MUHAMMAD ASIF Versus FEDERATION OF PAKISTAN through Secretary Ministry of Pakistan and Natural Resources
HAIDER ALI KHAN, J.--- The petitioner invoked constitutional jurisdiction of this Court praying that:--
"On acceptance of this writ petition an appropriate writ may very kindly be issued by directing the respondents to allow the petitioner by facilitating the petitioner to run/function the CNG station at the proposed/ changed site at Ibrahim Zakar Khel Kohat road Bannu and also by directing the respondents not to create hurdles in functioning of CNG station at changed site, at Bannu for which the petitioner is allowed after fulfilling codal and legal formalities."
2. The concise facts of instant writ petition are that, the petitioner was issued a license for installation of a CNG station commercially known as "Best one CNG station" (hereinafter the CNG station) located at Pishtakhara Bala, Ring Road, Peshawar and after investing huge amount the CNG station was installed, which is functioning. Petitioner is not defaulter to the Gas Company, PESCO and all other relevant departments. Due to the recent terrorist activities a police post near the CNG station was blown up and it become a routine affair for the terrorists to attack the NATO containers and terminals, situated in the vicinity of the CNG station. That the petitioner and the concerned staff of CNG station was also harassed so many times. Further widening of Ring road and construction of over head bridge was also planned on the exact location of the site of CNG station and even at present the afore mentioned construction is in progress. In such situation, the petitioner submitted an application to the respondent No.2 for shifting of licensed site of the CNG station from district Peshawar to district Bannu. Thereafter vide Notification No. OGRA-CNG-18(1795)2005 dated 04.11.2011. After approval petitioner started construction at the proposed site at Bannu and spent huge amount on the same, but respondents without any prior notice withdrew the permission accorded vide letter dated 02.12.2011. That again the proposed site was inspected and finding everything okey and feasible according to the requirements for installation of CNG station, vide report dated 22.02.2012. But despite that the respondents are reluctant to allow the petitioner for functioning the proposed CNG station at newly shifted site at District Bannu. Hence, the instant writ petition.
3. Comments were called from the respondents. Respondent No.5, in his comments stated that he being Incharge Peshawar Region submitted information that both the CNG stations of Peshawar and Bannu falls in the same region and all the proceedings conducted in shifting of CNG station were correct. While respondent No.4, contested the writ petition by raising preliminary objection and replying in Paras Nos.2 and 3, which are reproduced as under:--
"Preliminary legal objection.
That the petition is barred under Article 30(2) of the Constitution of Pakistan 1973, being against the Govt. Policy about Distribution of Natural resources.
2. That the contents of Para: 9 of the petition are misconceived because the petitioner has nothing in writing with the memo of his petition to show that Govt. has forced the petitioner to close his CNG station at Peshawar either for widening of road or constructions of bridge or for security reasons and unless the petitioner being having prima facie documentary proof in support of forced closure of his CNG station at Peshawar, the petitioner has no locus standi for claiming change of his CNG station from Peshawar to Bannu, under the existing moratorium issued by the respondent No. 1 on 04.10.2011.
3. That the contents of ground clause of the petition are also misconceived because the petitioner has not fulfilled the basic prerequisites prescribed under Para: 1(c) of the moratorium dated 04.10.2011 for shifting of his CNG from Peshawar to Bannu, therefore, the petitioner has no locus standi to file the instant petition.
4. Learned counsel for petitioner argued that he wants to change the license and site of his CNG station within the same region for which NOC has been issued after proper inspection of site. He further argued that the petitioner has invested huge amount in acquiring land, its construction, installation of machinery and electric transformer. He went on to say that petitioner has fulfilled all the legal requirements and is suffering huge loss every moment by non supply of Gas by respondents. He added that once approval has been granted vide letter dated 04.11.2011, which was acted upon, but without any notice on 01.12.2011 it was withdrawn, which act of the respondent is illegal, against the law and doctrine of locus poenitentiae. He concluded that the commission report, is also in his favour and support the contents of instant writ, hence, it may please be allowed.
5. On the other hand, learned Deputy Attorney General for respondent No.2 and counsel for respondent No.3, rebutted the arguments advance by learned counsel for petitioner contending that the petition is barred under Article 30(2) of the Constitution of Pakistan, 1973, being against the Govt. Policy about distribution of natural resources. They further contended that petitioner has nothing in writing that Govt. has forced the petitioner to close his CNG station at Peshawar. Their last leg of arguments was that the petitioner has not fulfilled the basic prerequisites, prescribed under Para 1(C) of the moratorium dated 04.11.2011.They prayed for dismissal of instant writ petition.
6. Arguments heard and record perused.
7. The objection of territorial jurisdiction and maintainability of the writ petition is decided at the very first instance.
8. The petitioner invoked the constitutional jurisdiction of this court under Article 199 of the Constitution, according to which it has been ordained that a High Court is vested with the powers to issue a writ against a person performing functions in connection with the affairs of the Federation or a province or local authority.
9. Any order, proceedings or action taken by the respondents, affecting fundamental rights of a citizen would attract jurisdiction of a High Court of the concerned province, in whose territory the order, proceedings or action have taken place which could furnish cause of action to such an individual. As in the instant case, the order of respondents, affected the petitioner regarding functioning of CNG station at Bannu, hence, this court has ample jurisdiction to hear and decide the matter. The objection of respondent being misconceived is repelled.
10. Perusal of the record reveals that a provisional license was issued to petitioner by the Oil and Gas Regulatory Authority, on 20.06.2005 to install "Best One CNG station", at Peshtikhara Bala Ring Road, Peshawar. Vide notification dated 24.04.2007 the same authority issued a license for compression of natural gas for the purpose of storing, filling and distribution of compressed natural gas, for a period of fifteen years up to 19.06.2020 in favour of petitioner. The petitioner submitted an application to Police, Station Headquarter Officer, Sarband, Peshawar, which is reproduced as under:--
11. The application was marked for report, which was furnished on 26.10.2011, which is reproduced as under:--
12. In view of above circumstances, the petitioner on 08.09.2011 moved an application to the Chairman, Oil and Gas Regulatory authority, praying as:--
"It is therefore most humbly requested that this station may be shifted to Khasras Numbers 855, 856 and 857 in Moza Zakar Khel Ibrahim, Kohat Road, Tehsil and district Bannu. I shall be most obliged. I am continuously suffering monetary loss due to the above mentioned factors; your orders for acceptance of this shifting request is desperately sought."
13. The NOC in this respect was issued by the respondents on 08.09.2011, in the following manner.
"Refer to your letter No"Best One dated 02.09.2011.
In this connection it is stated that both the CNG stations falls in the same region of Peshawar and load of Best one CNG station in district Bannu is sufficient before closure of cited CNG station."
14. Thereafter, the Assistant Executive Director, Oil and Gas Regulatory Authority vide notification dated 04.11.2011 has been pleased to grant approval for change of site from Khasra No. 1976, 3104-3105 Peshtakhara Bala, Ring road, Peshawar to Kasra Nos.855 and 857 Moza Zaker Khail Ibrahim Kohat Road, Bannu for establishment of CNG station. But vide impugned notification dated 02.12.2011, the sanction for approval regarding change of site has been withdrawn in the following words:--
"Please refer to this Authority's earlier letter of even No. dated 04th November, 2011 on the subject matter (copy enclosed) and to convey that it has been noticed that No Objection Certificate (NOC) issued by Incharge SNGPL, Peshawar dated 08.09.2011 has been issued prior to the policy guidelines given by government of Pakistan dated 04th October, 2011, which has created doubts and requires verification. The authority has, therefore, decided to immediately withdraw the permission letter of even No. dated 4th November, 2011 granted for re-sitement of M/s Best One CNG station from Peshawar to Bannu, till verification of NOC issued by SNGPL, Peshawar.
15. Perusal of the record further reveals that the petitioner after getting approval, in order to shift the CNG station, acquired land, constructed building, shifted CNG compressors and related equipment, installed Transformer of 400 KV, which factors have been proved by the report of Local Commissioner appointed by this Court.
16. In the above given facts and circumstances of the case, when an order of approval regarding shifting of CNG station from Peshawar to Bannu has been issued and acted upon by spending huge amount by acquiring land, construction of building, shifting of machinery, installation of transformer, completing the entire structure except gas connection, such order could not be withdrawn to sheer determent of the petitioner such an action would surely invoke the principle of locus poenitentiae. When the order had not been acted upon, then the authority could exercise such power and withdraw the same under section 21 of the General Clauses Act, 1897.
17. The available record further reveals that vide notification dated 04.10.2011, issued by Deputy Director Tech, Govt. of Pakistan, Ministry of Petroleum and Natural Resources, moratorium on new connection and shifting of CNG station were lifted. Relevant Para C is reproduced as under:--
"C. Shifting of CNG stations and site change of provincial licenses shall not be allowed except in cases of those operational CNG stations which are forced by the government to close their CNG stations for various reasons i.e. widening of road. constructing of bridges, security reasons. However, shifting shall be limited within the same region and would be subject to provision of prior NOC from gas utility companies and within the maximum gas load before closure."
18. No doubt the Govt. has not issued any direction or letter to the petitioner for closing CNG station, but this fact has been admitted by the local police of Police Station Sarband, Peshawar, in their report that there is no business, due to Barra operation, terrorist activities, in and around the area where the CNG station was located because it was located in the very hot bed of the terrorist insurgency. Widening of road, also compounded the miseries and problems faced by the petitioner. Hence, the petitioner was justified and entitled to move application for shifting of the CNG station as per notification dated 04.10.2011 mentioned above.
19. So far as no objection certificate is concerned, the respondent No.5 Khalid Pervaiz, Deputy Chief Engineer Distribution, Ex. Incharge Peshawar Region (SNGPL), in his comments admitted that:--
"As the answering respondent was bound to tender general information, especially when required by parliamentary Secretary/ Federal government, hence, the same vide letter dated 08.09.2011 submitted the information. The same is produced as under:
Refer to your letter No. Best One Dated 02.09.2011.
In this connection it is stated that both the CNG stations falls in the same region of Peshawar and load of best one CNG station in District Bannu is sufficient before closure of cited CNG station.
Khalid Pervez.
Incharge Peshawar Region."
20. It has not been denied by respondent No.5, rather admitted that the NOC was issued by him. Hence, the approval for shifting of "Best One CNG station" from Peshawar to Bannu has rightly been accorded and there is no needs to verify the same NOC, as it would serve no purpose rather increase the agonies of petitioner, who has already suffered a lot. The impugned letter dated 02.12.2011 regarding withdrawal of permission letter dated 04.11.2011 till verification of NOC issued by SNGPL, Peshawar, is null and void in the eyes of law.
21. For the reasons discussed above, the instant writ petition is allowed, respondents are directed to allow the petitioner to run/ function the CNG station at proposed/ changed site at Ibrahim Zakar Khel Kohat Road Bannu and provide the gas connection thereto forthwith.
MH/205/P Petition allowed.