' MUHAMMAD NAWAZ ABBASI, J.---This petition under Article 185(3) of the Constitution has been directed against the judgment dated 10-10-2006 passed by a learned Judge in Chambers of Lahore High Court, Multan Bench, whereby the Constitutional petition filed by the Thal Industries Corporation Limited (Layyah Sugar Mills), hereinafter to be called 'the petitioner' seeking declaration that installation of Tandlianwala Sugar Mills Limited (hereinafter called 'the private respondent') was in violation of the policy of the Government of Punjab for establishment of industries in Punjab was dismissed.
2. The grievance of the petitioner is that in consequence to the establishment of Tandlianwala Sugar Mills by the private respondent, not only the production of Layyah Sugar Mill would be affected but the petitioner may also face the serious business crises and permanent financial loss.
The learned counsel for the petitioner asserted that setting up of the sugar mills in District Muzaffargarh is not in consonance with the policy of Government of Punjab for establishment of the industries under the Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963 (hereinafter to be called the Ordinance) and is not at all in the public interest. The precise argument is that in consequence to the Notification dated 17-9-2002 issued by the Government of Punjab under section 3 of the Ordinance, no industry in the Province of Punjab can be established without prior permission of the Government of Punjab whereas the private respondent (respondent No,11) pending framing of the policy by the committee constituted for this purpose, having obtained approval from the consultant to the Government of Punjab without getting N.O.C. - from the concerned agencies of the Federal and Provincial Governments, started construction of the sugar mills in an unauthorized manner and in utter disregard to the policy of the Government as contained in the directive dated 4-9-2003 of the Chief Minister Punjab which is read as under:--- "It has been brought to the notice of Chief Minister, Punjab that certain existing as well as upcoming sugar mills which are yet to commence production have either increased or are likely to increase their crushing capacity illegally in spite of the glut of sugar in the country. It is likely to cause a significant loss to the national economy. Different farmers/organizations have also been agitating this issue through the media.
' It has been pointed out that the increase in the crushing capacity will have a negative bearing on the cotton crop which feeds the vibrant and expanding textile sector constituting the bulk of Pakistan's exports. Moreover, sugarcane is more water intensive compared to other crops. The recent water shortages experienced by the country due to prolonged drought require a drastic change in cropping patterns by encouraging crops which consume less water. The expansion of crushing capacity is also likely to exacerbate the grievances of sugarcane growers who are already facing problems in the clearance of their dues.
' The establishment of industries in Punjab is regulated under the Punjab Industries (Control on Establishment and Enlargement) Act, 1963. Section 3 of the Act ibid stipulates tha no person shall establish or cause to be established industrial undertaking or enlarge or cause to be enlarged any existing industrial undertaking except with the prior permission in writing of the Government.
Section 4 provides for a check on unauthorized establishment or enlargement of industrial undertakings. Section 8 provides for penalty for contravention. Section 11 empowers the Government for granting exemption from one or any of the provisions of the ordinance (ibid) through a notification. Moreover, with the approval of the Governor and in consultation with the concerned stakeholders including Chambers of Commerce and relevant Associations, Government of the Punjab vide IM&M Departments, Notification dated September 30, 2002 revised the location policy whereby no new sugar mills could be set up and no existing sugar mills enlarged in the districts of Multan, Sahiwal, Vehari, Khanewal, Pakpattan, Lodhran, Bahawalpur, R.Y.
Khan Bahawalnagar, D.G. Khan, Rajanpur, Layyah, Muzaffargarh and Okara. This was meant to protect the restricted area from intrusion of crops other than cotton in order to ensure that adequate quantities of cotton continue to be available for the textile sector.
' The Chief Minister has, therefore directed that unauthorized expansion of crushing capacity of sugar mills both existing as well as upcoming needs to be checked strictly in the national interest.
He has further directed that Industries Department may initiate a detailed survey to detect sugar mills flouting the relevant laws/rules. Till the completion of the survey, an immediate ban may be imposed by the department on setting up of new sugar mills and expansion of crushing capacity of existing sugar mills. The Chief Minister has desired that the ban may be strictly enforced across the board and instructions to this effect may also be issued to all banks accordingly, ' A compliance report may be submitted for information/ orders of the Chief Minister within one month.
3. Mr. Khadim Hussain Qaiser, learned Additional Advocate-General, Punjab, and Mr. Waseem Sajjad, Senior Advocate Supreme Court, counsel for the private respondent, strongly opposed this petition with the assertion that the Notification dated 17-9-2002 issued by the Government of Punjab in exercise of the power conferred upon it under section 3 of the Ordinance was operative for all intents and purposes and the, directive of the Chief Minister may not have the effect of undoing this notification. They have strenuously argued that neither the Governor nor the Chief Minister has placed any restriction on the construction of Tandiyala Sugar Mills, which was almost complete when the directive of the-Chief Minister was issued and in any case the respondent in his own right with the permission of Government has set up the sugar mills quite in accordance with law. The learned counsel urged that petitioner has no locus standi to file the writ petition and raise objection to the establishment of the sugar mills of the private respondent established in District Muzaffargarh and has submitted that the petitioner has neither come to the Court with clean hands nor he has filed the writ petition in good faith rather the motive for invoking the jurisdiction of the High Court was to have the monopoly in the production of sugar in the area.
4. Learned Deputy Attorney General, has argued that under Article 18 of the Constitution of Islamic Republic of Pakistan, 1973, every person has the right of setting up lawful trade and business and subject to law, the Government cannot restrict the establishment of the industry in the private or public sector rather Government is under the legal obligation not to allow any person or group of persons to create monopoly in a particular trade or business.
5. Mr. Waseem Sajjad, learned Senior Advocate Supreme Court, representing the respondent No,11 with reference to the correspondence of the said' respondent with the Government of Punjab and Municipal Committee, Muzaffargarh, has submitted that the private respondent has established the sugar mills with huge investment with the permission of Government of Punjab and it was almost at the stage of commencement of the production when the directive of the Chief Minister was issued which may not be applicable to the industrial unit already in the process of setting up.
Learned counsel added that no objection to the construction of sugar mills was raised by any agency of the Federal or Provincial Government at any stage before or after the issue of directive in question and emphasized that the petitioner due to the business rivalry with the ulterior motive to create monopoly in the production of sugar in the area has filed the writ petition in bad faith, without any locus standi and unnecessarily has dragged the respondents in litigation at the cost of public time and exchequer:
6. The examination of relevant provisions in the Ordinance and the Notification dated 26-10-1986 issued by the Government of Punjab under section 11 of the Ordinance read with directive of the Chief Minister under reference would show that except the industries mention therein all other industries have been exempted from the purview of section 3 of the Ordinance. The Government of Punjab vide Notification dated 15-7-2005 in supersession of the Notification dated 12-10-2004 allowed the establishment of new sugar mills up to the capacity of 16000 TCD and also fixed the same production capacity of existing sugar mills in Punjab. Section 3 of the Ordinance and the Notifications dated 15-7-2005 and dated 26-10-1986 are reproduced hereunder for better appreciation of the contentions raised in the present petition.
' Section 3 of the Ordinance:-- "3. No person shall establish or cause to be established any industrial undertaking or enlarge or cause to be enlarged any existing industrial undertaking except with the previous permission in writing of the Government: Provided that the application of any person for the grant of such permission shall not be rejected.
(a) without giving such person an opportunity of showing cause against it; or
(b) unless the Government is satisfied, on the basis of information available to it and after making such inquiry as it may deem fit, that the grant of permission to such person will be prejudicial to the national interest, or injurious to the health of or a source of nuisance for, the residents of the local area in which the industrial undertaking is proposed to be set up or, as the case may be, industrial undertaking which is proposed to be enlarged is situated."
' Notification dated 15-7-2006:-- "Government of the Punjab Industries Department ' Dated Lahore, the 15th July, 2005 ' 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) Ordinance, 1963, the Governor of the Punjab is pleased to order that in suppression of Notification No,AEA-III-3-5/2003, dated 12-10-2004 notified in the Punjab Weekly Gazette October 20, 2004 the following amendments 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:--
(i) The establishment of new sugar mills up to the capacity of 16,000 TCD is allowed in the Province. i) The Sugar Mills are not allowed to enlarge existing capacity over 16,000 TCD.
' Secretary, Industries Department"
7. Having considered the matter in the light of the legal position referred above, we are of the view that learned Judge of the High Court in Chambers has . Rightly held that directive of the Chief Minister contained in letter dated 23-11-2005, by virtue of which operation of the notification of the Governor was suspended, has no retrospective effect to affect the setting up of the sugar mills by private respondent, the construction of which was started with the permission of the Government of Punjab much before the issue of the said directive.
8. Keeping in view the apprehension of the petitioner that in consequence to the setting up of new sugar mills in District Muzaffargarh, the production of the petitioner's mills would be affected due to the scarcity and shortage of sugarcane, the essential question for determination would be with regard to the legal right and locus standi of the petitioner to raise objection to the setting up of the respondent's sugar mills subject to the public interest and policy the establishment of lawful trade and business is a constitutional right and in the normal circumstances, the restriction on the establishment of industry, may not be justified, therefore, the Committee constituted by the Chief Minister to frame the policy for establishment of the industry in the Province of Punjab would have no nexus with the industries already in operation or under the process of setting up. The shortage of raw material in a particular area also is not a valid ground to restrain a person from his constitutional right of doing business and trade in a particular area. This is settled law that a person aggrieved of an action of public functionaries, can invoke the extraordinary constitutional jurisdiction of the High Court for interference and simultaneously the jurisdiction of this Court under Article 184(3) can be invoked in a matter of public importance involving enforcement of the fundamental rights but the constitutional jurisdiction of the superior Courts cannot be invoked and exercised in aid of injustice or to restrain a person from doing the lawful business of his choice in accordance with law and Constitution.
9. Learned counsel for the petitioner has not been able to satisfy us that the petitioner can competently maintain the writ petition to challenge the setting up a new sugar mills in the area of District Muzaffargarh or the establishment of the industry is against the public interest and policy of law. The constitutional mandate is that either any restriction can be placed on the setting up of a lawful business or neither trade nor any person in the private sector can be allowed to create monopoly in such trade or business. The Government of Punjab having conceded the right of private respondent for setting up of sugar mills, has raised a serious objection to the locus standi of the petitioner to. Challenge the establishment of the sugar mills in District Muzaffargarh.
10. In the light of foregoing discussion and the law on the subject we have not been able to find out any substance in this petition calling for interference of this Court in the judgment of the High Court and the same is accordingly dismissed. Leave is refused. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.