Dr. Khurshid Iqbal, J.
1. The petitioner (Safeerullah) and 11 others are Liquefied Petroleum Gas (LPG) distributors of different companies in District Dir Upper and District Chitral. They have petitioned before us for setting aside, in exercise of our constitutional jurisdiction, an Order which the learned Consumer Court of Chitral has passed on 27.11.2018.
2. On 14.11.2018, one Amin-ur-Rahman, a resident of Singoor of Tehsil and District, Chitral, moved a complaint before the Consumer Court. The grievance he expressed in his complaint was that in Chitral, the dealers of the LPG companies burden carriage charges on consumers. He stated that the companies shall pay the carriage charges from Islamabad to Chitral. He invited the attention of the Consumer Court that recently LPG prices have been reduced by Rs. 25 per Kilogram (Kg), but the Executive Authorities of Chitral have cut it down to Rs. 5.40 per Kg. The complainant appealed to the Consumer Court to direct the Executive Authorities--the Deputy Commissioner and District Food Controller of Chitral--to reduce the LPG prices in the best interest of the consumers.
3. The learned Consumer Court sought reply of the Deputy Commissioner. The following documents were placed before the Consumer Court on 28.11.2018: a. A reply of the Assistant Commissioner, Chitral to the Notice dated 20.11.2018 of the Consumer Court. b. Price list dated 29.10.2018 for gas dealers issued by the Deputy Commissioner exhibited by the DFC. c. POL gas prices with effect from 29.10.2018. d. Copy of an email showing current POL gas rate for Chitral, and e. Copy of the OGRA's S.R.O. (1)/2018 vide its Notification of 01.11.2018.
4. The learned Consumer Court passed its impugned Order by which it declared void ab initio the price list mentioned at serial # `b', above.
5. We have heard argument of Mr. Muhammad Ikram Khan, learned counsel for the petitioners, and the learned Addl: AG, for the official respondents and perused the record.
6. At the very outset, a question arose whether an appeal under section 17 of the Khyber Pakhtunkhwa Consumers Protection Act, 1997 ([Khyber Pakhtunkhwa] Act No. VI of 1997) (Consumer Protection Law, 1997) is competent or a writ is maintainable against the order of the Consumer Court. The learned Consumer Court has passed the impugned order under section 15 of the Consumer Protection Law, 1997, which is not a conviction or acquittal. Hence, it is not appealable.
This question has been resolved by a learned Single Bench of this Court in the case of All Swat Paper Chips and Pops Owners Association District Swat vs. Bakht Afsar Ex-DEP District Shangla Amir Jumat Islami PK-87 Shancila and 5 others 2019 PCr.L.J. 225. The honourable Court held that if the right of appeal is not available to an aggrieved person, remedy through a writ petition may be pursued. The honourable Court relied on the judgment of a larger Bench in case of Mian Sharif Shah v. Nawab Khan and 05 others PLD 2011 Peshawar 86. We, therefore, hold that the instant writ petition is maintainable.
7. Reverting to the facts of the case in hand, admittedly, the LPG prices are fixed by the Authority established under the Oil and Gas Regulatory Authority Ordinance, 2002 (Ordinance No. XVII of 2002) (OGRA Ordinance 2002). A copy of Notification, referred to at serial # 'e', above, depicts, the LPG prices are fixed by the OGRA, being empowered under Section 6(2)(r) of the OGRA Ordinance 2002 read with Rule 18 (1) of the LPG (Production & Distribution) Rules, 2001. As per the Notification, with effect from 01.11.2018, final LPG Consumer price for 11.8 Kg Cylinder was fixed as Rs. 1509.03. The Notification does not include transportation cost, which is incurred by distributors/ retailers. With the consultation of the distributors, the Deputy Commissioner adds transportation cost to the prices fixed by the OGRA. The OGRA Ordinance 2002 provides a mechanism for: firstly, making of any decision by the Authority it has the power to make and a right of hearing if it directly and adversely affects the rights of a person; and, secondly, filing of written complaint with the Authority against a licensee and filing of an appeal by an aggrieved person for review of its decision (Sections 9, 11, 12 and 13).
8. Now the question is whether the Consumer Court has the power to interfere with the process. To begin with, under section 2 (b) of the Consumer Protection Law, 1997, "Complainant" means a consumer, a voluntary consumer's association subject to such restrictions as may be prescribed, and Government, concerned Council, concerned a Local Government and any person or agency authorized by the aforesaid on their behalf to lodge complaint before the Court. According to section 2 (c) "Consumer" means any person or entity who buys goods or hires any good or services for a consideration which has been paid or promised or partly paid and partly promised to be paid or under any system of deferred payment including hire purchase and leasing and includes any user of such goods or beneficiary of such service, but does not include a person who obtains such goods for re-sale or for any commercial purpose.
9. Section 14 provides the procedure a consumer Court shall adopt on receipt of a complaint. Its sub-section (2) relates to procedure which the Consumer Court should adopt on complaints relating to goods in respect of which procedure laid down in sub section (1) could not be followed or the complaint relates to any service. The procedure is that the Consumer Court shall refer a copy of the complaint to the opposite party directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as it may grant. On receipt of the defence of the opposite party, if any, the Consumer Court shall proceed to settle the dispute on the basis of evidence produced by both the parties provided that if the opposite party does not deny or dispute the allegations made in the complaint or fails to present his case within the specified period, the dispute shall be settled on the basis of the evidence brought by the complainant.
10. Certain points are gleaned from the above discussion. Firstly, a consumer may move a complaint. Secondly, the petitioners do not fall within the definition of consumer. They are retailers.
Thirdly, legally the OGRA is competent to fix prices, but for companies, not for the retailers. Thus, transport costs borne by retailers are fixed by the Deputy Commissioner in consultation with the retailers. The reasoning of the learned Consumer Court is that the OGRA's S.R.O. (1)/2018 vide its Notification of 01.11.2018 does not confer any authority on the Deputy Commissioner to interfere with prices of the LPG in any manner. The learned Consumer Court has missed the point that the OGRA fixes the prices for companies, not the consumers. U/s. 9 of the OGRA Ordinance 2002, the authority is obliged to afford an opportunity of hearing to any person, whose rights may be directly and adversely affected with any of its decision. Section 9 is reproduced below: "9. Authority hearing.--- (1) Unless otherwise expressly provided in the Ordinance or any rule or regulation, any decision that the Authority has the power to make, may be made on its own motion or initiative after the holding of a meeting of the Authority, and without giving of notice to the public, and without holding a hearing: Provided that if it appears to the Authority that its decision relating to a regulated activity may directly and adversely affect the rights of a person, the Authority shall, prior to reaching the decision, give the person an opportunity of being heard, including presentation of evidence relevant to the decision."
Similarly, any person aggrieved against a licensee, may file a complaint with the authority u/s. 11 of the OGRA Ordinance 2002. The aforesaid section 11 is also reproduced as under: "11. Complaints.--- (1) Any interested person may file written complaint with the Authority against a licensee for contravention of any provision of this Ordinance or of any rule or regulation.
(2) The authority shall, on receipt of a complaint, provide an opportunity to the complainant as well as to the licensee, or any other person against whom such complaint has been made to state its case before taking action thereon."
Even otherwise, the issue of transport cost directly relates to retailer and in the instant case, the retailers were not heard by the learned Consumer Court.
11. The upshot of the above discussion is that the impugned Order of the learned Consumer Court suffers with jurisdictional defect, which warrants interference by this Court under Article 199 of the Constitution. Resultantly, we allow the instant writ petition and set aside the impugned Order.