P L D 1987 Karachi 225 (PLP)

(iv) Rashid Ahmad v. Municipal Board, Kairana A I R 1950 S C 163. (v) Province of East Pakistan v. Hasan Askary P L D 1.971 S C

82. Mr. Raja Qureshi, learned counsel for the defendant No. 1, supported the submissions of Mr. Aziz A. Munshi on this point. Mr. S. M. Nurul Hasan, learned counsel appearing on behalf of the Attorney-General, pursuant to Court notice, submitted that when a Court is considering a challenge made by a party in a litigation against a legal provision on the ground that such legal provision is ultra vires of the Constitution, there are certain guiding principles which are kept in the mind by the Court and these are as follows :- (a) There is a presumption that the law is valid ; (b) In a suit, the Court should not declare a legal provision to be invalid on the ground of it being in violation of a constitutional provision as such challenges are normally considered under the constitutional jurisdiction conferred on the High Court by the constitution i. e. in a constitutional petition. (c) If the matter can be decided on other points the question of a legal provision being ultra vires may not be gone into by the Court ; and (d) If reliance is placed on a particular article or provision of the Constitution for the proposition that a legal instrument is invalid being violative of such constitutional provision, the Court should not confine itself only to that particular article of the Constitution but should also consider other provisions of the Constitution. With reference to Article 18 of the Constitution, Mr. S. M. Nurul Hasan laid emphasis on the word "lawful'", which, according to the learned counsel, was a very strong word and according to the learned counsel the words "lawful profession or occupation" signify that only those activities are permitted which are not restricted by law and according to him the word "restrictions" used in Article 23 of the Constitution includes prohibi?tion. Mr. S. M. Nurul Hasan then made the following proposition :- "If a trade or profession may be totally prohibited bylaw, it may be partially prohibited, the powers to prohibit or restrain being presumed by the use of the adjective `lawful' provided such restriction does not violate any constitutional provision. As a corrollary, `restriction' includes `prohibition' and vice versa." According to Mr. S. M. Nurul Hasan, the restriction placed upon the growers by the Zoning Order is restriction imposed by the law in the public interest (reference to Article 23 of the Constitution) and that the provisos to Article 18 do not restrict Article 18 but they are only explanatory of Article

18. Mr. Rasheed A. Akhund, learned counsel for the plaintiff, on the other hand, submitted that the provisions of the Act and Rules do not violate any provision of the Constitution especially provisions relating to the Fundamental Rights and relied upon the following reported judgments :-- (i) Arunchala Nadar v. State of Madras A I R 1959 S C 300. (ii) P. V. Sivarajan v. Union of India A I R 1959 S C 556. (iii) Pathumma v. State of Kerala A I R 1978 S C I . (iv) Sri Sri Kalimata Thakurani v. Union of India (1981) 2 S C C 283. (v) Laxmi Khandsari v. Stale of U. P. (1981) 2 S C C 600. (vi) Sukhandan Saran Dinesh Kumar v. Union of India (1982) 2 S C C 150.

4. In my view, challenge to any law on the ground that it is inconsistent with the Fundamental Rights conferred by the Constitution can validly be raised in a civil suit that is to say that such challenge is not confined to be made only in a constitutional petition. Article 8 of our Constitution lays down that any law, in so far as it is inconsistent with the rights conferred by Chapter I of Part 11 of the Constitution (i.e. Funda?mental Rights) shall, to the extent of such inconsistency, be void. Consti?tutional petitions are filed under Article 199 of the Constitution and there B is nothing in Article 199 or in any other Article of the Constitution, which provides that such a challenge can only be made through a constitutional petition. The point raised by the learned counsel for the defendants Nos. 1 and 2, that the provisions relating to declaration of Reserved Zones by the Cane Commissioner and restricting sales/supply of sagarcane by the cane?growers of a reserved area only to the sugar mill, for which such reserved area has been declared, therefore, in my view, can be raised in this suit.

5. As observed earlier, challenge to the validity of the provisions relating to declaration of Resei ved Zones and restrictions on growers has been made mainly on the basis of Articles 18 and 23 of the Constitution. None of the reported decisions cited before me and referred to earlier, are on all fours with the point in issue here. Prima facie, however, it appears that declaration of such Zones and restrictions that sugarcanal grown in a reserved area can only be supplied to a particular sugar mill, does not violate Article 18 of the Constitution. Apparently such) provisions do not affect the right of any sugarcane grower to enter upon his lawful profession and to conduct his business i. e. farming. Coming now to Article 23 of the Constitution, restriction on growers of sugarcane in a reserved area to supply sugarcane grown by them only to a particular sugar mill is no doubt a restriction on such cane growing citizens of Pakistan on their right to dispose of their property in any manner and to any one in Pakistan but, in my view, prima facie, such restriction appears to be a reasonable restriction imposed by the Act and Rules in the public interest. It may be observed here that whatever has been observed about the validity of the relevant provisions of the Act and Rules is my tentative view. I am only considering an application for temporary injunction. The tentative view- expressed by me is not the final view on the challenge made against the aforesaid provisions of the Act and Rules on the basis that the same violate provisions of the Constitution conferring Funda?mental Rights.

6. It was submitted by Mr. Rasheed A. Akhund, learned counsel for the plaintiff, that the first order of the Cane Commissioner dated 27-10-1986 is a valid order notwithstanding the fact that the Cane Commissioner had consulted the Board, which had been constituted for the crushing season 1985-86. Prima facie, the contention of the learned counsel is not correct. Section 10 of the Act requires consultation with the Board before issuance of a declaration of Reserved Area by the Cane Commissioner. Section 4 of the Act relates to constitution of the Board and it provides that it shall consist of a Sugarcane Commissioner, who shall be the Chairman of the Board and so many Members from the cane?growers, factory owners and servants of the State, as may be prescribed. Reference has already been made to section 2(h) of the Act, which defines the crushing season as meaning the period beginning on the 1st of October in any year and ending on the 30th of June next following year. The previous Sugarcane Control Board constituted by Notification dated 18-7-1985 was specifically constituted for the crushing season 1985-86.1 No provision of the Act or Rules could be pointed out by the learned E counsel for the plaintiff showing that in spite of the expiry of the tenure' of a Sugarcane Control Board, it continues in existence and will be deemed to be the Board for the next year till such time a new Board is constituted. For the crushing season 1986-87, the new Board was constituted on 2-10-1986 The life of the Board constituted for the crushing seasons 1985-86 came to an end on 30-6-1986 and as such consultation by the Cane Commissioner with the Board of crushing season 1985-86, prima facie, is not consultation with the Board as required by section 10 of the Act. Notification dated 27-10-1986, which was issued after consultation with the Members of a Board, whose tenure had already expired, is, therefore, F apparently a notification, which has no force in law and cannot be treated) as a declaration under section 10 of the Act.

7. The second zoning order dated 26-11-1986 issued by the Cane Commissioner under section 10 of the Act, apparently, suffers from no such illegality inasmuch it was passed after consultation with a properly constituted Sugarcane Control Board for the crushing season 1986-87.E Position boils down to this that tough the crushing season had started on 1-10-1936 (section 2(h) of the Act), the zoning declaration order is issued on 26-11-1986 i. e. after nearly two months of the commencement of crushing season. Normally the Sugarcane Control Board for a particular crushing season should be constituted within a few days of the expiry of the previous crushing season i. e. sometime in July and the declaration of the reserved area under section 10 of the Act should also be made much before the 1st of October, when the new crushing season starts. This is so, as various exercises are to be undertaken before the crushing season starts. Under section 9 of the Act, the Cane Commissioner can, by an order, require the occupier of any factory to submit an estimate in the prescribed form of the quantity of cane, which will be required by the occupier during the forthcoming crushing season and the Cane Commis?sioner then examines such estimate and then is required to publish the same with such modifications, if any, as he may think fit after consultation with the Board. All this apparently is expected to be done before the 1st of October, when the crushing season starts. Then comes section 10 of the Act, which gives the power to the Cane Commissioner to declare reserved zones. Subsection (2) of section 10 provides for an appeal to the Commis?sioner of the Division against the order of the Cane Commissioner passed under subsection (1) of section 10 declaring any area to be reserved area for the purposes of supply of cane to a particular factory during a particular crushing season. Such declaration under section 10 should normally be made much prior to the 1st of October so that the concerned parties are aware of such order and if any one is aggrieved thereby, he can file an appeal to the Commissioner of the Division as provided by subsection (2) of section

10. Section 1 I of the Act gives power to the Provincial Govern?ment to make a survey of the area proposed to be reserved for a factory. Section 12 requires the occupier of a factory, for whom any area has been reserved to maintain a register in the prescribed form of all cane-growers in such area. Apparently, such register can only be maintained after an order under section 10 of the Act has been passed declaring the reserved area. All these provisions indicate that the order declaring reserved H Zones for a particular crushing season should be passed much before that crushing season starts. Reference may now be made to section 13 of the Act on which much arguments were addressed by the' learned counsel for the parties. Sec?tion 13 reads as follows :- "

13. Purchase of cane in a reserved area.-(1) A cane-grower of a Cane Growers' Co-operative Society in a reserved area may, if required to do so by the Cane Commissioner shall, offer in the form and by the date prescribed and supply to the occupier of the factory, for which the area is reserved, such quantity, of cane grown by the cane-grower or the member of such Cane Growers' Co?operative Society, as the case may be, as is generally prescribed for or specially directed by the Cane Commissioner for such cane-grower or Cane Growers' Co-operative Society. (2) The occupier of a factory, for which an area is reserved, shall enter into an agreement in such form, by such date and on such terms and conditions as may be prescribed to purchase the cane offered in accordance with subsection (1), provided that he shall not purchase or enter into an agreement to purchase cane from a person who is a member of a Cane Growers' Co-operative Society. (3) Unless the Provincial Government otherwise directs cane grown in a reserved area- shall not be purchased by a purchasing agent or by any person other than the occupier of the factory for which such area has been reserved except by another grower for the bona fide of seed. (4) Cane grown in a reserved area shall not be sold by any person other than a cane-grower or a Cane Growers' Co-operative Society ; provided that a Cane Growers' Co-operative Society may deliver cane intended for a factory through another cane-grower of that area, or through a carrier. (5) During the crushing season, the Provincial Government may, if it is satisfied that there is likely to be in the area reserved for a factory any quantity of cane available for which the cane is required to enter into an agreement, direct that cane shall not be purchased outside the reserved area until the occupier of the factory enters into agreements to purchase all the cane offered to him in the reserved area." Mr. Rasheed Akhund, learned counsel for the plaintiff placed much reliance on subsection (3) of section 13 which provision, according to learn?ed counsel, places an absolute bar on supply of cane grown in any reserved area to any one except the factory for which such area has been reserved. It was submitted that unless this restriction was absolute, the entire purpose of creation of reserved zones would stand frustrated. With reference to section 10 of the Act, it was submitted that this provision required only issuance of an order by the Cane Commissioner-of course after consulting the Sugarcane Control Board-declaring reserved areas, and there is no requirement of issuance of a notification. This distinction was highlighted by the learned counsel by reference to other provisions of the Act which require issuance of a notification for doing some act under the Act. Reference was made to sections 3, 6, 6-A, 7 and 16 which provisions require issuance of notifications. It was submitted that the Zoning Order comes into effect as soon as it is signed and section 10 does not even say that the order has to be issued in a prescribed manner. It may be observed that learned counsel for defendants Nos. 1 and 2 had relied upon rule 7(2) of the Rules which is as follows :- "An order of the Cane Commissioner declaring any area to be reserved for any particular factory or altering the boundaries of an already reserved area or cancelling any previous order declaring an area to be reserved shall be communicated to the occupier of the factory concerned and shall be published in the official Gazette and also at the office of the Collector of the district in which the area is situated and also at the gate of the factory." On 17th December, 1986, arguments of learned counsel concluded before me in this matter. Admittedly till then the Zoning Order dated 26-I1-1986 had not been published in the official Gazette although a statement was made by Mr. A. R. Kazi, learned Additional Advocate-?General, on instructions of the Cane Commissioner, that a few days earlier the order had been sent to the Government Press for publication. Contention of Mr. Aziz A. Munshi and Mr. Raja Qureshi for defendants Nos. 1 and 2 was that publication of the Zoning Orders in the official Gazette is mandatory and as the Zoning Order dated 26-I1-1986 has not yet been published, it has not come into operation. Mr. Rasheed Akhund for the plaintiff replying to this contention argued that firstly section 10 of the Act requires only making of the Zoning Order by the Cane Commissioner and as such it comes into effect the moment it is signed by the Cane Commissioner. Secondly, it was submitted that the rule about publication of the Zoning Order in the official Gazette is merely directory. It was then contended that if the language used in Rule 7(2) pensuades the Court to interpret it as mandatory, then the rule is ultra vires of section

10. On the point of the directory or mandatory nature of the statutory rule and the effect of non-publication of the Zoning Order dated 26-11-1986 in the official Gazette, Mr. Rasheed Akhund cited the following case law; (i) Chief Commissioner Karachi v. Jamil Ahmad P L D 1961 S C 145. (ii) Nawab Bibi v. Rafiq Bano P L D 1971 S C 481. (iii) Muhammad Yousuf v. S. M. Ayub P L D 1973 S C 160. (iv) Federation of Pakistan v. United Sugar Mills Ltd. P L D 1977 S C 397. (v) Muhammad Siddique v. Market Committee Tandllanwala 1983 SCMR785.

8. On a perusal of the provisions of the Act and the Rules, prima facie it appears that the order declaring reserved areas (Zoning Order) for particular crushing season must be issued before that crushing season starts and the provision in rule 7(2) about publication of such order in t the official Gazette is mandatory and such order comes into operation on its publication in the official Gazette. I have already referred in the earlier part of this order about various exercises which are required to be carried out under the provisions of the Act. I may here refer to rule 9 on which reliance had been placed by Mr. Rasheed Akhund but which. provision apparently goes against his contentions. Rule 9 reads as follows :- "

9. Purchase of cane grown is a reserved area-(1) The occupier of factory shall estimate or cause to be estimated, by thirtieth September, the quantity of sugarcane with each grower enrolled in the Grower's Register and- shall submit the estimate to the Cane Commissioner who may, after such enquiries as he considers neces?sary, modify the estimates and cause them to be published in such manner as he may direct. (2) A cane-grower or a Cane-Growers' Co-operative Society in a reserved area may offer in Form 6, Appendix II, by the first October each year to supply during the crushing season to the occupier for the factory for which the area has been reserved, cane not exceeding in the case of cane-grower's the quantity estimated in accordance with sub-rule (1). (3) The occupier of the factory for which the area is reserved, shall enter into an agreement with the cane-grower or the Cane-Growers' Co-operative Society, as the case may be, in Forms 7 and 8, respectively, or in any other form approved by the Cane Commis?sioner, within a month of the offer mentioned in sub-rule (2). (4) The occupier of factory shall spread the purchases made in the reserved area in an equitable manner, and shall in the case of cane-growers of the reserved area make purchases of cane only after issuing requisition slips. In order to comply with this rule the occupier shall cause identification cards to be distributed to all cane-growers of the reserved area to whom requisition slips will be issued, and shall maintain a record of the same. (5) Requisition slips and identification cards to members of a Cane-?Growers' Co-operative Society shall be issued by the Society. (6) In case of a dispute whether a particular system adopted for the purchase of one grower in the reserved area is equitable or not the dispute may be referred to the Cane Commissioner whose decision shall be final." Sub-rules (1) and (2) of rule 9 also indicate that the Zoning Order under section 10 must be passed much before 1st October (i.e. the day on which the crushing season starts). An occupier of a factory cannot be expected to make the estimate for each grower by 30th September as required by sub-rule (1) unless the Zoning Order is made earlier so that lac know as to what is his reserved area and who are going to be his growers. Register of growers can also be maintained provided the occupier knows his reserved area. Sub-rule (2) of rule 9 also gives the same indication. Tentatively I am of the view that there is no contradiction between section 10 of the Act and rule 7(2). Section 10 provides for the making of the Zoning Order by the Cane Commissioner and rule 7(2) lay down the procedure for its publication and communication to the con?cerned. I do not agree with the submission of the learned counsel for the plaintiff that rule 7(2) appears to be ultra vires of section 10 of the Act. On reading the relevant sections of the Act, referred earlier, it appears that the intention of the Legislature was that an order under section 10 has to be communicated to the concerned parties including sugarcane growers and that several provisions of the Act would be rendered ineffective if the Zoning Order is not made much prior to the date of the commencement of the concerned crushing season i. e. 1st October. Under the rule-making powers vested in the Government, rules have been framed and notified and the purpose of rule 7(2) appears to give effect to the intention of the Legislature by laying down the procedure for bringing the Zoning Order to the notice of all concerned i.e. occupiers of the factories as well as growers of sugarcane. In case the Zoning Order under section 10 of the Act is not passed before 1st October, i. e. the date on which the crushing season commences, and is not communicated to the cane-growers, it would appear then that the cane-growers would be free to sell their sugarcane to any one they like. In the instant case, there was no Zoning Order in the field till at least 26-11-1986 and as such there was no restriction, even if publication of the Zoning Order in the official Gazette is considered directory, on the cane growers to sell their sugarcane to any one. Then the Zoning Order must be brought to the notice of the cane-growers or else how could they be expected to comply with the Zoning Order and according to the rule 7(2) the procedure has been provided for publication and communication of the Zoning Order to all concerned. The word "shall" has been used in rule 7(2) and this also indicates that unless the procedure provided in rule 9(2) ill followed, the Zoning Order will not come into effect. Learned counsel for the plaintiff had also cited the judgment in the case of Consolidated Sugar Mills Limited v. United Sugar Mills Limited (1980 C L C 804). A learned Single Judge of this Court, in that case had granted temporary injunction in respect of the reserved area on the basis of the provisions of subsection (3) of section 13 of the Act. However, I find that there is no discussion of other relevant sections of the Act and rule 7(2).

9. While dealing with the present temporary injunction appli?cation, I am, therefore, tentatively of the view that according to the provisions of the Act and the Rules, a Zoning Order - in respect of a crushing season under section 10 of the Act is required to be? passed prior to the commencement of that crushing season and that it comes into operation only after the procedure for its communication and publication provided in rule 7(2) has been complied with. As the Zoning Order in question has been passed on 26-11-1986 i. e. nearly after two months of the commencement of the crushing season of 1986-87 and it has also not been published in the official Gazette, in my view, therefore, the plaintiff has failed to make out a prima facie case. C. M. A. No. 5009/86 is accordingly dismissed and the interim order earlier granted stands recalled. M. B. A./M-7/K?????? Application dismissed.