P L D 1976 Lahore 834 (PLP)

This judgment shall dispose of three writ petitions bearing Nos. 2027, 2053 and 2054 of 1971.

2. In February 1970, an Ordinance was made under the title of Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, (Ordinance V) of 1970, to provide for measures against undue concentration of economic power, growth of unreasonable monopoly power and unreasonably restrictive trade practices. Under section 8 of the Ordinance a Monopoly Control Authority was constituted by the Central Government for the purposes of this Ordinance. Section 7 of the Ordinance inter alia provides that the Authority may by a General Order prescribe the practices which shall be deemed to be unreasonably restrictive trade practices. Under this authority the Monopoly Control Authority made the following General Order on the 22nd of October 1974:‑ "An arrangement/agreement for the distribution of any goods which is not in accordance with the following shall be deemed to be unreason ably restrictive trade practice‑ . Every manufacturer or supplier of goods registrable with the Authority under the provisions of section 16(1) of the Monopolies and Restric tive Trade Practices (Control and Prevention) Ordinance, 1970, shall henceforward have at least one distributor in every city having a population of more than five hundred thousand but less than a million ; In evey city with a population of more than a million, one distributor shall be appointed for every million of the population or part thereof: Notwithstanding the above, there shall be at least two distributors in tl:e area comprising the twin cities of Rawalpindi/Islamabad; Such distributors as are appointed shall not be associated undertakings inter se; The Authority may grant exemptions from these orders in cases in which they deem fit so to do; These orders will apply to the cigarette, soap and shoe industries forth with; The Authority may vary the number of distributors and the population basis for the appointment of the same as and when it deems fit; The Authority will notify the dates of applicability of these orders to other groups bf industries in due course. Feeling aggrieved by this General Order. Messrs S. M. Ilyas & Sons Ltd., who are the Sole Distributors for the local area of Lahore of cigarettes manufactured by Messrs Pakistan Tobacco Company Limited filed Writ Petition No. 2027 of 1974 challenging the validity of. the General Order on various grounds naming the said Tobacco Company as a co‑respondent with the Monopoly Control Authority. Similarly, Abdul Hmmid & Sons, a registered partnership firm, who are distributors at Lahore for the soaps manufactured by Lever Brothers Pakistan Limited filed Writ Petition No. 2053 of 1974 against the Monopoly Control Authority and the said manufacturers challenging the same General Order which deals not only with the distribution of cigarettes but also of soaps and shoes. Likewise Messrs Common Traders. Distributors of cigarettes manufactured by the Premier Tobacco Company filed Writ Petition No. 2054 of 1974 challenging the same General Order and naming the said Tobacco Company and the Monopoly Control Authority as respondents.

3. In order to understand the questions involved in these three causes, it is necessary first to survey the scheme of the Ordinance V of 1970. It appears that the purpose of the Ordinance is to eradicate three 'vices' from the economic structure of our society, namely (i) undue concentration oft economic power, (ii) growth of unreasonable monopoly power and (iii) un‑1 reasonably restrictive trade practices. It may or may not be possible to ridl the economic life of this country completely of these three diseases but the Ordinance undoubtedly seeks to curb them as far as possible. But a close scrutiny of the Ordinance will show that the three problems identified therein have not been treated at par. It may be noted that in the definition clause the expression "economic power" or "concentration of economic power" does not figure. On the other hand "Monopoly Power" has been defined although the definition does not say when a certain monopoly power becomes an unreasonable monopoly power; while not only 'trade' and 'trade practices' have been separately defined but even the meanings or `unreasonably restrictive trade practices' have been explained in the definition clause. This is one aspect of the differential treatment accorded to the economic power, the monopoly power and the restrictive trade practices.

4. In the second chapter, however, undue concentration of economic power, unreasonable monopoly power and unreasonably restrictive, trade practices have been uniformly and unequivocally prohibited under section 3.

5. Although 'economic power' has not been defined precisely, it has been laid down in section 4 as to what should be deemed to constitute undue concentration of economic power. Similarly the facts and circums tances which should be deemed to constitute unreasonable monopoly power bave been mentioned in section

5. In the same strain section 6 identifies certain trade praetices which should under the Ordinance be deemed to be, unreasonahly restrictive. But it seems the authors of the Ordinance were not satisfied that .the definitions and the deeming clauses mentioned above were exhaustive enough to deal effectively with the unhealthy situations prevalent in trade in our country. So, they sought to make up for the short coming by providing, in section 7 of the Ordinance, that "without prejudice ,to the provisions of sections 4, 5 and 6, the Authority may by General Order prescribe the.circumstances in which and the coiditions under which undue concentration of econnmiz power or unreasonable monopoly power shall be .deemed to exist and the practices which shall be deemed to be unreasonably restrictive trade practices".

6. It is thus .clear that section 7 is complementary not only to sections 4, 3 and 6 but also to the clause defining "unreasonably restrictive trade practice". It may be pointed out here that section 7 cannot be said in the ,same way to be complementry to the clause defining "monopoly power". For, section 7 like section 5 speaks particularly of `unreasonable monopoly power'. These sections do not deal with mere 'monopoly power' as such. do contrast sections 6 and 7 and clause (n) of section 2 all deal not just with 'trade practices' but specifically with "unreasonably restrictive tradb practices". This is a second aspect of the differential treatment accorded in the Ordinance ,to `restrictive trade practices'. I shall deal with this aspect later to the judgment in connection with the contentions raised by the learned counsel in ,this behalf. a. Suffice it to say at this stage that under the scheme of the Ordinance. ‑sections 4, 5 and 6 aced the General Orders issued by the Authority under sec tion 7 together with the definition of 'unreasonably restrictive trade practices' identify the evils the indulgence in which has been prohibited by section 3 of the Ordinance. Now, section 11 provides that where the authority is satisfied ‑that,there has been or is likely to be a contravention of the provisions of ‑section 3 and that action is necessary in the public interest, it may make one .or more such orders specified in section 12 as it may deem appropriate. A failure to comply with such orders may incur a penalty under section 19. 'However, an order made either under section 11 or under section 19 is appealable to the High Court. In the present case, the stage of making an order under section 19 or even under section I 1 has not so far been reached. ‑Only a General Order under section 7 has been issued which, if valid, only ,has the effect of declaring the manufacturers' practice of having a Sole Distributor for the local area of :.shore for the distribution of their respective merchandise, in the industries of cigarettes, soaps or shoes, an unreasonably restrictive trade practice and hence in conflict with section 3 of the Ordinance. The result will be that if the manufacturers of the said gocads fail within a reasonable time to discontinue this practice, the Monopoly Control Authority may be obliged to act under section 11 and also, if necessary, under section 19 >of the Ordinance.

8. Two questions, therefore, arise at once for consideration, l,e., whether these constitutional petitions are premature and whether the petitioners have the locus standi to challenge the General Order in question. It may be noted here that Kh. Habib Ullah, the learned counsel for the Pakistan Tobacco ‑Company and the Lever Brothers even prayed that his clients be transposed to the panel of petitioners in Writ Petitions Nos. 2027 and 2053 of 1974. This clearly indicates community of interest between the manufacturers and the ,distributors in the maintenance of status quo. But the impugned General Order does not appear, at least in theory, to adversely affect the interest of the manufacturers in any manner. The interest of the manufacturers lies in: the sale of the merchandise manufactured by them. Apparently two; distributors can facilitate the flow of business more efciently than one. But the case of the manufacturers in general and of the Pakistan Tobacco Company in particular is that it is extremely difficult, if not impossible, to find distributors who are as experienced and as efficient as those they presently have. It has also been contended that no new party may come forward to act as a distributor in which case the order in question will become impractic able. But it is obvious that the practical difficulties which may arise in future, i.e. in the process of compliance with the General Order, have no bearing on the validity of the order itself. Should the manufacturers sincerely attempt to comply with the order and fail, it is quite likely that they will not be proceeded against by the Monopoly Control Authority. In fact, before taking any action against the manufacturers, I.e. before passing an order under section 11 of the Ordinance in pursuance of the General Order, the authority has to issue a notice to the parties concerned. And at the stage of such a notice the manufacturers can explain their difficulties and seek exemption. Therefore, the grievance of the manufacturers is premature and as such there will be no justification in permitting them to become petitioners along with the distributors. If any of them had filed a writ petition independently, it would certainly have failed in limine. The prayer, for transposition is accordingly disallowed.

9. However, the learned counsel for the manufacturers were allowed to advance arguments in support of the distributors' cause and those arguments will be presently taken notice of along with the contentions of the learned counsel for the distributors.

10. The next question for consideration is whether the distributors have a locus standi to challenge the General Order. The direction contained in the General Order is addressed to the manufacturers. It is they who are supposed to appoint additional distributors. No distributor has a right to insist that the manufacturer should not appoint any other distributor. if may, therefore, appear at first sight that the petitioners have no locus standi to maintain these petitions. But it ; is evident that in each case the appoint ment of one or more additional distributors will proportionately reduce the business of the existing distributor. It is also obvious that the manufacturers themselves are not interested in enlarging the number of their distributors. It is only under the legal obligation created by the General Order in question that they may appoint new distributors. It is thus clear that if the impugned General Order is struck down, the petitioners stand to gain. So, they have a substantial interest in the matter. And it is by now a fairly settled law that such a person is an aggrieved party within the meaning of Article 199 of the' Constitution and as such has a locus slandi to file and pursue a petition under the said Article. In this behalf a reference to P L D 1969 S C 223 should suffice.

11. Accordingly I hold the petitions to be competent.

12. Now, the main objection to the impugned General Order is that it has been passed under the authority of an invalid provision of law. The precise contention is that section 7 of the Ordinance is hit by the principle which prohibits excessive delegation of legislative authority to a body outside the Legislature.

13. According to the learned counsel for the petitioners, 'unreasonably, restrictive trade practice' having already been defined in clause (n) of section 2 and the definition having been elaborated further under section 6, it' was wholly unwarranted that the Legislature should have permitted the Monopoly Control Authority to "prescribe the practices which shall be deemed to be unreasonably restrictive trade practices", inasmuch as it amounted to giving a mandate to the Authority to legislate under section 7 fn the same manner as the Legislature did under section 6 in respect of restrictive trade practices and under sections 4 and 5 in respect of economic and monopoly powers.

14. Other arguments advanced in support of the contention that the authority to be exercised by the Monopoly Control Authority under section 7 is essentially legislative are as follows:‑ (a) Since in pursuance of a General Order made under section 7, a. directive can be issued under section 11 and since a failure to comply with such a direction calls for a penalty under section 19 of the Ordinance, the making of a General Order under section 7 amounts, to creating a new offence. (b) Even if such delegation were permissible, it is defective because no proper or adequate guidelines have been provided to circumscribe the action to be taken by the Authority. (c) From the wording of section 7, it is clear that it is a deeming clause, that is, what is not actually an unreasonably restrictive trade practice can be deemed to be so by the Monopoly Control Authority and declared as such. Making of such a declaration is the exclusive privilege of the Legislature. (d) One of the criteria to Judge whether an essential legislative power has been delegated is that in case of such a delegation the delegate is able to violate the parent Act. Since in the present case the Monopoly Control Authority can declare a trade practice to be an unreasonably restrictive one which has not been deemed to be so by the Legislature itself and ‑thus act counter to its intent the power given to the Authority under section 7 is essentially a legislative power. And lastly, (e) Since the field in which this power has been given is covered by a fundamental right (Article 18 of the Constitution), the delegation is necessarily excessive.

15. In the course of the debate on the rule of excessive delegation, the learned counsel on either side took me through the various judicial pronounce ments made on the subject in the United States of America as well as in our own country. It is no doubt desirable to be aware of the contemporary opinion on a given subject in other countries where the system of the administration of law is comparable to ours. But in my humble opinion i would be futile to seek guidance from the cases decided by Courts of foreig jurisdiction in general and the Courts of the United States of America i particular where the socio‑economic conditions are entirely different from those prevailing in our country and where the judicial opinions change s rapidly and so radically that it is detrimental to our own system to try an keep pace with them. In most of the cases cited before me from the American jurisdiction, the Courts, while reiterating the rule prohibiting excessive delegation of legislative powers, did uphold the laws apparently involving such delegation. From a similar survey of the Pakistani cases dealing with this principle, starting from the case of Sobho Gyanchandani (P L D 1952 F C 29) to date, the rule that emerges is while the delegation of the power to make rules or regulations ancillary to the exercise of the law‑making power is permissible, the delegation of "essential" legislative power is not. In thel words of Brohi (A. K. Brohi Fundamental Law in Pakistan, 1st Edition pp. 185‑186), "there is no express provision which limits the power of the Legislature to delegate the making of rules or regulations that are ancillary to the exercise of this law‑making power reserved to it under the Constitution, But since the Legislature is primarily charged with the duty of law‑making, it cannot evade the performance of that duty by assigning it to another organ of the State power. In each case, therefore, the entire text of the impugned statute has to be scrutinised to see exactly the kind of power that has been delegated to subordinate agencies by the Legislature; and if the Courts should come to the conclusion that there is the delegation of essential legislative power in any rule or law, made pursuant to the exercise of such a power, the legislation must be struck down as offending against the limits of the rule that permits delegated legislation. In each case where the question as to the unconstitutional delegation of legislative power is raised, effort should be made to find out whether or not "essential" legislative power has been delegated". There are, however. two well‑recognized exceptions to the rule that prohibits the delegation of legislative power, namely, (f) conditional legislation and (2) subordinate legislation, with which we are not concerned in the instant case. But despite all the pronouncements made on the subject, the nagging question that remains to be settled in each case involving delegated legislation is how and where to draw the line of distinction hetween "essential" legislative power and "non‑essential" legislative power. In my .opinion the position of this line is indeterminate. Being the function of several variables which are themselves unpredictable, the line keeps shifting from place to place. But this does not mean that in the given set of circumstances of a case its position cannot be determined with a fair degree of accuracv. Therefore, the question whether the essential legislative power ha heen delegated or not has to be resolved in each case independently in the light of the peculiar circumstances of that case. It cannot, however, be denied as observed by Akram, J. as long ago as 1952 in Sobho Gyanchandani's case that in view of the ever‑growing complexities of the modern State, a substantial delegation of powers has become necessary. But then it is for the Courts to set a reasonable limit to such a delegation. There can, however, be two ways of approaching this problem. One is to consider.the law in question in the abstract and decide whether it delegates essential legislative power, and to strike it down if it does. The other is to examine how the delegate has actually exercised that authority. A provision of law delegating a certain degree of legislative authority may be couched in such language as may be open to a very conservative as well as a very liberal interpretation. (It will be shown presently that such is the case before us). If the delegate exercises the delegated authority with circumspection and self restraint then neither the law itself nor the action taken thereunder has to by struck down. But should the Court find in a given case that the authority bas been abused or exceeded in such a manner that it has amounted to usurpation of essential legislative power= then the Court must nullify the action. But again it is not necessary that the delegation of power be itself beld to be ultra vices. It is always open to the Court to put a conservative ‑interpretation on a statute delegating legislative powers so as to keep it within the permissible limits unless the delegation is so flagrantly violative of the rule that it is not possible to save it as in the case of the British law: Rating stand Valuation Act of 1925 (15 and 16 George) in which section 66(1) reads ..as follows:‑ "The Minister (of Health) may by order make such adaptations in the provisions of any Local Act as may seem to him to be necessary in order to make those provisions conform with the provisions of this Act."

16. In the present case also the answer to the question of excessive delegation depends upon the interpretation to be placed on section 7 of the Ordinance. Since in all the three writ petitions only the question of resttio tive trade practices is involved and not of economic or monopoly power, sub section (1) of the said section can be read as follows:‑‑ "Without prejudice to the provisions of section 6(s), the Authority may by General Order prescribe the practices which shall be deemed to be unreasonably restrictive trade practices." 'Should this be construed as meaning that the Authority has the power to declare any practice, regardless of whether it is a trade practice or not also regardless of whether it is a restrictive trade practice or not, to be unreasonably restrictive trade practice, then it would certainly be a case of delegation of essential legislative power. But reading the Ordinance as a whole I am of the opinion that the expression "unreasonably restrictive trade practice" having already been defined, the power given to the Authority is not as wide or as unrestricted as it may at first sight appear to be. According to clause (n) of section 2 of the Ordinance "unreasonably restrictive trade practice" means a trade practice which has or may have ‑ the effect of unreasonably preventing, restraining or otherwise lessening competition in any manner. The ad jective 'unreasonably' is redundant inasmuch as it appears twice in the definition clause once to qualify the expression "restrictive trade practice" and the second time to qualify the meaning of that term. So by striking off the adjective, we get the definition of 'restrictive trade practice as meaning a ‑trade practice which has or may have the effect of preventing. restraining or otherwise lessening competition in any manner. It is to be noted that under section 3 of the Ordinance it is only the unreasonably restrictive trade practices which have been prohibited and not all restrictive trade practices. Section 6 of the Ordinance deals only with agreements. Therefore, we need not examine that section here. It will be scrutinised in connection with another argument raised by the learned counsel for the petitioners in another context.

17. In view of the definition of 'restrictive trade practice' given in or. deduced from the Ordinance itself, it is clear that the practices to be prescrib ed by the Authority under section 7 as deeming to be unreasonably restric tive trade practices have got to be in the first place trade practices and not any practices; and, in the second, restrictive trade practices and not any trade practices. Thus the only discretion left with the Authority is to decide whether any restrictive trade practice as defined in clause (n) of section 2 is r reasonably restrictive or unreasonably restrictive. It was not possible for the Legislature to carry out a survey of all the restrictive trade practices prevalent in the country or to imagine alt the possible restrictive trade practices likely to be restorted to in future and to classify them into the 'reasonable and f `unreasonable' categories. The Legislature was. therefore, perfectly justifie 'd in leaving the question to be decided by a body of experts in case of eacbl t'Industry and each situation. As observed in Sabha Gianchandani's case, in view of the present day complexities of the socio‑economic life of our country such delegation, in the restricted manner explained above, has to be permitted.

18. In view of the construction to which section 7 of the Ordinance is susceptible as held above, it does not purport, in my opinion, to delegate essential legislative power to the Monopoly Control Authority and this interpretation covers most of the objections listed in paragraph No. 14 of this judgment. The contention that by the General Order under consideration the authority has created a new offence is not tenable because the penalty under section 19 of the Ordinance h as been provided by the Legislature itself for the violation of an order passed under section

11. The provisions of section 11 come into play when there is a contravention of section

3. Section 3 prohibits inter ally all unreasonably restrictive trade practices. Now, it is a matter of opinion as to whether having a single distributor to cater to the needs of a population of more than a million is an unreasonably restrictive trade practice. This question was left by We Legislature to be considered and decided by the Monopoly Control Authority. And, for the industries of cigarettes, soaps and shoes, the Authority has given its judgment and expressed the opinion that the practice of not having distributors at the rate of at least one per million souls should he deemed to be an unreasonably restrictive trade practice because it has the effect of unreasonably lessening or preventing competition. Whether the opinion is correct or not is a different question but the function performed by the Authority is certainly not legislative although the effect of the opinion is that, if a manufacturer of any of the three kinds of merchandise mentioned above fails to conform thereto, he will be liable after due process of law to pay the penalty prescribed in section 19 of the Ordinance which incidently is only a pecuniary one. Thus it is clear that the offence and the penalty have been respectively defined and prescribed by the Legislature itself. '1 "he function of the Authority is only to decide after due investigation whether a certain act falls within the purview of the section defining the offence. The function may perhaps be called investigative.

19. The second contention that proper or adequate guide lines have not been supplied to the Authority is also without force. For, in the first place, the function to be performed by the Authority is not legislative and in the second the definition of unreasonably restrictive trade practice itself is a. good guide. Further, the mere fact that the word 'deemed' has been used in section 7, does not, for the reasons already recorded above and in view of the , construction placed on that section, convert the function to be performed by the Authority thereunder into a legislative function. All that the Authority is in fact required to do is to carry out research, conduct inquiries and make intensive and extensive studies of the trade practices in our country in order to identify such practices as may be hit by section 3 of the Ordinance.

20. As for the argument that since the Authority can declare a trade practice to be unreasonably restrictive although the Ordinance itself has not under section 6 declared it to be so and can thus violate the parent law, it is misconceived and based on an erroneous interpretation of section

7. As has been explained above, detection of an unreasonably restrictive trade practice does not amount either to adding to or detracting from the Ordinance. It is wrong to think that section 6 is exhaustive. It may be pointed out again that it deals only with the kind of agreements which have the effect of pre venting, restraining or lessening competition. It does not deal with all kinds. of restrictive trade practices. Restrictive trade practices other than the kind of agreements mentioned in section 6 have to be spotted by the Authority; and this is not tantamount to violating the Ordinance.

21. The last argument advanced in this behalf is a novel one and also interesting. Kh. Habib Ullah points out that it is the right, guaranteed under Article 18 of the Constitution, of every citizen to conduct any lawful trade or business freely subject only to such qualifications, if any, as may be prescribed by law. Now Ordinance V of 1970 is a law which imposes restrictions on free trade. Since it is operative in a field covered by a fundamental right, the learned counsel contends, nothing thereunder should have been left to the discretion of a body outside the Legislature. According to him, delegation of even a very minor legislative power in a field covered by a fundamental right amounts to excessive delegation. The learned counsel concedes that so far there is no authority in support of this conten tion but he expects a ruling in his favour from this Court in the present case. The argument no doubt is attractive but it is not possible to derive support ‑therefor either from the Constitution or from the law. If delegation is otherwise permissible then there is no reason why it should not be permissible also in the fields covered by fundamental rights. If the contention of Kh. Habib Ullah be upheld, the result will be that even the rule making power in all such fields will have to be exercised exclusively by the Lebisla lature. This has never been considered desirable. It will certainly not be conducive to smooth and efficient functioning of the Government. At any rate, the function assigned to the Monopoly Control Authority under section 7 is not, in my opinion, a legislative function. However, should the learned counsel mean to suggest that the Legislature, should perform all the functions that have been assigned under the Ordinance to the Monopoly Control Authority merely because freedom of trade has been guaranteed under the Constitution, then I would have no hesitation in rejecting such a suggestion.

22. In short for the reasons recorded above I am of the opinion that section 7 of the Ordinance does not suffer from excessive delegation of l legislative authority.

23. Besides the objection to the validity of section 7, certain objections with regard to the General Order itself have also been independently raised. The learned counsel for the petitioners contend that even if section 7 is Constitutionally in order, a General Order of tae kind under consideration cannot lawfully be passed in pursuance of the said section inasmuch as it purports to give directions to the Industries mentioned therein and regulate them whereas the purpose of a General Order authorized under section 7 can only be to prohibit a trade practice. Thi3 is an objection which relates only to the form and not to the substance of the impugned order. Secondly, section 7 neither says that the Monopoly Control Authority can direct or regulate any trade nor that it can prohibit any trade practice. The purport of the section as already explained above in detail is only to authorise the Authority to declare certain restrictive trade practices to b.‑ unreasonably restrictive although they may not appear very clearly to be so. However, the Authority can exercise this power without in any manner detracting from the effect of section 6 of the Ordinance where certain agreements have been declared by the Legislature itself to be contrary to the spirit of section 3 and as such liable to be struck down. Now an examination of the General Order will show that the Monopoly Control Authority has thereby declared that in the matter of distribution of any goods an arrangement of agreement, which is nut in accordance with the terms prescribed therein, shall be deemed, to be an unreasonably restrictive trade practice. It is thus clear that the order is perfectly in accord with the relevant provisions of section 7 in letter as well as in spirit.

24. Another contention which can be dealt with right at this juncture is that section 7 is bad law inasmuch as it does not provide for a hearing to the affected parties to explain their position while in section 6 under subsection (2). thereof it is open to the parties concerned to show that an agreement which. may fall within the purview of subsection (1) cannot be deemed to constitute an unreasonably restrictive trade practice. The learned counsel for the petitioners contend, on the basis of this distinction between section 7 and section 6, that the power given to the Authority under the former is far in excess of that exercised by the Legislature under the latter. This argument is also without much force, There is a clear difference in the approach to. the problem of restrictive trade practices under the two sections. Section 6 deals exclusively with agreements and the agreements qualified in subsection (i) thereof have been declared to be unreasonably restrictive. Subsection (2) merely seeks to exempt some of them if they can be shown to contain the redeeming features mentioned in clauses (a), (b) and (c) of the said subsection. It has, therefore, been left to the affected parties to bring. such redeeming features, if any, to the notice of the Authority in case they wish to secure exemption. The procedure under section 7 is different. Here the Authority has been charged with the duty of conducting inquiries in order to ascertain whether a certain trade practice is unreasonably restrictive and in the course of the inquiry the persons or undertakings likely to be affected are to be afforded such opportunity of being heard or placing before it relevant facts and material as the Authority may deem fit. The idea is to secure as much assistance to the Authority as possible and once the Authority forms a tentative opinion with regard to a certain trade practice, it has to publish the draft of the proposed General Order so that the parties likely to be affected may then prefer objections or make suggestions. It is only after this procedure has been followed that a final General Order can be issued. In my opinion, therefore. the kind of opportunity of being heard needed under the two sections respectively has been duly provided in each of them. The procedure is no doubt different in each case. But it must be noted that the requirements in each case are also different; and the procedural difference is in keeping with the requirements. Therefore, on the ground of this difference neither one nor the other of the two sections can be held to be invalid. It has also been contended though half heartedly that the procedure prescribed under section 7 has not been properly complied with and the distri butors have not been associated with the inquiry, if any, conducted by the Authority. Even if the allegation is true it does not affect the validity of the General Order. In the course of the inquiry, the parties concerned are not entitled as a matter of right to a hearing. It is within the discretion of the Authority to give "such opportunity of being heard and of placing before it relevant facts and material as it may deem fit." Even the princsple of natural justice is not attracted here inasmuch as the purpose of the inquiry is, not to saddle any party with a liabrli~y. The concerned parties came into the picture only after the proposed General Order has been published. And there is no denying the fact that the proposed General Order was duly published and that it was modified and published in the final form after consulting the views of the parties to be affected. At any rate, it is to be) noised that the appointment of more than one distributor by the manufacturerlM cannot be said to atTect any vested right of the existing distributor. Therefore, the principle of audi alteram partern has no application to the facts of these cases at least at the stage of the proceedings at which' these writ petitions have been preferred. Notice to be issued under section 11 of the' Ordinance is a different matter. It may further be pointed out here that the main purpose of the Ordinance is to safeguard the interest of the public or the consumer and not of the manufacturer or the distributor. This purpose must, therefore, be deemed to underlie every provision of the Ordinance. In this view of the matter, an objection based upon want of notice should be heeded only when a vested right of the manufacturer or the distributor is adversely effected, which is not the case here.

25. The learned counsel for the manufacturers contends that from the scheme of the Ordinance it appears that it was enacted only with a view to governing relationships between one manufacturer and another, between one distributor and another, between one wholesaler and another and so on and not between a manufacturer and a distributor or a distributor and a whole saler or a wholesaler and a retailer etc. In other words the learned counsel means that the scope of the Ordinance is limited only to regulating horizontal relationships in trade and not the vertical ones. Therefore, according to him, a General Order of the kind impugned in these petitions, which deals with the relationship between certain manufacturers and their distributors, cannot validly be issued under the authority of the Ordinance. He further contends that appointment of distributors is not "trade' or a `trade practice'. Therefore, it cannot become a subject of the Authority's attention. But in reply to this argument the learned counsel for the Monopoly Control Authority referred to the definition of trade given in clause (k) of section 2 which reads as follows :‑ "trade means any business, industry, profession or occupation relating to the production, supply or distribution of goods or the control of production, supply or distribution of goods, or to the provision or control of any service." And trade practice has been defined as any act or practice relating to the carrying on of any trade or business. From these two definitions, it is clear that distribution is a business which comes under the definition of 'trade' and any practice relating thereto comes under the definition of `trade practice' and can thus become a legitimate subject of study and control by the Monopoly Control Authority. Similarly a reference to clause (b) of subsection (1) of section 6 will show that the Authority is not precluded from interfering with a vertical relationship like the one between a supplier and a dealer of goods.

26. Another obection to the General Order raised on behalf of the manufacturers is that the so‑called General Order is not really general in its nature but deals particularly with only three Industries. The exclusion of other Industries from the operation of the order renders the Order invalid in the view of the learned counsel for the manufacturers. But the simple answer to this contention is that generality is only a relative term. It is true that the General Order in question does not relate to all Industries in Ore country but for the time being only to three Industries mentioned therein. But it is to be noted that since it mentions cigarette industry, it applies to all cigarette manufacturers and not to any particular manufacturer of cigarettes or to any particular brand of cigarettes manufactured by any particular company. The same is true of soap and shoe industries. It is thus evident that the Order is in a sense general. At any rate, it is not the requirement of the law that the Order should be general in nature in any sense of the word. Even if it be assumed that since the Order to be issued under section 7 has been called "General Order" it should be general, then the .extent of generality not having been laid down in the Ordinance, it is not .open to the Courts either to prescribe limits therefor or to say that it should ube general in the widest possible sense.

27. The next contention of the learned counsel for the manufacturers is that the Ordinance can be made applicable only to situations arising after its .,,promulgation and that it will be unconstitutional to give it a retrospective ,application. According to him, the practice of having only one distributor ,for Lahore by each of the manufacturers of cigarettes and soaps is a practice which has long existed since before the Ordinance came into force. But the question of retrospectivity does not arise in the circumstances of the case before me. The law is clearly prospective in its operation. What the General Order requires is the abstinence from a certain practice in future. It is true that no exemption has been made on the ground that the practice axisted even before the promulgation of the Ordinance. But that does not snake the Ordinance or the General Order retrospective. The Ordinance is meant not only as a measure of prevention in future but also as a cure for the economic ailments our society has long been suffering from.

28. In fact the main issue in these petitions is economic. And the learned counsel for the manufacturers has justifiably raised the question as to whether the General Order in dispute will at all promote the cause of com petition. He contends, relying on the works of Hanson, Eastham, Lipsy and other economists that in a laisses faire society competition cannot be created through legislative means. Equilibrium of prices results naturally from the inter‑play of various economic forces. He argues that the idea of the .Ordinance is to restore or create competition and strike down dictative prices; but this goal cannot be achieved by enlarging the number of distri butors. Competition is possible only if new manufacturers enter the field and not by introducing new distributors. No good is likely to accrue to the .consumer if the number of distributors is increased. On the contrary the manufacturer will be able to strike a better bargain for himself with the ..distributors without any perceptible advantage to the consumer. And thus the very purpose of the Ordinance is likely to be defeated. The contention of ,the learned counsel for the Authority is that a sole distributor is a monopolist in the field of distribution regardless of whether there is competition in the field of production or not. It is possible for the sole distributor to hoard ,the goods in wh1ch he deals and thus dictate prices. Since the consumers have preferences of their own, they are vulnerable to the tactics of the sole distributors who may sell their goods in black market taking unfair advantage .of the consumer's preference for a particular brand. Further, with more than one distributor in the field, the wholesalers stand to gain at least in terms of courtesy if not always in terms of price. However, the argument advanced in order to meet this contention is that this situation is possible only where the supply exceeds the demand. In the case of cigarettes it has been asserted that the goods are in short supply and, therefore, regardless of the number of distributors, the position of the consumer will remain unenviable.

29. After hearing these arguments and counter arguments all that can be said is that "much can be said on either side". The Monopoly Authority has been created precisely for the purpose of going into such questions of toonomics, bringing the experties of its members to bear upon them and then taking such steps as may be in the best interest of the public at large. It is not for this Court to decide whether the General Order in question is really going to promote the cause of competition and serve public interest. For, the Court is not in a position to do so without recording evidence and without consulting expert opinion aid this the Court will not do while the only question before it is whether the General Order in question was issued under lawful authority. The Authority may have erred in deciding the issue but that does not necessarily mean that they lacked the authority to pass the General Order in question under section 7 of the Ordinance. The detailed order passed by the Authority has been placed on record which shows that the General Order was passed after due‑ application of mind. If, however, the conclusions drawn by the Authority prove in future to be incorrect, the Order can be withdrawn. But there is no warrant in law'that this Court should set it aside on the ground that it does not agree with the Authority's decision. It is to be noted that , the causes before me are not appeals from the order of the Authority.

30. However, the learned counsel for the manufacturers also contends that there was no point in issuing this General Order because it can be rendered ineffective by the manufacturers by allocating 99 percent of the burin&s of distribution to one distributor and dividing the remaining one per cent amongst the other distributors. It is true that there are no definite instructions in the General Order with regard to the allocation of business to the distributors and, therefore, it is possib;e for the manufacturers to dodge the law in the manner suggested above. But no law can be declared invalid simply on the ground that it can be successfully hoodwinked. It is in fact the duty of every citizen to make the law work. The law is made to be obeyed and not to be evaded. Every law‑abiding citizen is expected to respect the law and there is no reason to believe that either the manufacturers or the distributors of cigarettes, soaps and shoes are not law‑abiding. If the General Order in question is ultimately upheld by the G)urts and the required number of distributors are appointed, it is expected that the manufacturers will allocate business to their distributors evenly.

31. It may be noted that I have refused to adjudicate upon the merits of the General Order in question on the ground that it has been passed by a body of experts who are better equipped than this Court to deal with the economic issues involved therein. But the experties of the members of the Authority and the constitution of the Authority have also been called into question. It has been argued that no qualifications have been prescribed in the Ordinance for the members of the Authority. An attempt has also been made to show by a reference to the note written by the members of the Authority in justification of the General Order that they are in fact no experts. It is no doubt true that no qualificatioLs have been prescribed and so it is open to the Government to appoint any person to be a member of that Authority regardless of whether he is an expert or not. But it is expected that a responsible Government will appoint only experts to a body like the Monopoly Control Authority. However, if the members appointed are incompetent persons, the forum where their appointment can be appropriately challenged, in the absence of prescribed qualifications, is the Parliament and not a Court of law. The Government is answerable to the representatives of the people for a questionable appointment. In my opinion, therefore, it is not open to this Court to examine the competence of the members of the Authority who have made the impugned General Order.

32. As for the constitution of the Authority, the law requires that there should be at least three member including the Chairman, each appointed for a period of five years. In case any member resigns sooner or ceases to hold office otherwise, the vacancy is supposed to be filled for the remaining term by the appointment of another person. In the present case it has been asserted that one of the three members of the Authority was an East Pakistani who emigrated after the creation of Bangla Desh. In view of this circumstance, it has been argued that the Authority is not properly constituted. The learned counsel for the Authority has, however, drawn my attention to rule 7 of the Monopolies Control Authority Rules, 1911, according to which a case can be heard by two members, as it has been done in the instant case, when there is a vacancy. But the learned counsel for the petitioners and the manufacturers insist that the mere absence of the East Pakistani member from the panel does not amount to a vacancy b; cause he has neither resigned nor died. In my opinion, however, the unprecedented circumstance which forced the learned member from East Pakistan to vacate his office did create a vacancy within the meaning of clause (iii) of rule 7 of the said rules. And since the decision of the remaining two members, one of whom is the Chairman, is unanimous, it is valid and does not suffer from any defect in the constitution of the Authority.

33. It was also doubted as to whether the members of the Authority had made the declaration affirming secrecy and fidelity as required under subsection (3) of section 8 of the Ordinance. But these doubts have been set at rest by the learned counsel for the Authority by production of record which indicated to my satisfaction that the required declarations were duly made by the members although no particular form of declaration appears to have been prescribed under the rules.

34. For the reasons recorded above I am satisfied that neither the impugned General Order has been made without lawful authority nor the law which authorized it ,,)s unconstitutional or otherwise defective. The General Order, therefore, does not lack legal effect. All the three writ petitions are accordingly dismissed.

35. As 'this is a case of first impression so far as the Ordinance V of 1970 is concerned and since some very important questions of law were raised in these petitions, I leave the parties to bear their own costs. g, Q, Petition dismissed.