P L (PLP)

ISHAN‑UL‑HAQ CHAUDHRY, J.‑‑These are Constitutional Petitions Nos.9982/96, 9881/96, 9882/96, 9883/96, 9984/96, 10001/96, 10003/96, 10039/96, 10153/96, 11579/96 and 10182/96 filed by different Flour Mills whereby they have challenged notification dated 12‑6‑1996. Since the controversy is the same and all the writ petitions are directed against the same notification, therefore, they are being decided by this single judgment.

2. The petitioner is a partnership firm, which is running a flour mill under name an style of Star Flour Mills. It has challenged through this Constitutional petition notification under section 3 of the Punjab Foodstuffs (Control) Act. 1958 (XX of 1958), dated 12‑6‑1996 issued by respondent No. I whereby it was directed that no person shall carry or transfer wheat/Atta, Suji, Maida from any place in the Punjab to a place outside the Punjab Province. The petition was admitted to hearing and notice was issued to the respondents, who have entered appearance through Kh. Ahmad Tariq Rahim, Advocate and contested the petition.

3. The learned counsel for the petitioner argued that the impugned notification is illegal because Food Act, 1958 deals with the matters within the Province as is clear from its preamble. It was added that the whole exercise is mala fide and the purpose is to set at naught undertaking given by the respondents in this Court in W.P. No.597/96 on 15-5-1996 and to avoid the judgment in Asia Flour Mills (Pvt.) Ltd. and 6 others v. Director Food, Department of Food. Punjab, Lahore and 5 others PLD 1996 Lah.

133. It was argued that the notification is ultra vires of the Constitution because neither the Provincial Government nor its functionaries could deal with the Inter-Provincial Trade in view of the Article 151 of the Islamic Republic of Pakistan (hereinafter to be referred as Constitution of 1973). The learned counsel in this behalf has referred to Arshad Akram & Co. and 8 others v. Divisional Superintendent, Pakistan Railways, Rawalpindi and 5 others PLD 1982 Lah.

109. It is added that the Constitution has placed this restriction with a purpose and there is rationale behind it. In this behalf, it was added that the provisions of Article 151 of our Constitution are para materia to the provisions of Articles 301 to 305 of the Indian Constitution, which have been interpreted in the cases reported as State of Bombay v. R.M.D. Chamarbaugwala and another AIR 1957 SC 699 and Automobile Transport (Rajasthan) Ltd. etc. v. State of Rajasthan and others AIR 1962 SC 1406. It was submitted that even a tax likely to hamper with the Inter Provincial Trade would be liable to be set aside as ultra vires of Article 151 of the Constitution. In this behalf, the learned counsel has referred to Mirpurkhas Sugar_Mills Ltd. v. District Council, Tharparkar and 2 others 1990 MLD 317 = 1991 MLD 715, Sayphire Textile Mills Ltd. and 9 others v. Government of Sindh and others PLD 1990 Karachi 402; The State of Madras v. N.K. Nataraja Mudaliar AIR 1969 SC 147, State of Madhya Pradesh and another v. Bhafal Bhai etc. AIR 1964 SC 1006 and The District Collector of Hyderabad and others v. M/s. Ibrahim & Co. etc. AIR 1970 SC 1275. It was argued that Council of Common Interest constituted under Article 154 of the Constitution, 1973 has directed that the Punjab shall supply thirty thousand ton wheat Flour ( L I) to the N.-W.F.P. every month. It was added that this direction is not being complied on the pretext that flour mills in Punjab do not have the capacity to grind such a quantity surplus, which is factually incorrect. It was submitted that constitutionally the respondents are under obligation to give effect to the direction of the C.C.L. and the remedy against the decision is to place the matter before the Parliament. Neither Provincial Government nor Legislature nor officials concerned with the affairs of the Province can set at naught the direction of C.C.L. It was argued that the notification dated 12-6-1996 was in violation of Articles 4 and 25 as it makes a difference between the citizen living in Islamabad and in Peshawar and other parts of N.-W.F.P. as the Islamabad capital territory has been excluded from the purview of this notification. It was added that the notification is also not applicable to the Provincial Government. This would on the one hand create discrimination and on the other hand, it would open flood gate of corruption as there is no criteria in the law or rules to exercise this exemption. It is added in this behalf that the Provincial Government does not own any flour mill so the supply has to be procured from the private sector. It was submitted that in the past this has been a major source of political bribe and corruption by department officers at the costs of citizens. It was submitted that .in fact the notification has been mainly manoeuvred by the department officials, as noted above, to make money by issuing of permits for supply of the wheat flour for which they have fixed rate.

4. Kh. Ahmad Tariq Rahim, Advocate argued on behalf of the respondents that Punjab Foodstuffs (Control) Act, 1958 (hereinafter to be referred as Act, 1958) is existing law as defined in Article 268(7) read with Article 260 of the Constitution of 1973, therefore,. it continued to be in force. It is added that this aspect was examined by this Court in W.P. No.201/95, decided on 18-1-1996. The next argument was that there are exceptions to the rule contained in Article

151. The learned counsel in this behalf referred to clause (4) of the said Article. It was argued that with the 1991 N.F.C. Award whole subsidy on the wheat is to be paid by the Provincial Government. It was added that in the year 1996-97 area under wheat was 14.62 million acres in the Province and the total estimated production was 12.72 million metric tonne out of which 1.30 million is reserved for seed of wasted. It is added that the requirement of rural sector of the population is 6.25 million metric tonne. This way net marketable wheat this year was 5.1 million metric tonne out of which the target for purchase of the Provincial Food Department was 2.20 million metric ton but it could procure 18,00,000 metric ton only while another 1.6 was to be purchased by the Federal Government from PASCO. It was argued that from September, 1996 to April, 1997 would a lean period as to availability of the wheat and the Provincial Government is striving hard to have reserves to cope with supply in this period. It was added that the Provincial Government has to pay 1100 per metric ton over the market rate for the imported wheat; therefore, even if 50,000 metric ton wheat is imported this would upset the Provincial Budget. The next argument was that since the godowns of wheat for Rawalpindi Region are located in the Islamabad, therefore, Islamabad territory has been exempted from the operation of this notification. It was added that there are 43 flour mills in Islamabad area. It was clarified that the argument on behalf of the petitioner that C.C.I. has directed for supply of 30,000 tonne of wheat flour monthly to Frontier Province is based on incorrect information. The demand has been made by the Economic Council, which is a part of Federal Cabinet and the matter is still under consideration. It was not a direction by C.C.I., constituted under Article 154 of the Constitution of 1973. It was argued that Provincial Government was forced to adopt different measures during last many years to overcome shortage of wheat in the Province. The arguments were summed up with the submission that it was clear from the facts and figures that the notification has a reasonable basis and the object was to avoid shortage of wheat and its products in the Province during September, 1996 to April, 1997 period. It was maintained that the notification was issued after due consideration of the whole situation. The learned counsel in this behalf has placed photostat copies of the summary on record.

5. Mr. Muhammad Shehzad Shaukat while summing up the arguments on behalf of the petitioner, submitted that the facts and figures quoted on behalf of the respondents are incorrect. There was nothing on record as .to their authenticity. It was added that argument on behalf of the respondents that Province is facing food crisis since long is without any merit. The learned counsel in this behalf submitted that in the 1989 year 1.000 metric tonne wheat was being exported from the Province daily on the basis of the permits issued by the Food Department while 1990-93 there was no restriction. Then again in year 1994 1500 metric tonne wheat was daily exported from the Province on the basis of the permits issued by the Food Department while in 1995 there was again no restriction and finally Provincial Government agreed to make available 50,000 metric tonne of the wheat to the Frontier Province as late as December, 1995 and the supply was completed by March, 1996, therefore, poor picture of supply painted on behalf of the respondent was just imaginary. It was vehemently argued that this is all manoeuvring of the officials of the Food Department whose interest only is to make money by creating hurdles in free movement of the wheat and its products. It was argued that these facts and figures based on the documents Annexures ' C to G' with C.M.1874/96 which also, clearly falsify the justification made in the summary of the Food Department. It was added that the learned counsel for the respondent candidly conceded that there was no cross-check to the figures relied by respondents or quoted in the summary sent to the C.M.

6. On the legal plane it was argued that reference to Articles 260 and 268 is not relevant and in any case it did not advance the case of the respondents in any manner. The learned counsel in this behalf has referred to judgment of the Indian Supreme Court reported as State of Mysore v. H. Sanjeeviah (1967) 2 SCR 361.

7. I have given my anxious consideration to the arguments of the learned counsel for the parties, gone through the record, relevant provisions of the Constitution and Act of 1958 as well as precedents. It is worthwhile to deal with the status of Act 1958 ' existing law' is contained in Article 268 and the Act 1958 is clearly covered by it. The question is whether existing law is a supra-Constitutional piece of legislation or it is on higher pedestal than the other law of the country. It is clear from the Article 268 that all Acts, Ordinances have been declared a valid piece of legislation and in contradistinction to the laws to be passed, made, enacted after the promulgation of the Constitution of 19; 3 those were called 'existing laws'. The existing laws by fiction have been treated as validly enacted statutes by Article

268. In other words, these Acts, Ordinances, Rules, Bye-Laws etc. would be deemed to have been enacted as provided for in the Constitution of 1973, therefore, their vires qua the Constitution and other laws could be determined like any future Acts, Ordinances etc. This is clear from the words 'subject to Constitution appearing in Article 268(1) and exclusion of Part 11 of the Constitution in clause (3). I may also refer in this behalf to the judgments of the Hon'ble Supreme Court in the cases of Qazalbash Waqf and others v. Chief Land Commissioner, Punjab, Lahore and others (PLD 1990 SC 99). Therefore, the argument that since the notification has been issued under existing law, therefore, its vires cannot be tested to the touchstone of Constitution is without any merit, It is, therefore, clear that not only the notification but even the vires of the existing law could be examined. If this argument is accepted as valid then the existing laws would completely nullify the Constitution and its provisions in many respects. The present is the classic example if it is deemed that notification imposing restriction on the Inter-Provincial Trade has been validly imposed then it would have the effect of setting at naught the provisions of Article 151.

8. This is all academic discussion because in the case in hand the petitioner has challenged the notification and not the Act of 1958. The first ground of attack, as noted above, was that the notification is ultra vires of the Act 1958. In order to better appreciate the contention we have to refer to the preamble of the Act which reads as under : "Preamble.--Whereas it is expedient in the public interest to provide for the continuance of powers to control the supply, distribution and movement of, and trade and commerce in foodstuffs in Punjab." It is, therefore, clear from the preamble that it empowers the Provincial Government to control supply etc. of the foodstuffs in Province. In other words it provides for restrictions, control within the Province and it : has no application on the Inter-Provincial Trade. The question was precisely considered in the case of Arshad Akram & Co. and 3 others (supra), wherein it was held as under:- "

10. The correct legal position thus appears to ~e that it is not within the competence of the Provincial Government to pass an order which may hamper the inter-Provincial trade, commerce and intercourse or interfere with the movement of goods this Province to other Provinces. Any such restriction on the movement of rice, would obviously be hit by J Article 151 unless it is saved by sub-Article (4). Thus, the Provincial Government can only control intra-Province and not inter Province movement of rice ... ... ..."

9. The other ground of attack as to the notification on being ultra vires of the Article 151 of the Constitution, 1973 is equally valid. It is worthwhile to refer to Article 151 before proceeding any further. The same reads as under:- "

151. Inter-Provincial Trade.--(1) Subject to clause (2), trade, commerce and intercourse throughout Pakistan shall be free. (2) Majlis-e-Shoora (Parliament) may by law impose such restrictions on the freedom of trade, commerce or intercourse between one Province and another or within any part of Pakistan as may be required in the public interest. (3) A Provincial Assembly or a Provincial Government shall not have power to‑‑ (a)_ make any law. or take any executive action, prohibiting or restricting the entry into, or the export from, the Province of goods of any class or description, or (b) impose a tax which, as between goods manufactured or produced in the Province and similar goods not so manufactured or produced, discriminates in favour of the former goods or which, in the case of goods manufactured or produced outside the Province discriminates between goods manufactured or produced in any area in Pakistan and similar goods manufactured or produced in any other area in Pakistan. (4) An Act of a Provincial Assembly which imposes any reasonable, restriction in the interest of public health, public order or morality, or for the purpose of protecting animals or plants from disease or preventing or alleviating any serious shortage in the Province of an essential commodity shall not, if it was made with the consent of the President, be invalid." It is clear from this Article that trade, commerce and intercourse I throughout Pakistan shall be free and subject to the restriction by an act of Parliament. The Provincial Government can also impose reasonable restriction but that is not under the normal situation but only in case of special situation on account of public health. public order or morality or for purpose of protecting animals or plants from disease or preventing or alleviating any serious shortage of essential commodity, therefore, the same cannot be invoked on artificial or imaginary grounds. There must be real emergency. Moreover, the Act is to be made with the consent of the President. It is patently clear that restriction cannot be subject‑matter of executive orders by the Provincial Government to its functionaries. The Provincial Government in no circumstances has any authority to issue any order or notification which impede the flow of trade and commerce between the different Provinces or create hurdles in the movement of the goods of any sort from one Province to another, therefore, the notification is plainly contrary to the Constitutional provision. The learned counsel for the petitioner rightly referred to the cases of the District Collector of Hyderabad and others, State of Mysore and Arshad Akram & Co. and 8 others (supra) in this behalf.

10. The upshot of the above discussion is that notification dated 12‑6‑1996 issued by respondent No. I under section 3 of the Punjab Foodstuffs (Control) Act, 1958 (XX of 1958) is hereby declared ultra vires, illegal and set aside by accepting this writ petition. A.A‑./S.42/L Petition accepted.