The
Ordinance namely The Gas (Theft Control and Recovery) Ordinance, 2014 is no
more enforceable after the consolidated judgment passed by Honourable Justice
Shahid Karim.
JUDGMENT
SHEET
IN
THE LAHORE HIGH COURT LAHORE
JUDICIAL
DEPARTMENT
Writ
Petition No.11993 of 2014
M/s
Rasheed C.N.G Station
Versus
Federation
of Pakistan etc
J
U D G M E N T
Date
of Hearing. 04.12.2014
PETITIONERS BY: Mr. Fahad Ikram Advocate, Mian M. Hussain
Chotya Advocate, Mr. M. Salman Masood Advocate, Mr. Nadeem ud Din Malik
Advocate, Mr. M. Ahsan Asghar Ch. Advocate, Ch. M. Shakeel, Mr. Arshad Mehmood,
Mr. M. Riaz Ch. Advocate, Ch. Waseem Ahmad Gujjar, Advocate, Mr. M. Shahbaz
Rana Advocate, Mr. Jahanzaib Khan Advocate.
Mr. Asad Ali Bajwa Advocate, Mr. Abdul Razzaq Advocate, Mr. Hussain
Ibrahim M. Advocate, Mr. M. Mohsin Virk Advocate, Miss. Sumaira Khanum Advocate,
Maj.(R) Aaftab Ahmad Advocate, Ms. Ruhi Saleha Advocate, Miss. Huma Khurram
Sheikh Advocate, Mr. Asif Bashir Mirza Advocate, Mr. Sarfraz Ahamd Qureshi
Advocate, Mian Mushtaq Ahmad-1 Advocate, Mr. M. Baleegh uz Zaman Chaudhry Advocate,
Kh. Waseem Abbas Advocate, Mr. Imran Humayun Cheema Advocate, Rao Zaigham Ali Advocate,
Mr. Aish Bahadur Rana Advocate, Mian Muhammad Rauf Advocate, Mr. Sajjad
Ahmad-1, Malik Muhammad Imtiaz Mahal, Advocate, Mr. Muhammad Irfan ul Haq, Mr.
Safdar Hayat Bhatti Advocate, Mr. Ashfaq Ahmad Tabassum Advocate, Mr. Irfan Mehmood
Ranjha Advocate, Mr. Abdul Sattar Chaudhry Advocate, Mr. M. Mansoor Humayun Advocate,
Mr. Shahid Hanif Advocate, Mian Mahmood Rashid, Advocate, Mr. M.Ajmal Khan-1
Advocate, Ch. Mehboob ul Hassan Advocate, Mr. Zafar Iqbal Chohan Advocate, Ch.
Sarfraz Ali Dayal Advocate, Mr. Tariq Bashir Advocate, Syed Muhammad Shah
Advocate, Mr.Ghulam Farid Sanotra Advocate, Mr. Saeed Ahmad Rana Advocate, Mr.
Tahir Amin Chaudhry Advocate, Mr. Waheed Ashraf Bhatti Advocate, Major (R)
Aftab Ahmad Khan Advocate, Mr. Khalid Hashmi Advocate, Mr. Muhammad Sharif
Advocate, Mr. Umer Riaz Advocate, Mian Bilal Bashir Advocate, Raja Tasawer Iqbal
Advocate, Ms Ammara Liaqat Bhatti Advocate, Mr. Muhammad Ashan Asghar Ch.
Advocate, Mr. Muhammad Yasir Hussain, Mr. Muzaffar Aziz Khan Advocate, Mr.
Zulfiqar A. Sheikh Advocate, Mr. Shahid Ismail Advocate,Ms. Sabiha Ali Chughtai
Advocate, Mr. Munawar us Salam Advocate, Mr. Nadeem ud Din Malik Advocate,
Barrister Ahmed Pervaiz. Ch. Akbar Ali Shad, Advocate.
RESPONDENTS BY: M/s
Amir Rehman and Muhammad Mehmood Khan, D.A.G for Pakistan. Mr. Umer Sharif,
Advocate for the respondent-SNGPL. Mr. Aurangzeb Mirza, Advocate for
respondent-FESCO. Mr. Amanat Ali
Advocate. Mr. Imran
Raza Chadhar Advocate for SNGPL
(Sheikhupura Range). Mr. Rasaal H. Syed Advocate. Barrister Haroon Dugal Advocate for respondent OGRA
and Rana Zia ul Islam
Manj, Advocate.
W.P
No.11993 of 2014 2
Shahid Karim, J:-
The connected petitions, a list of which
is attached with
this judgment as Annexure
‘A’ are being
decided by this
common judgment as similar
issues of law
have been raised.
RELEVANT
FACTS
2.The challenge
in these petitions which has been
brought forth, is encapsulated in the order of this Court dated
5.5.2014, passed by my
learned brother (Amin-ud-Din Khan
J.) which is reproduced as under: - “Through this
writ petition petitioner
has challenged the vires of Section 29 of the Gas (Theft Control &
Recovery) Ordinance, 2014.
Learned counsel states that
it is ultra
vires to the Constitution of Islamic Republic of
Pakistan, 1973. Further states
that his suit
for declaration, wherein the
bill imposed by the respondent company has been challenged, was
pending before the civil court.
The interim injunction granted by the court was
confirmed afterwards. States
that petitioner has deposited
near about 4.7
million under the orders of the court, whereas at the time of the suit,
the disputed amount was near about 11 million.
States that under the new enactment the orders
passed by the
court have been
vacated which is not
permissible under the
law. Relies upon “Dr.
Mobashir Hassan and
others versus Federation of
Pakistan and others (PLD
2010 Supreme Court
265). Further argues that as the “court” mentioned under
section 2(j) of the Ordinance established
under section 3
of the Ordinance does not include
the High Court but in section 4(2)
the High Court
has also been mentioned. States
that as the disputed amount in this
case is more
than 5 million,
therefore, jurisdiction vests with which court is still not clear, therefore,
states that petitioner has been forced to file this petition before this
Court”.
3. As
is reflected in
the said order,
the provisions of Gas
(Theft, Control and
Recovery) Ordinance, 2014 (the Ordinance, 2014), were challenged as
being ultra vires
the Constitution and non
est. It is
not relevant to
revert to the W.PNo.11993 of 2014 3 facts
in each petition. However,
suffice it to say
that all of these petitions arise
from proceedings which are
pending before the Gas Utility Courts, set
up under the Ordinance, 2014. The
grievances substantially arise from different orders passed by those courts,
yet they have
now converged to challenge the very legality of the
Ordinance, 2014. The question
therefore, before this
Court, which required
determination was whether
the Ordinance, 2014 is
ultra vires Constitution
of Islamic Republic of Pakistan, 1973 or not.
4. During the course of the proceedings, it was brought up
that the Ordinance
2014 stood repealed by afflux of
time as it was lastly extended by a resolution
of the National
Assembly on 14.5.2014 under
proviso to sub
paragraph (ii) of paragraph
(a) of clause
(2) of Article
89 of the Constitution of Islamic Republic of
Pakistan, 1973 for a further
period of 120
days. It stands repealed on the expiry of the said
extended period on 23.9.2014. The
question arises as to whether the
Ordinance, 2014 was still a valid law or not as also whether
it stood repealed
or had it
been enacted as an Act of the parliament.
5. On 26.11.2014 the Deputy Attorney General for
Pakistan was required to
seek instructions in the matter and to apprise this Court of
the current W.P No.11993 of 2014 4 status
of the Ordinance, 2014.
In response, the Deputy Attorney General, Mr. Amir Rehman
has produced a copy
of the report
of the Standing Committee of
the Senate on
Petroleum and Natural Resources
according to which deliberations have
been held by the said Committee and it is recommended that the
bill of the Ordinance, 2014 may be passed by the Senate. However,
the learned D.A.G submits that
the bill is pending in
the Senate and has not
yet been passed into an Act of
the parliament.
6. From
the forgoing discussion,
it is clear that
the Ordinance 2014 has, at the
expiry of 120 days from its promulgation, repealed
in terms of Article 89 of the
Constitution of Islamic Republic of Pakistan, 1973.
7. An
Ordinance is, by
its very nature,
a temporary statute. A
temporary statute as distinguished from a
permanent one, remains
in force for a
limited period and
ceases to operate without a
repeal. The power
to make and promulgate Ordinance is a
legislative and not an executive
power. Article 89
of the Constitution which gives
the law making power by Ordinance
to the President reads: -“89. Power of President to
promulgateOrdinances.—(1) The
President may, except wen the [Senate or] National Assembly is in session, if
satisfied that circumstances
exist which render it W.P No.11993 of 2014 5 necessary to
take immediate action,
make and promulgate an
Ordinance as the
circumstances may require. (2)
An Ordinance promulgated under
this Article shall have the
same force and
effect as an Act
of [Majlis-e-Shoora
(Parliament)] and shall
be subject to like restrictions as the power of [Majlis-e-Shoora
(Parliament)] to make law, but every such Ordinance-- (a) shall be laid – (i) before
the National Assembly
if it [contains provisions
dealing with all or any of the matters
specified in clause
(2) of Article 73],
and shall stand
repealed at the expiration of [one hundred and twenty
days] from its promulgation or, if before
the expiration of that
period a resolution
disapproving it is passed
by the Assembly,
upon the passing
that resolution [Provided
that the National Assembly may by
a resolution extend the Ordinance for a further
period of one
hundred and twenty days
and it shall
stand repealed at the
expiration of the
extended period, or if
before the expiration
of that period
a resolution disapproving it is passed by
the Assembly, upon the
passing of that resolution: Provided
further that extension
for further period may be made only once.] (ii) before both Houses if it [does not contain
provisions dealing with any of the
matters referred to in sub-paragraph (i)], and shall stand repealed
at the expiration
of [one hundred and
twenty days] from
its promulgation or, if
before the expiration
of that period a
resolution disapproving it
is passed by either House, upon the passing of that
resolution: [Provided that either
House may by a resolution extend it for
a further period of one hundred and
twenty days and it shall stand
repealed at the
expiration of the extended period, or if before the expiration of that period a
resolution disapproving it is passed
by a House, upon the
passing of that resolution: Provided further that extension for a
further period may
be made only
once; and] (b) may be withdrawn
at any
time by the President.”
8. As to the true nature of Ordinance, suffice
it to refer to Sabir Shah v. Shad Muhammad Khan (PLD 1995
SC 66) followed
in Federation of W.P No.11993 of 2014 6 Pakistan v. Muhammad Nawaz Khokhar (PLD 2000
SC 26, 36).
“From an examination
of Article 89’, so observed Saiduzzaman Siddiqui, J. “it is
quite clear that
the legislative power conferred by
this Article on
the President to promulgate
Ordinance is circumscribed
by these conditions. Firstly,
at the time
the Ordinance is promulgated by the President,
the National Assembly must
not be in
session and circumstances exist
which render it
necessary to take immediate
action for promulgation
of the Ordinance. The Ordinance so promulgated by the
President is only
a stopgap arrangement
and a temporary measure, as
this Ordinance has
to be placed before the National Assembly if it
pertains to matters specified
in Article 73(2)
of the Constitution and
in all other
cases before the Parliament, within
4 months of
the date of its
promulgation unless it is earlier withdrawn by the President or
disapproved by the
National Assembly or Parliament as the case may be. It
is, therefore, quire clear
that the power
to promulgate an Ordinance by the
President under Article 89 of the Constitution of 1973 is designed to meet a
situation when the legislation
is required urgently and the Assembly
is either not in session or is
unable to function for reasons of having been dissolved in accordance with the provisions of the Constitution of
1973. But the
Ordinance so promulgated by the
President does not acquire the status of a permanent Act of Parliament as it
loses its validly on
expiry of 4 months period from
the date of its promulgation if the
National Assembly or Parliament as
the case may
be, does not approve
the legislative measure
within that period.” Reference may also be made to Federation of Pakistan through
Secretary Ministry of Law,
Justice and Parliamentary Affairs, Islamabad v. Dr. Mobashir Hassan and others
(PLD 2012 SC 106) and the following observations at page 128: “24.
In terms of
Article 89 of
the Constitution, the President
may promulgate an Ordinance and it shall
have the same
effect as an
Act of the Parliament. However,
the Article inter
alia provides that
it shall stand
repealed if not extended
by the National Assembly
within the period stipulated in
the said Article.” In Govt.
of Punjab through
Secretary, Home Department v.
Zia Ullah Khan
and 2 W.P No.11993 of 2014 7
others (1992 SCMR
602), the Hon’ble Supreme Court
had, once again,
the occasion to deal with the issue and observed as under:
“We may state that, if we were to accept Mr. Irfan Qadir’s above
contention, the same
would be violative of
Article 89 of
the Constitution, which envisages that, if an Ordinance of the
type in issue is not approved
by both the
Houses before the expiry
of four months from
its promulgation, the same
shall stand repeal.
The above clear Constitutional mandate
cannot be defeated
by pressing into service any
rule of construction
of statutes or a
provision of a
statute which cannot pressed in
aid while construing
a Constitutional provision. We
may further observe
that our Constitution is a written
Constitution based on Federal System. It envisages trichotomy of powers
between the three
limbs of the
State i.e. that Legislature, the
Executive and the
Judiciary. In the above
political set up the power
to legislate is vested
in the parliament. However, Article 89 of the Constitution
empowers the President
to promulgate an Ordinance
when the National Assembly is not in Session or stands
dissolved and he (President) upon
being satisfied that
the circumstances exist
which render it
necessary to take immediate
action. Such an
Ordinance is to last, at the most, for
four months, if not approved
or if
not rejected by
the parliament earlier
or withdrawn by the President in terms of sub-clause (a) of
clause (2) of
the above Article
89 of the Constitution. The
rational behind providing
an outer limit of four months for
an Ordinance seems to be that even if the National Assembly or a Provincial
Assembly stands dissolved
at the time
of promulgation of an Ordinance, the election of it is to
take place within 90
days from the
date of its dissolution in
terms of clause 5 of Article of
48 of the Constitution. Since
Ordinance XIX of
1988 was not placed for approval before the parliament within the above
time limit of four months in terms of
sub-clause (a) of clause
(2) of the Article 89, it stands
repealed with the
amendments contained therein upon
the expiry of
four months from the date of its promulgation.”
9. In these cases, the statement made and the
document relied upon by the D.A.G brings home the fact that the
Ordinance stands repealed at the expiration of one hundred and
twenty days from its promulgation. It
has not been
extended by either the Senate or
the National Assembly for a W.P No.11993 of 2014 8 further period by a
resolution and thus it
follows indubitably that it loses
its validity, on the expiry of that period since it has not been made an
Act of the Parliament within that period.
At best, it shall be deemed to
be a Bill
introduced in the House where it was first laid.
10. In view of the above, no proceedings can be
commenced or continued in the Gas Utility Courts set up by the
Ordinance 2014 as
the law which was
the provenance of
their powers does
not occupy the field any more.
Thus any proceedings initiated, commenced or
continued will be without lawful Authority and ultra-vires.
11. It
is, therefore, held
that since the Ordinance, 2014 stands
repealed, the Gas Utility Courts
set up under that Ordinance shall cease to have effect and would become functus
officio.
CONSEQUENCES
12. There are certain unsavory and unpalatable
consequences that flow
from the repeal
of the Ordinance. Since
the Ordinance loses its validity and has
ceased to have
effect, the Gas
Utility Courts set up
by that Ordinance
shall cease to function
having been denuded
of that special power
under the Ordinance.
All cases pending with
these courts, heretofore,
shall stand transferred to
the ordinary courts
of plenary W.P No.11993 of 2014
13. Jurisdiction to be
adjudicated upon their
respective merits. The
proceedings in these cases can be continued from the stage at which they had
reached before the Gas Utility Courts.
All of these cases shall be
tried and continued
under the relevant law relating
to such matters. I described it as
unsavory and unpalatable
consequences for the
litigants as the
vortex of litigation
does not bring the end closer but
only eclipses it. In order to alleviate
the litigants’ suffering, this order shall be communicated to all
the District and Sessions Judges
who shall put steps into motion to transfer the
cases pending before
formerly Utility Courts within their
respective jurisdiction to
ordinary courts (according to each case) and shall complete the process
within fifteen days from the receipt of this judgment.
With the
above observations, all
these petitions are disposed of.
(SHAHID KARIM)
JUDGE
Announced
in open Court on 15.12.2014.
