P L D 2001 Supreme Court 1 (PLP)

(2) It shall extend to whole of the North-West Frontier Province: (3) It shall come into force at once. 2.. Definitions.--In this Act, unless the context otherwise requires,-- (a) "appointed day" means the day on which this Act comes into force; (b) "Department" means the Department of Food of the Government of the North-West Frontier Province; (c) "existing mill" means a flour mill in production before the appointed day; and (d) "Government" means the Government of the North-West Frontier Province.

3. Supply of wheat to flour mills.--(1) Notwithstanding any judgment, decree or order of a Court or any procedure or practice in vogue, no flour mill, other than an existing mill, shall be entitled to be supplied wheat save as determined by the Government.

4. Power to make rules.--Government may make rules to carry, out the purposes of this? Act.

5. Repeal.--The North-West Frontier Province (Supply of Wheat to Flour Mills) Ordinance, 1999 (N.-W.F.P. Ordinance No.IX of 1999) is hereby repealed." .

3. The vires of the Act had been challenged by the respondents/writ petitioners being violative of Fundamental Rights as enshrined in Articles 8, 18 and 25 of the Constitution of the Islamic Republic , of Pakistan, 1973 (hereinafter referred to as the Constitution). When the matter came up for hearing before the Division Bench of the Peshawar High Court, Peshawar one of the learned Judges declared clauses (a) and (c) of section 2 and section 3 of the Act as ultra vires While the other learned Judge held the Act to be intra vires of the Constitution. In view of difference of opinion the matter was referred to the third Judge for opinion. The questions that were referred to the learned Referee Judge were: "(i) Whether the provisions of section 2(a) and (c) and section 3 of the Act are ultra vires of the Constitution, being in conflict with the Fundamental Rights? (ii) Whether the effect of the judgment of the Supreme Court or of the High Court can be annulled by the enactment under issue? (iii) Whether the petitioners/mills are entitled to the receipt of wheat? quota?

4. The learned Referee Judge answered the questions as follows: -- "(i)??????? The provisions of section 2(e) and section 3 of the Act are ultra vires of the Constitution, being in conflict with the Articles 18 and 25 of the Constitution, as it gives an unfettered and arbitrary powers of determination of wheat quota to the Government. While section 2(a) of the Act is not violative of the Constitution. (ii) No, the effect of the judgment of the Supreme Court and of the High Court cannot be annulled through an Act in question as it is beyond the competence of the Legislature to validate through fresh enactment, an action which has been declared as violative of the Fundamental Rights. (iii) Yes, the petitioners/Mills are entitled to the receipt of wheat quota, provided they have obtained completion certificates issued by Food/Industries Department, Government of N.-W.F.P."

5. The matter was again sent to the learned Division Bench seized of the matter for final decision in view of the opinion rendered by the learned Referee Judge on 19-7-2000. In consequence, by majority of 2 to 1 the writ petitions were accepted vide the impugned order dated 1-8-2000.

6. Mr. Imtiaz Ali, the learned Additional Advocate-General, N.-W.F.P. vehemently contended that the High Court -has fallen into an error of law in declaring that the provisions of the Act were ultra vires and violative of Articles 18 and 25 of the Constitution. He argued that the Provincial Legislature had -the power to legislate the Act in order to reguiarize the allocation of wheat quota to the flour mills to enable them to run as economically viable projects and maintain regular minimum supply of wheat to sustain the flour mills presently functioning as also to make available wheat flour to general public at reasonable price. His precise submission was that the High Court had exceeded its jurisdiction in declaring the Act ultra vires without examining the efficacy of the Act itself and that it being beneficial to the Government and the subject alike, including the mill owners whose interests would also be jeopardized if the wheat quota comes to such a minimum limit that it would not be economically viable to run the mills.

7. We have gone through the impugned judgment as well as the relevant case-law on the subject. Prior to the promulgation of the Ordinance/Act a similar question came up for consideration before this Court in Government of N.-W.F.P. through Secretary v. Mejee Flour and General Mills (Pvt.) Ltd., Mardan 1997 SCMR 1804, wherein this Court dilated upon the well-established general principles for the exercise of discretion to the effect that discretionary decisions should be made according to rational reasons, which means: (a) that there be findings of primary facts based on good evidence and (b) that decisions about the facts be made for reasons which serve the purposes of the statute in an intelligible and reasonable manner. It was held that the actions which did not meet these threshold ?requirements are arbitrary and might be considered as a misuse of powers. Our learned brother Muhammad Bashir Jehangiri, J., who authored the judgment, while dealing with the doctrine of structuring discretion, observed:-- "Wherever wide-worded powers conferring discretion exist, there remains always the need to structure the discretion and it has been pointed out in the Administrative Law Text by Kenneth Clup Davis (page 94) that the structuring of discretion only means regularizing it, organizing it, producing order in it so that decision will achieve the high quality of justice. The seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open findings, open reasons, open precedents and fair informal procedure. Somehow, in our context, the wide-worded conferment of discretionary powers or reservation of discretion, without framing rules to regulate its exercise, has been taken to be an enhancement of the power 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." Same view was taken in an unreported judgment passed by this Court in Civil Petitions Nos.284-P and 329-P of 1997 titled N.-W.F.P. through Secretary Food, Agriculture and Livestock Department v. Messrs Fawad Flour Mills.

8. It is true that the Provincial Legislature is competent to promulgate appropriate legislation for abolishing wheat quota or to regulate the supply of the same provided the above threshold-requirements are met and the Fundamental Rights contained in the Constitution are not violated. Here, the N.-W.F.P. Government has the power to determine the supply of wheat in its absolute discretion. The law does not lay down the methodology or guidelines for allocation of wheat quota. The High Court was, therefore, right in holding that Article 18 and Article 25 of the Constitution were violated by the impugned legislation. We may also add that clause (a) of section 2 of the Act was saved by holding that the same is not violative of the Constitution.

9. When faced with this, the learned Additional Advocate-General, N.-W.F.P. vehemently contended that the impugned judgment is self? contradictory, inasmuch as, on the one hand the Act has been declared ultra vires and on the other the respondent-mills/owners have been held to be entitled to the receipt of wheat quota in question provided they had obtained 'completion certificates' from the Food/Industries Department, Government of N.-W.F.P. The main thrust of the argument was that if the applications of the respondent-mills seeking receipt of the quota are subject to the issuance of 'completion certificates' alone, then there would be many others who would be denied the same on account of the fact that the construction-process of their Mills has not yet come about. We are afraid the argument is wide off the mark in that under section 2 of the Act fixation of the outer limit/date having been linked with the date on which the Act comes into operation i.e. 13-10-1999, is clearly to the benefit of those individuals whose Mills are in existence. It was for that reason that the respondent-mills were held to be entitled to receive the quota in the discipline.

10. No other point was urged.

11. Resultantly, the petitions are dismissed and leave declined, M.B.A./D-12/S ?????????????????????????????????????????????????????????? Petitions dismissed.