1983 PLP 464 (CLC)

AJMAL MIAN, J.‑In this petition, petitioner No. 1 is a Meat Merchants Welfare Association, whereas petitioner No. 2 is a meat seller. The peti tioners have sought the following relief., in the above petition. (a) declare that the retail prices of meat fixed by the respondents are unjust, unreasonable, discriminatory, arbitrary and without lawful authority and hence unforceable in law. (b) declare that without regulating and ensuring supply of animals and meat at fixed rates the respondents or any other authority have no power, authority or right to fist retail prices of meat at the rate whereby reasonable margin of profit is not left. (c) Restrain the respondents from enforcing the impugned notification and/or conducting raids on the basis of impugned Notifications. (d) quash the notifications issued by the respondents fixing the retail prices as well as convictions awarded in consequence thereof. (e) quash the order of respondent No. 3 dated 13‑3‑1980 convicting the petitioner No. 2 and others. (f ) grant any other relief deemed fit in the circumstances of the case. (g) grant compensatory costs."'

2. In the memo. of above petition the petitioners have averred that the retail control prices of the meat have not been fixed with reference to the cost of the meat. The respondents have filed a counter‑affidavit in which it has been averred that the control prices have been fixed on the basis of the price analysis carried out. The respondents were directed to file working papers on the basis of which notifications dated 164‑1980 and 4‑5‑1980 were issued. In compliance with the Court direction the cost analysis has been filed. It may be observed that Annexure A to the counter‑affidavit indicates that the analysis of price relating to mutton was carried out on the basis of the cost of the meat prevelant in July, 1979. Whereas, there is no date given on the working of cost in respect of beef. Mr. Sattar A. Shaikh, learned Assistant Advocate‑General is unable to give any data of the above working from the record available with him. We can, therefore presume that it must be prepared more or less at the same time when the working paper relating to mutton was prepared. Furthermore, para. 6 of Annexure B to the counter‑affidavit, which is dated 5‑4‑1980 contains certain price analysis in respect of mutton only.

3. It has been urged by Mr. Raja Haqnawaz that under sections 3 and 6 of the Price Control and Prevention of Profiteering and Hoarding Act, 1977, (hereinafter referred to as the Act), the authority concerned is required to fix the control retail prices, which should have nexus with the prices on which meat or animals can be purchased by the retailers. In support of the above contention, he has referred to the case of Qamar Elahi v. Government of Sind and another (P L D 1977 Kar. 421), in which a Division Bench of this Court while construing section 3 of the West Pakistan Foodstuffs Control Act (XX of 1958) in context with the control prices of meat held that the cost analysis should be carried out in the light of the latest prices of the animals available. It was further held that section 3 of the above Act envisages fixing not merely the price but fair price. It was also held that according to the own working of the Government, the cost of beef and mutton escalated from what it was at the time of the issue of the impugned notification. The above petition was allowed. We may refer to sections 3 and 6 of the Act, which read as follows : "

3. Powers to make orders etc.‑(1) The Federal Government, so far as it appear to it to be necessary or expedient for securing equitable distribution of an essential commodity and its availability at fair price may, by notified order provide for regulating the prices, produc tion, movement, transport, supply, distribution, disposal and sale of the essential commodity and for the price to be charged or paid for it at any stage of transaction therein. (2) Without prejudice to the generality of the powers conferred by sub section (1), an order made thereunder may provide‑ (a) for controlling the price, at which any essential commodity may be bought or sold in any area ; (b) for regulating the production, treatment and keeping of any essential commodity ; (c) for regulation, by licences, permits or otherwise, the transport movement and distribution between the provinces of an essential commodity ; (d) for prohibiting the withholding of sale of an essential commodity ordinarily kept for sale ; (e) for requiring any person holding stock in a Province of an essential commodity to sell in another Province the whole or a specified part of the stock at such price, to such persons or class of persons and .under such conditions as may be specified in the order ; (g) for collecting any information or statistics with a view to regulating or prohibiting any of the matters aforesaid ; (h) for requiring persons engaged in any of the matters aforesaid in respect of any essential commodity to maintain and produce for inspection such books, accounts records relating to their business, and to furnish such information relating thereto, as may tie specified in the order ; (i) for requiring every importer,. producer and dealer to mark the essential commodities with the sale prices and to exhibit on his premises, a price list of the essential commodities held by him for sale ; and (j) for any incidental and supplementary maters, including, in particular the entering and search of premises, vehicles, vessels and aircraft, the seizure by a person authorised to make such search of any articles in respect of which such person has reason to believe that a contravention of the order has been, is being or is about to be com mitted, or any records connected therewith, the grant of issue of licences, permits or other documents and the charging of fees therefor." "Section

6. Fixation of price.‑(1) Subject to such general or special order as may be made by the Federal Government under section 3, the Controller‑General may, by notification in the official Gazette, fix specific maximum prices of essential commodities and different prices may be fixed for different localities or for different classes or categories of any essential commodities. (2) No person shall sell or resell any essential commodity at a price higher than the maximum price so fixed. (3) Every dealer, importer or producer shall supply to the Controller General such information regarding the production, importation, purchase, stock, sale or distribution of any of the essential commodities as the Controller‑General may, by an order in writing or by a notified order, require." It may be observed that under section 3 of the Act the Federal Government for securing equitable distribution of an essential commodity and its availability at fair prices may by a notified order provide for regulating the prices, production, movement, transport, supply, distribution, disposal and sale of essential commodity and for the price to be charged or paid for it at any stage of transaction therein. Whereas section 6 contemplates that the Controller‑General fixes specific maximum prices of essential commo dities and different prices may be fixed for different localities or for different classes or categories of any essential commodities. A plain reading of the above two sections together clearly indicates that a control price should be a fair price, which cannot be fixed in respect of the subject‑matters of the petition without having the data on the latest prices of the animals.

4. In the instant case, the price analysis was carried out on the basis of the animal prices prevalent in July, 1979 in respect of the notification dated 21‑10‑1979 gazetted on 16‑4‑1980, whereas price analysis of the mutton in respect of the notification dated 28‑4‑1980 Gazetted on 4‑5‑1980 was worked out on 5‑4‑1960. On the basis of the above note dated 5‑4‑1980, it has been urged by Mr. Sattar A. Shaikh, learned Additional Advocate‑General, Sind that the second notification issued in May, 1980 is based on the working of the price analysis about a month preceding to the issuance of the notification and, therefore, the compliance of the above sections has been made, in any case in respect of mutton. We may observe that since the prices of the animals are not stationary and they vary from time to time a notification issued in May, 1980 cannot hold the ground for a period of two years without having a fresh price analysis. In our view, the reasonable interpretation of sections 3 and 6 would be that the authority concerned/Controller‑General is to review the control prices from time to time at a reasonable interval, say quarterly ox half yearly in order to keep the same realistic and workable. It has been urged by Mr. Raja Haq Nawaz, learned counsel for the petitioners that though in para. 6 of annexure B, there is some working of the price, but there is nothing on record to indicate the source of the information or the persons who collected the data relied upon. According to him these figures do not reflect the correct position, which fact has been reiterated by the petitioners in their affidavit in rejoinder. Be that as r t may, in our view, it will be just and proper that in case the respondents wish to keep the mutton and beef under price control a fresh notification be issued on the basis of the fresh analysis of the prices. Even the notifica tion of May, 1980 cannot hold the field for a period of nearly two years. Furthermore, there is no price analysis in respect of beef carried out in April, 1980. We may also observe that it is matter of common knowledge that the mutton & beef are not being sold at the control prices. In other words g the impugned notifications have not been strictly enforced. We are, therefore, inclined to grant the above petition, and, declare that the two impugned notifications are without lawful authority and of no legal effect.

5. Before parting with above observation, we may observe that Mr. Sattar Shaikh, learned Additional Advocate‑General has requested for adjournment today, but we declined to grant the same, as on 10‑2‑1982 while granting an adjournment at the request of Mr. Sattar Shaikh, it was made clear to him that no further time would be granted. We may also observe that the above petition was fixed for regular hearing in June, 1980, but the case was adjourned from time to time mostly at the request of Mr. Sattar Shaikh learned Additional Advocate‑General. The petition stands disposed of in the above terms with no order as to costs. S. Q. Order accordingly.