P L D 2011 Peshawar 57 (PLP)

EJAZ AFZAL KHAN, C J.

By this Single judgment, we propose to decide Writ Petitions Nos.3364, 1422, 3413 of 2009, 170, 180, 181, 226, 227, 228, 229, 230, 231, 232, 233, 234, 235, 266, 267, 268, 269, 442, 497, 681, 682, 683, 2264, 2300, 3529, 3530 and 3830 of 2010, wherein the petitioners have asked for the issuance of an appropriate writ directing the respondents to ensure uninterrupted supply of gas in conformity with the mandate of Article 158 of the Constitution of Islamic Republic of Pakistan, 1973.

2. Learned counsel appearing on behalf of the petitioners contended that where Article 158 of the Constitution provided in unambiguous and unequivocal terms that the Province in which a wellhead of natural gas is situated shall have precedence over other parts of Pakistan in meeting the requirements from the wellhead, subject to the commitments and obligations as on the commencing day, the supply of gas to them cannot be interrupted on any consideration, which is alien and extraneous to the said provision of the Constitution. The learned counsel by referring to the Policy decision of the Federal Government spelt out in letter No.4-11-2009 contended that when it has been decided that supply of gas shall remain uninterrupted even in the peak months in the area producing gas including the Province of Balochistan, the Province of KPK cannot be treated with a different yardstick.

3. As against that, the learned Deputy Attorney-General appearing on behalf of respondents Nos.1, 2 and 6 contended that the Province where a well-head of natural gas is situated shall have precedence over other parts of Pakistan in meeting the requirements from the well-head but it is subject to the commitment and obligation as they were in existence on the commencing day of the Constitution. The learned Deputy Attorney-General next contended that when Article 158 of the Constitution is read in the light of the provision contained in Article 172(3) of the Constitution, the prayer of the petitioners cannot be countenanced unreservedly, as according to the latter, mineral oil and natural gas within the Province shall vest jointly and equally in that Province and the Federal Government.

4. The learned counsel appearing on behalf of respondent No.4 contended that the petitioners are estopped by their own conduct to ask for uninterrupted supply of gas, as they themselves have agreed for supply of gas for nine months. The learned counsel next contended that the dispute urged before this Court through these petitions is a dispute between the Province and the Federation in essence and substance which can exclusively be dealt with by the Supreme Court under Article 184(1) of the Constitution, therefore, this Court cannot deal therewith in the exercise of its jurisdiction under Article 199 of the Constitution.

5. The learned Deputy Advocate-General appearing on behalf of the Province contended that where it is a mandate of the Constitution that the Province in which a well-head of natural gas is situated shall have precedence over other parts of Pakistan in meeting the requirements from the well-head, no agreement seeking a deviation there from can be said to be legal.

6. We have gone through the record carefully and considered the submissions of the learned counsel for the parties.

7. Before we discuss the arguments addressed at the bar, we would like to refer Article 158 of the Constitution which reads as under:- "Priority of requirements of natural gas.- The Province in which a well-head of natural gas is situated shall have precedence over other parts of Pakistan in meeting the requirements from the well-head, subject to the commitments and obligations as on the commencing day."

8. The other relevant provision is Article 172(3) of the Constitution, which too, merits a reference and thus reads as under:-- "(3) Subject to the existing commitments and obligations, mineral oil and natural gas within the Province or the territorial waters adjacent thereto shall vest jointly and equally in that Province and the Federal Government."

9. A look at Article 158 leaves no doubt that the Province in which a well-head of natural gas is situated shall have precedence over other parts of Pakistan in meeting the requirements from the well-head subject, of course, to the commitment and obligation which existed on the commencing day of the Constitution. Nothing in black and white has been brought on the record as could show any such commitment or obligation restricting the requirements of the Province. Yes Article 172(3) provides that the mineral oil and natural gas within the Province shall vest jointly and equally in that Province and the Federal Government but this Article does not say anywhere that the requirements of the Province in which a well-head of natural gas is situated shall not have precedence over other parts of Pakistan in meeting the requirements from the well-head. Granted that the petitioner entered into agreements with respondent No.4 wherein they themselves agreed for supply of gas for nine months but these agreements being against the mandate of the Constitution shall have no force altogether, especially when it is not disputed that the gas produced in the Province is more than its requirements. Needless to say that only those agreements are binding on the parties which are in accordance with law of the land in general and provisions of the Constitution in particular.

10. Next comes the argument that the dispute urged before this Court through these petitions is a dispute between the Province and the Federation, in essence and substance, which can exclusively be dealt with by the Supreme Court under Article 184(1) of the Constitution has left us unmoved altogether as it cannot be called a dispute between a Province and the Federation by any stretch of imagination. These writ petitions, if seen in their proper perspective, do not raise a dispute between a Province and the Federation but, indeed, seek the enforcement of the mandate contained under Article 158 of the Constitution.

11. Quite apart from this, when the Federal Cabinet in its policy decision has provided that supply of gas shall remain un-interrupted in the areas producing gas including the Province of Baluchistan, we are afraid, the Deputy Attorney-General being more royalist than monarch cannot plead a case for restriction on its un-interrupted supply in the Province.

12. For the reasons discussed above, we allow these writ petitions and direct the respondents to adhere to the letter and spirit of Article 158 of the Constitution while dealing with the petitioners and all other stake holders in the Province vis-a-vis the supply of gas. M.H./406/P Petition allowe