AJMAL MIAN, J.-The petitioner in this petition is an association of fruit merchants registered under the Societies Act. The petitioner has prayed for the following reliefs :--- "(a) Declare that the retail prices of fruits fixed by the respondents are unjust, unreasonable, arbitrary, and without lawful authority.
(b) Quash the notification issued by the respondent No. 2 fixing the prices of Fruits in Karachi or any such subsequent notification.
(c) Restrain the respondents from issuing notifications except in strict compliance of sections 3 and 6 of the Act.
(d) Direct the respondents to fix wholesale and retail prices keeping margin of profit for retailers provided proper supply of the Fruits is also regulated and ensured as contemplated by law.
(e) Grant any other relief deemed fit in the circumstances of the case.
(f) Grant compensatory costs."
2. The above petition has been resisted by the respondents and inter alia it has been averred in their counter-affidavit that the prices of fruits have been fixed in accordance with law under appropriate notifications. In the alternative, it has been urged that under M. L. O. 2 issued by the Martial Law Administrator, Zone C, the Dy. Martial Law Administrator has the power to fix the prices of the essential commodities and, therefore, the prices could have been fixed under the above M. L.
O.
We may observe that though the above averment has been made in the counter affidavit by the respondents, but no order of the D. M. L. A. Has been produced to indicate that in fact the prices have been so fixed. Since the petitioner has not sought any relief against the fixation of the alleged prices under M. L. O. No. 2, we are not required to advert to the above aspect. The only question which requires consideration is, as to whether the prices have been fixed in accordance with the Price Control and Prevention of Profiteening and Hoarding Act, 1977, S. 3 (a). Mr. Raja Haq Nawaz, learned counsel for the petitioner in support of the petition has made the following submissions: -
(i) That in the Schedule to the Act the item of fruits has not been included and, therefore, no control price of fruits can be fixed.
(ii) In the alternative it has been urged that in any case no notification for fixing the prices as contemplated under section 6 has been gazetted.
(b) Mr. Sattar Shaikh, on the other hand has urged the following points :-
(i) That in fact the Schedule has been amended under section 12 of the Act by the Federal Government through the notification issued in the official Gazette.
(ii) That the prices have been in fact fixed in accordance with section 6 of the Act, through a Gazette notification.
4. (a) In order to appreciate the above contentions, it may be pertinent to refer to sections 6 and 12 of the Act, which read as follows :-- "Section 6. Fixation of price.---(1) Subject to such general or special orders 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 re-sell 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."
"Section 12. Power to amend Schedule.---The Federal Government may, by notification in the official Gazette, amend the Schedule so as to add to, or omit from it any commodity or class of commodities."
It may be noticed that under section 6 of the Act, the Controller is empowered by a notification in the official Gazette to fix specifically the maximum prices of essential commodities, and different prices for different localities or for different classes or categories of any essential commodities.
Whereas under section 12 of the Act the Federal Government has been empowered to amend the Schedule by a notification in an official Gazette.
(b) It may be observed that the respondents had obtained several adjournments on the previous dates of hearings on the ground that they wished to produce the Gazette notification to show that the Schedule to the Act has been amended under section 12 of the Act and that the prices have been fixed in terms of section 6 of the Act, but till today they have not been able to produce any Gazette notification on either of the above two points. Since the petitioner has made an averment on oath in the petition to the effect that the Schedule to the Act has not been amended, nor any notification fixing the prices in terms of section 6 of the Act has been gazetted and as the respondents have failed to produce any official Gazette in spite of the fact that they were given repeated opportunities, we are constrained to hold that there is no Gazette notification amending the Schedule under section 12 of Gazette notification fixing the prices under section 6 of the Act.
(c) Mr. Raja Haq Nawaz, learned counsel for the petitioner in support of his contentions referred to hereinabove has referred to the case of Fazal Ahmed v. Raja Ziaullah Khan and another (PLD 1964 SC 434) the case of Collector of Central Excise and Land Customs and 3 others v. Azizuddin Industries Ltd., Chittagong (PLD 1970 SC 439) and the case of Superintendent of Police, Federal Investigating Agency, Lahore and another v. Akhtar Hussain Bhutta (PLD 1978 SC 193)
(i) In the first case of 1964 SC, it was held that an executive power to issue a notification does not include the power to give notification retrospective effect.
(ii) Whereas 1970 SC, it was held that the Government under the rules making power cannot issue a notification for amending and varying the earlier notification which results in taking away the rights vested in the citizens by law.
(iii) As regards 1978 SC, it may be pertinent to observe that this judgment on all fours is applicable to the instant case. In the above Supreme Court case it was held by the Supreme Court of Pakistan that a notification means a notification published under the proper authority in an official Gazette in terms of section 2 (41) of the West Pakistan General-Clauses Act. It was further held that the notification can be effective from the date of publication of the Gazette and not from any prior date.
(5) Since in the instant case we have held that the respondents have failed to produce any Gazette notification amending the Schedule to the Act under section 12 of the Act including the item of fruits in the Schedule or a Gazette notification under section 6 fixing the price of the fruits, we, A therefore, allow the petition and declare that the respondents are not entitled to enforce any alleged notification under the Act which has not been gazetted in terms of the Act. The respondents are also restrained from taking any action on the basis of any such alleged notification. There will be no order as to costs.
Mr. Sattar A. Shaikh, learned Additional Advocate-General, Sind requests that this Court may clarify that this judgment will not affect any order passed by the D. M. L. A. Fixing the prices of the fruits under M. L. O. 2 referred to hereinabove. In our view, there is no need of any such clarification because we have not adverted to the legality of any order passed under M. L. O.-2, as no such order has been impugned in this petition.