' MAULVI ANWARUL HAQ, J.---The petitioners are stated to be in the business of retail sale of fruit at their shops. They feel aggrieved of the act of respondent No,1 in imposing and recovering tines from the three petitioners respectively vide (Annexures A, B and C). It was contended on behalf of the petitioners that fruit has not been declared as an essential commodity and included in the schedule to the Price Control and Prevention of Profiteering and Hoarding Act, 1977. The respondents were accordingly issued a notice calling upon them to explain as to under what lawful authority have they imposed and recovered the said fines. The said officers have appeared along with the learned A.A.-G.
2. It is being argued on behalf of the respondents that Item No,7 in the schedule to the said Act, 1977 covers fruits. Learned counsel for the petitioners on the other hand contends that upon a plain reading of the said item along with other items mentioned in the schedule it cannot at all be read to include fruits.
3. I have given some thought to the said respective contentions of the learned counsel and the learned law officer. Now section 2(c) of the said Act of 1977 defines essential commodity to mean any of the commodities or classes of commodities mentioned in the Schedule. Section 3 empowers the Federal Government to pass an order inter alia for controlling price at which any essential commodity may be bought or sold in any area. Section 6 empowers the Controller General to fix specific maximum prices of essential commodities. Section 6(2) provides that no person shall sell or re-sell any essential commodity at a price higher than the maximum price so fixed. Section 7 prescribes the penalties for contravention of any order passed or issued under section 3 or section
6. Section 12 empowers the Federal Government to amend the schedule through a notification in the official Gazette by adding' or omitting from it any commodity or class of commodities.
4. Now Item No,7 of the said schedule being relied upon by the respondents reads as follows:-- ' "Aerated water, fruit juices and squashes."
5. To my mind upon a plain reading of the said item as also reading of the entire schedule, it cannot, at all be said that fruit has been declared as an essential commodity within the meaning of said law. The term "fruit juices" is in between the Aerated Water and Squashes which is a class of goods besides when one goes through the schedule one finds specific mention of the articles which are declared as essential commodity. For example potato, onion, beef, mutton, etc. However, one finds no mention of any fruit or fruits of all sorts as a class.
6. The power to impose penalty and recover the same being dependent upon passing of an order under section 3 and section 6 of said Act, 1977 vis-a-vis an essential commodity and fruit not being such a commodity the respondents have no lawful authority to impose fine and recover the same from the petitioners as they have not contravened any such order for the simple reason that such an order does not exist. The writ petition, therefore, is allowed. The impugned action of the respondents in imposing and recovering fines from the petitioners/fruit sellers is declared to be void and without lawful authority and is set aside. The respondents shall, upon applications filed by the petitioners immediately refund the amount of fine against receipt. No orders as to costs.