2000 PLP 1847 (YLR)

Messrs Ilyas Bilour Flour & General Mills, petitioners, have questioned the refusal of the respondents with regard to issuance of Food Grains License under Article 3 of the Food Grains (Licensing Control) Order, 1957, enabling them to grind the wheat which would be supplied by the U.N.O. World Food Programme. They have questioned the refusal as violative of Article 4 of the Constitution, as the petitioners have a fundamental right under Article 18 of the Constitution to enter into a lawful trade in lawful manner.

2. The petitioner's Flour Mills is recently constructed and is complete in all respects. The representative of the Food Department and Industries Department after inspection of the Mill have already issued the completion certificate.

3. The petitioner‑mill approached the respondents for, the grant of Food Grains Licence under Article 3 of the Food Grains (Licensing Control) Order, 1957, so as to purchase wheat from the open market for grinding in the mill, and also to grind the wheat for U.N.O. World Food Programme, but despite repeated requests the respondents did not respond to the petitioner's prayer. Hence this writ petition.

4. Respondents Nos.1 and 2 were directed to submit their comments which were filed accordingly. They have stated in their comments that the petitioner was directed to obtain completion certificate from the Industries Department and also to furnish an undertaking on judicial stamp paper that the petitioner will not demand any wheat quota from the Government and sell wheat atta and wheat products in the market at the Government rates or the rates approved by the District Administration and will procure wheat from private sources at present and no subsidized wheat from the. Government godowns will be demanded, but the petitioner has not complied with the said directions. It has been further stated in the comments that the petitioner can be granted Food Grains Licence, if he completes all the formalities in the light of Schedule‑A under clauses (8) and (9) of the Food Grains (Licensing Control).

5. The petitioner filed rejoinder to said comments wherein it was replied that Articles 3, 8 and 9 read with Form‑A, Schedule II of the Food Grains (Licensing Control) Order, 1957 do not visualise the compliance of the directions of the Government or of the Licensing Authority in regard to the purchase, sale or storage for sale of food grains but only requires the petitioner to complete the legal formalities under the said Order at the time of submission of the application for grant of Food Grains Licence. The petitioner has also annexed with the rejoinder Letter No. 4219/FC‑147‑Ilyas Bilour F/Mills, dated 8‑4‑2000 issued by the Director Food, N.W.F.P., Peshawar wherein the petitioner was required and informed that the request for award of Food Grains Licence for private grinding will be considered on submission of completion certificate from concerned Department. It may be mentioned that under the orders of this Court, the respondents alongwith Officers from the Directorate of Industries, N.W.F.P. have inspected the petitioner‑flour mill and found the same complete and accordingly completion certificate has been issued to the petitioner on 14‑6‑2000.

6. On 15‑6‑2000, C.M. No. 768 of 2000 was fixed for hearing. The learned counsel for the petitioner argued that after obtaining completion certificate by the petitioner, there remains no legal hurdle in the way of the petitioner for grant of such licence. In presence of learned counsel for the petitioner as well as Kh. Azhar Rashid, A.A.‑G., alongwith Saeedur Rehman, Deputy Director Food, it was ordered that ‑the C‑M, alongwith the writ petition will be heard on 19‑6‑2000

7. Today, after hearing the learned counsel for the petitioner, the writ petition was admitted to regular hearing and as Kh. Azhar Rashid, A.A.‑G. alongwith Saeedur Rehman, Deputy Director Food were also present in Court, therefore, the learned A.A.‑G. accepted notice in the writ petition and addressed the Court in reply to the arguments of the learned counsel for the petitioner.

8. From the averrments made in the writ petition, the application, rejoinder and the assertions made in the comments of the respondents and replies to the C.Ms. it is evident that though the petitioner‑mill has been issued completion certificate by the Industries Department, yet the respondents are requiring the petitioner to fulfil the following conditions before‑issuance of Food Grains Licence: ‑‑‑ (i) the petitioner will procure wheat from private sources at present and no subsidised wheat from the Government godowns will be demanded from the respondents; (ii) the petitioner will not demand any wheat quota from the Government on the basis of issuance of Food Grains Licence; (iii) the petitioner will sell wheat atta and wheat products in the market at the Government fixed rates or at the rates approved by the District Administration.

9. The Food Grains Licence is granted under Article 3 of the Food Grains (Licensing Control) Order, 1957 which provides that no person other than a producer shall purchase, sale or storage for sale of any of the food grains, except under and in accordance with a licence issued by licensing Authority. In view of these provisions, the fulfilment of the conditions stated above before issuance of the food grains license, are not the requirement of law particularly Article 3 of the Food Grains (Licensing Control) Order, 1957. The respondents have also relied on clause (8) of Form‑A, II Schedule, which provides that the licensee shall comply with any directions that may be given to him by the Government or by the licensing authority in regard to the purchase, sale or storage of sale of food grains. The word "licensee" used in the said clause clearly shows that a person after becoming a licensee shall comply with any directions that may be given to him by the Government or by the Licensing Authority, but not before issuance of such a licence. The petitioner has not yet been issued Food Grains Licence and, therefore, the provisions of clause (8) (ibid) cannot be invoked against the petitioner at this stage. The petitioner‑mill is ready to go into production according to the Certificate issued by the Industries Department and the petitioner wants to purchase wheat from the open market or import from abroad for grinding in the mill or intends to grind the wheat of U.N.O. World Food Programme and, therefore, the refusal of the respondents to issue food grain license to the petitioner without any cogent reason would obviously amount to denial of the fundamental right to the petitioner to enter into a lawful trade. As stated above, the conditions which the respondents want to fulfil by the petitioner before issuance of Food Grains Licence, are having no relevancy with the relevant provisions of law and the petitioner is, therefore, under no legal obligation to fulfil that conditions before issuance of Food Grain Licence to him. Of course, he would be liable to comply and abide by the provisions of law after becoming a licensee within the meaning of Article 3 of the Food Grains (Licensing Control) Order, 1957.

10. For the aforesaid reasons, this writ petition is accepted and the respondents are directed to issue food grain licence to the petitioner in accordance with law without compelling the petitioner for undertaking certain conditions which are not enumerated in the relevant law for the purpose. Q.M.H./M.A.K./146/P