1997 PLP 2184 (MLD)

Muhammad Rafiq Rajwana for (Association) Respondent No.5. Date of hearing: 12th January, 1997. This judgment will dispose of Writ Petitions Nos. 7988/M/96 (M/s. Abrar Flour Mills v. Province of Punjab, etc.), 184/97 (Three Stars Flour Mills v. Province of Punjab, etc.) and 185/97 National Flour Mills v. Province of Punjab, etc.) as the common question of law and facts are involved therein.

2. Briefly, the facts are that on application made by petitioners in W.P. No.7988/M/96, the former Provincial Minister for Food, Punjab, was pleased to order on 22‑10‑1996 that the petitioners be given twenty‑four hours wheat quota. These orders were, however, withdrawn from the 9th November, 1996, by the Directorate, Food, Punjab, by its Letter No. DF‑ADF‑I(SQ)1096, dated the 7th November, 1996. The petitioners in Writ Petition No. 7988/M/96 have challenged this order of Directorate of Food, Punjab, on the ground that the order of Food Minister could not be rendered ineffective by his subordinates and have, therefore, prayed for continuation of twenty‑four hours supply of wheat as was ordered by the former Minister.

3. The petitioners in Writ Petitions Nos. 184/M/96 and 185/M/96 have claimed that the quota of their mills was respectively fixed at 160 and 100 metric tons of wheat per day but the said supply has been reduced by the Food Department on the plea of shortage in the stock, notwithstanding that the grinding capacity of the petitioners mills was much more. It has, therefore, been prayed that the petitioners should be supplied wheat by the Department according to the daily grinding capacity of their mills already approved by the Department.

4. The learned counsel appearing on behalf of the petitioners contended that under rule 4 of the Punjab Government Rules of Business, 1974, framed under Article 139 of the Constitution, each Department of the Province of the Punjab consists of a Minister as its executive head, Secretary and such other officials as the Provincial Government may determine. The Provincial Ministers are responsible for all policy matters and for the conduct of business of their respective Departments. It was, therefore, contended that in view of these powers any quota for supply of wheat approved by the Minister being incharge of the Department could not be cancelled or withdrawn by his subordinate i.e., the Director, Food, Punjab, as such action would be in conflict with the principles laid down in section 21 of the General Clauses Act, 1898, whereunder only the authority issuing an order can withdraw the same. It was also urged that before cancellation of special quota, it was necessary that the petitioner be given an opportunity of show cause and being heard. According to the petitioner, there was no shortfall of the wheat as the Department has sufficient quantity of wheat in its stock and the Government is also importing wheat in a large quantity for supply to the public through flour mills on subsidized rates up to the 30th April, 1997, whereafter the flour mills can directly purchase the wheat from the market.

5. It was contended on behalf of the Department that there were thirty eight flour mills and forty‑one Chakkis (wheat grinding machines) in Multan and Lodhran Districts. The said thirty‑eight flour mills have one hundred and fifty seven bodies and thereby up to the 30th April, 1997, the Government is required to supply at least 10,00,040 bags whereas the Food Department has in its stock only 6,09,950 bags with a shortfall of 3,90,090 bags. It was contended that if the special quota to the petitioners is continued, there is likely to be shortfall of 6,75,290 bags. The Department is of the view that since more and more flour mills are seeking special quotas which, in view of huge shortfall in the stocks, it will not be possible for the Department to supply any wheat to the flour mills. In view of this shortfall the Government has decided to do away with all special quotas and provide wheat to all the flour mills, without any preference, according to their grinding capacity for eight hours only. The Food Department was also of the view that subsidized wheat is generally smuggled out by the flour mills without grinding to earn more money.

6. Malik Muhammad Rafiq Rajwana, Advocate, who represented the Multan Flour Mills Association (respondent No.5) shared the aforesaid apprehension of the Food Department that if the special quotas of certain selected flour mills is continued, ultimately the Food Department will be left with no wheat in its stock to supply wheat to other flour mills of the area. It was further explained that the supply of wheat under special quotas is contrary to the rights of equal protection available to every citizen of Pakistan under Articles 4, 18 and 25 of the Constitution pf Islamic Republic of Pakistan.

7. It is the policy of the Government that the flour is available to the people at reasonable price. For that purpose every year the Government makes purchases of large quantity of wheat during its harvesting season so as to keep the consistent supply to flour mills, particularly during lean months when the prices of wheat in the market rises. Since there is always a price difference in the wheat supplied by the Food Department and the rate on which it is available` in the open market, the flour mills prefer to purchase wheat at the subsidized rates from the Food Department than from the market either because of shortage or high prices. It is in that context that the Food Department has expressed serious apprehensions that the flour mills which have obtained orders of special quotas. for supply of wheat from the political persons in authority are misusing the concession to earn undeclared profits by selling subsidized wheat directly in the market on higher prices instead of grinding and selling it in the market as flour to keep it easy availability to the public at large. These special quotas are also source of resentment amongst those millers whose supply has been reduced under a uniform policy.

8. The order of the Provincial Food Mihister for grant of enhanced or additional supplies of wheat at the subsidized rates to few in preference to others clearly smacks of arbitrariness. No doubt, the Food Minister is head of the Provincial Food Department but his orders are subject to such limitations as are imposed by law anti Constitution. The orders for additional quota passed by him in favour of petitioners in Writ Petition No.7988‑M of 1996 clearly reflects that such orders were passed without obtaining report from the concerned Department or ascertaining the actual grinding capacity of their mills. Neither the position of the existing stock of the wheat was taken into consideration before passing orders for enhanced quota in favour of the petitioner nor it was visualized that grant of such additional quota of wheat would deprive the other flour mills to receive constant supply of wheat at a uniform scale. It was also not ensured that because of prevailing higher prices of wheat in the open market, the wheat supplied by the Food Department at the subsidized rates is actually used for grinding or is sold in the market as is alleged by the Food Department and the Flour Mills Association.

9. There is no denial that the additional quota of wheat to certain mills at the subsidized rates is made at the cost of remaining flour mills whose quota is reduced. This order of the Provincial Food Minister is, therefore, clearly discriminatory and contrary to the rights of the owners of other flour mills who are being supplied wheat to keep their mills running for eight hours only. It is a settled principle that the High Court in exercise of powers vested under Article 199 of the Constitution is not required to provide discretionary relief at the cost of other people by causing injustice to them. In Mst. Sakina and others v. Muhammad Yamin Khan and others PLD 1984 SC 3, it was held by the Supreme Court that the High Court under its discretionary powers of the writ jurisdiction should not proceed which may ultimately has the effect of defeating the ends of justice or in the aid of injustice. In Sunny Flour Mills (Pvt.) Ltd. v. Government of Punjab (W.P. No.21163 of 1996), in which the issue of grant of additional quota of wheat was involved, my learned brother Malik Muhammad Qayyum, J. had observed that discrimination should not be followed to provided benefit to few. In this respect, it will be pertinent to quote below the principles laid down by the Supreme Court in Rehmat Ullah v. Hameeda Begum 1986 SCMR 1561 in respect of exercise of discretionary jurisdiction by the High Court under Article 199 of the Constitution:‑‑‑ "Undoubtedly, the Constitutional jurisdiction under Article 199 of the Constitution is discretionary. Even when an order impugned before the High Court is found to be lacking in some legal, or jurisdictional requirement, the Constitutional provision does not compel the High Court to issue a writ muchless that of certiorari or mandamus. The merits of the case have also to be seen in order to examine whether the discretion is to be exercised or not in favour of the party successfully challenging the legality of the order impugned in writ jurisdiction. If the result is that by setting aside such an order another order would be revived which is unjust or unfair or is otherwise also illegal then before setting aside the first mentioned order the Court will have to examine more carefully the question of exercise of discretion and in proper cases would decline to exercise the discretion and would thus not set aside and order passed if it is illegal provided the setting aside of such an order would result, inter alia, in injustice or revive another illegal order. "

10. The impugned order issued under the signatures of Director, Food, Punjab, cancelling and discontinuing the special quotas of wheat issued to some flour mills under the directions of former Provincial Minister for Food is also not the order of the Director Food, instead by such letter only the policy decision of the Government of the Punjab, discontinuing special quotas for supply of wheat was conveyed to all the flour mills, including the petitioners. The letter is, dated the 7th November, 1996, and the special supply of quotas were withdrawn from a future date i.e., the 9th November, 1994, meaning thereby such quotas were also discontinued after due notice. This cancellation order, therefore, cannot be termed as arbitrary or without authority. In fact, under the Foodstuffs Control Act, 1958, whereunder supply of wheat is made to the flour mills, such power of allotment of special quota is not vested with the Minister. The learned counsel representing the petitioners has not cited the provision of any rule or statute whereunder by virtue of his office, a Minister is empowered to grant any special quota of wheat or any other commodity at subsidized rates to any person at its discretion or contrary to the policy laid down in that behalf. In Chairman, R.T.A. v. Mutual Insurance Company PLD 1991 SC 14, it was held by the Supreme Court that "the wide‑worded conferment of discretionary powers or reservation or discretion, without framing rules to regulate its exercise, has been taken to be as enhancement of the powers and it gives that impression in the first instance but where the authorities fail to rationalize it and regulate it by Rules, or Policy statements or Precedents, the Courts have to intervene more often, than is necessary, apart from the exercise of such power appearing arbitrary and capricious at times".

11. The orders of Provincial Minister for Food granting special quota for supply of wheat to the petitioner's flour mill were made without having any legal authority or without laying down any rules or parameters or uniform policy to avoid unnecessary benefit to few at the cost of majority of other flour mills. The supply of wheat to the flour mills at subsidized price is a concession provided to the flour mills so that people may get flour at cheaper rates This concession should be available to all the flour mills without giving preference to few over others. The smooth supply of wheat is thus not for the purpose of providing any advantage, benefit or extra profits to the selected ones or to keep their flour mills running round the clock but for making the availability of the flour in the market within the reach of common man. The flour mills are otherwise at liberty to make purchase of wheat from open market of whatever quantity they may choose. Hence, whereas on the one hand grant of special quota merely on the basis of discretionary powers of the Provincial Minister or other holders of public offices without any legal sanction cannot be supported at the same time it is the duty of the Government and in particular the Food Department to make rules for allocation of wheat to flour mills for, bringing transparency and eliminating or minimising the exercise of discretionary powers of the public functionaries for such allocation which are usually abused. In view thereof; there is no justification in continuation of special quota of wheat approved by the Provincial Minister of Food, Punjab on 22‑10‑1996, in favour of the petitioners in Writ Petition No.7988‑M of 1996 or to allow enhanced quota of wheat to the petitioners in the connected writ petitions on the basis of twenty‑four hours grinding capacity of their mills in preference to other flour mills which are being provided with wheat on the basis of eight hours grinding capacity only The writ petitions are, therefore dismissed with no orders as to the costs. A.A./I‑17/L Petitions dismissed.