SUGAR MILLS vs GOVERNMENT OF PUNJAB and others

' This judgment shall dispose of Writ Petition No,3100 of 1984 and Writ Petition No,340 of 1985.

2. The petitioners are companies running sugar. They were required by a memorandum dated 31- 3-1983, to deposit certain amounts calculated in accordance with the terms of the said memorandum, into an Export Fund created by the Federal Government.

3. Learned counsel for the petitioners have argued that the said memorandum dated 31-3-1983, which was purportedly issued under section 3 of the Punjab Food Stuffs (Control) Act, 1958, was, in fact, without any lawful authority. The basis of this contention is that an order under section 3 of the aforesaid Statute has to be a notified order as defined in section 2 subsection (3) of the aforesaid Statute. It is clear from the said statutory provisions that for an order under section 3 to be treated as a notified order, it has to be duly notified in the Official Gazette. Admittedly, the memorandum dated 31-3-1983 was never notified in the Official Gazette. In this view of the matter, it is evident that the said memorandum cannot be treated as a notified order and, as such, it has no legal validity.

The statutory provisions themselves are clear. However, learned counsel for the petitioners also refer to the case titled "Messrs Kalimullah & Co. v. The Government of West Pakistan and another"

(PLD 1961 '(W.P.) Lahore 321). The cited precedent is authority for the legal proposition advanced by learned counsel for the petitioners.

4. The learned Law Officer, however, argued that in view of the dictum laid down in the case titled "Khan Faizullah Khan v. Government of Pakistan through the Establishment Secretariat and another"

PLD 1974 Supreme Court 291), the memorandum dated 31-3-1983 should be construed as a valid and binding order even though it has not been notified in the Official Gazette. This contention of the learned Law Officer is not well-founded. The case of Khan Faizullah Khan is clearly distinguishable.

It is to be noted that the Honourable Supreme Court, while deciding the precedent case, expressly held that there was no requirement for the rules being considered in the said judgment, to be notified in the Official Gazette. As such, the degree of formality which is requirement under the Punjab Food Stuffs (Control) Act, was clearly issuing in the case of Khan Faizuliah Khan. As such, reference to be cited precedent by the learned Law Officers is of no help to the case set up by him.

5. In view of the above discussion, it is not necessary to consider the other arguments advanced by the learned counsel for the petitioners to assail the impugned memorandum. It is declared that the said memorandum dated 31-3-1983 is without lawful authority and of no legal effect.

6. The petitioners contend that they have deposited certain amounts with the Provincial Government, pursuant to the aforesaid memorandum dated 31-3-1983. As a consequence of the above order, it is clear that the said amounts were not lawfully due and payable by the petitioners.

Consequently, the petitioners would be entitled to claim refund of the amounts, so deposited by them.