' This is a suit for declaration and injunction filed by Comic Glass Ltd., against Karachi Gas Ltd., and arises under the following circumstances: The defendant is exclusive supplier of gas for industrial and commercial use and has been supplying the same to the plaintiff under a contract dated t- 14972 (131h. 5). The rats at which the price of gas is charged are mentioned in the contract which are the same as mentioned In the Notification bearing No, S. R.
0. 130(1)/69 dated 28-6-1969 (Bah. 12), Issued in the exercise of the powers conferred under rules 15 and 16 of the Natural Gas Rules, 1960 (hereinafter called the Rules) which have been framed in exercise of the powers conferred under section 2 of the Regulation of Mine and Oil Fuel and Mineral Development Federal Control Act, 1948 (hereinafter called the Act) rules 15 and 16 tbid authorise the Bureau of Mineral Resources, Government of Pakistan, to fix minimum rates and maximum charges. Accordingly, various rates for various classes of consumers have been fixed under this notification. It will be useful to reproduce these rules which are as follows: "15. The Authority to ftx maximum rater.-(1) The process for gas supplied by the licensee shall be charged in accordance with the method of charges approved by the Authority and shall not exceed the maximum rates fixed by the Authority.
(2) In fixing the rates uader sub-rule (1) the Authority shall allow a reasonable return to the licensee.
16. Minimum charges.-A licensee may charge a consumer a minimum charge for supply of gas determined in such manner as may be approved by the Authority, and such minimum charge shall be payable notwithstanding that no gas has been used by the consumer during the period for which such minimum charge is made."
' It is admitted that the plaintiff is general industrial consumer and accordingly it was charged at the rates fixed for industrial consumers mentioned in the Contract (Erb. 5) as well as the notification (Exh. 12).
' However, by another Notification No, S. R.
0. 1541)/1972 dated 16-3-1972, the plaintiff was granted concession and was allowed special tariff rate for the gas supplied to it by the defendant with immediate effect.
' Subsequently, however, the government by 3 notifications dated 8-8-1973, 8-6-1974 and 1-2-1975 (Exhs. 13, 14 and 15 respectively), all issued under rules 15 and 16 of the rules revised the rates of the gas upward for general industrial consumers and for other categories of consumers mentioned therein including the plaintiff. The plaintiff continued to pay the price of the gas supplied to it in accordance with the rates fixed under the aforesaid notifications. The Federal Government of Pakistan yet issued another notification bearing No, S. R. O. 593(1) dated 23-5-1975 (Bib. 7) which is as follows "In exercise of the powers conferred by rules 15 and 16 of the Natural Gas Rules, 1960, the Authority is pleased to make the following amendment in its Notification No, S. R.
0. 150(1)/75 dated the lit February, 1975, namely:- ' In the aforesaid Notification, the heading 'IV Messrs Corning Glass Pakistan Limited' and the entries relating thereto shall be omitted. (No, NG-10;62)/74."
' In consequence of this Notification the defendant by its letter dated 13-4-1976 (Exh. 8) addressed to the plaintiff informed it that the government by the above-quoted notification has revised gas rates chargeable from 1-2-1975 and stated that the defendant continued to bill it on the special tariff rate although from 1-2-1975 it was liable to be billed on the tariff applicable to the general industrial consumers and accordingly claimed a sum of 1,63,630.40 being the amount short billed from 1-2-1975 to 29-2-1976. The plaintiff .Refuted this claim by its letter dated 23-4-1976 (Eel. 11). It claimed that on the omission of its name from the notification dated 1-2-1975 (Exh. 15) it became liable to pay charges for gas supplied to it at the rate fixed in the notification dated 8-6.1974 (Exh.
14). On defendant's insistence to claim dues as demanded by its letter dated 13.4-1976 (Exh. 8), the plaintiff has filed the suit for the following reliefs:- "(a) That by virtue of the amendment in Notification No, S. R.
0. 150(1)/ 75 Ist February, 1975 by Notification No, S. R.
0. 59301/75, dated 23rd May, 1975, the minimum and maximum rates prescribed for sale of natural gas by the defendants to the plaintiff under the notification dated 1st February, 1975 ceased to be applicable to the plaintiffs and, therefore, the rates prescribed in the earlier Notification No, S. R.
0. 704(1)/74, dated 8th June, 1974 (Annexure 'D') (Exh. 14) Immediately became applicable to the plaintiffs and the plaintiffs are liable to make payment at the aforesaid rates with effect from 8th June, 1974 on wards.
(b)That without prejudice to the above and in the alternative, it is submitted that the amendment effected in the notification dated 1st February, 1975 (Annexure 'E') (Exh. 13) by notification dated 23rd May, 1975 (Annexure `P) (Exh. 7) cannot be given effect retrospectively but must necessarily be applied with effect from 23rd May, 1975 whereas the defendants are applying new industrial rates to the plaintiffs with effect from 1st February; 1975.
(c) That without prejudice to the above, it is submitted that in the absence of a new contract between the defendants and the plaintiffs, the defendants are not entitled in law or otherwise, to revise their charges and rates for supply of gas to the plaintiffs and accordingly the defendants are only entitled to charge the plaintiffs at the rates prescribed in the contract (Annexure 'A') (Exh. 5) or in the alternative at the rates prescribed in the Notification No, S. R.
0. 704(I)/74, 'dated 8th June, 1974, with effect from Ist February, 1975 to 23rd May, 1975."
' The defence disclosed by the defendant in its written statement is that the suit suffers from non joinders of' the Federal Government of Pakistan as necessary party and that on omission of the plaintiff's name from the notification dated 23-5-1975 (Exh. 7), it became liable to pay gas charges at the rate mentioned in the notification dated 1.2-1975 (Exh. 15). The learned Advocates for the parties filed the following consent issues which were adopted by my brother Mr. Justice Zafar Hussain Mirzat ISSUES
(1) Whether the suit suffers from non-joinder of 4 necessary party ? If so, with what effect ?
(2) What is the resultant rate at which the plaintiff is liable to be charged from 1-2-1975 for the consumption of gas supplied by the defendant as a result of Notification No, S. R.
0. 150(1)/75 dated 1-2-1975 as amended by the Notification No, S. R.
0. 593(1)/75 dated 23-5.1975 ?
(3) Is the defendants entitled to special costs and interest at 12 per cent. Per annum from 28.4-1976 on the amount of Rs, 1,66,873.52 as claimed by the defendant.
4. What should the decree be ?
5. General.
' That the parties did not lead any evidence. However, the documents filed by them were brought on record by consent and were exhibited.
' My decision on various issues raised by the parties is as followst- ' Issue No, 1.-This issue was dropped by Mr. Zahidi on a statement made by Mr. Liaquat on 7-9-1976 before me that he has not challenged the vires of the notification issued by the Government of Pakistan. Therefore, no decision is required on this issue.
' Issue No, 2.-It is agreed on all hands that the plaintiff was liable to pay charges for gas supply according to the rates mentioned in the notifications issue from time to time under rules 15 and 16 of the Rules. Therefore, the only question that arises for consideration is as to the effect of the omission of the name of the plaintiff from the notification dated 1-2-1975 (Bah. 15) by the notification dated 23-5-1975 (Exh. 7). In other words the question is whether the plaintiff became liable to pay gas charges according to the rates mentioned in the notification dated 8-6-1974 (Rah. 14) as claimed by the plaintiff or according to the notification dated 1-2-1975 (BA. 15) as claimed by the defendant and if it is found that the plaintiff is liable to pay according to the notification dated 1-2.1975 (Ezh. 15) a subsidiary question which arises for consideration is whether the plaintiff is liable to pay at the rate mentioned in the notification (Exh. 15) from the date of the notification dated 23-5-1975 (Exit. 7) or from 1-2-1975 as claimed by the defendant.
' It is not disputed that originally the plaintiff was liable to pay gas charges at the rate applicable to industrial consumers which is mentioned in the contract and in the notification (Bub. 12) and which are one and the same. However, by the notification dated 16-3-1972 (Ezh. 6) the Government granted concession to the plaintiff and reduced the rate of gas in its case. Thereafter, by the three subsequent notifications (Exhs. 13, 14 and 15) special rates which were less than the rate provided for general industrial consumers in (Bah. 12) were allowed to the plaintiff. However, this concession was taken away by the Government by the notification dated 23-5-1973 (Exh. 7). Therefore, contention of Mr. Liaquat that on omission of the name of the plaintiff from the notification (Exh. 12) notification dated 8-6-1974 became applicable is not correct bOcause the notification dated 8.6- 1974 (ETh. 14) was substituted or replaced in whole by subsequent notification dated 1-2-1975 (Bill.
15). The omission of the name of the plaintiff from Bah. 5 in my opinion would not revive the notification dated 8-6-1974 (Exb. 14) which was not even partially alive when the notification dated 23-5-1975 (Exh. 7) was issued. However, I do find great force in the contention of Mr. Liaquat that the notification dated 23-5-1975 (BO. 7) could not be applied retrospectively so as to make the plaintiff liable to pay the charges at the rate mentioned in Bub. 15 from the date of the notification the charges could be made only from the date of the notification dated 23-5-1975. The language employed in the notification itself speaks that it is prospective and not retrospective as the notification says "in the aforesaid notification the head (4) Messrs Corning Glass (Pakistan) Ltd. And the entries relating thereto shall be omitted. No intention is expressed to make the omission applicable retrospectively. Even it is not applicable by necessary implication. Moreover, a subordinate delegate authority could not have issued a notification creating new obligation with retrospective effect unless the statute itself authorises or gives power to issue such notification with retrospective effect the Government has no such authority under the Act or the rules. Even if the rules would have so provided they would have been ultra viers as it is settled that subordinate delegate authority cannot make rules or issued notification under a statute so as to give them or it retrospective effect unless statute itself grants such powers. If any authority is required reference can be had to Commissioner of Income-tax v. All Hasan (1) decided by a D. B. Bench of the erstwhile High Court of West Pakistan (Karachi Bench) reported in PLD 1967 Kar. 184 wherein my Lord the present Chief Justice of this Court has observed as follows: "It is a settled principle in law that a subordinate delegate authority cannot make rules or issue notifications under a statute, so as to give a retrospective effect to them, unless the statute itself grants such power. The view taken by the Income-tax Appellate Tribunal that the provisions of section 34 of the Income-tax Act as adopted for the purposes of the Business Profits Tax Act came into effect on the 4th of July, 1958 when rule 5 (va) was added to the Business Profits Tax Act of 1947, is based on correct principle and foundation in law."
Mr. Liaquat in support of his contention that the words employed in the notification are such that they express an intention of the application of the notification in future and not in the past, has laid emphasis on the word "shall" used in the notification and has also drawn support from a decision of I. 7'.
0. v. Sideman Jiva and others (2) wherein Mr. M. R. Khan, J. (as he then was) in relation to the word "shall" employed in the statute observed at pages 90 of the report as follows: - "The use by the Legislature of words, such as "shall" or "hereafter" is taken to indicate an intent that the statute is to be construed as prospective only on the other hand the use of words denoting past time, such as "has been" or "heretobefore" constitute an explicit declaration that the Act is to be construed retrospectively."
' I therefore, find that the defendant was entitled to claim charges at the rate mentioned in the notification dated 1.12-1975 (Exh. 15) from the date of omission of the name of the plaintiff that is, 23-5.1975 and could not claim price at the rate applicable to it from 1-2-1975.
' Issue No, 4.-The defendant is not entitled to special costs as it has not given any particulars of the same or led any evidence to prove the same. I also cannot award interest as no counter-claim has been made in the suit.
' Issue No, 5.-In view of my finding on Issue No, 2, I am of the opinion that the plaintiff is entitled to a declaration that it is liable to pay gas charges at the rate mentioned under the heading of general industrial consumers in the notification with effect from the date of notification dated 23-5-1975 and not from any date prior thereto. The defendant is also restrained from cutting off or disconnecting the supply of gas to the plaintiff If it pays the charges in accordance with the declaration hereby granted and so long as the notification dated 1.2-1975 (Exh. 15) remains in force.
Since the success of the plaintiff is partial as it had claimed that it was liable to pay charges at the rate of general industrial consumers in the notification dated 8-6-1974, I do not award any costs to it and leave the parties to bear their own costa.
(1) PLD1967Ker.184 (2) PLD 1970 SC 80