CH. & CO. Versus CONTROLLER GENERAL OF PRICES AND SUPPLY
The petitioner is a dealer within the meaning of para. 2(a) of the Punjab Fertilizers (Control) Order, 1973. On 20th May 1974 he was served with a telegraphic order which reads as follows :‑
"STATE ORDINARY TELEGRAM
1. Messrs Anwar Bros. G. T. Road 5. Messrs Sabria & Co.' 22‑B
Bazar, Mian Channu, District Multan. Ghalla Mandi, Vehari, District
Multan.
2. Messrs Sh. Allah Bakhsh & Sons,
6. Messrs Muhammad Latif & Ghalla Mandi Bazar, Mian Channu, Sons, Vehari, District Multan.
District Multan.
3. Messrs Shafiq Agencies. Vehari,
7. Messrs Javaid Agri. Services,
District Multan. Ghalla Mandi, Mian Channu, District
Multan.
4. Sh. Muhammad Latif, Vehari,
8. Messrs Zulfiqar & Co., T. T.
District Multan. Singh.
9. Messrs Ch. & Co., T. T. Singh.
Under my orders dated 15th April 1974 you were directed by the Assistant Manager, T. T. Singh to stop sales of Chemical Fertilizers forthwith (.) In Supersession of my orders dated 27th April 1974 conveyed to you through the Assistant Manager, T. T. Singh to start sales on new rates subject to your depositing cost Differential. I, Syed Naseer Ahmad, Controller of Prices and Supplies in exercise of the powers conferred by section 3(2)(e) of the Punjab Essential Articles (Control) Act, 1973 and Directions of the Provincial
Secretary, Agriculture, now require you to sell all Stocks of Chemical Fertilizers under your control on 20th April 1974, to Dawood Hercules at the prices at which it was supplied to you (.) Under prior intimation to District Manager/Assistant Manager (.) Moreover, at your option, there will be no objection if such stocks are retained by you for distribution provided you deposit cost differential between the revised rates and old rates prevalent before 20th April 1974 (.) This option is being given in order to facilitate transactions and to ensure that there is no interruption in the sale of Fertilizers to the farmers and the redistribution commences immediately (.)
(Sd.) Managing Director
Agricorp
Controller of Fertilizers
(Not to be telegraphed).
Managing Director
Punjab Agricultural Dev. and Supplies Corpn.
5‑Bank Square, Lahore.
No. Sales/001/74/11583‑11.602 Dated 20‑5‑1974.
Copy forwarded by post in confirmation to :‑
1. Messrs Anwar Bros., G. T. Road Bazar, Mian Channu, District Multan.
2. Messrs Sh. Allah Bakhsh & Sons, Ghalla Mandi Bazar, Mian Channu, District Multan.
3. Messrs Shafiq Agencies, Vehari, District Multan.
4. Sh. Muhammad Latif, Vehari, District Multan.
5. Messrs Sabria & Co., 22‑B, Ghalla Mandi, Vehari, District Multan.
6. Messrs Muhammad Latif & Sons, Vehari, District Multan.
7. Messrs Javaid Agriculture Services, Ghalla Mandi, Mian Channu, District Multan.
8. Messrs Zulfiqar & Co, T. T. Singh.
9. Messrs Chaudhary & Co., T. T. Singh.
(Sd.) Managing Director,
Punjab Agricultural Dev. & Supplies‑
No. Corporation
Dated 20‑5‑1974. Lahore (Controller of Fertilizers).
Copy to :‑
1. Assistant Manager, P. A. D. and S. C.‑Mian Channu.
2. Assistant Manager, P. A. D. and S. C.‑Vehari.
3. Regional Manager, P. A. D. and S. C.‑Multan.
4. District Manager, P. A. D. and S. C.‑Multan..
(Sd.) Managing Director
Punjab Agricultural Dev, and Supplies Corporation
Dated 20‑5‑1974. Lahore (Controller of Fertilizers).
No.
Copy forwarded for information to :‑
1. Messrs Esso (Pakistan) Ltd., Multan.
2. Messrs Dawood Hercules Chemicals Limited, WAPDA House, Lahore.
(Sd.) Managing Director
Punjab Agricultural Dev. and Supplies Corporation, Lahore (Controller of Fertilizers)."
2. The petitioner has come up in writ petition to this Court against the aforesaid order. Learned counsel for the petitioner raised a number of contentions to which I will presently advert. The first point raised by the learned counsel for the petitioner was that the Controller had no jurisdiction or authority to issue the aforesaid order. The contention has no merit, in view of paragraphs 3 and 4 of the Punjab Fertilizers (Control) Order, 1973, which read as follows :‑
"Para. 3. Dealers.‑(1) The Controller may, by notification in the official Gazette, specify the person or persons who shall be the dealers for the purposes of this Order, and thereupon, subject to sub‑clause (2), no importer or producer shall, except with the prior permission in writing of the Controller, sell or otherwise dispose of fertilizer to any person who is not such dealer.
(2) The Controller may, by an order in writing, require any importer or producer to sell to such dealer or dealers such quantity or quantities of fertilizer as may be specified in the Order, and may issue incidental or supplementary instructions in writing to any importer, producer or dealer in regard to the sale thereof as he thinks fit.
Para. 4. Maximum prices.‑The Controller may, by notification in the official Gazette, fix the maximum price of fertilizer and no importer, producer or dealer shall sell it at a higher price than the price so fixed."
3. The Punjab Fertilizers (Control) Order, 1973 had been promulgated in exercise of the powers conferred by section 3 of the Punjab Essential Articles (Control) Ordinance VII of 1973‑(now Punjab Act XVII of 1973) which reads as follows :‑
"Section 3. Power to control production, supply, distribution, etc. of essential articles.‑(1) Government, so far as it appears to it to be necessary or expedient for maintaining or increasing supplies of any essential article, or for securing its equitable distribution and availability, or for controlling and fixing the prices of an essential article may, by notified order, provide for regulating or prohibiting the production, acquisi tion, treatment, keeping, storage, movement, transport, supply, distribu tion, availability at fair price, disposal, use or consumption thereof, and trade and commerce therein.
(2) Without prejudice to the generality of the powers conferred by sub-section (1), an order made thereunder may provide‑
(a) for regulating by licences, permits or otherwise, the production, manufacture, acquisition, treatment, keeping, storage, movement, transport, supply, distribution, disposal, use and consumption of any essential article;
(b) for prohibiting the withholding from sale of any essential article ordinarily kept for sale;
(c) for controlling and fixing the prices at which any essential article may be bought or sold in any area;
(d) for displaying in a prominent place of business premises a list of prices fixed for sale and of the quantity of stock of essential articles available at the time of start of business on a day;
(e) for requiring any person holding stock of an essential article to sell the whole or a specified part of the stock to such person or class of persons or in such circumstances as may be specified in the order;
(f ) for regulating or prohibiting any class of commercial or financial transaction relating to essential article which, in the opinion of Govern ment, Officer or authority making the order are, or if "unregulated are likely to be detrimental to public interest;
(g) for collecting any information or statistics with a view to regulating or prohibiting any of the aforesaid matters;
(h) for requiring persons engaged in the production, supply or distribu tion of, or trade or commerce in any essential article, to maintain and produce for inspection such books, accounts and records relating to their business and to furnish such information relating thereto as may be specified in the order; and
(i) for any incidental and supplementary matters including, in particular, the entering and search of premises vehicles, vessels and aircrafts, the seizure by a person authorised to make such search of any article 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 committed or any records connected therewith, the grant or issue of licences, permits or other documents, and the charging of fees therefore.
(3) Government, so far as it appears to it to be necessary for maintaining or increasing the production and supply of an essential article, or for controlling and fixing of price of an essential article, may, by notified order, authorise the Controller to exercise with respect to the whole or any part of any such undertaking engaged in the production and supply of the articles as may be specified in the order such function of control as may be provided by the order.
(4) So long as an order is in force with respect to any undertaking or part thereof, the undertaking or the part thereof shall be carried on in accordance with any direction given by the Controller in accor dance with the provisions of the order and any persons having any functions or management in relation to the undertaking or part thereof shall comply with any such direction"
If the Punjab Essential Articles (Control) Ordinance/Act, 1973 is read along with paragraphs 3 and 4 of the Punjab 'Fertilizers (Control) Order, 1973 it becomes quite clear that the Controller. had the power to issue an order of the kind which is being impugned in this case. Learned counsel submitted that para. 3 of the Punjab Fertilizers (Control) Order. 1973 was in excess of section 3 of the parent Ordinance/Act of 1973. The contention raised has no substance. The matters and incidents mentioned in sections 3(1),A and 3(2) are so comprehensive that paragraphs 3 and 4 quite fit in them.
The powers of the Government under section 3 deal with maintaining or increasing supplies of any essential article, or for securing its equitable distribution and availability or for controlling and fixing its prices for regulating or prohibiting its production, acquisition, treatment, keeping, storage, movement, transport, supply, distribution, availability at fair price, disposal, use or consumption thereof, and trade and commerce therein. Without prejudice to the generality of the powers hereinbefore mentioned the power of the Government extends even for the supply, distribution, disposal, use and consumption of any essential article for prohibiting the withholding from sale of any essential article ordinarily kept for sale, for controlling and fixing the prices at which any essential article may be bought or sold in any area, for displaying a list of the prices fixed, for requiring any person holding stock of an essential article to sell the whole or a specified part of the stock of such persons or class of persons or in such circumstances as may be specified in the order and for regulating or prohibiting any class of commer cial or financial transactions which are detrimental to public interest etc. etc. The power to appoint dealers for the sale of an essential article or fixing or controlling its price is quite within the scope of section 3 of the Ordinance/ Act and paras. 3 and 4 of the Punjab Fertilizers (Control) Order, 1973 in no way exceed the same.
4. The next point argued by the learned counsel was that an order under paras. 3 and 4 of the Punjab Fertilizers (Control) Order, 1973 has to be made by means of a notification in the official Gazette. The Order, as contained in Annex. `D', it was argued, was merely a telegraphic Order and not having been made by means of a notification was of no legal consequence. Reliance for this proposition was placed on Messrs Kalimulla & Co. v. The Government of West Pakistan and another (P L D 1961 Lah. 321) wherein it was held that when an order was to be made by means of a notification that unless so made it was of no legal consequence. The legal principle referred to by the learned counsel is quite sound but the argument raised on the facts and in the circumstances of the present case, however, is not tenable. At this stage, it may be pointed out that another law which exists on the subject is Essential Commodities Control Order, 1971, which was promulgated by the Central Government in exercise of the powers conferred by rule 134 of the Defence of Pakistan Rules. According to para. 2(a) of that Order "Controller -General" means the Controller‑General of Prices and Supplies appointed by the Central Government and includes any Deputy or Assistant Controller- General of Prices and Supplies so appointed, and any other officer authorised by the Central Government to exercise all or any of the powers of Controller -General under this Act. According to para. 2(b) "dealer" means a person carrying on, whether in conjunction with any other business or not, the business of selling any essential commodity, whether wholesale or retail. Para 3(1) of the order says that "The Controller‑General may, by notifica tion in the official Gazette, fix specific maximum prices of essential commodi ties and different prices may be fixed for different localities or for different classes of importers, producers or dealers." Clause (2) of para. 3 states that until the maximum price of any essential commodity is fixed under clause (2)(1), its price shall be determined in accordance with such general or special orders as the Controller‑General may issue in the official Gazette provided that until such prices are fixed the price for the commodity concerned as prevalent just before the Emergency shall continue to apply,"
Clause (3) of para. 3 states that "no person shall sell or re‑sell any essential commodity or used essential commodity at a price higher than the maximum price fixed or determined under this order for that or similar commodity." Paragraphs 8, 9, 10 and 11 of this order are also relevant. They read as follows:‑
"Para. 8. Power to order sale etc.‑(1) The Controller. General may, by order in writing direct any importer, producer or dealer to sell any essential commodity to such person, and in accordance with the directions of such officers of the Central or Provincial Government, and on such conditions, as may be specified in the order.
(2) The Controller‑General may, by order in writing direct any importer, producer or dealer not to sell any commodity to dealer or person as may be specified in the order.
Para. 9. Registration of producers, dealers, etc.‑The Controller‑General may by an order published in the official Gazette require that producers and dealers of an essential commodity shall get themselves registered and licensed on such terms and conditions and on payment of such fee, as may be specified in the order.
Para. 10. Approved dealers.--‑The Controller‑General may, by notification in the official Gazette, specify in respect of any essential commodity, the dealers who shall be approved dealers in that commodity for the purpose of this order, and thereupon no importer or producer of that commodity shall sell or otherwise dispose of any such commodity to any person who is not such approved dealer.
Para. 11. Fixation of maximum quantities which may be held or sold.--- The Controller‑General may, by notification in the official Gazette, fix in respect of any essential commodity :‑
(a) the maximum quantity which may at any time be possessed by a producer or dealer ; or
(b) the maximum quantity which may in any one transaction be sold to any person."
Mr. G. M. Bajwa, Controller‑General, Price, and Supplies, Government of Pakistan, Ministry of Industries, on 20th April 1974, issued a Notification bearing No. S. R. O. 502(1)/74 which was published in Part II of the Gazette of Pakistan (Extraordinary) of the same date, which reads as follows :‑---
"ISLAMABAD, SATURDAY, 20th APRIL 1974
PART II
Statutory Notification (S. R. O.) Government of Pakistan
MINISTRIES OF INDUSTRIES NOTIFICATIONS
Islamabad, the 20th April 1974
S. R. O 502 (1)/74.‑In exercise of the powers conferred by clause 8 of the Essential Commodities Control Order, 1971, I, G. M. Bajwa, Controller of Prices and Supplies, hereby direct every importer, producer and dealer to sell all chemical fertilizers in his possession or under his control on 20th April 1974, to the Secretary Agriculture of the Province in which the stocks are located, and/or in accordance with his directions at the price as fixed under Notification No. SOR 1184 (1)/73, dated 11th August 1973, less such incidental charges, if any, as may be determined under the Chemical Fertilizers (Develop ment Surcharge) Act, 1973 (XLI of 1973).
S. R. O. 503(1)/74.‑In exercise of the powers conferred by clause 3 of the Essential Commodities (Control) Order, 1971, I,G.M. Bajwa. Controller‑General of Prices and Supplies, hereby direct that the maximum sale prices in retail of the "Chemical Fertilizer" specified in the Gazette of Pakistan, Extra., April 20, 1974 (Part II) Table below shall with immediate effect be as indicated against each.
TABLE
Maximum Sale
Chemical Fertilizer Price in Weight per bag
Retail per bag
.............................................................................................. Rs, Lb.
Nitrogenous
(i) Urea 46 %N ....................................................... 75.00 110
(ii) Ammonium Sulphate 21 %N 34.00 112
(iii) (a) Ammonium Nitrate 26 %N 34.00 87.50
(b) Ammonium Nitrate 26 ON 43.00 110
Compound
(iv) Ammonium Sulphate 43.00 110
Nitrate 26 % N.
(v) Dia Ammonium Phosphate 75.00 110
(18 %N & 46 %P).
(vi) Nitro‑phos(23 %N & 65.00 110
23 , /P).
Straggtt Phosphates
(vii) Triple Super Phosphate 55.00 110
46 %P).
(viii) Single Super Prosphate 22.00 112
18 %).
(No. IND (CG)‑20 (73)/72).
G. M. Bajwa,
Controller‑General, Price and Supplies"
In pursuance of the aforesaid Notification the Provincial Controller on 9 5th May 1974, issued a notification in the Gazette of 24‑5‑1974 which reads as follows :‑---
"AGRICULTURE DEPARTMENT
The 15th May 1974
No. PAD & S/3628.‑---In exercise of the powers conferred by sec tion 3(2)(e) of the Punjab Essential Articles (Control) Act, 1973; and directions of the Secretary, Agriculture, Government of the Punjab, I, Syed Nasir Ahmad, Controller of Prices and Supplies under the Punjab Essential Articles (Control) Act, 1973 hereby direct every specified dealer to sell all Chemical Fertilizers in his possession or under ,his control on the 20th April 1974 (the sale of which is stopped Under my order of 15th April 1974), to Dawood Hercules Limited and ESSO Fertilizer at the prices at which it was supplied to the speci fied dealers.
SYED NASIR AHMAD,
Controller of Prices and Supplies,
Government of the Punjab.
A perusal of the above will show that the Controller‑General of Price and Supplies, Central Government, in official Gazette dated 20th April 1974, bad directed the importers, producers and dealers to sell all Chemical Fertilizers in their possession on 20th April 1974, to the Secretary Agriculture of the Province in which the stocks were located in accordance with his directions at the price as fixed under Notification No. SOR 1184(1)/73, dated 11th August 1973 less such incidental charges, if any, as may be determined under the Chemical Fertilizers (Development Surcharge) Act (XII of 1973).. The Secretary to the Government of the Punjab Agriculture Department; on 21st April 1974, then issued the following letter to the Controller of Fertilizer and Managing Director, Punjab Agricultural Supply Corporation,. Lahore
"Top‑Priority No. 101‑PS‑Agri‑/74.
‑‑ Government of the Punjab
Tele No. 66578 Agriculture Department
Lahore, the 21st April 1974.
To
The Controller of Fertilizer and'
Managing Director, Punjab Agricultural
Supplies Corporation 5‑Bank Square, Lahore.
SUB:‑INCREASE IN FERTILIZER PRICES
According to Press handout,‑ the prices of fertilizer have been increased by the Government as follows
......... Rs.
Urea ... .................... ... .... (1101bs.) 75
Ammonium Sulphate ... .................... ... .... (112 lbs.) 34
Ammonium Nitrate ... .................... ... .... (871 Ibs.) 34
Ammonium Sulphate Nitrate ... .... (110 lbs.) 43
Diamonium Phosphate ............................................ ... .... (110 lbs.) 75
Nitro‑phos ......................................................................... ... .... (1101bs.) 65 .
Tripple‑Super Phosphate ....................................... ... .... (110 Ibs.) 55
Single Super Phosphate .......................................... ... .... (112 lbs.) 22
The Prices and Supplies Controller‑General for Essential Commodities has issued directions to all the distributors and dealers the fertilizer stocks with them as on 20th April 1974, and after deducting incidentals all the stocks are to be sold to the Provincial Government.
On behalf of the Provincial Government in your capacity as Controller of Fertilizer you are hereby authorised to take all necessary measures to ensure compliance of the orders of the Controller‑General of Prices and Supplies, Government of Pakistan in respect of the Punjab Agricultural Supplies Corporation, Private Agencies, distributors fertilizer factories situated in the Province of Punjab and stocks in transit.
Kindly ensure that re‑distribution in accordance with revised sales rates commences immediately and there is no interruption in the sale of fertilizer to the farmers. Kindly ensure that no person whatsoever takes advantage of the offered revision of prices to obtain a windfall profit. All unsold stocks must be taken over at the old prices and re‑sold at the revised prices. The benefit of the increased price must at all events revert to the Government.
You are also requested to kindly ensure that the distribution of other fertilizers which are in transit or in stock are speeded up and made available to the farmers at the revised prices.
The question of sharing between the Centre and the provinces of the amount accruing as a result of upward revision of prices will be settled later.
(Sd.) IJAZ HUSSAIN MALIK
Secretary to Government of the Punjab
Agriculture Department."‑
The necessary orders, it will thus appear, had already been issued by means of the notifications above reproduced and order contained in, Annex. 'D' which was impugned in this case was nothing but an amplification, of the earlier duly notified orders namely those contained in the Pakistan Gazette, Extraordinary, dated 20‑4‑1974 and Punjab Gazette (Part III), dated 24‑5‑1974, page 723, The plea that the order contained in Annex. `D' also should have been made by means of a notification in the context hereinbefore explained is thus not sound and cannot be accepted.
5. At this stage learned counsel stated that in the telegraphic order as contained in Annex. 'D' a direction was given that in case the dealer wanted to himself sell the old stock at the enhanced rates then he should deposit the differential increase with the department. This direction, according to the learned counsel was outside the scope of the earlier notified orders and was, therefore, without lawful authority and also because of its not having been made by means of a notification in the official Gazette. The contention has no merit for the reasons already given earlier, The scheme of the earlier notified orders was to direct the dealers to sell their stocks to the concerns mentioned therein namely, Dawood Hercules Ltd. and Esso Fertilizer at the: price at which it was supplied to them. If that had been done then in case the dealers again wanted to have the stocks the said stock would have to be re‑sold to them at higher prices with condition for further sale by the dealers themselves at the same high prices, with the result that in the process the position of the dealers would have remained the same as it is now. Instead of following that circuitous process the Provincial Controller gave an option to the dealers not to surrender the stock to the quarters concerns (and re‑take it at higher prices)‑--but to dispose of straightaway at the higher prices on condition that they should deposit the difference in price with the Government. This was only an alternative option given to the dealers in amplifica tion of the notified directions and was not a new direction by itself which needed any independent notification.
6. Learned counsel for the petitioner argued that once a stock was sold to a dealer he became its absolute owner and if thereafter any inflation in, price took place that belonged to the dealer himself and the authorities, concerned had no justification to take away that differential rise from him. This according to the learned counsel amounted to deprive a dealer of his property which in the context of the law under discussion was not justified. The plea has no substance. The relevant provisions of law hereinbefore quoted amply show that the stocks are given to the dealer with a condition that he has to sell the same to such persons and at such prices as may be directed by the Controller. If a dealer for instance has received a stock at a particular price with an indication to be sold at that price then his adventure is confined to that and that price alone. Later on if the prices rise, since rise in price was not within the adventure of the dealer he cannot claim legitimately to retain the profit in that respect. It is well known that fertilizers are subsidised items and if due to inflation the prices rise with the result that old stocks which according to earlier arrangement with the dealer were to be sold at the old rates are now to be sold at enhanced rates the Government would be justified in taking away the differential itself so as to adjust its subsidy. The transaction is to be looked at from the point of view of the prices at which the dealer was permitted to sell the stocks when he obtained it. In the instant case that price has not been reduced in any manner. The dealers are being asked to sell the old stocks at old prices at which they were under their own adventure required to sell when they received those stocks. Neither their income nor their commission in that respect has in this way suffered in any manner. Situations can be visualised where for instance a stock is issued in the first week of a month to be sold at prices indicated at that time. Another stock is issued in the second week of the month to be sold at prices indicated with references to the second week. Still another lot is sold in the third week of the month to a dealer to be further sold at certain price which the Controller may fix with reference to the stock of that week. If the prices for the stock of the third week are higher the dealer is not authorised to sell the stock of the first week at those higher rates. The authorities concerned will be still within their jurisdiction to ask the dealer to re‑sell the stock back to them at the same rates at which he would have sold them with reference to the prices of the relevant week, after allowing the usual commission and allowances etc. to the dealer. However, if the dealer wishes to re‑purchase those stocks obviously he will be sold those stocks at new rates with a corresponding authority to further sell it in the market at new rates. The authorities concerned in this case have not altered their previous commitment in any manner, and rather these are the dealers them selves who do not want to stick to the old rates with reference to which they had been given the supply. The standpoint of the authorities seems to be quite just and fair and does not call for any interference by this Court.
7. Learned counsel submitted that in the various provisions of law hereinbefore reproduced there was no scope for claiming high‑price‑differ ential from the dealers and, therefore, the orders passed by the Controller in that respect were without lawful authority. Learned counsel referred to Ali Akbar Shah v. The State (P L D 1960 Lah. 437) wherein it was held that power to prosecute cannot be implied from general provisions of statute and must be expressly contained in the law relevant on the subject. He also referred to Hakim‑ud- Din v. Government of West Pakistan and another (P L D 1960 Lah. 709) for the proposition that liability to pay a fee‑(cotton fee in that case)‑must be expressly contained in the Statute and cannot be implied from its general terms pressing forward the principles enunciated in the aforesaid cases, learned counsel submitted that on the same analogy the liability to return the price differential to the Government must also have been provided from in the Ordinance/Act and orders quoted above and as, according to him, it was not so expressly provided therein, therefore, it could not be implied from the general provisions of the aforesaid laws. T' have already stated that in the context of the dealership of the kind involved here, the dealers concerned are not entitled to divert stocks meant for being sold at lower rates, so as to sell them at higher rates, and in the very nature of things the high price differential cannot be claimed by them as of right. The approach to the point in hand is to be made from this stand‑point and not the way the petitioners are trying to twist it. Even otherwise as I have already explained earlier the subject‑matter of price differential can well fit within the various spheres of actions of the controllers and the impugned orders in no way can be considered to have exceeded the same in any manner. In Lahore Improvement Trust, Lahore through its Chairman v. The Custodian, Evacuee Property, West Pakistan, Lahore and 4 others (P L D 1971 S C 811) it was held that an order should not be summarily struck down and a Court of law must exhaust all field to see whether it can fit in any provision of law or not. The actual passage at page 837 of the report reads as follows :‑
"Another principle attracted in the case is that before an order passed by a public authority is struck down it is the duty of the Court to explore every possible explanation for its validity and examine the entire field‑ of powers conferred on the authority in pursuance to which the impugned order has been passed. See The Chairman, East Pakistan Railway Board, Chittagong and another v. Abdul Majid Sardar (P L D 1966 S C 725). It was remarked in this judgment :‑
Acts performed and orders made by public authorities deserve due regard by Courts and every possible explanation for their validity should be explored and the whole field of powers in pursuance to which the public authorities act or perform their functions examined and only then if it is found that the act done, order made or proceed ing undertaken is without lawful authority should the Courts declare them to be of no legal effect.
To satisfy the requirement of this rule it is the duty of the Court to examine the entire record pertaining to the action taken, order passed and proceedings undertaken which are challenged as without lawful authority under Article 98 of the Constitution. Otherwise grave miscarriage of justice may take place in the exercise of this beneficial jurisdiction."
Respectfully invoking that principle I am of the view that the question of fixation of prices being within the proper jurisdiction of the controllers) the orders impugned herein which pertain to the same subject‑matter and are in further implementation and supplementation thereof cannot be taken exception to in any manner.
8. The learned departmental counsel submitted that in cases where stocks were delivered to the dealer in year 1974 it was on the express conditions contained in a letter of authority, a pro forma of which was filed in this Court, and which reads as follows :‑
"PUNJAB AGRICULTURAL DEVELOPMENT AND SUPPLIES CORPORATION, 5‑BANK
SQUARE, LAHORE
Appointment of Approved Dealers for Fertilizer Marketing
Dealership Notification No.--------------------under the Punjab, Fertilizer (Control) Order, 1973.
1. Subject to the provisions of the Punjab Fertilizers (Control) Order, 1973 and the terms and conditions of the Notification Messrs------------------------are hereby authorised to act as dealers fertilizers and to purchase, sell or store for sale of fertilizers. The dealers shall carry on the aforesaid business at----------------------.
2. This appointment is purely temporary and can be terminated by Controller (Managing Director, PAD&SC) without notice and without assigning any reason.
3. The dealer will ensure that the fertilizers are sold for Agricultural purposes only and not for any other commercial value and the sale will be made to actual consumers only.
4. Fertilizers being an Essential Article under section 2(c) of the Punjab Essential Articles (Control) Ordinance of 1973, you are, therefore, cautioned to ensure that the prices you charge from your customers are in absolute accord with the official fixed prices. Any violation of this Ordinance is a cognizable offence and your dealership shall stand cancelled should you be found guilty of the offence.
5. The dealer shall not at any time be in possession of fertilizers in excess of the quantities fixed by the Controller (Managing Director, BAD&SC)s and shall not sell in any one transaction to any person more than the maximum quantity if so fixed by the Controller.
6. The dealer shall maintain a register of accounts in Form I attached.
7. The dealer shall furnish to the Controller or any other Officer authorised by him in that behalf a return in Form II attached, showing the receipts and issues of each kind of fertilizer during a calendar month. The return shall be submitted by the dealer so as to reach the authority concerned not later than the 7th day of each month.
8. The dealer shall not withhold from sale fertilizers held by him except in accordance with or under any law for the time being in force.
9. The dealer shall not except on the authority in writing of the Controller at any time :‑---
(a) Possess fertilizers more than that authorised.
(b) Sell, transfer, or otherwise dispose of any quantity of fertilizers to any other person if he knows, or may reasonably, be presumed to know, that by reason of such scale, transfer or disposal, the quantity of fertilizer in the possession or under the control of the other person shall exceed the normal quantity.
10. The dealer shall exhibit, prominently on his premises, a price list for all kinds of fertilizers held by him.
11. The dealer when selling fertilizers shall give the purchaser a Cash/ Credit Memo. containing particulars of the transaction and the full address of the purchaser. The duplicate of the Cash/Credit Memo. shall be retained by the dealer in a bound pad which will be made available for inspection on the demand by the Controller or any other Officer authorised by him.
12. The dealer shall afford all facilities at all reasonable times to any authorised officer by the Controller for the inspection of his stocks and accounts at any shop, godown or other place used by him for storage or sale of fertilizers.
13. The dealer shall comply with any directions that may be given to him by the Controller in regard to the purchase, sale or storage of fertilizer.
14. In case of any rise in the maximum sale prices in retail of chemical fertilizers, the amount by which maximum sale price of that fertilizer exceeds its maximum retail selling price as in force prior to the new price, the "differential/margin" shall be refunded to the Controller. Failure to refund the "differential/margin" promptly will result in the cancellation of dealership in addition to any other remedy open to the Controller according to law.
Valid up to‑‑‑‑ ‑‑
(Controller)
Managing Director
Punjab Agricultural
Supplies Corporation."
Clause 14 of this pro forma, as is self‑evident, clearly stipulates that in case of rise in prices, directions of the kind contained therein could be given by the authorities concerned. Those of the petitioners, therefore, who took stocks under the aforesaid conditions, are bound by and cannot be allowed to take exception to the same in the course of writ jurisdiction in this Court. The argument of the learned departmental counsel seems to be sound and I endorse the same and will add that it was not fair on the part of the concerned petitioners so as to keep away that aspect of the matter from the Court and leave it for being pointed out by their adversary.
9. This case has been heard alongwith 22 other cases, the details of which are as follows :‑
Serial Writ Petition No. Title
No.
1. 704 of 1974 Messrs Zul6qar & Co. (Regd.) v. The Controller,
Prices and Supplies etc.
2. 732 of 1974 Anwar Brothers, ESSO Fertilizer v. Assistant
Manager, P. A. D & S. C. etc.
3.733 of 1974 Allah Bakhsh & Sons v. Assistant Manager,
P. A. D. & S. C. etc.
4.734 of 1974 Shafiq Agencies v. Assistant Manager. P A. D.
& S. C. etc.
5. 735 of 1974 Sh. Muhammad Latif etc. v. Assistant Manager,
P. A. D. & S. C. etc.
6. 736 of 1974 Shabbir & Co. v. Assistant Manager, P. A. D.
& S. C. etc.
7. 737 of 1974 Messrs Muhammad Latif v. Assistant Manager,
P. A. D. & S C etc.
8. 738 of 1974 Javed Agricultural Service v. Assistant Manager,
P. A. D. & S. C. etc.
9. 1644 of 1973 Messrs Suhail & Co. etc. v. Government of
Pakistan etc.
10.1702 of 1973 Messrs Azim Aftab & Co. v. Controller‑General
Prices, etc.
11. 1730 of 1973 Malik Ghulam Ahmad v. Controller‑General
Prices, etc.
12.1761 of 1973 Messrs Nur Ahmad etc. v. Controller‑General
Prices etc.
13.1789 of 1973. Messrs Sohail & Co. v. Islamic Republic of
Pakistan etc.
14.1792 of 1973 Messrs Dilawar Khan Khadim Hussain etc. v.
Islamic Republic of Pakistan etc.
15.1793 of 1973 Messrs Zahir & Co. v. Controller‑General
Prices etc.
16.1794 of 1973 Gujrat Traders v. Controller‑General
Prices etc.
17.1805 of 1973 Messrs Muhammad Zaheer & Co. v. Controller
General Prices etc. '
18. 1806 of 1973 Messrs Abdul Maiid Muhammad Hafiz etc. v.
Controller‑General Prices etc.
19.1879 of 1973 Iafiq Commission Shop, Pakpattan v. Controller
General Prices etc.
20.1880 of 1973 Bashir Ahmad etc. v. Controller‑General
Prices.
21.1889 of 1973 Rashid Ahmad Malik v. Controller‑General
Prices.
22.1878 of 1973 Montgomery Tahsil Council v. Controller
Prices.
10. The present judgment covers all these cases. For the reasons given above all these writ petitions have no merit and are hereby dismissed with costs.
K. B. A. Petitions dismissed.