C.M. No.1709 of 2006 MUHAMMAD KHALID ALVI, J.---Through this application petitioner wants early disposal of the pending misc. Applications. Since the main case is also listed for hearing today and is going to be heard on merit, therefore, no formal order is required to be passed in this regard. Disposed of.
Main case.
2. Brief facts of the case are that petitioner runs a Sugar Mill known as Layyah Sugar Mills and is aggrieved of establishment of new Sugar Industrial Units in the locality by respondent No.11 and made the following prayers through the instant constitutional petition:--
(i) "due to the ban, the respondent No.3 be directed to take action under section 4 of the Ordinance by restraining the respondent No.11 from establishing/enlarging/ extending its mills in the Province of Punjab in general and the Districts of Muzaffargarh, Layyah, Bhakar and Mianwali in particular;
(ii) the respondent No.5 be directed to issue an Environmental Protection Order under section 16 of the Pakistan Environmental Protection Act. 1997 to stop the construction of the Project;
(iii) the respondent No.3 be further directed to issue show- cause notice to the respondent No.11 under section 4 of the Ordinance, remove the unauthorized undertaking at the site and to stop further construction;
(iv) the respondent No.10 be directed to issue the instructions to all the banks including the respondent No.12 for not financing sugar projects in contravention of the Ban;
(v) the respondents Nos.6, 7 and 8 be directed to take action under the Punjab Local Government Ordinance, 2001; and
(vi) any other relief which this Honourable Court deems fit may also kindly be granted."
3. It is contended by the learned counsel for the petitioner that under section 3 of the Punjab Industries (Control on Establishment and Enlargement) Ordinance 1963, no person can establish any industrial undertaking or enlarge any existing industrial undertaking without prior permission in writing from the Government. Respondent No.11 had started construction of a Sugar Mill without obtaining such a permission from the competent authority. It is next argued that complete ban has since been imposed by the Government of the Punjab, w.e.f. 23-11-2005 and a committee has been constituted by the Chief Minister of the Province for making policy decision in this regard, therefore, in the presence of ban, respondent No.11 is not competent to proceed with the establishment of any Sugar Industry. It is submitted that permission granted through letter dated 17-8-2006 cannot be termed to be a lawfully granted permission, inasmuch as the said letter is issued by Economic Advisor having no jurisdiction under section 3 of the Punjab Industrial (Control on Establishment and Enlargement) Ordinance, 1963. Under the above provision of law only the Government of Punjab is the competent authority to grant such a permission. It is next argued that under section 12 of the Pakistan Environmental Protection Act, 1997, no construction or operation of an Industry can commence without first getting a clearance from the concerned Agency of the Federal or Provincial Government with regard to the environmental effects. Respondent No.11 having not obtained any clearance is not competent to proceed with the project. It is next argued that requisite permission from the D.C.O. Has also not been obtained.
4. On the other hand, learned counsel for respondent No.11 contends that under Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963, only the Governor of Province is the competent authority to issue Notification under the said law. Such Notification was issued bearing No.AEA-III, 3- 9/91 dated 17-9-2002 which was further amended through Notification No.AEA-III 3-5/2003 dated 15-7-2005. It is thus contended that through the said Notifications at present establishment of new Sugar Mills up to the capacity of 16000 TDC is permissible. Further submits that in the presence of such a Notification issued under the relevant law, the Chief Minister of the Province could not suspend the effect of these Notifications and impose ban. It is further submitted that requisite permissions have already been obtained by respondent No.11 on 17-8-2006 as required under section 3 of the Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963 and on 6-10-2006 as required under section 12 of the Pakistan Environmental Protection Act, 1997 for the construction purposes. It is next argued that since the above-referred two permissions obtained by respondent No.11 have not been assailed, therefore, this petition has become infructuous. It is also added that under section 7 of the Punjab Industries (Control on Establishment and Enlargement)
Ordinance 1963, the petitioner has a right of appeal/revision before the Government, therefore, this petition is not maintainable. Likewise under section 22 of the Pakistan Environmental Protection Act, 1997, an appeal is provided to a Tribunal constituted under the said law. It is also submitted that D.C.O., Muzaffargarh has also granted permission so far as the site of respondent No.11 is concerned to be outside negative area vide order dated 30-6-2005.
5. I have considered the arguments of the learned counsel for the parties.
6. No doubt that permission granted on 17-8-2006 is signed by the Economic Advisor but it is evident that the said letter has been issued by the Government of Punjab, Industries Department.
The letter also indicates that the said Economic Advisor has issued the said letter under the directions of the competent authority therefore, the same can be safely said to be an order issued by the Government of the Punjab.
7. At the time when the instant constitutional petition was filed, no permission/sanction by respondents Nos.3 and 5 in favour of respondent No.11 was in existence, therefore, prayer was made seeking restraining order against respondent No.11 from the establishment of the Industrial concern without those permissions. During the pendency of the instant petition the above-referred two permissions have since been obtained by respondent No.11 therefore, for all practical purposes this petition has become infructuous.
8. The permission granted to respondent No.11 by respondent No.3 is appealable/revisable under section 7 of the Punjab Industries (Control on Establishment and Enlargement) Ordinance 1963.
Likewise the permission granted to respondent No.11 by respondent No.5 is also appealable before the Environmental Tribunal under section 22 of the Pakistan Environmental Protection Act.1997.
9. No doubt, Chief Minister of the Province being head of the executive can frame policies to be adapted by the Government and for the said purposes he may constitute committees for consideration of issues involved in the policy making, refer the issues to the experts for their opinion, seek public opinion, float the issue for public debate so on as so forth. After having completed such exercise it may be referred to the competent authority for being notified in accordance with law. However, the formal expression of the change in policy will have to be reflected through a Notification to be issued by the Governor of the Province. For instance the policy decision taken by the Government on this subject on 17-9-2002 is reflected through the Notification which is reproduced for ready reference:-- "No.AEA-III, 3-9/91.---In exercise of the powers conferred upon him under section 11 of the Punjab Industries (Control on Establishment and Enlargement) Act, 1963 and in the supersession of the Punjab Government Notification No.AEA-III-4-1/85 dated 26th October, 1986, amended up to 12 February, 21)00, the Governor of the Punjab is pleased to exempt all industries and areas from the provisions of section 3 of the said Act except as notified hereunder:--
(1) No industrial unit mentioned in Schedule 'A' of the Notification or industrial unit exceeding a total cost of Rs.100.00 million (Rupees hundred million) shall be set up within 10 miles (16 Kms) of the International Border.
(2) No industrial unit shall be set up in areas affected by flood flowing transversely in the strip of one mile of either side across the Grand Trunk Road from Shandara Town to Muridke Town, without prior permission of the Provincial Government.
(3) No new Sugar Mill shall be set up and no existing sugar Mill be enlarged in the Districts of Multan, Sahiwal, Vehari, Khanewal, Pakpattan, Lodhran, Bahawalpur, Rahimvar Khan, Bahawalnagar, D.G. Khan, Rajanpur, Lavyah, Muzaffargarh and Okara.
(4) Each District Government may declare "negative area" for industry. Such "negative area" be determined by a District Committee after consultation with all stakeholders in light of general policy guidelines to be issued by the Industries Department and exemptions allowed under Schedule 'B' of this Notification.
(5) No industrial unit mentioned in the Schedule 'C' of this Notification shall be set up anywhere in the Punjab without prior approval of the Government.
(6) The Government reserves the right to refuse establishment/enhancement of any industrial undertaking which is in contravention of the public interest. Ecology or any other law/rules for the time being in force.
(7) The Government may relax any of the provisions of this notification in case of a particular unit or industry or class of units or industries. By Order of the Governor of the Punjab (Sd.)
Secretary to Government of the Punjab Industries, Mines and Minerals Department Dated Lahore, the 17th September, 2002 (Underlining is mine)
Change in this policy was again brought about through another Notification dated 15-7-2005 issued by the Governor of the Province, which is also reproduced as under:-- "Notification No.AEA-HI-3-5/2003. In exercise of the powers conferred upon him under section 11 read with section 3 of the Punjab Industries (Control on Establishment and Enlargement) Act, 1963, the Governor of the Punjab is pleased to order that in supersession of Notification No.AEA-III-3-5/2003, dated 12-10-2004 notified in the Punjab Weekly Gazette October 20, 2004 the following amendment shall be made in the Government of the Punjab Industries Department Notification No.AEA-III-3- 9/91 dated 17-9-2002, with immediate effect. Amendment For Clause (3), the following shall be substituted:-
(1) The establishment of new sugar mills up to the capacity of 16,000 T.C.D. Is allowed in the Province.
(ii) The Sugar Mills are not allowed to enlarge existing capacity over 16,000 TCD.
(Sd.)
Secretary Industries Department (Underlining is mine)
10. In view of the Notification dated 15-7-2005, it is evident that Sugar Mills up to the capacity of 16,000 TCD is permissible in the Province. In the presence of this legal position its effect cannot be taken away by the Chief Minister by issuing a letter.
11. In the presence of the two above referred Notifications issued by the Government, ban could not have been imposed by the Chief Minister vide letter dated 23-11-2005 addressed to all the DCO's in Punjab, superseding the Notifications issued by the Governor of Punjab reflecting the will of the Government.
12. For what has been stated above, I find no merit in this petition which is accordingly dismissed.