1. JUDGMENT ZAHID KURBAN ALAVI, J. - By this order we shall dispose of two petitions C.P. Nos. D- 2626/1993 and C.P. No. D-2712/1993. In C.P. No. D-2626/1993 the petitioner has prayed as follows:-
(a) to declare that the amount being charged by the respondent No.8 or any petroleum dealer in excess of Government rates is illegal, without jurisdiction, mala i.e, unjust, unreasonable discriminator and without any lawful authority.
(b) to restrain the respondent No.8 petroleum dealers from charging excess price of petroleum products over the rates notified by the Government in terms of Finance Act, 1993.
(c) to issue the writ of mandamus by directing the respondents Nos. 1 to 7 to implement the law and to take action against the respondent No.8 and all other violators of law in accordance with law and restrain them from charging their self-imposed petroleum prices, under cover of service charges.
(d) to direct the respondents to ensure fixation of tested meters and also to check adulteration of the petroleum products from time to time.
(e) to restrain the respondents Nos. 3 to 5 from supplying any petroleum product to any dealer, who fails to observe and follow the petrol product prices fixed by the Government and/or cancel their dealership licenses.
(f) to direct the respondents Nos. 1 to 7 to check adulteration of petroleum products and ensure supply of pure petroleum products to consumers."
2. In petition No. 2712/1993 the petitioner has prayed as follows:-
1. Declare that the rate of dealer's commission fixed by the respondent is unlawful, unreasonable, arbitrary and contrary to the Constitutional protection provided by Articles 4, 18 and 24 of the Constitution.
2. Order the respondent to link the rates of dealer's commission to the price structure of petroleum products and to revise such rates to at least 10% of the fixed sale price of petroleum products.
3. Both the petitions were tagged by consent of the parties as they felt that the petitions and the reliefs therein were interlinked. First we shall briefly discuss the facts enumerated in Petition No. 2626/1993.
4. This is a petition which has been filed by the Karachi Bus Owners Association and they have impleaded the Federal Government, Sindh Government and the 3 major, Oil distributions in Pakistan. Last but not the least they have also impleaded Pakistan Petroleum Dealers Association.
5. Incidently the respondent No.8 in this petition is one of the petitioner in C.P, No. D-2712/1993. The petitioner No. 1 is a registered association of the Bus-owners who are plying buses in the City of Karachi and the petitioner No.2 is a consumer of petroleum products and the petitioner No.3 is a President of various Transport Associations. The petitioner No. 1 is providing transport facility in city of Karachi at the fixed rate which are notified from time to time by the Transport Department Government of Sindh. Concession rates are also provided to the students. The fare according to them is based upon the cost of petroleum prices and maintenance and repairs of the vehicle. On the other had the petrol and petroleum products are provided to the general public at the rate specified officially from time to time by the functionaries of the respondents Nos. 1 and 2. The petrol is then sold to the general public at the fixed price and the commission of the dealers are in built in the price so fixed. Till 1993 dealers were providing petroleum products at the rate notified by the Government of Pakistan. In the budget in the year 1993, there was a proposal to increase-the petrol price by 10%. It seems that after the increase in price even though it was not received very well by the general public the respondent No.8 announced its on increase which was above the price fixed by the Government. This increase was given the name of service charges. The main grievance of the petitioner is the price increase first of all was unjustified but even if it is construed that the Government was well within its right to increase the price the respondent No.8 and all the out-lets of the petroleum all over Pakistan are bound by the price fixed by the Government and cannot sell any products beyond the official price. Py this increase various hue and cry was made and protest was lodged but it did not effect the respondent No.8 who continued to charge above and beyond the official price under the name and style of the so-called service charges. In the same year 1993 another increase of 10% in petroleum price by the care-taker Government was made. According to the petitioner their members were further put to inconvenience as they were bound to follow the rates prescribed by the Government. They could not charge fare above and beyond that fixed by the Government.
6. The petitioner have also urged that the dealers are also indulging in criminal acts of tempering with the meters whereby the exact amount of petrol is not given to the consumers. This according to them is being indulged in very regularly and the dealers are also involved in adulteration of petroleum products which includes the mixture of Kerosine. The adulteration has resulted in a major problem of environment which is effecting the city as the mixture results in smoke which is injurious to the health of the citizens. There are reports available where high level of lead contents have been found in all those who are subjected to the emotion of adulterated petroleum products.
7. Notable amongst them are those having shops on roads and pedestrians and personal of the police. Enough and more has been said and directions issued however, the will to do so is apparently is not available with the law-enforcing agency to stop this menace and to try and save the city and its population.
8. This price of the petroleum products are fixed under the Petroleum Products Development, Surcharge Ordinance, 1961 and the Petroleum Products Development Surcharge Rules, 1967. Section 4 of the Ordinance, 1961 states as follows:- "4. Maximum sale price:- (1) Notwithstanding anything contained in any other law, no company shall sell ex-installation any petroleum products as a price higher than the fixed sale price."
(2) A contravention of sub-section (1) shall be deemed to be a contravention of an order made under Section 3 of the Essential Supplies Act, 1957 (III of 1957) and all the provisions of that Act shall have effect accordingly.
9. Section 6 deal with power-making rule and the said rule have been created under the relevant Sections under rule 3(G) the commission of the dealers is fixed as approved by the Federal Government.
10. Section 6. "Power to make rules. (1) The Central Government may, by notification in the official Gazette, make rules for carrying out the purposes of this Ordinance and any such rules may be retrospective from any date not earlier than the first day Of August, 1959.
(g) Dealer's commission, Dealer's commission on motor Gaso-line Automotive Gas 100 Oct ance (high Octane Blending component) and High Speed Diesel Oil, at the rates approved by the Federal Government.
11. The facts of the case in C.P. No. D-2712/1993 briefly are that the petitioners are some of the dealers/out Tets of petroleum products who are all members of the respondents No. 43 i.e. Pakistan Petroleum Association. In this petition they have shown a history of the price of petroleum that has been fixed from time to time since the year 1963. What they have tried to say is that from Rs.2.48 per gallon in 1963 the petroleum price have gone up of Rs.59.98/- per gallon. This is in respect of regular petrol. Similarly price gone up in respect of premium as well as high speed diesel motor Spirit etc. It is the contention of the petitioner that the commission of the dealers has not gone up.
12. According to them with the increase in petrol price there has been a pro rata decrease instead of an increase in their commission. They have tried to make out a case that the commission i.e fixed by the Government is out-dated, especially keeping in mind the depletion of rupee, the over all increase in prices of all commodities the inflation in the country and so many other factors which makes it impossible for them to run the show, at the official fixed commission rates. They are, therefore, urging that the rate of commission of the dealers fixed by the respondent should he declared as unlawful and un-reasonable, arbitrary and contrary to the Constitutional protection.
13. They have also urged that the respondent should be asked to link commission to price structure.
14. We have heard the counsel for the petitioner as well as the respondent's counsel on behalf of the Federal Government, the A.A.G, on behalf of the Sindh Government and the learned counsels representing Pakistan State Oil, Shell Pakistan Limited and Caltax Pakistan Limited. We have gone through at length and taken a note of the counter-affidavit and para were comments filed by the parties concerned. We have also taken cognizance of the documents that have been annexed to the petition by the petitioners and have also cross-checked and verified the law governing the same. During the cause of arguments our attention was also drawn to the case of Ch. Riaz Ahmed Vi. The Federation of Pakistan (reported in 1990 CLC at page 1406) and the case of Sh. Muhammad Shaft and 24 others Vs. Price Control Board (reported in 1994 Quetta at page 101).
15. We are, therefore, of the opinion that as far as C.P. No. D-2712/1993 is concerned we do appreciate the difficulties being countered by the dealers Association but without going through the factual details we would not be in possession to grant the relief as prayed sitting under the Constitutional jurisdiction. We shall however, observe that the Federal Government should take note of the demand of the petitioner and initiate positive steps to implement their grievance/demands. The approach of the Government should be realistic, pragmatic and just. They should also note that the rats of petroleum price fixed by them and the commission of the dealers also has to be realistic. The dealers may not resort to unfair methods if they were guaranteed a reasonable commission. The Federal Government should consider the genuine grievance of the Association who in turn should present before the Government a proper document showing in detail the justification for demand in increase of commission. Since the price is fixed by the Government and the income is used by Government, therefore, we refuse to accept the contention of the respondent counsel that increase in commission i.e should necessarily mean increase in petrol price. The Government should accommodate the association and if it comes to the conclusion they have genuine demand, then the commission may be increased by Government, without increase in the petroleum price.
16. As regard the prayer of Karachi Bus Owners Association even though there are several prayers some of which cannot be granted by us, we would definitely grant this petition .To the extent that any increase in petroleum price even under various titles would be illegal and in violation of the rules prescribed as according to the law the Government is the only authority which can fix the rates. We would fail in our duty if we did not observe herein that all the 3 counsels representation 3 petroleum companies were agreeable to the prayer of C.P. No. D-2712/1993 and were also agreeable that the service charges fixed was not correct. However, on the point of adulteration and tempering of the meter, they were not against Government taking such; action against those who were indulging in such activities but showed their on inability to do anything themselves. One observes from the petroleum Company stations, found all over Pakistan, that each one of them has one of the 3 names incorporated very boldly. In effect the out-lets agents of the principal i.e. P.S.O., Shell, Cal tex. Any action could be construed as illegal which is being taken against the law of the land and it should be stopped. To our mind if there is any petrol pump which is adulterising the product and tempering with meter of measurement, they along with the agent and the principal should be equally held responsible. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.