GOVERNMENT OF N. W.F.P. Through Secretary And 3 Others vs MEJEE FLOUR

MUHAMMAD BASHIR KHAN JEHANGIRI, J.---This judgment disposes of a bunch of matters comprising 10 petitions for leave to appeal under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, all of which involve common questions of law. The titled petitions for leave to appeal are directed against the judgment of a learned Division Bench of Peshawar High Court allowing 10 identical Constitutional petitions filed by the respondents --Flour Mills (hereinafter referred to as the Mills) against the petitioner --Government and its three functionaries (to be hereinafter jointly called as the Government).

2. Earlier the learned Division Bench in Peshawar High Court had granted relief in the three identical writ petitions filed by the three others Flour Mills. In the second round ten Flour Mills had sought the similar relief in the identical factual background. The, Mills applied to the Government for the issuance of No-Objection Certificates for the establishment of Four Mills within the vicinity of their respective Districts. In response, the Mills were informed that no restriction had been imposed on the establishment of Flour Mills advising them to go ahead with the process of setting up of the Mills. The construction was accordingly completed and the machinery was also installed. The Mills then approached the Government for the allocation of wheat quota but this plea of the Mills was turned down on the pretext that Chief Minister N.-W.F.P. Had imposed ban on the issuance of wheat quota to the new Flour Mills. The Mills had, however, represented to the Government that their contention was without substance inasmuch as during the aforesaid period, the Government had granted wheat quota to a number of upcoming Mills and had named at least 6 of them. On 29-1- 1997 petitioner No. 1 issued a Notification purporting to be under section 3 of the West Pakistan Foodstuffs Control (W.P. Act XX of 1958) (hereinafter called as the Act), to frustrate any order which could be passed by the Peshawar High Court in favour of the Mills. It is the last mentioned Notification that was sought to be annulled in the writ petitions filed by the Mills out of which the titled civil petition for leave to appeal have arisen. In the writ petitions substantially the following reliefs have been claimed:-- "It is, therefore, prayed that on acceptance of this petition this Hon'ble Court may graciously declare and hold:

(i) That the petitioner has right for the allocation of wheat quota on the basis of Roller Bodies installed and the refusal of the respondents is illegal, without, lawful authority based on mala fide and liable to be set aside.

(ii) The Notification dated 29-1-1997 issued by respondent No. 1 under section 3 of the Foodstuffs Act, 1958 be declared to be ultra vires of the Act and also based on mala fide, arbitrary, without jurisdiction, discriminatory and of no legal effect against the rights of the petitioner.

(i.e) Any other appropriate remedy not specifically mentioned may also be granted."

3. In their parawise comments the Government functionaries (petitioners Nos. l to 3) had averred that the Provincial Cabinet in its meetings held on 26-2-1992 and 14-9-1994 had imposed ban on issuance of No-Objection Certificates for wheat quota to any new Flour Mills, therefore, the plea of the Mills was justifiably turned down. It was also conceded that "wheat quota was allowed to the named six Flour Mills on the specific orders of the then Chief Minister being the competent Authority on what has been described "case to case basis". The learned Judges of the Division Bench accepted all the petitions. On merits of the cases, the learned Judges laid emphasis on Article 25 of the Constitution and held:-- "After having gone through the assertions and counter-assertions made before us, we happen to observe that the flour mills at Serial No. 1 i.e. Mejee Flour and General Mills is an approved business concern by the Provincial Government and is included among 29 Flour Mills which were the subject-matter of consideration in M/s. Asif Flour Mills v. Government of N.-W.F.P. (PLD 1997 Peshawar 5) that came up for hearing before us on 16-9-1996 at the Circuit Bench Abbottabad of this Court. It was categorically observed therein that the refusal of wheat quota to the approved Flour Mills, in competition with other similar business concerns involved, was a clear discrimination and violative of the provisions of Article 25 of the Constitution. "

4. The case of one of the Mills (Mejee Flour Mills) was found completely identical with those of three Flour Mills which were granted the relief by the High Court in the case reported as Messrs Asif Flour Mills v. Government of N.-W.F.P. And others (PLD 1997 Peshawar 5), therefore, the Mills were held to have got an entitlement to the grant of wheat quota. The Government challenged the aforesaid order of the High Court before this Court in Civil Petitions Nos.389-P to 391-P of 1996 titled Government of N.-W.F.P. And 3 others v. Yadgar Flour Mills, Kundhar Flour Mills and Messrs Asif Flour Mills wherein a Division Bench of this Court comprising one of us (Muhammad Bashir Khan Jehangiri, J.) had declined to grant leave to appeal. In the case of remaining 9 Mills the only point of distinction brought out by the learned Judge was that those were not included in the list of 27 Flour Mills which were the subject --matter of consideration in the case of Messrs Asif Flour Mills (supra). In this context, it was observed:-- "The peculiarity about the aforesaid 27 Mills was that those were approved by the Provincial Government whereas the aforesaid nine Mills also had commenced construction under the approval of the Provincial Government. It was under such approval that they raised loans etc. From various Financial Institutions and completed their construction. Once in the field, those happen to come at par with all the business concerns of similar nature running under the protective blessings of the Government. "

5. As regards the application and effect of discrimination between the business concerns of identical nature, placed under the similar circumstances, reference was again made to the case of Messrs Asif Flour Mills (supra) wherein it had been noticed that "leaving aside the so-called 27 approved Flour Mills, nine other such Mills not included in the so-called approved list were given an out of turn quota ....". Para.8 of the a forenoted report was also referred to emphasize that the policy governing the allotment of wheat quota to the Flour Mills was everything else than objectivity so far as the Government was concerned which in effect had always remained "the subjective will and approach of the authorities"; that the unbrideled discretion was guided in this regard by caprice and whims of those who were at the helm of affairs, inasmuch as "sometime the quota was refused to the Mills which they had conceded to them notwithstanding having been placed on approved list while sometimes it was issued to as many as nine Mills aforesaid despite having not been placed on such list". While depreciating the resort of the Government to the process of pick and choose' the propriety and legality of the impugned Notification purportedly issued under section 3 of the Act was disapproved on the premise that "the Government in the cases of expendiency can have resort to appropriate measures for maintaining supplies of foodstuffs and not withholding the supplies". The rationale derived from it was equitably and not inequitable distribution. In consequence all the writ petitions were accepted and the Government functionaries were directed to release wheat quota to the Mills.

6. Mr. Muhammad Azam Khan, learned Additional Advocate-General, N.-W.F.P., while making reference to Article 25 of the Constitution conceded that "all citizens are equal before law and are entitled to equal protection of law" but urged with vehemence that the State was not prohibited from making reasonable classification for extending such protection. He then invited our attention to Article 18 of the Constitution and maintained that subject to such qualification, if any, as may be prescribed by law, every citizen has the right to enter upon any lawful profession or occupation.

And to conduct any lawful trade or business. In the instant case, according to him, grant of wheat quota to the Mills was sought to be regulated due to acute shortage of wheat which was a bona fide compulsion squarely falling under proviso (a) to Article 18 of the Constitution.

7. We are conscious of the settled principle inherent in the clause providing or equality before law that mere differentiation or inequality of treatment does not per se amount to discrimination. But we are also in no manner of doubt that it is necessary to show that selection or differentiation is not unreasonable or arbitrary. The first question to be considered now is whether the refusal to grant wheat quota was either repugnant to clauses of 'equality before law' and 'equal protection of law' guaranteed by Article 25(1) or was it violative of Article 18 of the Constitution.

8. If the restriction on supply of wheat quota had been equally imposed on the Flour Mills without any discrimination then it could perhaps be legitimately contended that the differentiation was reasonable due to acute shortage of wheat. It is, however, regretful that during almost the same period even those Flour Mills named by Majee Flour Mills in their petition were granted wheat quota which were not on approved list.

9. Mr. A.K. Brohi, in his treatise Fundamental Law of Pakistan while elaborating his notion of inequality aptly remarked:-- "There are, let us note, various kinds of inequalities; inequality amanating, for example, from economic disquilibrium observable in our society, and this inequality in its turn leads up to the denial of equal opportunity for all. Then there is what might be called, political inequality, which leads up to disenfranchisement of a vast section of the people of a given country and thus inevitably involves the deprivation of the right of the people to participate in the political life of the State. The ideal of political equality can only be realised by universal suffrage and free participation in the representative institutions by recourse to which modern democratic States are functioning. Similarly, there is such a thing as social inequality: the growth of humanism has brought about the liberation of people from the thraldom of slavery and the evil of untouchability and such other social abominable practices which deprive people of an honourable place as free citizens in a democratic society. To this list of inequalities might be added the inequality which results from racial pride; this; again, finds its culmination in the dogma that only those who have blue blood in their veins are capable of taking part in the political, civic and economic activities of the State.

Historically considered, the notion of human equality has arisen as a protest against the practice of magnifying artificial distinctions between man and man based on considerations like wealth, purity of blood and religious superstition and making these as criteria for determining the status of each individual in the total legal order. If the judicial administrative organs of the State while applying the law were to discriminate between man and man and exercise what may be characterised as arbitrary authority in singling out some persons for discriminatory treatment they would be acting counter to the ideal of equality before law which has been proclaimed by the framers of the Constitution in the first part of the clause of Article 5--an Article which declares that all citizens are equal before law."

It would thus be noticed that notion of human equality had emerged as a reaction to abhoring artificial distinctions between man and man or between one class of men and another class based on consideration, inter alia, of personal likes and dislikes under the garb of discretion.

10. In his Treatise 'Discretionary Powers' which is Legal Study of Official Discretion D.J. Galligan has acknowledged that "the general principles that discretionary decisions should be made according to rational reasons 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 he statute in an intelligible and reasonable manner". According to the celebrated author, the actions which do not meet these threshold requirements are arbitrary, and may be considered a misuse of powers.

In Amnaullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others (PLD 1990 SC 1092) Shafiur Rahman, J. Who was sitting in the Full Bench has very ably propounded by 'now well-known doctrine of 'Structuring the discretion' in the following paragraph of the report at page 1147:-- "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 regularising 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 they 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 rationalise 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 impugned action of the petitioners when placed on the touchstone of structuring the discretion we come to the irresistible conclusion that the cases like the one before us provides ample justification for interference in the illegality and procedural impropriety bordering on the irrationality in an official action through the judicial review of the impugned action.

12. For the foregoing reasons we are of the considered view that the learned Division Bench in the High Court while granting relief to the respondents has committed no illegality of the nature calling for our interference. The petitions having no merit are accordingly dismissed.