ISLAMABAD – A Division Bench of the Islamabad High Court (IHC) Tuesday suspended a single bench’s verdict in which it had nullified a notification of federal government to bring the administrative control of five regulatory bodies to the ministries.

The Division Bench (DB) of IHC comprising Justice Shaukat Aziz Siddiqui and Justice Mohsin Akhtar Kayani conducted hearing of an Intra Court Appeal (ICA) filed by the federation through additional attorney general Muhammad Waqar Rana and suspended the said judgment.

 After suspending the IHC single bench’s judgment, the IHC dual bench deferred the hearing in this connection till September 11 for further proceedings.

In this matter, a single bench of IHC comprising Justice Athar Minallah issued his judgment and set aside the notification, saying the federal government can put this matter before the Council of Common Interests (CCI) for its decision pursuant to powers conferred under Article 154 of the Constitution.

It was December 19, 2016 when the federal government through a notification gave the control of Oil and Gas Regulatory Authority (Ogra), National Electric Power Regulatory Authority (Nepra), Pakistan Telecommunication Authority (PTA), Frequency Allocation Board (FAB) and Public Procurement Regulatory Authority (PPRA) to the ministries.

The bench noted in the judgment that the constitutional provisions, unambiguously provides that formulation and regulation of policies in relation to matters in Part II of the Federal Legislative List exclusively falls within the ambit of powers and jurisdiction of the Council and CCI has been expressly mandated to exercise supervision and control over the regulatory authorities. 

 According to the IHC orders, the Cabinet division will see the matters regarding these regulatory bodies as per prior arrangements before issuance of notification.

 A member of Pakistan Justice and Democratic Party (PJDP) Muhammad Nawaz had filed the petition challenging the federal government’s notification under which administrative control of five regulatory bodies was transferred to the ministries.

 The petitioner cited principal secretary to the Prime Minister, federal government through secretary cabinet division, secretaries ministry of petroleum and natural resources, ministry of water and power, ministry of information technology, finance division, oil & gas regulatory authority (OGRA), national electric power regulatory authority (NEPRA) through its chairman, Pakistan telecommunication authority (PTA) through its chairman, Chairman frequency allocation board, public procurement regulatory authority (PPRA) and all Pakistan CNG association as respondents.

In his petition, Muhammad Nawaz who is a worker of PJDP headed by the former Chief Justice of Pakistan, Justice Iftikhar Muhammad Chaudhry adopted that the said act of federal government is a violation of Articles 153 & 154 under which Council of Common Interests (CCI) supervise the matters related to gas, electricity and petroleum.

The petitioner challenged a notification dated December 19, 2016 issued by Cabinet Division whereby administrative control of the five regulatory bodies was purportedly transferred to the ministries whose activities and functions they were supposed to watch, monitor and regulate under the law. These five regulatory bodies whose administrative control was given to the ministries were included NEPRA, OGRA, PTA, Frequency Allocation Board and PPRA.

He said that these statutory regulatory bodies were established to promote fair competition and investment in their respective fields and to protect public interest as these were autonomous bodies free from political influences.

He contended that Articles 153 and 154 in the Constitution of Pakistan establish a council of common interest (CCI) and under Part II of the federal legislative list it is clearly mentioned that matters related to Gas, Petroleum and electricity to be controlled by CCI that will play a supervisory role of the regulatory bodies.

The petitioner argued that giving control of the regulatory bodies to the ministries is a violation of the constitutional mandate and therefore without any lawful authority and legal effect.

He continued that this transfer notification has created a great deal of unrest and anxiety in different sections of the society as these regulatory bodies had been controlling the prices of essential utilities by ordinary citizens.

Petitioner added that once having taken the direct control of OGRA, federal government has allowed CNG station retailers to fix their own prices rather than by a regulatory body. He apprehended that the same will be in the case of electricity, telephone and gas prices for domestic use and ordinary people will be left at the mercy of big business concerns and multinational companies to make an undue and unjustified profit without being accountable to the regulatory authorities.

He maintained that by making the autonomous and independent bodies subservient to the dictates of their ministry ‘Babus’, the government has also given a serious blow to the transparency of business deals and there also seems to be a clear conflict of interest between policy making and the ministries being stakeholders as well.

Therefore, he prayed to the court to declare the December 19 notification as unlawful and violation of the Constitution. He further requested that the notification allowing CNG retailers to fix their selling prices rather than OGRA may also be declared unconstitutional and ultra vires of the law.

In the present ICA, the federation prayed to the court that impugned judgment dated 20.06.2017 and short order dated 27.03.2017 may kindly be set aside. It further requested that during the pendency of this appeal the impugned judgment may kindly be suspended in the interest of justice.