2007 PLP 2283 (YLR)

MUHAMMAD MUZAMMAL KHAN, J.

This judgment proposes to decide 7 constitutional petitions (Writ Petitions Nos.8567, 7417, 13706 of 2006 Writ Petitions Nos.2397, 2398, 2993 and 3128 of 2007) which involve similar questions of law/facts; seek similar determination and are directed against the same set of the respondents. All the writ petitioners assailed the Letter No.10.10/68-RC/6748 dated 31-5-2006 issued by the Inspector of Explosives, Rawalpindi Circle, Government of Pakistan (respondent No.1) to be declared illegal, void and of no legal consequence whereby action against the petitioners was directed to be taken.

2. Succinctly, relevant facts are that all the writ petitioners are involved in the business of storage/sale of Petroleum Products under licences issued in Form "J" by the concerned District Authorities, prescribed by the Rules, 1937. Petitioners are doing their business in different areas of District Sargodha and claimed that impugned direction by respondent No.1 has been issued out of malice, on the initiation of the District Nazim Sargodha who directly/indirectly has ownership/interest in 36 Petrol Pumps and he out of business jealousy/enmity manoeuvred interference in their lawful business by misusing the office of D.O.(R) respondent No.5. The petitioners further asserted that they were issued licences to store the prescribed quantity of non-dangerous petroleum, which included high-speed diesel, as its flash point is 130-degree Fahrenheit and does not fall within the definition of dangerous petroleum as defined by section 2(b) of the Petroleum Act, 1934. They further claimed that their licences were issued at care to be controlled under the Petroleum Ri71es, 1985 and not by the Rules of 1937, which were superseded by the Rules subsequently framed. They prayed that by declaring the impugned order/letter dated 31-5-2006 as void, respondents may be restrained from taking any adverse action against them or interfering in their lawful business. Respondents in response to notice by this Court have filed their report/parawise comments and have appeared through their counsel.

3. Petitioners besides their case put-forth in their respective petitions, asserted that dangerous petroleum has been defined by section 2(b) of the Petroleum Act, 1934 as having its flashing point below 76 degree Fahrenheit and all the other petroleum products having flash point above the prescribed flash point, are non-dangerous and can be stored/sold under the licence issued in Form "J". It was contended on behalf of the petitioners that in place of Petroleum Rules 1937, Petroleum Rules, 1985 were framed which controlled their business and earlier Rules could not be banked upon to issue the letter impugned or to take action in question. Respondents' case was that Petroleum Rules, 1985 were never approved/implemented and the only Rules applicable were of the year 1937. According to them the latter mentioned Rules defined "heavy petroleum" with flash point not below 130 degree-F and the writ petitioners were granted licences under these Rules in Form "J" for storage of non-dangerous petroleum. The respondents further emphasized that flash point of high speed diesel is 130 degree-F which is used for fueling of motor vehicles 'and could be stored under a licence in Form "K" and not under licence in Form "J". Their assertions have also been to the effect that writ petitioners who are holding licences in Form "J" can only store non-dangerous petroleum products like "Kerosene Oil" and light diesel oil.

4. I have heard the learned counsel for the parties and have examined the record. All the writ petitioners are undisputedly holding licences and most of them possess those in Form "J" issued by the District Authorities. Questions which hinge for determination by this Court are that under licence in Form "J" what kinds of petroleum goods can be stored/sold by them; that which of the above referred two Rules would control the business of the petitioners; that as to whether the petitioners are being victimized out of business rivalry at the behest of District Nazim Sargodha and that business of the petitioners is being unauthorizedly interrupted/interfered.

5. Taking up the matter of applicability of Rules hi the first place, there is nothing on the record to suggest that Petroleum Rules, 1985 were really approved, notified and were implemented. Draft Revised Petroleum Rules were made and were put to public, inviting objections/ suggestions. There is nothing to show that the objections/suggestions if received for determination, were decided by the competent authority. These draft rules required corresponding amendments in Petroleum Act, 1934 and awaiting proposed amendments, rules under discussion were not finalized and Rules of 1937 continued to hold the field. Comparison of both the rules in hand, revealed that as far as procedure for issuance of licence is concerned, it was the same. According to Chapter-VIII of the Petroleum Rules, 1985, Schedule-1 of those Rules, licence of the Classes "A" and "B" of the petroleum, were to be issued for its storage otherwise than in bulk, to the maximum of 20,000 litters for the specified period Class `A' was to import other than petroleum which can be used in an internal combustion engine, in quantity not exceeding 300 liters whereas Class 'B' petroleum could not be allowed to be stored otherwise than in bulk, up, to 20,000 liters. These licences were to be issued by the District Authority whereas Form "J" was prescribed for grant of a' licence to store quantity of non-dangerous petroleum up to 5,000 liters. Issuing authority of the licence in Form "J" under Petroleum Rules, 1937 remained the same i.e. District Authority. In absence of any proof of approval of Rules of 1985, it could hardly be said that these were applicable, inspite of the fact, that the petitioners are holding licences in Form "J" with the quantity of storage prescribed by Rules, 1937 thus I have no hesitation to hold that Rules of 1985 were not approved/ implemented and the earlier Rules continued to govern the subject.

6. Coming to the nature of licences held by the writ petitioners and dispute regarding the nature of Petroleum Products to be stored/sold there-under, writ petitioners have themselves produced their licences in Form "J" which related to non-dangerous petroleum. They have also produced Forms for issuance of licence in Form "K" as per Article 4 of Schedule-I of the Petroleum Rules, 1937. Form "K" relates to storage of petroleum in the tanks in the licensed premises, to be dispensed with a pump lift for fueling motor conveyance, meaning thereby that Form-K is meant for dispensing the stored petroleum by pumping the fuel to motor vehicles. Now it is in the knowledge of even a layman that high-speed diesel oil is used for motor vehicles/transport and this fact is also not denied by the petitioners. High Speed Diesel is being stored/sold by the writ petitioners under the cover of their licences in Form "J". Fuel being used for Motor Vehicles/Conveyance, can only be hoarded, had the agency/licence holder been granted licence by the Licencing Authority i.e. the Chief Inspector of Explosive in Form-K. The prominent distinction between both these licences is that licence for hoarding of non-dangerous Petroleum are being issued by the District Authorities and high speed diesel oil is to 26 be stored under licence/sanction of the Chief Inspector Explosives who had been defined by rule 3(b) of the Petroleum Rules, 1937 as the Chief Inspector of Explosives in Pakistan "District Authority" has been defined by clause (d) of the same section, as in any Presidency Town or its suburb, the Commissioner of police and else where, the District Magistrate. All the writ petitioners hold the licences issued by the District Authorities, thus, thereunder, they cannot be permitted to store/sell the high-speed diesel oil or petrol used for motor conveyances. They can no doubt, deal in "Kerosene Oil" and light diesel oil, to the extent of permitted quantity.

7. Petroleum Rules, 1937 categorized petroleum products in three categories. Category No.l includes dangerous petroleum '(Petrol) with flashing point below 76 F, second category is of non-dangerous ("Kerosene Oil" and light diesel oil) with flash point above 76 F and not above 129 F whereas the third category is of heavy petroleum (high speed diesel oil/ furnace oil) with flash point not below 130 F and for all these 3 categories, different forms for grant of licence have been prescribed in the schedule attached to the Rules and no one can hoard any other kind of petroleum product not covered by his licence. Petitioners licences related to Category No.2, above coded, and they cannot opt to store/sale petroleum products falling in Categories Nos.l to

3. These Rules were apparently framed to prescribe different categories of petroleum products and storage/sale of those under distinct licences to ensure safety of public life and property. License holders are doing their business in shops/rooms, without I proper secured tanks and pumps/dispensers etc. hence permitting them to keep petroleum items beyond their licences would create dangerous conditions in the society.

8. Petitioners have not produced any proof of ownership of 36 Petrol Pumps by the District Nazim Sargodha, in support of their claimed malice on his part or the asserted ill motivated victimization at his hand. Even if it be assumed that District Nazim really arranged the action in question against the petitioners, it could not be deciphered from the record that the same was only restricted to District Sargodha because the Chief Inspector of Explosives had directed to all his subordinate Inspectors of Explosives to request all the District Authorities throughout the Punjab Province to take action against the licensees involved in activities in contravention of the Rules and the licences held by them vide Letter No.Est.174 dated 23-5-2006 and to the District Authorities through letter dated 10-10-68-RC/6748 dated 31-5-2006. If the petitioners are really not violating terms/conditions of their licences, they cannot be proceeded against but in case they were found to have acted in violation of their licences by storage/sale of high speed diesel oil or petrol, the letters issued by District Authorities cannot be adjudged, C on the basis of any canon known for administration of justice. Respondents have acted within the frame work of their authority fixed by the Petroleum Rules, 1937 thus this Court cannot come to the rescue of the writ petitioners who have themselves admitted that they are hoarding/selling high speed diesel oil meant for motor conveyance.

9. For the reasons noted above, no case for interference in constitutional jurisdiction of this Court is made out. Even otherwise, lawful action within the ambit of conferred jurisdiction, cannot be adjudged/substituted on these petitions which being devoid of any merit, are dismissed with no order as to costs. M.H./A-96/L Petitions dismissed.