constitutional petition by stating that NOC has been issued in the name of Bismillah CNG Station which was a partnership between petitioner and respondent No.8, while instant petition has been filed by petitioner in person and same was, therefore, not maintainable.
According to learned counsel for respondents, the writ petition should have been filed in the name of partnership. In response thereto, learned counsel for the petitioner produced attested copies of order in a civil suit and contended that firstly the firm has been un-registered one and secondly same has no more been existing, after being dissolved way back in the year 2011. Learned counsel for the petitioner also relied on the judgment of the Honourable Supreme Court reported as PLD 2004 SC-271 (Brig. Muhammad Bashir Vs Abdul Karim and others) and contended that technicalities should not be allowed to defeat the valid cause of grievance on the basis of which instant writ petition has been filed. This objection shall be addressed in the later part of the judgment.
5. Coming back to crux of the dispute in hand, we would like to address the question whether Deputy Commissioner Haripur/respondent No.1 was having lawful authority for suspension of NOC in respect of private business of petitioner on the ground mentioned in the impugned order.
Genesis of power of the Deputy Commissioner to grant NOC may be traced to the Petroleum Rules, 1937, herein referred to as Rules. Under Rule-115 of the Rules, NOC from the Deputy Commissioner is required. Said rule being relevant is reproduced as under:- "115. Grant of licence.-- (1) Licences for importation and storage may be granted by the licensing authorities set forth in Schedule I in the forms, for the purposes, and on payment of the fees, specified therein.
(2) A licence in Form H may be granted for such period as the licensing authority may deem necessary subject to a maximum of twelve months. Every other licence granted or renewed under these rules shall remain in force until the 31st day of December of the year for which the licence is granted or renewed.
(3) Where the licensing authority is the Chief Inspector, an applicant for a new licence may apply to the District Authority for a certificate to the effect that there is no objection to the applicant receiving a licence for the site proposed and the District Authority shall, if he sees no objection, grant such certificate to the applicant, who may forward it to the Chief Inspector with his application in Form D.
(4) The Chief Inspector may refer an application not accompanied by a certificate granted under sub-rule (3), to the District Authority for his observations.
(5) If the District Authority, either on a reference being made to him or otherwise, intimates to the Chief Inspector that any licence which has been applied for, should not in his opinion be granted, such licence shall not be issued without the sanction of the Federal Government.
(6) No licence in Form H shall be granted except to a person holding a licence in Form I.
(7) In the case of a licence granted for storage one copy of the plan or plans of the storage premises signed in token of approval by the licensing authority shall be attached to the licence and one copy shall be filed for record in the office of the licensing authority.
(9) For installation of a CNG station at any existing petrol pump, no additional NOC shall be required except permission for construction and installation and licence for its operation, from the Department of Explosives.
(10) For installation of a stand-alone CNG station at raw sites or new locations, NOCs from the following authorities shall be required, namely:--
(a) Gas Utility Company;
(b) Civil Defence; and
(c) Tehsil Municipal Officer.
(11) The permission for construction and installation of CNG station alongwith plan approval shall be granted by Chief Inspector of Explosives under the Petroleum Act, 1934 (XXV of 1934) and the Explosives Act, 1884 (IV of 1884).
(12) All authorities concerned for the issuance of permission or NOCs of licenses or otherwise shall decide the case within one month of the receipt of the request for installation of a CNG station."
6. NOC from the District Authorities is required so as to enable a licensing authority (OGRA) to take an informed decision regarding feasibility of construction of petrol pump or CNG Station, at the time of granting license. An important thing to be noted in these rules is that no power has been vested for withdrawal of NOC by the Deputy Commissioner or other authorities from whom NOC is required prior to the issuance of the licence. The purpose of obtaining NOC from the District Authorities is to enable the licensing authority to take further decision regarding grant or refusal of the license. Since local authorities are better informed about conditions of proposed site of petrol pump or CNG Filling Station, its risks, hazards and adverse affects on the surrounding population, therefore such NOCs have been required under the Rules. Rule 121 of the Petroleum Rules, 1937 which deals with the cancellation of license, is also relevant here and therefore reproduced as under :- "121. Suspension or cancellation of licence. Every licence granted under these rules shall be liable to be suspended or cancelled by order of the licensing authority for any contravention of the Act or of any rule thereunder, or of any condition contained in such licence.
(2) A licensing authority suspending or cancelling a licence shall record his reasons for so doing in writing.
(3) A copy of the order containing the reasons for the suspension or cancellation of a licence shall be given to the holder of the licence on payment of a fee of Rs.25/-."
7. In the process of cancellation of license, the District Authorities figures nowhere. Even if District Authorities have any objection subsequent to the grant of NOC and license, same may be placed before the licensing authorities and order relating to grant or suspension of license may only be made by the licensing authority. Interpreting these rules the other way, may result into absurdity and may produce illogical consequences; e.g. NOC by a TMO is mainly required for the purpose of allowing construction and erection of superstructure at the proposed site but once the NOC is granted and the construction is also carried out on the spot then it cannot be held that TMO would be able to withdraw the NOC and order removal of the entire structure. The matter of encroachment or alteration in the construction plan is a different issue which is not the case in hand so far as withdrawal or suspension of already granted NOC is concerned. Similarly, when local authorities i.e. Deputy Commissioner once grants NOC for the construction of CNG filling station then the matter of its withdrawal or suspension can only be considered and decided by the licensing authority under Rule 121 of the Rules. Under Article 18 of the Constitution of Islamic Republic of Pakistan, 1973, every citizen of the state has Fundamental right to flourish or develop his business and such right cannot be left at the discretion and sweet will of the district authorities or other similar officers. Once requirements of law are fulfilled and necessary license required under the law, is granted then the District Authorities or the Deputy Commissioner has not been left with power to create hurdle in the conduct of such lawful business. In the case in hand a private dispute with the respondents has been made a ground for issuance of the impugned order. Settlement of private disputes between the parties, particularly relating to their business transactions or matters relating to property rights, is not the job of Deputy Commissioner and DPO. Even if any such dispute in such like matters arises, civil courts are very much available and the parties have already made recourse to such courts. Even if any interim measure is required for settling such dispute, same may be sought from the concerned civil court. Exception has been available under the provisions of sections 145 and 146 Cr.P.C. but such powers are also liable to be supervised by the concerned Judicial Magistrate and in the case in hand resort has not been made to such provisions of law.
8. Learned counsel representing the respondents when asked under what provision of law, respondent No.1 has issued the impugned order, he relied upon the provision of Section 21 of the General Clauses Act. True that Section 21 of the General Clauses Act provides power to the authorities to rescind or annul or withdraw the order made in exercise of lawful power but such locus Poenitentiae of the authorities may not be used in the case in hand by the Deputy Commissioner. Final authority in the case has not been the Deputy Commissioner but the Licensing Authority i.e. OGRA, as explained above. Locus Poenitentiae vests in OGRA to the effect that even if Rule 121 had not provided for their power to cancel the license, such authority would be construed to be having such power under Section 21 of the General Clauses Act; which also would have been subject to the riders created through various judgments of the Honourable Supreme Court on the exercise of such powers. But here it is not the case. Deputy Commissioner had got no locus Poenitentiae in the case in hand to rescind the NOC once granted and on the basis of which further steps had also been taken and license issued under Rules 114 and 115 of the Petroleum Rules, 1937.
This court while giving its earlier judgment in the case of Abdul Wakeel and 5 others Versus Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and 9 others ( PLD 2021 Peshawar 191 ) in the matter of subsequent withdrawal of NOC given by the Advocate General under sections 91 and 92 CPC for institution of a suit, had held that once a suit had been instituted and progressed in the civil court, such permission could not be allowed to be withdrawn by the Advocate General unilaterally.
Relevant observations given in said judgment are also reproduced herein in below:- "14. Another aspect of the case is that when consent is granted and suit is instituted then the provisions of CPC regulating the progress of suit becomes applicable, stage to stage. Nowhere in CPC it has been provided that progress of the suit shall be subject to consent or pleasure of the Advocate General or that he may terminate such proceedings at his will. If the powers of the Advocate General to withdraw his consent in a pending suit, are conceded, it would carry the effect of allowing the Advocate General to terminate the proceedings at any stage whether it is fixed for final arguments or order of the Court and even at the stage of a pending appeal in the suit. Such a power would vest the Advocate General or an administrative officer authorized under section 93 CPC to interfere in the judicial proceedings and to cause its termination before the civil Court and even before the appellate Court, be that a High Court of the province.
Resolving the matter in this way would naturally produce absurd consequences. This is cardinal principle of interpretation of statutes that such interpretation cannot be placed upon provision of a statute which produces absurd consequences. A Para from a leading authority on the subject i.e. "Maxwell on Interpretation of the Statutes" (Twelfth Edition by P.St. J.Langan) may be quoted here with benefit; "All intention to produce an unreasonable result is not to be imputed to a statute if there is some other construction available. Where to apply words literally would defeat the obvious intention of the legislation and produce a wholly unreasonable result. We must do some violence to the words and so achieve that obvious intention and produce a rational construction."
In the case of Muhammad Hashim Khan vs. Major Fazal Ellahi Khan reported as PLD 1959 (W.P.)
Quetta], the Hon'ble High Court has held that there has always been a presumption against absurdity in statutes. Almost similar view has also been expressed in the case of Sheikh Abdul Majid and others vs. Bhudar Chandra Ghosh and others reported as PLD 1964 Dacca 756, where the Hon'bk High Court has held that a Court could presume that legislature had not intended the absurdity. The principle of presumption against absurdity occurring in the language of a statute, has also been upheld by the Ilon'bk Supreme Court of Pakistan in the case of Khalid Oureshi and 5 others vs. United Bank Limited 1.1. Chundrikar Road, Karachi reported as 2001 SCMR 103."
9. Learned counsel for the respondents also relied upon the provisions of Section 15 of the Khyber Pakhtunkhwa Civil Administration (Public Service Delivery and Good Governance) Act, 2020, but to our understanding, said provision was also of no help to the respondents. Section 15 of the Act empowers the Deputy Commissioner to maintain public order but said powers cannot be construed to be covering making any order in private disputes of two persons which amounts to usurping powers of other statutory bodies like OGRA in the case in hand. When law provides special powers to an authority for dealing with specific matter, same cannot be allowed to be carried by the Deputy Commissioner in the garb of exercise of powers of maintaining peace and public order, under section 15 of the Act.
10. So far as objection of learned counsel for the respondents regarding maintainability of instant petition is concerned, same was totally ill-conceived because the partnership firm was firstly un- registered and therefore not competent to bring constitutional petition before this court. The firm had already been dissolved, according to learned counsel for petitioner, but keeping that aspect aside even if that arrangement had still continued, petitioner being proprietor of the CNG filling station was equally competent to bring his grievance before this court in its constitutional jurisdiction. What was required under Article 199 of the Constitution was that the person should be an aggrieved person .The Honourable Supreme Court while giving its judgment in the case of Brig.
Muhammad Bashir Vs Abdul Karim and others ( PLD 2004 Supreme Court - 271) has held that citizens of the country cannot be deprived of fundamental rights. Their fundamental rights and guarantees given to them under the Constitution were protected. It has also been held by the august Apex Court that technicalities should not be allowed to prevent a High court from exercise of its constitutional jurisdiction.
Relevant observations recorded in the said judgment are also reproduced for ready reference:- "It is well settled by now that "Article 199 casts an obligation on the High Court to act in aid of law, protect the rights or the citizens within the framework of the Constitution against the infringement of law and Constitution by the executive authorities, strike a rational compromise and a fair balance between the rights of the citizens and the actions of the State functionaries, claimed to be in the larger interest of Society. This power is conferred on the High Court under the Constitution and is to be exercised subject to Constitutional limitations. The Article is intended to enable the High Court to control executive action so as to bring it in conformity with the law. Whenever the executive acts in violation of the law, an appropriate order can be granted which will relieve the citizen of the effects of illegal action. It is an omnibus Article under which relief can be granted to the citizens of the country against infringement of any provision of law or of the Constitution. If the citizens of this country are deprived of the guarantee given to them under the Constitution, illegally or, not in accordance with law, then Article 199 can always be invoked for redress". (Ghulam Mustafa Khar v. Pakistan and others PLD 1988 Lah. 49, Muhammad Hussain Khan v. Federation of Pakistan PLD 1956 Kar. 538(FB), S.M. Yousuf v.
Collector of Customs PLD 1968 Kar.599 (FB). It is to be noted that "paramount consideration in exercise of Constitutional jurisdiction is to foster justice and right a wrong". (Rehmatullah v.
Hameeda Begum 1986 SCMR 1561, Raunag All v. Chief Settlement Commissioner PLD 1973 SC 236). There is no cavil with the proposition that "so long as statutory bodies and executive authorities act without fraud and bona fide within the powers conferred on them by the Statute the judiciary cannot interfere with them. There is ample power vested in the High Court to issue directions to an executive authority when such an authority is not exercising its power bona fide for the purpose contemplated by the law or is influenced by extraneous and irrelevant considerations. Where a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, the High Court in the exercise of its writ jurisdiction has ample power to grant relief to the aggrieved party". (East and West Steamship Co. v. Pakistan PLD 1958 SC (Pak.)
41). In our considered view, technicalities cannot prevent High Court from exercising its Constitutional jurisdiction and affording relief which otherwise respondent is found entitled to receive."
11. The objection raised regarding maintainability of the case in hand is neither tenable nor could it prevent this Court from issuing the writ when petitioner has otherwise made out a case.
12. In the light of what has been discuses above, we allow instant petition and set aside the impugned order of the Deputy Commissioner, Haripur, dated 6.3.2023.