ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
Suit No. 640 of 2011
Date Order with signature of Judge
For hearing of C.M.A. No. 6792 of 2012
(under Order XXXIX Rules 1 & 2 CPC R/W Sections 96 & 151 CPC)
15.08.2012.
Dates of hearing : 31-07-2012 and 01-08-2012.
Mr. Khalid Jawed Khan, advocate for the plaintiff.
Mrs. Haleema Khan, A.A.G, along with Bashir Ahmed Qazi, D.F.C. (Food Department), & Syed Raziuddin, S.O. (W) Food Department.
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Nadeem Akhtar, J. : Through this application, the plaintiff has prayed that the defendants be directed to allow resumption of operation of plaintiff’s factory and to restore / provide wheat quota as well as Ramzaan package to him which are being provided by the defendants to other flour mills and factories.
1. Brief facts of this case are that the plaintiff, which is owned by its proprietor Rana Muhammad Sadiq Khan, is running a flour and general factory since the year 1982 at North Karachi. The plaintiff is equipped with a modern pneumatic plant having eight roller bodies having capacity to grind about 160 tons per 24 hours, and also has the storage capacity of about 250,000 wheat bags at his premises. It is the case of the plaintiff that in the year 2009, defendant No.1 having excess stocks of wheat, forcibly declared various flour mills and factories, including the plaintiff, as P.R.C. (Procurement Centre). The plaintiff has alleged that as a result of such forcible and one sided action taken by defendant No.1, the plaintiff was made to execute an undertaking provided by defendant No.1 whereby lop sided obligations were created against the plaintiff to store huge quantity of wheat without rental charges or any other consideration.
2. Mr. Khalid Jawed Khan, learned counsel for the plaintiff, referred to the letter dated 02.06.2009 issued by defendant No.4 Deputy Director Food, Karachi Region, to all the District Food Controllers of Karachi, including the defendant No.3, wherein it was mentioned that “The Government have declared the godowns of all functional Flour Mills as Government P.R.Cs for storage Government wheat stocks newly procured and being shifted from interior of Sindh to Karachi. Accordingly you are directed to take necessary steps for storage of Government wheat stocks after taking over the possession of the godowns of all functioning flour mills in your districts, obtaining an undertaking from the owner of the mills as required in the matter as per past practice and ensure that ……… ”. In their written statement and also during the course of hearing, the aforementioned letter was referred to by the defendants as the Government Policy and the same has been filed by them as an annexure to their written statement. Mr. Khalid Jawed Khan, learned counsel for the plaintiff, submitted that the contents of this letter / alleged Policy strongly support the case of the plaintiff and clearly establish many important aspects, such as, all functional Flour Mills were unilaterally declared by the Government as Government P.R.Cs. for storage of Government wheat stocks ; since plaintiff’s flour mill was also declared as Government P.R.C., therefore it was fully functional at the relevant time ; the purported declaration by the Government was one sided and was imposed on the plaintiff without his consent ; in pursuance of this unilateral and arbitrary declaration, possession of plaintiff’s godowns was taken over and an undertaking was also obtained from him by the Government before storing stocks of wheat ; and because of the purported declaration by the Government, the plaintiff had no choice except for executing the undertaking and allowing the Government to store its wheat stocks in his premises. Learned counsel also contended that the purported Policy and declaration issued by the Government, being completely unilateral and having no legal basis or sanction, were illegal, and that the same cannot be given legal effect of a mutual agreement.
3. It is the case of the plaintiff that stocks of wheat of about 13,350 bags, which were delivered by the defendants for storage at plaintiff’s factory during the period from 04.06.2009 to 24.06.2009, were not of the then current crop, but were from previous one and half year old crop of 2008 which was weevilized and highly infected with fungus. This matter was immediately reported by the plaintiff through written complaints to defendant No.1. The plaintiff also requested the defendants (i) for early consumption of un-weevilized wheat in order to save the same from being infected, (ii) for adjustment of his outstanding 9,000 bags of wheat in order to avoid further losses, and (iii) to divert the wheat stocks to other factories for grinding. The plaintiff has alleged that all such complaints and requests were completely ignored by the defendants although an officer / Inspector of defendant No.1 visited plaintiff’s factory, prepared a stock report of the wheat stocks stored therein, and also recorded that the wheat stocks stored at plaintiff’s factory were weevilized, and the defendant No.4 also visited the premises and acknowledged presence of weevil. However out of 13,350 wheat bags, only 400 bags were allowed to be consumed by the defendants belatedly in the year 2010 while the remaining quantity continued to rot at the factory of the plaintiff.
4. It has been further alleged that in December 2009 the plaintiff was once again compelled by the defendants to execute another undertaking for storage of further stocks of wheat at his factory. This further stock delivered by the defendants was slightly better than the earlier weevilized stock, but 9,000 bags out of this subsequent stock brought from plaintiff’s Landhi godown in April 2010 were highly infested and weevilized. According to the plaintiff these highly infested and weevilized stocks eventually damaged substantial portion of about 22,087 bags of wheat. By the end of December 2010, the plaintiff was compelled to stock total quantity of about 87,600 bags of weevilized wheat stocks, which fact was acknowledged by the defendants through their letters and stock reports. The plaintiff has alleged that despite repeated written requests by the plaintiff, he was belatedly allowed to lift and use only about 64,513 bags of wheat at different intervals, leaving about 22,087 bags which were left as the same were completely damaged and were absolutely unfit for human consumption.
5. It is also the case of the plaintiff that his modern pneumatic plant cannot grind the damaged / weevilized wheat stocks, nor the plaintiff would ever attempt to grind such injurious material which has become completely unfit for human consumption. Further, the defendants are solely responsible for the present situation, firstly, as the wheat stocks were already weevilized when they were delivered to the plaintiff, secondly, as no action was taken by the defendants despite repeated reminders and protests by the plaintiff, thirdly, as because of highly infested and weevilized stocks, the entire stock became unfit for human consumption, and lastly, the infested and weevilized wheat could not be grinded at plaintiff’s modern pneumatic plant due to which the plaintiff sustained huge losses. In the above background, this Suit was filed by the plaintiff on 30.04.2011 against the defendants seeking declarations, cancellation, injunction, recovery of money, mesne profits and damages.
6. As the defendants were issuing challans and were pressing the plaintiff for payments in respect of wheat bags stored at plaintiff’s factory, the plaintiff filed C.M.A. No. 5356 of 2011 at the time of filing of this Suit praying that the defendants be restrained from issuing any illegal and unlawful challan, from lodging any false FIR against the plaintiff, and from sealing plaintiff’s factory. By an ad interim order passed on plaintiff’s aforementioned application, the defendants were restrained from taking any coercive action against the plaintiff till the next date. The said interim order is still in the field.
7. Mr. Khalid Jawed Khan submitted on behalf of the plaintiff that the facts pleaded and the circumstances mentioned in the plaint clearly show that the plaintiff was legally neither bound nor obliged to store Government wheat at his factory under the Sindh Food Grains (Licensing Control) Order, 1957, and/or in terms of the license issued to the plaintiff under the said Order of 1957. He argued that the wheat stocks were already weevilized when they were delivered at plaintiff’s factory for storage, and due to such defect, their condition deteriorated rapidly which ultimately converted wheat into garbage in powder form. He submitted that there was no fault or failure on the part of the plaintiff, and that the plaintiff cannot be held responsible in any manner for the damage caused to wheat stocks. He also submitted that, although wheat stocks were not demanded by the plaintiff, but still he was willing to grind the same as he had the latest and modern technology for grinding. Such willingness of the plaintiff was due to the reason that he wanted the wheat to be utilized for human consumption as soon as possible so that the wheat is not wasted and the public could be benefitted. Mr. Khan also argued that all this was done by the plaintiff in good faith in spite of the fact that the declaration / alleged policy for storing large quantity of wheat bags in his premises was imposed on him unilaterally by the defendants. He also contended that a huge area of plaintiff’s premises which is lying completely occupied since June 2009 and is actually wasted in storing wheat bags could have been used by the plaintiff for other business purposes out of which he could have earned substantial profit. It was also contended by him that in addition to the wastage of huge area of his premises, the plaintiff has been burdened with additional responsibility and heavy expenses for keeping the premises properly fumigated on short intervals due to infested and weevilized stocks rotting and lying there.
8. In their written statement, the defendants have denied all the allegations and assertions made by the plaintiff, and have submitted that the plaintiff himself is responsible for the losses and damages alleged / claimed by him. The disputes involved in this Suit, that is, all the aforementioned allegations and claims made by the plaintiff and the defense set up by the defendants in response thereto, are yet to be decided. Facts of this case have been briefly narrated above as this application has been filed in the above background which is relevant for deciding this application.
9. Through the instant application, the plaintiff has submitted that by their above mentioned illegal and careless actions, the defendants have virtually shut down the operations of plaintiff's factory which was fully operational at the time of filing of this Suit and also at the time when it was declared as P.R.C. It is stated in this application that closure of his factory is causing irreparable losses and damages to the plaintiff. The plaintiff has also submitted that if he is allowed to resume operation of his factory / mill, it would not only result in reducing losses caused to him but would also be beneficial to the defendants and to the general public as his factory has a vibrant plant for grinding wheat and also has a huge storage capacity of about 250,000 bags of wheat. Learned counsel for the plaintiff submitted that no prejudice will be caused to the defendants if this application is allowed, whereas the plaintiff will be seriously prejudiced if this application is rejected because the defendants, who allocate wheat quota every year to all flour mills for the benefit of general public prior to the Holy month of Ramzan, have refused to allocate such wheat quota to the plaintiff without any lawful justification.
10. The learned A.A.G., Mrs. Haleema Khan appearing for all the defendants, strongly opposed this application. The learned A.A.G. raised a preliminary objection regarding the maintainability of this application on the ground that the relief sought in this application is beyond the scope of the pleadings contained and the prayers made in the plaint. The other objections raised by the learned A.A.G. were that the plaintiff was never forced by the defendants to store wheat stocks and the plaintiff could have refused before accepting their delivery ; that execution of undertakings twice by the plaintiff and accepting wheat bags several times by him shows that he had given his premises with his consent for storage of wheat stocks ; that it was an agreement with consideration as wheat was supplied to the plaintiff at such rates which were lower than the market rates and also as the entire stock of wheat was delivered by the defendants at the door step of the plaintiff for which the plaintiff did not have to incur any transportation or other charges which amounts to consideration in terms of the agreement ; that wheat stocks were not weevilized ; that Ramzaan quota was not sought by the plaintiff in the year 2011 ; and that injunction cannot be granted against Government functionaries in respect of such actions which they discharge under the normal course of their duties.
11. In addition to the objections mentioned above, the learned A.A.G. relied upon Sub-Sections (1) and (2)(c) of Section 3 of the West Pakistan Food Stuffs Control Act, 1958. It was contended that under the aforementioned provisions, the Government has power to take decisions or to pass orders for maintaining supplies of any food stuffs for securing its equitable distribution and availability, or for its storage, movement, transportation, distribution, use or consumption, etc., and also for regulating, by licenses, permits, or otherwise, the storage, transportation, distribution, disposal, acquisition, use or consumption of any food stuff. The learned A.A.G. argued that in view of the above, the Government had full authority to declare functioning flour mills, including that of the plaintiff, as P.R.C., and that no other or further sanction was required for this purpose. She also contended that it is the discretion of the defendants to grant quota which cannot be called in question, and if this application is allowed it will become precedent which will seriously prejudice the Government as the defaulting mill owners will start following it. She further contended that Courts do not interfere or strike down policies made by the Government, and in support of this submission, reliance was placed by the learned A.A.G. on the cases of Lt. Col. Farzand Ali and others V/S Province of West Pakistan, reported as PLD 1970 Supreme Court 98, and Gul Khan V/S Government of Balochistan reported as PLD 1989 Quetta 08.
12. It was also contended by the learned A.A.G. that the plaintiff has not paid to the Government the price of stocks of wheat which were supplied to him for storage at his premises, and that it is the plaintiff who is solely responsible for the damage and loss caused to the stocks of wheat. Further, the plaintiff is a defaulter and is guilty of misappropriation and embezzlement of wheat stocks due to which he has been blacklisted and has become disentitled from availing further wheat quota. The learned A.A.G then submitted that the license of the plaintiff has expired and the same has not been renewed, therefore, there is no question of allotting him further quota of wheat or Ramzaan package. In the end, she contended that issuance and renewal of license is the discretion of the Government and the plaintiff has no legal right in respect thereof. However, it was frankly conceded by her that plaintiff’s license was valid till 31.12.2011 and was subsisting when this Suit was filed by him on 30.04.2011. The learned A.A.G. prayed for dismissal of this application on the above grounds.
13. In response to the aforementioned objections raised by the learned A.A.G., Mr. Khalid Jawed Khan referred to Article 8(iv) of the West Pakistan Food Grains (Licensing Control) Order of 1957, and contended that a license granted under the said Order of 1957, unless suspended, withdrawn or cancelled, shall continue to remain in force for one year from the date of issue and shall be renewable annually on application by the licensee to the licensing authority. The learned counsel also referred to Article 10(i) of the said Order of 1957, and submitted that under this Article, a license granted under the said Order of 1957 may be suspended for specified period or cancelled by the licensing authority only after due notice and only if the license holder contravenes any of the conditions of the license. Learned counsel also submitted that if the plaintiff was a defaulter and if he had embezzled or misappropriated wheat stocks, as alleged by the defendants, or if the plaintiff had contravened any of the conditions of the license, the defendants ought to have issued to him a notice under Article 10(i) of the said Order of 1957, and only after hearing the plaintiff, the defendants may have suspended his license for a specified period or cancelled it. He further submitted that the provision of suspension or cancellation of license under the said Article 10(i) is directory and not mandatory, and an appeal is specifically provided under the said Article 10(i) against any such decision. Mr. Khalid Jawed Khan argued that the defendants never issued any notice to the plaintiff for contravening any of the conditions of the license, nor they initiated any proceedings against the plaintiff under the said Article 10(i) which clearly establishes that the plaintiff was not involved in the alleged embezzlement and/or misappropriation of wheat stocks.
14. Mr. Khalid Jawed Khan further submitted that the undertakings, which were void being unilateral and without consideration, were obtained from the plaintiff forcibly by the defendants. It was contended by him that if there was any violation of the undertakings, which is denied by the plaintiff, the same could only be treated as breach of contract and not a criminal offence or violation of law or violation of terms and conditions of the license. The learned counsel argued that the actions of the defendants of shutting down plaintiff’s factory and of not allocating him further wheat quota and Ramzaan package for the Holy month of Ramzan are malafide, illegal, discriminatory, without due process of law and are in clear violation of Articles 10-A and 18 of the Constitution of Pakistan. The learned counsel then submitted that the defendants cannot be judges of their own cause as they have declared the plaintiff as a defaulter and have blacklisted him on the ground of the alleged embezzlement and misappropriation on their own and without issuing him the mandatory notice under Article 10(i) of the said Order of 1957 and without any determination before a competent forum. In support of these submissions, he placed reliance on the case of New Jubilee Insurance Company Ltd., Karachi V/S National Bank of Pakistan, Karachi, reported as PLD 1999 Supreme Court 1126, wherein the Hon'ble Supreme Court was pleased to hold that there are certain basic norms of justice ; one of the cardinal principles of such basic norms is that one cannot be a judge of his own cause and breach of such principle would in fact violate the right of access to justice to all enshrined in Article 4 of the Constitution of Pakistan which right is equally founded in the doctrine of due process of law ; and that the right of access to justice includes the rights to be treated according to law, and the right to have a fair and proper trial before an impartial Court or Tribunal. In the above cited case, the Hon'ble Supreme Court held the impugned order / action of the respondent as not maintainable in law which was taken against the petitioner unilaterally without giving him any opportunity of hearing or defense.
15. Regarding the allegation against the plaintiff for committing the alleged criminal offence of embezzlement and misappropriation of wheat stocks, learned counsel for the plaintiff submitted that this is not a criminal case of any such nature as the dispute is purely of a civil nature which is subjudice before this Court in the shape of this Suit. He further contended that even if criminal proceedings had been initiated against the plaintiff, civil proceedings, that is, the civil dispute subjudice in this Suit, would take precedence. In this context, the learned counsel relied upon the case of Abdul Haleem V/S the State and others reported as 1982 SCMR 988, wherein the Hon'ble Supreme Court was pleased to hold that criminal proceedings should remain stayed during pendency of civil litigation between parties on the same subject matter.
16. In support of his prayer for mandatory injunction, Mr. Khalid Jawed Khan relied upon the cases of (i) Lahore Metropolitan Corporation, Lahore, etc. V/S Ahmad Ali and another, reported as 1998 PSC 987, (ii) Messers Abdul Khaliq Ice Factory V/S Karachi Electric Supply Corporation Ltd., reported as 1984 CLC 2720, (iii) Haji Sher Muhammad V/S WAPDA through its Chairman and 2 others, reported as PLD 1988 Lahore 511, and (iv) S.A. Abbasi V/S Chairman, District Council Gulshan-e-Iqbal, Karachi, reported PLD 1985 Karachi 400. In the facts and circumstances of all the above cited cases, mandatory injunction was granted. Learned counsel prayed that this application may be allowed as prayed as the peculiar facts and circumstances of this case justify passing of such an order and the plaintiff has made out a very strong case for the relief prayed for in this application. In addition to the above cited cases, Mr. Khalid Jawed Khan also referred to the case of Government of N.W.F.P. through Secretary and 3 others V/S Mejee Flour and General Mills (Pvt.) Ltd. Mardan and others, reported as 1997 SCMR 1804, in support of his contention that the defendants being public authorities while allocating wheat quota are under obligations to act without any arbitrariness or discrimination. According to the learned counsel, by allocating wheat quota to other flour mills excluding the plaintiff, the defendants are acting in an arbitrary and discriminatory manner by targeting the plaintiff.
17. Main disputes involved in this Suit are whether the defendants had any authority to declare plaintiff’s factory as P.R.C., to take over its possession for storage of wheat stocks, and to obtain undertakings from the plaintiff ; whether all these actions taken by the defendants in respect of plaintiff’s factory were unilateral and without any sanction, notification, etc., or the said actions were authorized and were taken with plaintiff’s consent ; whether wheat stocks delivered to the plaintiff were already weevilized and infected ; and whether the damage caused to the wheat stocks was due to plaintiff’s fault or were the defendants responsible for the same. As observed earlier, all these questions are yet to be decided and the same cannot be decided without allowing the parties to adduce evidence and without affording them opportunity of hearing. The relevant question which is to be decided at this stage is whether the plaintiff is entitled to the relief of mandatory injunction vis-à-vis a direction to the defendants to allow resumption of plaintiff’s factory, and restoration of plaintiff’s wheat quota and Ramzaan package. Without touching the merits of this case, I shall deal with and decide only the question mentioned above which is the subject matter of the instant application.
18. I will first deal with the preliminary objection raised by the learned A.A.G. about the maintainability of this application on the ground that the relief sought in this application by the plaintiff is beyond the scope of the pleadings contained and the prayers made in the plaint. This Suit has been filed in respect of the wheat stocks delivered and stored by the defendants at the factory of the plaintiff before filing of the Suit. The defendants have asserted that further wheat quota and Ramzaan package both are not being allocated / allowed to the plaintiff in view of the default, misappropriation and embezzlement allegedly committed by him in respect of the same wheat stocks which are the subject matter of this Suit. In other words, the defendants themselves have linked further supply of wheat quota and Ramzaan package to the plaintiff with the wheat previously supplied to him which is the subject matter of this Suit. Therefore, it cannot be said that the relief sought in this application is beyond the scope of the pleadings and prayers contained in the plaint. In fact it clearly shows that such action on the part of the defendants is directly related to the dispute and cause of action of this Suit. Even otherwise it is a well established principle of law that while the lis is pending Court can take notice of subsequent events and pass appropriate orders in order to do substantial justice. The preliminary objection is, therefore, rejected.
19. The other objections which were raised by the learned A.A.G. were that the defendants had the authority to declare plaintiff’s factory as P.R.C. through a policy ; there was an agreement between the parties which was for consideration ; wheat stocks were not weevilized ; the damage was caused to wheat stocks due to plaintiff’s own fault ; and the plaintiff is guilty of misappropriating and embezzling wheat stocks and is a defaulter. In my humble opinion, all these objections are premature at this stage. If the plaintiff succeeds in establishing his claim, he will be entitled to a decree. Whereas, if the defendants succeed in proving that the allegations and claims made by the plaintiff are incorrect, or that he is a defaulter or he is guilty of misappropriating and embezzling wheat stocks, the plaintiff will not be entitled to a decree. It would be unfair to comment on any of the above, and I am refraining myself from doing so, because all these questions are yet to be decided in this Suit as observed earlier. However, I may observe here that none of the above objections are relevant as far as this application is concerned as the relief sought in the present application by the plaintiff is not in respect of the wheat stocks delivered and stored by the defendants at his factory before filing of the Suit, but is in respect of his future wheat quota and Ramzaan package for which the question or occasion of misappropriation, embezzlement and / or default has not arisen.
20. With respect, the cases cited and relied by the learned A.A.G. in support of her submissions, namely, PLD 1970 Supreme Court 98 and PLD 1989 Quetta 08 are not relevant to the circumstances and facts of this case, particularly to the present application. The first mentioned authority, namely PLD 1970 Supreme Court 98 (supra) was in respect of several writ petitions of quo warranto, and other questions including immunity to challenge in courts internal proceedings of Assembly, acceptance of nomination papers of a person, registration of his name on the roll of electors, and challenging his successful election. The second case, namely PLD 1989 Quetta 08 (supra), was in respect of policy made by the Government of Balochistan for regulating admissions in educational institutions. In the above cases, private / personal property of an individual and his rights in respect thereof were not involved, as are involved in this case. One more citation, namely PLD 2005 Lahore 488, was also mentioned by the learned A.A.G. in her written synopsis, which appears to have been cited inadvertently as the page number of the said citation is incorrect.
21. The contention of the learned A.A.G. that further wheat supply and Ramzan quota cannot be granted to the plaintiff because his license has expired and the same has not been renewed, does not appear to be logical, reasonable or acceptable. On queries raised by me during the course of hearing, the learned A.A.G. conceded that plaintiff’s license was valid when this Suit was filed by him on 30.04.2011 ; that his license was valid till 31.12.2011 ; that the plaintiff applied for its renewal on 14.12.2011 before its expiration ; that till this date plaintiff’s application for renewal of license has neither been accepted nor rejected by the defendants, and the same is still pending for consideration and disposal by the defendants ; that the defendants did not convey to the plaintiff any reason or ground for keeping his application pending ; and that plaintiff’s license was never suspended, revoked or cancelled by the defendants before he applied for its renewal. In this context, Mr. Khalid Jawed Khan invited my attention to plaintiff's request / application dated 14.12.2011 for renewal of license, wherein the plaintiff had specifically requested the defendant No.3 to “Kindly issue challan for the deposit of fee of renewal to enable us to fulfill necessary formality by depositing specified fee of renewal and oblige.” Mr. Khalid Jawed Khan submitted that issuance of challan to enable the plaintiff to deposit the fee for renewal of license was a pre-requisite for renewal and was the obligation of the defendants under Form “BB” [applicable under Article 9(iv)] of the West Pakistan Food Grains (Licensing Control) Order, 1957. According to the learned counsel, under Clause 7 of the said Form “BB” the plaintiff was required to specifically mention in his application for renewal the number and date of treasury challan through which renewal fee was to be credited into Government treasury. The learned counsel argued that by not issuing the said challan, the defendants deliberately prevented the plaintiff from completing such formalities which were required for renewal of the license.
22. As observed earlier, the defendants were restrained by an ad interim injunction order passed on plaintiff’s C.M.A. No. 5356 of 2011 from taking any coercive action against the plaintiff, which order is still in the field. Despite such restraining order, the application for renewal of license admittedly filed by the plaintiff on 14.12.2011 (before expiration) has not been accepted or rejected by the defendants till this date, nor any reason or ground was / has been conveyed to the plaintiff for keeping his application pending unnecessarily for such a long period. The defendants also admittedly have not issued challan to the plaintiff which was / is required for payment of renewal fee, they have declared the plaintiff as a defaulter, and have refused further wheat quota and Ramzaan package to the plaintiff. During the subsistence of the restraining order passed in this Suit, all these actions on the part of the defendants were / are unjustified, malafide, and against the principles of natural justice. I have said so only for the purposes of this application which has been opposed by the defendants inter alia on the ground that the license of the plaintiff has expired and has not been renewed.
23. Article 8(iv) of the West Pakistan Food Grains (Licensing Control) Order, 1957, clearly stipulates that a license unless suspended, withdrawn or cancelled, shall continue to be in force for one year from the date of issue and shall be renewable annually on application by the licensee to the licensing authority. Article 10(i) of the said Order of 1957, provides that a license may be suspended for specified period or cancelled by the licensing authority only after due notice and only if the license holder contravenes any of the conditions of the license. Article 9 of the said Order of 1957 deals with the procedure of applications for issuance and renewal of licenses and the Forms under which such applications are to be submitted before the licensing authority. Under Article 9(iv), an application for renewal is required to be made in Form “BB” which cannot be submitted without specifically mentioning therein the number and date of the treasury challan in respect of the renewal fee. For dealing with an application for renewal of license, all the above Articles must be read together. It is an admitted position that the plaintiff had not only applied for renewal of his license within time, but had also requested the defendants to issue him a challan for payment of the renewal fee. The defendants have admitted that challan was not issued to the plaintiff, nor they accepted or rejected plaintiff’s application, but kept the same pending without assigning any reason or ground. As the licensing authority, it was the statutory duty and obligation of the defendants under the Order of 1957 to promptly issue the challan to the plaintiff, or at least to inform him about the reason(s) for not doing so, or to issue him the mandatory notice under Article 10(i) of the Order of 1957 if he had contravened any of the terms and conditions of the license so that he could have defended himself.
24. As observed above, the defendants did not discharge their statutory duties and functions under the Order of 1957 and became the judges of their own cause by declaring the plaintiff as a defaulter without giving him any opportunity of hearing and also without waiting for the trial and outcome of this Suit. In such circumstances, the principles laid down in the authority reported as PLD 1999 Supreme Court 1126 (supra), shall fully apply in this case, wherein the Hon'ble Supreme Court was pleased to hold inter alia that there are certain basic norms of justice ; one of the cardinal principles of such basic norms is that one cannot be a judge of his own cause and breach of such principle would in fact violate the right of access to justice to all enshrined in Article 4 of the Constitution of Pakistan which right is equally founded in the doctrine of due process of law ; and that the right of access to justice includes the rights to be treated according to law, and the right to have a fair and proper trial before an impartial Court or Tribunal. The authority, namely, 1997 SCMR 1804 (supra), shall also apply in the present case wherein the Hon'ble Supreme Court was pleased to hold that public authorities while allocating wheat quota are under obligations to act without any arbitrariness or discrimination.
25. In view of the above discussion, the admitted position on record and also in view of the law cited by the learned counsel for the plaintiff that mandatory injunction can be granted by Courts in special and peculiar circumstances, I am of the view that the plaintiff has successfully made out a case for the grant of this application. If this application in respect of plaintiff’s future wheat quota and Ramzaan package is allowed, such an order shall not affect in any way the disputes which are subjudice in this Suit in respect of the previous wheat stocks delivered to the plaintiff. The question now arises as to in what manner the relief prayed for should be granted because according to the defendants further wheat quota and Ramzaan package cannot be allocated / allowed to the plaintiff as his license has expired. This question is answered in the following manner :
i) Since the application for renewal of license filed by the plaintiff within time, that is, on 14.12.2011, is still pending before the defendants with the specific request for issuance of challan in respect of the renewal fee, the defendants shall in the first instance issue such challan to the plaintiff within seven (07) days from the date of this order.
ii) After receiving the said challan from the defendants, the plaintiff shall deposit / pay the renewal fee within seven (07) days from the receipt of the said challan. Thereafter, the defendants shall renew the license of the plaintiff without any discrimination and in accordance with law, and hand over the same to him within three (03) days from the date of payment of the renewal fee to enable the plaintiff to resume operations of his factory / mill.
iii) After renewal of plaintiff's license, future what quota / stocks shall be allocated / allowed / supplied to the plaintiff by the defendants without any discrimination and in accordance with law.
iv) In case of any legal bar or impediment in issuing the challan and renewing the license, proper reasons and grounds shall be communicated in writing by the defendants by a notice to the plaintiff within seven (07) days from the date of this order, whereafter the plaintiff shall be provided full opportunity of hearing in accordance with law. The questions of the alleged default, misappropriation and embezzlement in respect of the previous wheat stocks which are subjudice in this Suit and have no concern with future wheat quota or Ramzaan package shall not be made the basis or ground for refusing or further delaying the issuance of challan and renewal of plaintiff’s license by the defendants.
v) The Holy month of Ramzaan is about to end. Nevertheless, Ramzaan package shall be allocated to the plaintiff by the defendants without any discrimination in the same manner and proportion in which it was allocated to other flour mills as this application was filed by the plaintiff before commencement of the Holy month of Ramzaan.
It is once again clarified that the observations made and findings contained in this order shall not affect in any way the merits of the case of any of the parties in this Suit, and that the same are in respect plaintiff’s future wheat quota and Ramzaan package and not in respect of the previous wheat stocks supplied to the plaintiff before filing of this Suit.
This application is allowed in the above terms.
JUDGE
Abdul Salam/P.A
ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
Suit No. 640 of 2011
Date Order with signature of Judge
For hearing of CMA No. 6792/2012 (U/Order XXXIX Rules 1 & 2 CPC R/W Sections 96 and151)
01-08-2012 :
Mr. Khalid Jawed Khan, advocate for the plaintiff.
Ms. Haleema Khan, A.A.G, along with Mr. Bashir Ahmed Qazi, D.F.C. (Food Department), & Syed Raziuddin S.O.(W) Food Department.
-.-.-.-.-.-.-.-.
Learned counsel have concluded their submissions. Reserved for orders.
JUDGE
Abdul Salam/P.A