Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

C. P. No. D – 1094 of 2020

along with C. Ps. No. D – 587, 1448, 1449, 1450 of 2020 & 74 of 2021

 

 

Before : Mr. Justice Aftab Ahmed Gorar

   Mr. Justice Muhammad Faisal Kamal Alam

 

 

Date of hearing :                  08-02-2021

Date of announcement :    17-02-2021

 

 

Petitioners :                           Suresh Kumar through Mr. Qurban Ali

Malano assisted by Ms. Amber Iqbal, Advocates in C. P. No. D-1094 of 2020.

M/s Veer Roller Flour Mills and others through Mr. Abdul Rasheed Kalwar assisted by Mr. Ghous Bux Shah Kaheri, Advocates in C. Ps. No. D-587, 1448, 1449 & 1450 of 2020.

M/s Dawood Noor Flour Mills (Private) Limited through Mr. Mehfooz Ahmed Awan, Advocate in C. P. No. D-74 of 2021.

 

Official Respondents :        Province of Sindh and others through

M/s Shafi Muhammad Chandio, Additional Advocate General Sindh, Noor Hassan Malik and Zulfiqar Ali Naich, Assistant Advocates General Sindh along with Muhammad Afzal, Deputy Director Food, Sukkur.

 

Private Respondents :        Nemo.

 

 

J U D G M E N T

 

 

Muhammad Faisal Kamal Alam, J. – Due to commonality of these titled Constitution Petitions (Petitions), they are decided by this common Judgment.

2.         Precise facts are that Petitioners have challenged the Wheat Release Policy 2020-21 dated 14th October 2020 (said Policy), on the ground that Clause (xii) whereof is violative of the Food Stuffs (Control) Act, 1958, and the Food-grains (Licensing Control) Order, 1957, and consequently, be set aside and Flour Mills of Petitioners be given wheat as per the uniform Policy.

3.         M/s Qurban Ali Malano, Abdul Rasheed Kalwar and Mehfooz Ahmed Awan, Advocates, have argued their respective Petitions. Gist of the arguments of learned Advocates for the Petitioners is that Clause (xii) also violates Article 4, 18 and 24 of the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution), because it has put an embargo that wheat will not be released to those Flour Mills which are involved in plea bargain with National Accountability Bureau (NAB); contended that different Flour Mills of Petitioners were never involved in plea bargain, but since they have leased out their respective Flour Mills to different persons (in some of the petitions those lessees are also impleaded as private Respondents), hence, those lessees committed default and were sentenced by the learned Accountability Court. Learned Advocates have referred to the various orders of the learned Accountability Court passed in the Reference(s), in which Flour Mills have not been mentioned but only private Respondents/lessees are mentioned who since have entered into plea bargain, therefore, in terms of Section 15 of the National Accountability Ordinance, 1999, they were convicted. Further stated that these lessees were never associated with owners of aggrieved Flour Mills. Lastly, it has been argued that the above Policy was never notified as required under Section 3 of the Food Stuffs (Control) Act, 1958 (the Sindh Food Act), and hence, has no validity. Legal team of Petitioners has relied upon the following case law:

(i)            Balochistan Bar Association through President Balochistan Bar Association and others v. Government of Balochistan through the Chief Secretary, Balochistan and others (PLD 1991 Quetta 7)

(ii)          Messrs Ibrar Flour Mills (Pvt.) Ltd., Multan through Chief Executive v. Province of Punjab through Secretary to Government of Punjab, Food Department, Lahore and 3 others (1997 MLD 2184)

(iii)         Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others (PLD 2001 Supreme Court 607)

(iv)         Messrs Ahmad Traders through Sole Proprietor v. Frontier Works Organization (F.W.O.) Headquarters, Rawalpindi through Director-General and another (2008 CLC 1132)

(v)          Government of the Punjab, Food Department through Secretary Food and another v. Messrs United Sugar Mills Ltd. and another (2008 SCMR 1148)

(vi)         Pakistan Engineering Company Ltd. through Managing Director and 2 others v. Director General, F.I.A. Islamabad, and 3 others (2011 YLR 337)

(vii)        Pakcom Limited and others v. Federation of Pakistan and others (PLD 2011 Supreme Court 44)

4.         On behalf of the official Respondents, M/s Shafi Muhammad Chandio, learned Additional Advocate General Sindh, Noor Hassan Malik and Zulfiqar Ali Naich, Assistant Advocates General Sindh have argued the Petitions. The legal team of Respondents has stated that it is purely an executive matter regarding which no petition of the nature is maintainable; that when the Petitioners themselves have prayed that they may be given wheat bags as per the Wheat Policy, then Petitioners cannot challenge one of the clauses of above Wheat Policy in the present Petitions, as it amounts to approbate and reprobate at the same time; contended, it is the discretion of Respondents not to release wheat bags to the Flour Mills of the Petitioners, which are involved in plea bargain with NAB, as per Clause (xii) (ibid) of the said Policy; that since under the Sindh Food-grains (Licensing Control) Order, 1957-the Food-grains Order, it is the Flour Mill to which a license is issued, therefore, the Flour Mill is to be held responsible for any misappropriation of wheat bags or misuse of wheat quota given by the Respondents. Further argued that for such type of executive order / policy, no notification is required, and even otherwise, it is a recently taken decision by the Provincial Government, it will soon be notified. Since Petitioners have not approached the concerned officer-Director Food Sindh for issuance of NOC in terms of Clause (x) of the Wheat Policy, hence, the Petitions are liable to be dismissed. Legal team of official Respondents have relied upon the following case law:

(i)            Messrs Al-Raham Travels and Tours (Pvt.) Ltd. and others v. Ministry of Religious Affairs, Hajj, Zakat and Ushr through Secretary and others (2011 SCMR 1621)

(ii)          Messrs Alizair Travel and Tours (Pvt.) Ltd. through Chief Executive and 10 others v. Federation of Pakistan through Ministry of Religious Affairs and 16 others (2014 CLC 1766)

5.         Arguments heard and record perused.

6.         The Orders of the learned Accountability Court passed in respect of private Respondents who were leased out the aggrieved Flour Mills have been perused. Even in the Orders, the private Respondents, who were accused before the Accountability Court (hereinafter will be referred to as accused), have been referred to as lessees of the Mills. These private Respondents / accused since had entered into plea bargain with NAB, therefore, they were released from jail but the disqualification of ten years for holding any public office from the date of conviction, besides embargo upon these accused persons from availing any loan facility from financial institutions, was imposed. In different Orders of the learned Accountability Court, no finding is given against the Petitioners and their Flour Mills. However, it is clarified that in C. P. No. D-74/2021, the lessee, Faisal Memon son of Muhammad Anwar, who is one of the accused in Reference No.17/2020 has requested the Director General, NAB Sukkur for a plea bargain though his Application dated 10-03-2020, which is filed with the Statement dated 12-01-2021, of the learned counsel for the Petitioner, who has also filed photocopy of the Investigation Report.

7.         It is not disputed by official Respondents that at the relevant time when misappropriation of wheat bags was reported, which resulted in the afore referred Reference Proceedings under the NAB Law and decisions of learned Accountability Court, Petitioners’ Flour Mills were leased out to the said private Respondents. With the Petitions not only the lease agreements have been produced / filed by the Petitioners but also UNDERTAKING given by different private Respondents that they will be personally liable for any shortages, losses, damages, misappropriations. Even in the Opinion dated 17-01-2020, on behalf of Law, Parliamentary Affairs and Criminal Prosecution Department (part of the present Record), it is not disputed that at the relevant time when misappropriation of wheat bags occurred, the Petitioners / Flour Mills were in the custody of different lessees / accused persons. It is not seriously disputed by the official Respondents, as averred in the Petitions, that possession of respective Flour Mills were taken back from the accused persons / former lessees after handing down of decisions against them by the learned Accountability Court. In para wise comments of Respondent No.4 in leading C. P. No. D-1094/2020, it is stated that since lessee of the Flour Mill had entered into plea bargain with NAB, therefore, Flour Mill also cannot be spared from the responsibility of misappropriation of Government wheat.

            Perusal of ‘lease agreements’ entered into between Petitioners and private Respondents / lessees (accused persons), show that in fact these lease agreements were license agreements, enabling the accused persons to run and operate the Flour Mills.

8.         It can also be concluded by looking at the record of present Petitions, that the private Respondents, who were accused in the proceedings before the Accountability Court, neither in the past or present were/are partners of the Firms or owners who have been issued License under the Food grains (Licensing Control) Order, 1957, for operating the Flour Mills.

9.         The Respondents in the impugned Wheat Policy have, in fact, created a separate class / category of Flour Mills by adding Clause (xii), forbidding that those Flour Mills who have entered into plea bargain with NAB, cannot buy Government wheat. This impugned Wheat Policy has been issued in purported exercise of power vested in Respondents under Section 3 of the Sindh Food Act (ibid). This Section enjoins that Government can, inter alia, regulate the supplies of any food stuff including the wheat but through a notified order. Relevant portion of Section 3 reads as under:

“3. Powers to control supply, distribution, etc, of foodstuffs.-- (1) The Government, so far as it appears to it to be necessary or expedient for maintaining supplies of any foodstuffs or for securing its equitable distribution and availability at fair prices, may, by notified by order, provide for regulating or prohibiting the keeping, storage, movement, transport, supply......………”

10.       In view of the above, the impugned Wheat Policy, where-under, inter alia, a condition is introduced for those Flour Mills which have entered into plea bargain with NAB, are not allowed to take Government wheat, should have been notified; admittedly which was never done (till the cases were reserved for Judgment).

            In this regard, reported case of United Sugar Mills (supra) is relevant where Section 3 (ibid) has been explained and it is held that the term ‘notification’ as mentioned in the said provision, is to be interpreted in accordance with Section 2(41) of the West Pakistan General Clauses Act, 1956, inter alia, that it should be published under proper authority in the official gazette.

Secondly, as already observed in the preceding paragraphs, in none of the Orders passed by learned Accountability Court in respect of different accused persons / private Respondents, there is any adverse finding against the present Flour Mills, which have filed subject Petitions, that they have entered into any plea bargain with NAB; thus, act of official Respondents in not supplying the Government wheat to Petitioners and their Flour Mills, is illegal and cannot be sustained.

            Thirdly, Petitioners took remedial steps and the possession of the Flour Mills were taken back by the owners.

11.       Although we agree with the contention of the legal team of Respondents, that formulating a policy is the exclusive domain of executive, but at the same time, when such policy violates any statutory provision or does not fulfill any condition mentioned in the statute and more so adversely affect a person’s right to do lawful business and trade (as guaranteed by Article 18 of the Constitution), then such executive actions and policies can become subject matter of a Constitution Petitions of the nature. By virtue of the impugned Policy, Respondents are not releasing Government wheat to Petitioners by misinterpreting Clause (xii), that Petitioners are involved in plea bargain, which is contrary to record. Consequently, this action adversely affects the business activities of Petitioners and they have been treated differently from other Flour Mills operating in the Province, hence, Clause (xii) of the impugned Wheat Policy as interpreted by Respondents cannot be validated and held to be not applicable to the Petitioners. If the Petitioners / Flour Mills would have entered into plea bargain with NAB themselves, then Clause (xii) might have become applicable, but subject to other legal implications.

12.       Adverting to the reported decisions cited by legal team of Respondents. Both cited decisions relate to Hajj Policy and Scheme issued by the Federal Government from time to time. Crux of the rule laid down in these decisions is that ordinarily under Article 199 of the Constitution, High Court cannot interfere in the policy matters of the Executive, except if it is violative of law or is product of mala fide; whereas, the mala fide is also explained, inter alia, that unless an unrebutable material is on record with regard to a specific plea of mala fide and not a vague one, the decision or action complained of, cannot be annulled or declared illegal.

13.       There is another aspect of the present case. It is a cardinal principle of jurisprudence that punishment should correspond to the offense. This is called ‘doctrine of proportionality’. In this regard, the reported decision of Muslim Commercial Bank Ltd. v. Ghulam Muhammad Memon-2008 PLC [Labour] 40, is relevant. This principle has been evolved through judicial pronouncements and opinions of jurists, the crux of which is that punishment must fit the crime. When on the record there is no evidence that Petitioners / Flour Mills have entered into plea bargain with NAB, then Clause (xii) cannot be stretched to include Petitioners / Flour Mills, and such an action of Respondents is hit by this doctrine of proportionality also and is unreasonable and discriminatory.

14.       Respondents must act in the light of directions mentioned in the foregoing paragraphs and consequently, all Petitions are accepted only to the extent, that the Clause (xii) of the Wheat Policy is not applicable to the present Petitioners / Flour Mills and they are entitled to get their respective share / quota of wheat in accordance with the present Wheat Policy 2020‑21 like other Flour Mills established and operating in the Province of Sindh.

 

 

J U D G E

 

J U D G E

Abdul Basit