P L D 1957 (W (PLP)

KAIKAUS, J.‑

This is a petition under Article 170 of the Constitution of the Islamic Republic of Pakistan challenging the order of the Director of Food Purchases stopping the quota of sugar to the petitioner. The petitioner is the Montgomery Flour and General Mills Limited which carries on, among other things, the business of manufacture of biscuits, and for this purpose it requires sugar. By virtue of the provisions of the Sugar and Sugar Products Control Order, 1948, the distribution of sugar is controlled and sugar can be purchased only on a permit issued by the Food Department. This order which was promulgated under sections 3 and 4 of the Essential Supplies (Temporary Powers) Act, 1946, continues to be in force in spite .of the repeal of that Act, by virtue of the provisions of section 17 of the Essential Supplies Ordinance, 1955, and section 16 of the Control of Essential Commodities Ordinance 1956. The petitioner had been allotted a quota of three hundred bags of sugar per mensem on the 7th of February 1952 which quota was reduced on the 8tb of January 1955, to 120 bags per month. This sugar quota has now been stopped under‑ the orders of the Director of Food Purchases on the ground that the petitioner has failed to pay off, an amount which the Food Department claimed as due from the petitioner. The details of this claim we proceed to state. There was in Multan an evacuee mill originally known as the Sukhdev Bakhsli Roller Flour Mills and subsequently called the United Flour Mills. This mill was allotted some time in 1948 to the Multi‑purposes Co‑operative Society, Multan. In 1952 a half share in the mill was allotted to the petitioner, and petitioner and the Multi‑purposes . Society carried on the business jointly. In 1953, the Multi‑purposes Society was eliminated altogether and its half share was allotted jointly to two persons, Khan Shah Muhammad Khan and Nawab Abdullah Khan. Since then the mill has been worked jointly by the petitioner and the two new allottees. The mill has been grinding wheat for the Food Department and the procedure appears to have been that wheat was supplied to the mill by the Food Department without payment and the mill was directed to supply wheat flour to dealers. The mill realised the price of flour from the dealers and then paid the Food Department the price of wheat. For some time there had been a dispute between the Food Department and the petitioner as to amount due from the petitioner with respect to the period when the mill was being run by the petitioner and the Multi‑purposes Society. The Food Department claimed Rs. 34,450‑8‑3 while the petitioner claimed substantial deductions on account of freight, octroi charges etc. Ultimately by a letter dated 2nd August 1956, the Department agreed that credit be given for Rs. 10,117‑10‑0 on account of freight, octroi etc. with the result that the total amount owed by the two allottees would be Rs. 24,332‑14‑

3. The petitioner had already paid Rs. 10,000 and the Multi‑purposes Society had paid Rs. 2,000 so that the actual balance claimed by the Department was Rs. 12,332‑14‑3, The Department claimed, however, that the petitioner was liable to pay the whole of this sum because by virtue of a clause in the agreement executed between the petitioner and the two pew allottees, Khan Shah Muhammad Khan and Nawab Abdullah Khan, the liabilities relating to the period when the mill was run jointly by the petitioner and the Multi‑purposes Society were to be the liabilities of the petitioner. The petitioner did not accept either the correct ness of the balance or that it was liable for the whole of the amount, its contention being that it was liable only for half the amount as the position of the Multi‑purposes Society was that of a co‑allottee and not that of a partner. As the amount claimed by the Department was not paid the petitioner's quota of sugar was, under directions from the Director of Food, stopped. At this the petitioner approached the Deputy Director of Food and a compromise was effected by virtue of which the petitioner was to pay Rs. 2,166‑7‑3 in order to complete payments of its half share of the amount claimed and the question whether the petitioner was also to pay the half share of the Multi‑purposes Society was to be examined further. The petitioner paid Rs. 2,166‑7‑3 under protest and its quota of sugar was for the time being released. This happened in September 1956. The petitioner was then directed to file g copy of the agreement between it and the new allottees and the following clause in this agreement was referred to the Law Department for advice as to whether the whole amount could be realised from the petitioner :‑ "That the present partnership shall bear the name of 'United Roller Flour Mills' for reasons of convenience but it will not be liable for any debt, liability of any other duty, obligation or risk whatsoever which the previous partner ship agreement or association between previous allottees either collectively or singly incurred under the name. United Flour Mills, before the date of commencement of business by the present partnership. All liabilities of whatsoever kind in respect of every (sic) connected with the Mills on Mills' business previous to this agreement shall be the entire responsibility of party one individually or jointly with the District Co‑operative Multi‑purpose Society Ltd. Multan, the ex‑allottees. Messrs. Khan Shah Muhammad Khan and Nawab Muhammad Abdullah Khan, the new allottees, owe no responsibility either to the Rehabilitation or to the Public in respect of commitments made previously by the Montgomery Flour and General Mills Ltd. and the District Co‑operative Multi‑purpose Society, Ltd., under the name, United Flour Mills. The parties to this agreement will be responsible only to the extent of actions deeds or business carried on from and after the 12th day of January 1953, the date of commence ment of business by the present partnership." The Law Department informed the Director of Food by its letter dated 29th December 1956 that on account of the above‑mentioned clause the petitioner had accepted respon sibility and the recovery of the whole amount from the petitioner would be justified. At this, on 28th January 1957, the Director Food directed the Deputy Director Food that for the realisation of the balance of the amount due from the United Flour Mills, that is, R$, 10,166‑7‑3 he should "put necessary executive pressure on Montgomery Flour and General Mills" and that he should "stop issue of sugar quota to them until such time they clear the dues." Action appears to have been taken by the District Food Controller in pursuance of this letter, for on the 13th February 1957 the petitioner, by means of a telegram, requested the Director of Food not to stop the sugar quota. It will be convenient to reproduce here the whole of this telegram :‑ "Director Food Purchases, West Pakistan, Lahore. Please don't withhold biscuit factory sugar quota of my client Montgomery Flour Mills stop. They have already fully paid their share alleged dues under duress stop. Please don't further coerce them to pay alleged dues against Multi‑purpose Society Multan stop. Your commercial activities cannot lawfully govern your administrative functions simpliciter stop. Unless quota released respon sibility for all losses of my clients will be entirely yours. Khizar Tamimi Advocate for Montgomery Flour Mills." .On receipt of this telegram the Director Food being not confident as to whether his action in stopping the quota was in accordance with law sought the advice of the Law Depart ment and wrote to them the following letter :‑ "From The Director Food, West Pakistan, Lahore. To The Solicitor to Government, West Pakistan, Lahore. Memorandum No. R. AI (131) 57/413. Dated 23rd February 1957. Subject:--Recovery of Government dues relating to the Milling Scheme 1952‑53‑United Flour Mills, Multan. Reference your Memorandum No. OP‑15 (606)56/1123 dated the 29th December 1956, on the subject noted above. The Deputy Director Food, Lahore Region, was advised to recover the entire outstanding amount from Messrs. Montgomery Flour and General Mills, Montgomery, immediately and failing that to stop issue of sugar quota to the Mills until such time as they paid the Government dues. The Mills have now threatened in a telegraphic notice dated 13th February 1957, served through their Legal Advisor Mr. Khizar Tamimi (copy enclosed) that the Mills are not responsible for the payment of the whole amount and that this department cannot stop issue of sugar quota to them. The sugar quota has been allotted to this concern in the same way as other Establishments and the Government have not entered into any contractual obligation for its regular supply. Since this party has failed to pay up, it was deemed desirable to withdraw the concession with a view to make there conscious of their responsibility to liquidate their debts. The advice of the Law Department is, however, solicited whether the proposed action is legally tenable or the sugar quota be released and the recovery effected through the normal process of law. (Sd.) ...... Director Food, West Pakistan, Lahore" The Law Department replied on the 16th March 1957, saying, "The Mills owe money to the Government. but then the method adopted by withholding sugar quota to it may be held mala fide and treated as co‑ercive method to make recovery for which a lawful remedy exists in a Court of law. Therefore, the action of withholding sugar quota would not appear either just or lawful." The petitioner's quota of sugar for the month of March 1957 had not been issued and it has been withheld since then in spite of this advice. The petitioner had, on the 26th February 1957, submitted an application to the Governor complaining against the illegal stoppage of quota. This application had simply been passed on to the Director Food who made an endorsement on it saying that he had already referred the matter to the Law Department. After the receipt of the advice, however, from the Law Department, no further action was taken on this application. On the 11th March 1957, the present petition, asking for a writ prohibiting the withholding of sugar quota, was filed. It is contended in the application that the Food Department has no claim against the petitioner for the responsibility of the petitioner was to the extent of one half of the dues only and that one half, even in accordance with the account stated by the Food Department, has been paid. With respect to the statement that the liability was with respect to one‑half, reliance has been placed on a letter, No. PR‑SC‑III‑52‑53 dated the 6th October 1954 from the Director Food through the Assistant Director Food in which it had been admitted that the petitioner was liable to pay one‑half of the total sum due from the United Flour Mills. It is at the same time pointed out in the petition that the Food Department is not taking any steps for realisation of the alleged claim from the Multi‑purposes society (which appears to be a Government controlled body, for its Chairman is the Commissioner, Multan Division) because the society has claimed a sum of more than Rs. 26,000 as being due to it from the Government. It is also contended in the petition that the grant of quota to the petitioner by the Food Department was unconditional and did not depend upon the payment of any alleged claim of the Food Department. The respondents to this petition are the Director of Food Purchases (the same as Director of Food, West Pakistan), the Assistant Director of Food (Accounts) and the Deputy Director of Food, Lahore Region. In the reply filed by the respondents it is reiterated on the basis of the clause in the agreement between the petitioner and Shah Muhammad and Nawab Abdullah Khan reproduced above that the petitioner is responsible not for half but the whole of the sum due from the United Flour Mills. As regards the power to withhold quota it is stated. "The stoppage of sugar quota is justified and competent. The issue of quota is a matter of discretion. The quota could be withheld at any time or even suspended. The petitioner has no legal right to the issue of quota for which he prays for issue of writ." This is a case where the material facts are admitted and the law cannot be seriously in dispute. It is conceded on behalf of the respondents (and it has to be conceded in view of what is contained in the file of the Food Department) that the stoppage of quota is due only to the fact that the amount alleged by the Food Department from the petitioner has not been paid. It is not necessary at all to go into the question whether the alleged amount is recoverable from the petitioner. The only question (if question it can be called) is whether the Director of Food Purchases is entitled to withhold the quota of sugar on the ground that there is an unsettled money claim of the Food Department against the petitioner. The answer to this question must obviously be in the negative. The discretion, given by section 7 of the Sugar and Sugar Products Control Order, for the dis tribution of sugar is not an absolute arid arbitrary one, to be exercised according to the pleasure of the Director of A Food. It is a discretion to be exercised with a view to attaining the object for which the Essential Supplies Act, 1996, under which this Order was promulgated, was enacted. The Essential Supplies Act was necessitated because on account of deficient supply of certain commodities it was necessary that their prices and distribution be controlled and the object of the Sugar and Sugar Products Control Order is the fair distribution of sugar. The Director of Food (or other officer empowered under the Order) is entitled to pass an order granting or withholding quota of sugar only on the ground that that is the order which should be passed for a proper distribution of sugar in accordance with the object and policy of the Essential Supplies Act and the Order. If the order granting or rejecting the quota of sugar be based on ground that is beyond the scope of the Essential Supplies Act, the order is an abuse of power. The Essential Supplies Act was not enacted in order to arm the Govern ment with a weapon to enforce its alleged claim and cannot be used for this purpose. The Director of Food might as well refuse quota for the purpose of putting pressure on a person to give up a particular political party, or to give evidence for the prosecution in a police challan, or to give information to the Customs Department. It should be remembered that no discretion vested in an executive officer is an absolute and arbitrary discretion. The discretion is vested in him for a public purpose and must be exercised for the attainment of that purpose. Even though there be .no express words in the relevant legal provision to that effect, the discretion is always circumscribed by the scope and object of the law that creates it and has at the same time to be exercised justly, fairly, and reasonably. Every officer who passes an order in a matter of discretion should ask himself the question: What is the order I should pass if I were acting justly, fairly and reasonably ? If the order that he passes is not in accordance with the answer which lie would himself give to this question, he exceeds his jurisdiction and abuses his powers. The answer to the question must be his own for the discretion is his and not that of the Court but his action must correspond to his own answer to the question. Were we of the opinion that the Sugar and Sugar Products Control Order does grant an absolute and arbitrary discretion to the officer empowered to grant or withhold sugar as he pleases we would pronounce it void on account of its inconsistency with Article 11 of the Constitution of Pakistan, which confers on all citizens the right to acquire property and to dispose of property subject only to reason able restrictions in the public interest. An arbitrary discre tion to with hold quota is not a reasonable restriction. But there is no reason why we should thus interpret this provision. There is an objection to the maintainability of this petition which we have to notice. In the reply filed by, the respondents, it has been contended that the petition is not maintainable because the petitioner has no "legal right" to the quota of sugar, the word "right" being used in the strict sense of the word in which sense it only means a proprietary or personal right and its correlative is a duty. This objection, which is based probably on the requirements of English law for a writ of mandamus, is altogether without force. The powers of Pakistan Courts while acting under Article 170 of the Constitution of Pakistan are not circum scribed by any requirements of English law as to any particular form of writ. It is true that a petitioner must have some right if he applies to the Court for a direction or order under Article 170 but he need not have a right in that strict sense of the term which is mentioned above. Whenever an enactment empowers a public officer to pass orders that benefit or harm a citizen, the citizen gets a right that in a matter in which he is concerned an order be passed in accordance with law. This too is a right that can be enforced by the Court in the exercise of its jurisdiction under Article 170 of the Constitution of Pakistan. If the officer concerned passes an order that is not in accordance with law, any person whose interests are affected by the order can maintain a petition for a writ or direction under Article

170. All orders of executive officers are subject to challenge by those affected by the orders, and a person would be "affected" even if he loses some benefit or advantage which he would have gained if the order was in accordance with law. A public officer passing an order on an applica tion submitted to him does not grant the applicant a favour. He is only' granting the applicant his right in the sense that he has a right to have the matter determined in accordance with law and justice. It will be observed that even a fundamental right may not be a "right" in the strict sense of the term. A right to acquire or hold property, a right to carry on a profession, a right to move about freely etc. are not rights in the strict sense because they do not cast any corresponding duties on any person. They are what writers on jurisprudence call "liberties". In a wider sense these too are recognised as rights by jurisprudence and they can form the basis of a writ petition. One of them, the right to acquire property, is involved in the present case, and one way of looking at the matter is that the right of the petitioner to acquire sugar has been infringed and, therefore, he is entitled to maintain this petition. It is obvious then that this petition should succeed and the order of the Director of Food Purchases refusing quota of the petitioner on the ground that he is not making payment of the balance of the price of wheat should be set aside and should be declared invalid. At the same time, we are granting costs against the Director of Food Purchases personally, because of his wholly improper attitude. On the 21st of February, he was himself conscious that his order prohibiting quota to the petitioner on the ground that the petitioner had not paid the dues was liable to be held mala fide and treated as a coercive method. He asked for' the advice of the Law Department and he was informed that such action did not appear either just or lawful. In spite of this he has been withholding the quota of the petitioner knowing well that he would be causing very serious loss to a company which was carrying on the business of manufacture of biscuits and which could not do without sugar. The petitioner had already pointed out to the Director of Food Purchases in September 1956, when quota of sugar was stopped for the first time, that a loss of thousands of rupees daily may be caused to it if the quota of sugar was withheld. The petitioner may have suffered very heavy loss; by this time due to an act of the Director of Food about which‑he had already received advice of the Law Department that it was neither just nor lawful. The order will be that the Director of Food Purchases, respondent No. 1, is directed not to withhold the quota of the petitioner on the ground that' it has not paid the, alleged claim of the ‑ Food Department. The Director f Food Purchases, respondent No. 1 shall pay all costs of 'the petitioner. The name of the Director of Food Purchases'', has not been mentioned in the petition, but 'whosoever is holding the post now (and was holding in February. and March 1957) shall pay the costs personally. A.H. Petition accepted.