The instant as well as connected C.P. No.(S) 175/2019 and C.P. No. 1595 2021 have been filed by practicing Advocates in public interest litigation raising multiple issues faced by numerous consumers of Sui Southern Gas Company Limited (`SSGC') in the province of Balochistan which have been attended on different dates.
2. With regard to issue of removing gas meters of the consumers in their absence by the staff of SSGCL for forensic, on 20.12.2021 Mr. Kamran Murtaza Advocate learned counsel for SSGCL made statement on behalf of SSGCL that from now onwards no gas meter will be removed by the staff of SSGCL without associating the consumer and in case, the consumer is non-cooperative, deliberately disappears or puts resistance, SHO of the concerned area will be taken on board by the staff of SSGCL and during forensic of gas meter the consumer will be associated by SSGCL by issuing notice with specified time, date and place of forensic.
3. On the above date, i.e. 20.12.2021, learned counsel for SSGCL stated that if any gas meter of the consumer has been removed . without notice of consumer previously, the consumer is at liberty to approach the customer service of SSGCL which will be made more effective and responsive by SSGCL from 8:30 a.m to 5:00 p.m with break of two hours from 1:00 pm to 3:00 p.m for Zohar Prayer and lunch and positive response will be made to the genuine complaints within 15 days.
4. On the above date, when the petitioners drew attention of this court on the issue of levying Passing Unregistered Gas (PUG)/Slow Meter Gas Charges upon numerous consumers of SSGCL at different rates on the basis of mere suspicion of passing unregistered natural gas/slow meter, learned counsel for SSGCL requested for an opportunity to assist the Court.
The request so made was accepted and the petitions were fixed for 21.12.2021.
5. On 21.12.2021 before rendering assistance to the Court on the issue of levying PUG/Slow Gas Meter charges upon numerous onsumers of SSGCL on suspicion basis, learned counsel for SSGCL raised objection on maintainability of the constitution petitions against the SSGCL on the ground that SSGCL is a Company registered with Securities and Exchange Commission of Pakistan and as such it is not amenable to constitution jurisdiction under Article 199 of the Islamic Republic of Pakistan, 1973 (hereinafter "the Constitution").
6. In support of his contention learned counsel for SSGCL relied upon the following cases:
1. Khursheed Ali v. Abdul Malik, 1991 SCMR 1944.
2. Ruhksana ljaz v. Secretary Education, 1997 SCMR 167.
3. Javed Hussain Shah v. Government of Punjab, 1998 SCMR 220.
4. Asadullah Rashid v. Muhammad Nawaz Munir, 1998 SCMR 2129
5. Secretary to the Government of Punjab v. Ghulam Nabi, PLD 2001 SC 415.
6. Lahore Development Authority v. Firdos Steel, 2010 SCMR 1097.
7. Najeeb ud Din Owaisi v. Aamir Yar, 2011 SCMR 180.
8. Anjuman Fruit Arhtian v. Deputy Commissioner, 2011 SCMR 279.
9. Rai Ashraf v. Muhammad Saleem Bhatti, PLD 2010 SC 691.
7. In rebuttal the petitioners stated that in all the constitution petitions multiple grievances of numerous consumers of SSGCL in the province of Balochistan have been agitated in the public interest and question of public importance as well as infringement of fundamental rights of the numerous consumers of SSGCL are involved and besides SSGCL, Oil and Gas Regulatory Authority (`OGRA') and Federation of Pakistan are also party to the petitions and as such the constitution petitions are maintainable against SSGCL for the reliefs claimed for.
8. The petitioners further contended that SSGCL is State controlled Company and while performing functions of the Federation/State, it falls within the definition of "person" within the purview of Article 199 of the Constitution.
9. In support of their contention, the petitioners have relied upon the following cases:
1. Civil Aviation Authority v. Javed Ahmed, 2009 SCMR 956.
2. Pakistan Defense Officer Housing Authority v. Jawaid Ahmed, 2013 SCMR 1707.
3. Human Right case No.3654/2018, 2019 SCMR 1.
4. Suit Southern Gas Company Limited v. Imdad Ali Pathan, 2020 SCMR 1259.
10. In rebuttal to the above, learned counsel for SSGCL stated that though OGRA and Federation of Pakistan are party to the petitions but no relief has been claimed by the petitioners against both.
11. Learned counsel for SSGCL further stated that the aggrieved consumers have the alternate remedies of approaching the Consumer Courts as well as OGRA under sections 6, 11, 12 and 43 of the OGRA Ordinance, 2002.
12. While addressing the issue of levying PUG/Slow Gas Meter Charges to the consumers by SSGCL in the monthly bills, learned counsel for SSGCL conceded that the term "PUG/Slow Meter Gas Charges" has not been specifically mentioned or defined by name in the memo. of agreement which is executed by each consumer with SSGCL or in the Natural Gas Consumer Services Manual (hereinafter "The Manual"), but the term PUG/Slow Gas Meter Charges fall under clauses 3.2.6 and 3.2.24 of the Manual and it is a kind of provisional bill.
13. The above has strongly been contested by the petitioners on the ground that the above referred clauses of the Manual are not at all attracted for levying PUG/Slow Gas Meter Charges.
It was contended by the petitioners that same are levied on numerous consumers of SSGCL on mere suspicion on the basis of less meter reading in particular month(s) as compared to the higher meter reading in the previous months.
14. After hearing learned counsel for the parties and Mr. Madani Siddique General Manager- Incharge (`GM-I') SSGCL assisted by Mr. Kashif Siddiqui Chief Engineer SSGCL Quetta on 21.12.2021, we have perused the available record and have gone through the case laws relied upon by the learned counsel for SSGCL and the petitioners.
15. SSGCL is a State-Owned Entity (hereinafter "SOE") and its name exists as SOE at Sr. No.7 in the list of SOEs issued by Finance Division Government of Pakistan. It further reveals that Federal Government is the majority shareholder of SSGCL and is responsible for its management control.
The Ministry of Petroleum and Natural Resources is engaged in the administration of SSGCL.
16. In the case of Pakistan Defense Officers Housing Authority v. Jawaid Ahmed 2013 SCMR 1707 relied upon by the petitioners, it has been held as follows by the Hon'ble Supreme Court: "20. While dilating on this question whether the appellants' organizations are "persons" within the meanings of Article 199(1) (a) (ii) read with Article 199(5) of the Constitution, the expanded functions of the Federation or a province in contemporary age have to be kept in view. An important dimension of the modern welfare State is that the role of the State and its various institutions has increased manifold. The government is regulator and dispenser of special services. It has the power to create jobs, issue licenses, fix quotas, grant mining rights or lease of estate, sign contracts and provide variety of utility services to the people. Such entrepreneurial activities at times are carried out through companies created under the Statute or under the Companies Ordinance. The functions these companies institutions perform have elements of public authority. A public authority is a body which has public or statutory duties to perform and which performs those duties and carries out its transactions for the benefit of the public and not for private gain or profit. Such an authority, however is not precluded from making a profit for the public benefit. The Courts have generally applied what has been classified as a 'function test to consider whether a statutory body is a 'person' within' the meaning of Article 199 of the Constitution. In Salahuddin v. Frontier Sugar Mills and Distillery Ltd. (PLD 1975 SC 244), the Court laid down similar test to assess whether a body or authority is a person within the meaning of Article 199 of the Constitution and observed:- "The primary test must always be whether the functions entrusted to the .organization or person concerned are indeed functions of the State involving some exercise of sovereign or public power; whether the control of the organization vests in a substantial manner in the hands of Government; and whether the bulk of the funds is provided by the State. If these conditions are fulfilled, then the person, including a body politic or body corporate, may indeed be regarded as a person performing functions in connection with the affairs of the Federation or a Province; otherwise not".
The above view was also affirmed by the Hon'ble Supreme Court in the case of Aitchison College Lahore through Principal v. Muhammad Zubair, PLD 2002 SC 326.
The same view was expressed by the Hon'ble Supreme Court in the case of Pakistan International Airlines v. Tanweer-ur-Rehman, PLD 2010 SC 676 by laying down a similar three-pronged test as follows:
(i) Whether the functions entrusted to the organization or person concerned are indeed functions of the State involving some exercise of sovereign or public power;
(ii) Whether the control of the organization vests in a substantial manner in the hands of Government; and
(iii) Whether the bulk of funds is provided by the State".
17. In view of the dictum laid down by the Hon'ble Supreme Court in the above referred cases and in the light of "function test" it is concluded that being SOE, SSGCL is performing functions of the Federation/State and is controlled in substantial manner by the Ministry of Power and Natural Resources /Federal Government and as such, being a body corporate under the control of Federal Government, it falls within definition of "person" within meanings of Article 199 (1) (a) (ii) read with Article 195 (5) of the Constitution and as such it is amenable to constitution jurisdiction under Article 199 of the Constitution.
18. For the above reasons, the objection raised by learned counsel for causal for SSGCL about maintainability of the constitution petition under Article 199 of the Constitution against SSGC is overruled.
19. The synopsis of case laws relied upon by learned counsel for SSGCL are as follows:
20. In the referred case of "Khursheed Ali" the issue was pertaining to applicability of Balochistan Tenancy Ordinance, 1978 vis-a-vis jurisdiction of civil Court in a landed dispute between the parties.
In the case of "Ruhksana Ijaz" dispute was related between two civil servants about their transfer/posting and question of applicability of Article 212(2) of the Constitution was involved.
In the case of "Javed Hussain Shah" an interim stay order passed by the High Court in a service matter was challenged before the Hon'ble Supreme Court in view of bar contained under Article 212 of the Constitution.
In the case of "Asadullah Rashid" question of maintainability of constitution petition by a civil servant under Article 199 of the Constitution in respect of terms and view of bar 212 of the In the case of "Secretary to the Government of Punjab" interference by the High Court to resolve disputed question of facts in constitutional jurisdiction under Article 199 of the Constitution was declined.
In the case of "Lahore Developmnt Authority" the issue was related for setting aside a decree on the ground of mis-representation or fraud in exercise of powers under section 12(2) C.P.C.
In the case of "Najeeb ud Din Owaisi", the issue was related to corrupt practices by a Returned Candidate to the parliament in the election by procuring a bogus BA degree.
In the case of "Anjuman Fruit Arhtian" in the light of alleged forgery and fraud, the controversial right and entitlement of petitioner was not attended in constitutional jurisdiction by the High Court under Article 199 of the Constitution on the ground that disputed questions of facts cannot be decided in constitutional jurisdiction.
In the case of "Rai Ashraf" the matter related to dismissal of an application for registering FIR by Ex- Officio Justice of Peace/Additional Sessions Judge was involved.
All the above case laws relied upon by learned counsel for SSGCL are distinguishable and same are not attracted to the facts and circumstances of the instant and connected constitution petitions.
21. The availability of alternate remedy of approaching the Consumer Court or OGRA by the consumers cannot be made a basis to dismiss the instant as well as connected constitution petitions as the same have been filed by practicing Advocates in the public interest for resolving multiple issues related to SSGCL in the province of Balochistan affecting numerous consumers of SSGCL. More-so-over, in all the three constitution petitions this Court is not dilating upon grievance of a particular gas consumer and questions of public importance and legality of levying different charges upon the consumers by SSGCL have been raised by the petitioners in the instant as well as connected constitution petitions.
22. Coming to the issue of levying PUG/Slow Meter Gas Charges in the monthly gas bills of the numerous consumers of SSGCL in the province of Balochistan on suspicion of Passing Unregistered Natural Gas or Slow Gas Meter, learned counsel for SSGCL has conceded that the said levy has not been specifically mentioned or defined by name in the agreement executed by each consumer with SSGCL. However, while relying upon clauses 3.2.6 and 3.2.24 of the Manual, learned counsel for SSGCL has contended that it is kind of a provisional bill and said levy falls under the above clauses of the Manual.
23. Clause 3.2.6 of the Manual reads as follows: "Where the Company is unable to issue a gas bill based on actual meter reading due to:
(a) Premises locked/No response from the Consumer,
(b) Meter not readable,
(c) Meter missing/Building demolished,
(d) No access to meter/Not allowed by Consumer,
(e) Meter defective/Meter index illegible,
(f) Meter passing un-registered gas,
(g) Un-authorized use,
(h) Meter tampered/Seal broke,
(i) Meter installed in reverse position,
(j) Meter reading found negative,
(k) Meter reading found high/abnormal,
(l) Any other reason, The Company will issue gas bills on provisional basis. For estimating the consumption of the Consumer for the month the Company may consider;
(a) Consumer's billing history of last one year (Rolling average),
(b) Seasonal consumption average,
(c) Where reasonable billing history is not available, in case of new Consumer, on connected load basis and or on any other appropriate measurement basis in accordance with the methods in use in the industry generally and recommended by the Gas Measurement Committee of the Natural Gas Department of the American Gas Association, applied in practical manner or any such method as approved by the Authority/Government of Pakistan".
24. Clause 3.2.24 of the Manual reads as follows: "If the Consumer (or any employee/agent of the Consumer) in the Company's sole judgment has attempted to tamper with the meter or has attempted to obtain gas at a higher pressure than maintained by the Company, the Consumer will be liable to pay on demand to the Company such amount as determined by the Company in its sole discretion for such period as determined by the Company."
25. Clause 3.2.6 pertains to issuance of gas bills to the Gas consumers on provisional basis in the circumstances when SSGCL is unable to issue a gas bill on actual meter reading for the circumstances mentioned in the above clause, but levy of PUG/Slow Meter Gas Charges cannot be considered or equated with a provisional bill under clause 3.2.6.
26. Clause 3.2.24 vests discretion with SSGCL to make liable a consumer for such amount as determined by SSGCL who has attempted to tamper with the gas meter or has attempted to obtain gas at a higher pressure than maintained by SSGCL.
The above provision can also not be made a basis to levy PUG/Slow Meter Gas Charges upon the gas consumer.
27. On query by the Court for clarification, GM-I SSGCL admitted that PUG/Slow Meter Gas Charges are levied upon gas consumers on the basis of suspicion when doubt arises about the seal of the SSGCL upon the gas meter, scratches are found on the gas meter or low meter reading is observed as compared to the higher meter reading in the preceding months. GM-I further stated that PUG/Slow Meter Gas Charges are reimbursable subject to verification by SSGCL if the aggrieved consumer approaches the Customer Service Centre of SSGCL.
28. An illustration was put to GM-I SSGCL by the Court that if in a house, eight family members are residing with use of eight gas heaters in eight rooms and three water geezers for months and in a particular month or two, six family members shift to Karachi for two months leaving two family members using only two heaters in two rooms and one water geezer with low meter reading in the particular month(s) whether such consumer will be levied PUG/Slow Meter Gas Charges by SSGCL on suspicion by comparing his higher meter readings for the previous months, the answer was in affirmative with the statement that such levy is reimbursement subject to verification by SSGCL if the concerned consumer approaches the Customer Services Centre of SSGCL which, in our opinion and as per experience of consumers, is undoubtedly a burdensome process for an innocent gas consumer having seal of SSGCL on its gas meter intact and having caused no damage or tampering of the gas meter.
29. Not a single case of any gas consumer was placed before us by SSGCL who has been reimbursed the PUG/Slow Meter Gas Charges after verification by SSGCL.
30. GM-I SSGCL further stated that it is not possible for SSGCL to levy PUG/Slow Meter Gas Charges upon a particular defaulting consumer who has tampered/broken the gas meter seal of SSGCL or who has tampered the meter for low meter reading as SSGCL is facing shortage of manpower and resources.
31. The above reason offered by GM-1 SSGCL cannot be made a basis to levy PUG/Slow Meter Gas Charges in thousands upon numerous gas consumers in the province of Balochistan on the basis of suspicion and pocketing millions of rupees by SSGCL.
Instead, SSGCL should increase its manpower and improve its efficiency for dealing with a particular consumer at fault according to the Manual instead of levying PUG/Slow Meter Gas Charges upon numerous consumers in the province of Balochistan on the basis of suspicion and bothering them with fruitless repeated visits in the office of SSGCL for reimbursement of the wrongly levied PUG/Slow Meter Gas Charges.
32. According to settled principles of law no one can be punished/penalized on the basis of mere presumption or suspicion. According to Article 4 of the Constitution, every citizen has to be dealt with in accordance with law, but the consumers of SSGCL have not been dealt with in accordance with law in the province of Balochistan by SSGCL while levying PUG/Slow Meter Gas Charges on the basis of mere suspicion.
33. For the above reasons, the levy of PUG/Slow Meter Gas Charges upon numerous consumers by SSGCL in the province of Balochistan is declared illegal. SSGCL is restrained forthwith from levying PUG/Slow Meter Gas Charges upon the numerous consumers in the province of Balochistan on the basis of suspicion.
The aggrieved consumers of SSGCL who have previously been levied with PUG /Slow Meter Gas Charges with slow meter GST are held at liberty to approach the Customer Service Centers of SSGCL for reimbursement of the same for which a smooth mechanism shall be evolved by SGCL.
In case of non-redressal of his grievance, the aggrieved consumer of SSGCL may approach the notified Consumer Court/Judicial Magistrate concerned.
However, SSGCL is held at liberty to deal with/take action according to the Manual against a particular consumer at fault who has manipulated or removed the gas meter seal of SSGCL or has manipulated or tampered with the gas meter of SSGCL.
34. In view of the statement made by learned counsel for SSGCL before this Court on 20.12.2021, from now onwards no gas meter will be removed by the staff of SSGCL without associating the consumer.
In case the consumer is non-cooperative, deliberately disappears or puts resistance, SHO of the concerned area will be taken on board by the staff of SSGCL.
During forensic of the gas meter, the consumer will be associated by SSGCL by issuing notice with specific time, date and place of forensic.
If any gas meter of the consumer has been removed without notice of consumer previously, the consumer is at liberty to approach the Customer Service Centres of SSGCL which will be made more effective and responsive by SSGCL from 8:30 a.m. to 5:00 p.m with break of two hours from 01:00 p.m to 3:00 p.m and positive response will be made to the genuine complaints within fifteen
(15) days.
35. With regard to issue of no gas/low gas supply to Ziarat city, on the previous date i.e. 21.12.2021 Mr. Madni Siddiqui GM-I SSGCL stated that Ziarat is supplied natural gas from Kuchlak and before reaching Ziarat city, the natural gas is also distributed to more than 70 villages enroute but each day, the gated regulators are found tampered/manipulated by the enroute villagers and so far SSGCL has failed to evolve a mechanism of check and balance to regulate the gas pressure to the enroute villages prior to its reaching Ziarat city and as a result of above malpractice, Ziarat city is deprived of required gas pressure and gas quantity.
The officers of SSGCL stated that the issue faced by SSGCL for gas supply to Ziarat is also faced by SSGCL for supply of gas to Pishin, Mastung and Kalat.
36. In this regard, today a report has also been submitted bearing signature of GM-I SSGCL Balochistan in which request has been made for security/protection of the gas regulators of the enroute villages towards Ziarat, Pishin, Mastung and Kalat by the Police/Levies/District Administration.
37. The report further reveals that SSGCL has designed new 8-inches Dia gas pipeline of 21 kilometers specifically for Ziarat valley which will be connected with 16-inches Dia, gas pipeline for the approved project of Bostan Industrial Zone and it will also result in solving the problem of low gas pressure in Ziarat.
38. In the light of the above report, the staff of SSGCL is directed to take immediate steps to regulate supply of specified gas to enroute villages towards Ziarat, Pishin, Mastung and Kalat and to take action against the miscreants by taking on board Assistant Commissioner concerned, the Incharge levies concerned or the SHO concerned.
The officers of District Administration/Police and Levies are directed to aid/assist the staff of SSGCL for taking action against the miscreants.
Copy of the order passed today be sent to Deputy Commissioner Quetta, Deputy Commissioner Pishin, Deputy Ziarat, Deputy Commissioner Kalat, Deputy Commissioner Mastung and to all the Assistant Commissioners of the above districts as well as concerned Inhcharge Levies Thanas and SHOs for compliance.
Office to fix the instant as well as connected petitions before the Vacation Judge on 13.01.2022 for updates.