' SYED HAMID ALI SHAH, J.---This single order will dispose of W.P.No,10197-2007 titled "Ibrahim Flour & General Mills v. Govt. Of the Punjab", W.P. No,11058-2007 titled "M/s Ali Floor Mills v. Province of Punjab", W.P. No, 220-2008 titled "M/s Gorchani Floor and General Mills v. Province of Punjab etc.", W.P. No,10732-2007 titled "M/s Malik Floor Mills v. Govt. Of the Punjab", W.P. No,11025-2007 titled "New Fine Floor & General Mills v. Govt. Of Punjab", W.P. No,10986-2007 titled "OK Floor & General Mills v.
Govt. Of the Punjab", W.P. No,10325-2007 titled "Wasif Flour Mills v. Govt. Of the Punjab", W.P.
No,10366-2007 titled "M/s Sona Flour & General Mills v. Govt. Of the Punjab", W.P. No,11060-2007 titled "M/s Al-Mumtaz Flour Mills v. Province of Punjab etc.", W.P. No,11201-2007 titled "Vehari Flour Mills v.
Govt. Of the Punjab etc.", W.P. No,11222-2007 titled "Tufail Flour & General Mills v. Govt. Of the Punjab etc.", W.P. No,11264-2007 titled "Hasnat Flour Mills v. Province of Punjab etc.", W.P. No,11026-2007 titled "Shan Flour & General Mills v. Govt. Of the Punjab etc.", W.P. No,10371-2007 titled "Al-Ghani Flour & General Mills v. Govt. Of the Punjab", W.P. No,11059-2007 titled "Mubarik Flour Mills v. Province of Punjab etc.", W.P. No,11067-2007 titled "Pak Millat Flour & General Mills v. Govt. Of the Punjab " & W.P.
No,75-2008 titled "Chishtia Flour Mills v. Govt. Of the Punjab", as common questions of law and facts are involved in all these petitions. The petitioners, in these petitions, are licensees under the Food grains (Licensing Control) Order, 1957 and after obtaining No Objection Certificate from the relevant authorities, they have installed their project i.e Viz. Flour Mill, for the purposes of making of wheat into flour and cleaning etc.
2. The Food Department of the Punjab Government prepares and announces its policy and in view whereof, grants requisite quota to the applicants/flour mills. The quota can be enhanced, according to the prevailing circumstances. Respondent No,1, vide Notification No,1 SOFIV/3-8/2006 dated 16-8-2006, released its policy for the issuance of quota to the flour mills, whereby the quota of 50 bags per functional roller body was approved along with the facility of enhancement in the allocated quota, keeping in view the demand and availability of wheat. Flour mills, which had previously lifted wheat quota, were allowed issuance of wheat quota, while quota to the new flour mills was made subject to fulfillment of coal formalities, on case to case basis. The facility remained available during the relevant time.
3. A flour mill, applies to the Director Food for the issuance of requisite wheat quota, according to the prevailing milling policy. The application is processed and inspection is conducted by a Sub- Divisional Committee to verify the factum of number of functional bodies in a mill. A report as to the functional position of a mill is submitted, where after the quota is allocated to such applicant.
Various petitioners applied for the quota during 2007 and their applications were processed.
Inspection was conducted, but no quota was allocated/issued. The petitioners were denied issuance of wheat quota on the plea that a new policy was notified vide Notification No,FOS-IV/3- 8/2006 dated 1-9-2007. According to this policy, wheat quota was allocated to the functional flour mills of the approved capacity, who had lifted wheat quota during the preceding year. Verification of grinding of the wheat was made ascertainable on the electricity consumed during the corresponding period. A quota of 25 bags of 100 Kgs. Of wheat per body was allocated to the flour mills having electricity connection of WAPDA as well as generator powered flour mills.
4. The petitioners have voiced their grievance against the respondents that in the exercise of issuance of quota to various flour mills, the respondents have acted illegally and the applicants before the department were treated discriminatory. Unequal treatment by the respondent- Department is aimed at, to favour a set of persons at the cost rights of the petitioners. The respondents, in response to the notice, entered appearance and filed parawise comments and reply. The mill-owners, who are enjoying the facility of quota, were informed about the instant proceedings through, the Director Food and also through all Pakistan Flour Mills Association.
Subsequently, a notice to the mill-owners was published in "Daily Naw-e-Waqt" in its print dated 14-9-2007 in Lahore, Rawalpindi and Multan Editions, but no one turned up in response to the citation published in the newspaper.
5. Mr. Muhammad Shehzad Shaukat, Advocate, representing various petitioners in this matter, has submitted that the petitioners run their flour mills, which are functional and the applications for issuance of the quota, were processed within the prescribed period. Their cases after inspection and verification were transmitted to the Director Food, who was to pass a formal order for issuance of the wheat quota. Speaking for Ibrahim Flour and General Mills, learned counsel contended that petitioner's application was moved on 10-3-2007, the inspection was conducted on 21-3-2007. The inspection report reflects that the mill is functional with 12 roller bodies, but the respondents have not proceeded further in the matter. While referring to letter dated 3-9-2007, learned counsel has submitted that issuance of quota was denied to the petitioner merely on the ground that volume of bins have not properly been worked out in B Form, ignoring the fact that according to the policy of the respondents, which is reflected in letter dated 3-9-2007, that wheat will be issued to the functional flour mills. The petitioner is eligible. He signed Form B and placed the same on record, but his request for issuance of the quota was declined illegally. Learned counsel then submitted that the aforementioned letter dated 3-9-2007 is a communication between the Deputy Director (Food), to all the Food Directors and District Food Controllers in Punjab and it is not a matter relating to policy of the Government. Learned counsel has referred to section 3 of the Foodstuff (Control) Act of 1958 and has submitted that the respondents are bound, under the law, to maintain supplies of any foodstuff for securing its equal distribution and availability. Learned counsel added that the respondents have failed in securing equitable distribution and availability of the supply within the contemplation of the aforementioned provision of the law. Learned counsel while placing reliance on the case of "Al-Mutwakkal Flour Mills v. Province of Punjab and another"
(1991 YLR 42) (sic) has submitted that a policy, which is notified in official gazette, has the legal force and any letter issued by the Department, which offends the notified policy has no value in the eye of law. Learned counsel, while pleading unequal treatment, has submitted that quota to a flour mill in Rawalpinidi was enhanced from 25 bags to 40 bags and then to 60 bags per roller body, but the petitioners were deprived of a normal quota. Learned counsel, vehemently argued that supply of wheat to one and its refusal to another has been held sheer' discrimination by this Court in the case of Al-Mutwakkal Flour Mills (supra). Learned counsel has further submitted that the dictum laid down in the case of "M/s. Asif Flour Mills v. Government of N.-W.F.P." (PLD 1997 Peshawar 5), has not been followed by the respondent-Department.
6. Other Advocates, in the connected petitions, have adopted the line of arguments of Mr. Muhammad Shehzad Shaukat, Advocate.
7. The respondent-Department submitted parawise comments and reply, which reflects that liberal issuance of wheat quota was allowed in the preceding year as the department had wheat stocks of 3.9 million tons, but during the current year, the available stocks are 2.65 million tons only, in view whereof, quota to the new flour mills cannot be allowed. According to the statistics provided in the reply, the department has contended that 634 flour mills, with daily grinding capacity of 101340 million tons, are functional in Punjab. The requirement of wheat, according to the grinding capacity, is 36.99 million tons, which is not possible for the department to provide to new flour mills.
According to these statistics of the department, 41 cases of new flour mills are lying with the department, besides, 97 cases of enhancement of grinding capacity are pending decision. The reply reflects that the quota to the new flour mills was withheld due to the shortage of available stocks.
8. Learned Additional Advocate-General has submitted that the policy for the year 2007 was duly notified through Notification No,SOFIV/3-8/06 dated 3-9-2007. He has submitted that the case of Al Mutwakal Flour Mills (supra) referred to by learned counsel for the petitioners has no application to the case in hand as in the instant case the policy for the year 2007 had duly been notified. There is no discrimination inter se the flour mills-owners and the quota was not issued to the petitioners, as either they were not eligible or the objection raised by the department was not removed by these petitioners.
9. Heard learned counsel for the parties and record perused.
10. The petitioners, in these cases, are categorized into two categories. Firstly those who have applied for the issuance of the quota before the new policy, while the others have applied after the new policy was notified. Certain objections, which were raised and were not removed by the petitioners, are not material. In the case of Ibrahim Flour Mill, the quota has been denied on the ground that volume of bins have not been worked out in Form B. This appears to be no ground for refusal of the quota as, according to the policy, the department has to see the functional roller bodies in a flour mill and any negligible lapse in completion of the form, can be no valid ground for refusal of the quota. The respondents, at the most, could call the petitioners to rectify the omissions. Similarly, some of the petitioners have been denied quota as they have not produced membership certificate of PFMA, which too is not a condition notified in the policy. Denial of issuance of quota on these grounds has no justification.
11. The question of issuance of quota on, "pick and choose basis", came up for consideration before the superior courts:--
(i) In the case of "M/s Asif Flour Mills v. Govt. Of N.-W.F.P." (1997 Peshawar 5), summary was not submitted to the Chief Minister on the ground that the Provincial Cabinet in its meeting, imposed ban on issuance of wheat quota to the new flour mills. Learned Court observed that numerous business concerns were involved in similar business and production, but the petitioner was prevented from carrying on his business while the other rival concerns were facilitated to go into production and to remain in production, which is a discrimination seriously offending Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. The authorities were directed to release wheat quota to the petitioner.
(ii) In the case of "AI-Mutwakkal Flour Mills v. Province of the Punjab"(1999 YLR 42) (sic), non- issuance of enhanced wheat quota was claimed by the petitioners on the, basis of added roller bodies and in the same case, while some petitioners challenged the reduction made by the department in the allocated quota. It was observed by the Court that enhanced quota allowed to certain selected people at the discretion of the department, would lead to ruthless, naked and unbridled discretion which cannot be countenanced in the days of fundamental rights and their enforcement. The Court, while appreciating that the person similarly situated cannot be distinguished or discriminated while making or applying the law, which is to be applied equally to the persons situated similarly. Any law made or action taken in violation of these principles is liable to be struck down. Resultantly, the department was directed to enlist the petitioners before it and grant wheat quota while treating the applicants equally.
(iii) In the case of "Government of N.-W.F.P. Through Secretary and 3 others v. Mejee Flour & General Mills (Pvt.) Ltd." (PLD 1997 SC 1804), the question "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", was answered by the Apex Court that it amounts to injustice, inequality and characterized as arbitrary authority in singling out some persons for discriminatory treatment, they would be acting counter to the ideal of equality before law. The Apex Court enunciated that the courts have ample jurisdiction 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. The above survey of law brings me to conclude that restriction of wheat quota imposed equally on all the Flour Mills, without any discrimination can legitimize the action of the respondents, on the plea of acute shortage of wheat. But issuance of quota, almost during the same period, to other Flour Mills, is unreasonable and arbitrary selection or differentiation. Government is not supposed to discriminate between the citizens, who are placed in similar circumstances and functionaries of the Government cannot be allowed to exercise discretion at their whims, sweet will or in a manner as it pleases them.
13. Wheat quota of certain mills has been enhanced to those, who had applied for it, after the release of new policy.
' Iqbal Flour Mills, Jhang, Suriya Flour Mills, Jhang, Azeem Flour Mills, Mianwalli and Derashik Flour Mills, D.G. Khan, are enjoying the facility of enhanced quota. Their quota was enhanced, when the petitioners were declined routine quota. New Hussain Flour Mills Jhelum, Mehkam Flour Mills, Bhawalpur & Haris Flour Mills, Bahawlpur, were newly-established flour mills. They applied for quota, at a point of time, when the inspection of the petitioners had already been conducted.
Respondents had issued quota to other mills while the petitioners, who are placed in identical situation, on the other hand, were refused the quota of wheat. The applications of the applicants were turned down and the respondents have not even cared to reply to the petitioners, regarding refusal of quota. The impugned action of the respondents qua the issuance of wheat quota, is, therefore, arbitrary and perverse classification as against reasonable classification. Supply of wheat quota to one set of mill-owners and its refusal to the petitioner, is sheer discrimination, conceived and tainted with the defect of naked and unbridled discretion. The act of omission, on the part of the respondents, in ignoring the petitioners for grant of wheat, is declared as unlawful, discriminatory and of no legal effect.
14. The petitioners are entitled to the equal treatment and the discrimination in issuance of wheat quota to the petitioners, calls for interference and exercise of powers of judicial review.
15. Resultantly, these petitions are allowed and the respondents are directed to re-consider the applications of the petitioners and issue them wheat quota, according to the prevalent policy, without any discrimination or unequal treatment. The respondents will call the petitioners, scrutinize their case and decide the question of grant or refusal of quota, strictly within the parameters of existing policy and in a fair and transparent manner. The respondent will complete the task of issuance of wheat quota to the petitioner within a period of 2 weeks from today. In this exercise, the petitioners will be provided the opportunity of being heard.