AMIN-UD-DIN KHAN, J.---Through this single judgment I intend to decide Writ Petitions Nos. 5992 of 2010, 26535 of 2010, 4162 of 2011, 12116 of 2011, 31331 of 2012, 8870 of 2011 and 8873 of 2011 as common question of law is involved in all these petitions.
' Through these writ petitions Notification No,AEA-III.3-5/2003 (VOL-III) dated 6-12-2006 issued under sections 11 and 3 of the Punjab Industries (Control on Establishment and Enlargement) Act, 1963 as well as decision of Government of the Punjab, Industries Department dated 31-1-2008 whereby permission to establish mini sugar plants was refused, have been challenged.
3. In the above mentioned first five writ petitions along with Notification dated 6-12-2006 decisions dated 31-1-2008, 16-8-2010. 20-12-2010 and 28-3-2011 respectively have been challenged and in the last two above mentioned writ petitions along with Notification dated 6-12-2006 it has been prayed that notification dated 17-9-2002 be reframed. The matter in issue in all the above mentioned writ petitions is the issuance of Notification No, AEA-III.3-5/2003 (VOL-III) dated 6-12-2006 whereby the Government of the Punjab has imposed complete ban on setting up new sugar mills and enlargement in capacity of the existing sugar mills. For considering the matter in issue the examination of the original notification and the series of amended notifications must be in view while discussing the same. The law applicable to the facts of writ petition is the Punjab Industries (Control on Establishment and Enlargement) Ordinance (IV of 1963). Section 3 and section 11 of the Ordinance which are relevant for adjudicating upon the matter in issue being necessary are reproduced below for ready reference:-- Section 3: Restrictions on establishment of industrial undertakings. ---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 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, the industrial undertaking which is proposed to be enlarged is situated.] \ Section 11. Exemption. ---Government may, by notification in the official Gazette, exempt any industrial undertaking or class of industrial undertakings from all or any of the provisions of this Ordinance or the rules."
' Ordinance will be written as "Ordinance, 1963" for reference in this judgment.
' For regulation and administration, the Provincial Government issued notification on 26-10-1986 which will be referred as "original notification". In the original notification all industries and areas in the Province of the Punjab were exempted from application of section 3 of the Ordinance except those specified in the said notification itself. The border areas, areas prone to flooding areas and urban areas among other specified locations, were retained within the regulatory ambit of section 3 of the Ordinance, 1963, while in the remaining areas of Province of the Punjab, industries could be set up without obtaining the prior permission of Government under section 3 of the Ordinance. The areawise restrictions were available in paragraphs Nos. 1 to 4 of the original notification. It was said to be a "location policy" of the Punjab Government, In paragraph No, 5 of the original notification the industries which were not exempt from provisions of section 3 of the Ordinance were mentioned. The requirement for prior Government approval in respect of industries specified in paragraph No,5 (which included the industries listed in Schedule C to the original notification) was retained. The sugar industry was mentioned in list "C", therefore, it could be established with the prior approval in accordance with section 3 of the Ordinance. Afterwards vide amendment in the year 1988 sugar industry was also included in location policy, thereafter, various notifications were issued whereby the location policy was changed.
' Vide Notification No, AEA-III-3-9/91 dated 4-9-2003 previous Notification No, AEA-III.3-9/91 dated 30-9-2002 was amended and clause 3 was substituted as follows:-- "No new sugar mill shall be set up and no existing mill be enlarged anywhere in the Province."
' Then vide another Notification No, AEA-III-3-9/91 dated 9-10-2003, Notification dated 30-9-2002 was amended and Clause 3 was substituted with the following insertion:-- "No new sugar mill shall be established in the Districts of Multan, Sahiwal, Vehari, Khanewal, Pakpattan, Lodhran, Bahawalpur, Rahimyar Khan, Bahawalnagar, D. G, Khan, Rajanpur, Layyah, Muzaffargarh and Okara. Existing Sugar Mills can be enlarged."
' Then vide Notification No,' AEA-III-3-5/2003 dated 1-4-2004 Clause 3 was substituted with the following amendment:- "No new sugar mill shall be established in the Districts of Multan, Sahiwal, Vehari, Khanewal Pakpattan, Lodhran,Bahawalpur, Rahimyar Khan, Bahawalnagar, D.G..Khan, Rajanpur, Layyah, Muzaffargarh, Okara and Toba Tek Singh. Existing Suga. Mills can be enlarged except in the Districts of Sahiwal, Pakpattan, and Toba Tek Singh."
' Further vide Notification No,AEA-III-3-5/2003 dated 12-10-2004 following substitution was made for Clause 3:- "No new sugar mill shall be set up in the Province. Existing Sugar Mills can be enlarged except in the Districts of Sahiwal, Pakpattan and Toba Tek Singh."
Vide Notification No, AEA-III-3-5/2003 dated 15-7-2005 following amendment was made in Clause 3:-- "(i) The establishment of new sugar mills upto the capacity of 16,000 TCD is allowed in the Province.
(ii) The Sugar Mills are not allowed to enlarge existing capacity over 16,000 TCD." and through the impugned Notification No, AEA-III-3-5/2003 (Vol-III) dated 6-12-2006 establishment of new sugar mills and enlargement in capacity of the existing sugar mills was again banned and Clause 3 was substituted as follows:-- "No new sugar mill shall be set up and no enlargement in capacity of the existing Sugar Mills is allowed in the Province."
' The petitioners have challenged the said notification as well as the refusal orders passed upon their respective applications for grant of licence to establish new sugar mills. In the last two above noted writ petitions it has also been prayed that notification dated 17-9-2002 be ordered to be refrained.
4. Now position is that through the impugned notification dated 6-12-2006 there is a complete ban on establishment of a new sugar mill in the Punjab or enlargement in capacity of existing sugar mills. At this stage before dealing with the arguments advanced by learned counsel for the parties it is necessary that factual proceedings of the case be noted here.
5. Messrs JDW Sugar Mill filed C.M No,3871 of 2010 in Writ Petition No, 5992 of 2010 for impleading them as party in the writ petition on the grounds that they have already filed Writ Petition No, 125 of 2008 for enforcement of the impugned notification. C.M was allowed with the consent of learned counsel for the petitioner on 21-12-2010. Notice under section 27-A was also issued to the Advocate General Punjab 6n 21-9-2010. This Court ordered that the notice be given to the public at large about the pendency of this writ petition before this Court. Notice was issued. In response to the notice Secretary Industries filed C.M. No,2 of 2011 for impleading the persons mentioned therein as respondent in the Writ Petition. It was considered proper to hear all the persons likely to be effected by acceptance of writ petition, in this way C.M stood disposed of.
6. Learned counsel for the petitioner states that petitioner has applied for the grant of permission for establishment of mini sugar plant which was refused vide order dated 31-1-2008 on the ground that the impugned notification dated 6-12-2006 has been issued whereby a complete ban for establishment of new sugar mills as well as enlargement in capacity of existing sugar mills has been imposed. Learned counsel argues that there is no reasoning mentioned in the impugned notification, therefore, it is contrary to Article 18 of the Constitution of Islamic Republic of Pakistan, 1973; that all the existing sugar mills are of the political and influential people of the country, therefore, this notification has been got issued by those persons for debarring the Writ petitioners of their constitutional right to do the business; that it is violation of Articles 4 and 25 of the Constitution. Further states that section 11 and the Ordinance do not give power of complete ban- on establishment of any kind of industry. Further that only the powers to regulate and control are available and these cannot be used for complete ban; that the notification issued is contrary to the powers given in the Statute. While relying on "Medina Sugar Mills v. Secretary, Ministry of Industries and others" (PLD 2001 Lahore 506) argues that when anything which is not provided in the Ordinance, cannot be read in it or introduced by a notification. While relying upon "Haji Ghulam Zamin and another v. A. B. Khondkar and others" (PLD 1965 Dhaka 156) argues that legislative power vests in legislation only. Further contends that the intention behind the issuance of notification is that the Government wants to save the crop of cotton, is not sufficient to issue the impugned notification and that it is also not a solution. Even the learned counsel has argued that the impugned notification is against the proviso to. Section 3 of the Ordinance, therefore, it is not sustainable. Further states that the amendment can be made in the Statute for facilitating and not for negativity and no embargo can be imposed for this purpose. Learned counsel lastly argues that the impugned notification is not a purpose oriented but persons oriented.
7. On the other hand, learned counsel for the respondents argue that Article 18 of the Constitution neither gives unfettered nor absolute powers of freedom of trade, business or profession. It provides the regulation of trade and business or profession by a licensing system, therefore, state that through the impugned notification restrictions are reasonable. Further add that even prior to that for establishment of new sugar mills or enlargement in the capacity of existing sugar mills notifications were issued periodically which were never challenged, now through the impugned notification the same has been re-imposed, therefore, there is no right available to the petitioners to challenge the same. While relying upon "Madina Sugar Mills v. Secretary, Ministry of Industries and others" (PLD 2001 Lahore 506) state that all the questions raised now before this Court have already been answered in the referred judgment. Further contend that regulation and control are interchangeable and that the Courts have never questioned the vires of the notifications; that even if for the sake of arguments the impugned notification is withdrawn or lifted even then under section 3 of the Ordinance, the Government has to regulate the establishment of the sugar mills through the licensing system. While relying upon "Messrs Shaheen Cotton Mills, Lahore and another v. Federation of Pakistan, Ministry of Commerce through Secretary and another" (PLD 2011 Lahore 120) state that the ban imposed by the Government with regard to the Cotton Yarn export was upheld by this Court. Further argue that while viewing the fundamental rights under Article 24 of the Constitution of Islamic Republic of Pakistan, 1973, fundamental rights of whole of the nation are to be seen and not of an individual. While relying upon "Government of Balochistan through Additional Chief Secretary v. Azizullah Menton and 16 others" (PLD 1993 SC 341) argue that the interpretation must be dynamic; that the notification has been issued after about four months' deliberation between the provincial government; central government and the concerned departments of the Government and after complete deliberations the impugned notification has been issued, While relying on Arshad Mehmood and others versus Government of Punjab through Secretary, Transport Civil Secretariat, Lahore and others" (PLD 2005 SC 193) state that the government has the power to impose ban and same was held to be valid by the august Supreme Court of Pakistan. One of the learned counsel argued that it is not a complete ban rather it is a further restraint on the establishment of new sugar mills as the existing sugar mills have not been banned, it is for the protection of the textile industry of the Pakistan as well as cotton growers of the country. Further that only the last amending notification has been challenged whereas the original law as well as the previous notifications imposing the ban remained in the field which have not been challenged.
Further adds that it is a policy decision, therefore, it c9nnot be strike down, at the most it can be sent to the Government for reconsideration if this Court comes to the conclusion that if there must be any further deliberation in the matter; that even the location policy has not been challenged which was introduced vide previous notifications and that the impugned notification extinguished the discrimination,. Learned counsel has also argued that if this Court comes to the conclusion contrary to the earlier decision of this Court reported as PLD 2001 Lahore 506 "Madina Sugar Mills v.
Secretary, Ministry of Industries and others" then the matter under the law must be referred to the larger bench.
8. Learned Additional Advocate General has also advanced the arguments to state that notification has been issued in accordance with the powers available under sections 3 and 11 of the Ordinance, ibid, and he has also referred the judgments already referred, supra, and states that there is no violation of Articles 18 and 3 of the Constitution; that the Government has the power to regulate. States that the notification has been issued after complete deliberation and a period of four months was consumed in the deliberations and complete record has been produced by the Government of Punjab as well as respondents in this writ petition to show that for the benefit of the nation impugned notification has been issued as there is a shortfall of water for the irrigation of agricultural land and data shows that more water is required for sowing the sugarcane crop than the cotton crop and further that the cotton crop is a revenue generating crop and the raw cotton as well as the production in the shape of yarn and cloth are exported which is a major source of foreign currency for the Government hence prayed for the dismissal of all these writ petitions.
9. I have considered the arguments advanced by learned counsel for the parties and have gone through the record with the able assistance.
10. By noting all the above mentioned detailed facts, it is clear that the orders impugned in the writ petitions whereby Government has turned down the applications of the petitioners for establishment of new sugar mills are because of the notification impugned in these writ petitions, therefore, as the orders impugned have been issued because of the notification, hence, it will not serve any purpose to discuss the veracity of the orders because the same have been issued when the impugned notification was in field and in existence of the notification the orders are absolutely valid one. If the impugned notification is declared violative of law and constitution then the fresh application will be entertainable by the Government, therefore, at present no much discussion or decision is required with regard to the impugned orders.
11. The only pivotal point involved in these petitions remains whether the impugned notification issued by the Government is with the authority and powers available with the Provincial Government according to the Statute and whether it is violative of Article 18 of the Constitution of Islamic Republic of Pakistan, 1973. So far as case-law referred by the learned counsel for the petitioners as noted above is concerned, there is no cavil to the proposition introduced by the learned counsel for the petitioners but the question is that the interpretation which learned counsel for the petitioners derived from the case-law is relevant here and will be discussed in detail while discussing the matter. On the other hand, the argument of learned counsel for the respondents while relying on "Messrs Shaheen Cotton Mills, Lahore and another v. Federation of Pakistan, Ministry of Commerce through Secretary and another" (PLD 2011 Lahore 120) that ban imposed by the Government with regard to the cotton yarn export was upheld by this Court, is though relevant but not fully applicable to the facts of this case. I have gone through "Arshad Mehmood and others v.
Government of Punjab through Secretary, Transport Civil Secretariat, Lahore and others" (PLD 2005 SC 193) and taken light from the judgment wherein it has been decided with regard to Article 18 of the Constitution, which is hereby reproduced as under:- "(e) Constitution of Pakistan (1973)---- Art. 18----Freedom of trade, business or profession----Right of trade/business or profession under Art. 18 of the Constitution is not an absolute right but so long a trade or business is lawful a citizen, who is eligible to conduct the same, cannot be deprived from undertaking the same, subject to law which regulates it accordingly.
(f) Constitution of Pakistan (1973)---- - ---Art.18---Freedom of trade, business or profession---"Reasonableness of restriction"---- Definitions.
' Following definitions can be considered for purpose of ascertaining the meaning of "reasonableness of restriction" on the fundamental rights of the citizens to conduct any lawful trade or business:-
(i) The limitation imposed upon a person on enjoyment of a right should not be arbitrary or of an excessive nature beyond what is required in the interest of the public.
(ii) The Court would see both to the nature of the restriction and procedure prescribed by the.
Statute for enforcing the restriction on the individual freedom. Not only substantive but procedural provisions of statute also enter into the verdict of its reasonableness.
(iii) The principles of natural justice are an element in considering reasonableness of a restriction but the elaborate rules of natural justice may be excluded expressly or by necessary implication where procedural provisions are made in the statute.
(iv) Absence of provisions for review makes the provisions unreasonable.
(v) Retrospectivity of a law may also be the relevant factor of law, although a retrospectivity of law does not make it automatically unreasonable.
(vi) Reasonable restriction also includes cases of total prohibition of a particular trade or business which deprive a person of his fundamental right under certain circumstances."
So far as the question of legislative powers of the Government is involved, the Government can legislate for regulation of the trade and business in accordance with Article 18 of the Constitution of Islamic Republic of Pakistan, 1973 and giving reasons in the provisions of law for its legislation is not the requirement of law but it is the homework before the legislation and consultation and deliberations which is required and same has been done in this case. Now the question that whether the impugned notification issued, is violative of law or not, it has not been directly argued that the power to issue notification is not available under section 3 and section 11 of the Punjab Industries (Control on Establishment and Enlargement) Act, 1963, as the impugned notification is an amendment in the earlier notification, therefore, it cannot be said that the impugned notification has been issued without authority to issue the same. Now the final point comes that whether the impugned notification is permissible to completely impose ban for establishment of new sugar mills, I am clear in my mind that it is not a complete ban on the sugar industry but a ban has been imposed for further establishment of sugar mills. So far as the argument of learned counsel representing the respondents that it is actually a regulatory notification and not imposition of complete ban on the sugar industry is concerned, as we have seen history of notifications issued by the Government of Punjab, before the impugned notification there are some notifications regarding location policy and even prior to that the establishment of new sugar mill was completely banned, therefore, the argument of the learned counsel for the petitioners that the impugned notification is a person oriented and not purpose oriented, the reasons advanced by the learned counsel for the respondents that it is not discriminatory, in the sense that for establishment of new mills a complete ban has been imposed, therefore, even with the Government, the authority is not available to allow any specific person to establish any sugar mill. To the extent of specific areas there was a ban on certain districts in accordance with the location policy. To the extent of those districts which were in the location policy and prohibition was available for establishment of sugar mills upon the said districts. It was in other words a complete ban for establishment of a new sugar mill in those districts. Previous to the petition in hand, the matter came up before this Court through a constitutional petition which was decided and it is reported as "Madina Sugar Mills v.
Secretary, Ministry of Industries and others" (PLD 2001 Lahore 506). I have noted in the arguments of learned counsel for the respondents as well as advanced by learned A.A.-G. With reference to the voluminous record showing the deliberation between the Provincial Government, Central Government and the departments involved with regard to irrigation, agriculture and other relating departments, therefore, when policy decision has been made by the Government in accordance with its executive authority, the High Court cannot sit in judgment over the policy decision by the Government when the Court comes to the conclusion that the process of such policy decision was arrived at after due deliberations, that was not open to exception. In this case the impugned notification does not violate any Article of the Constitution of Islamic Republic of Pakistan, 1973 and the same has been issued after deliberations and no exception can be taken from the policy decision, therefore, same cannot be set aside, when most sound reasons are available for issuance of notification.
12. For what has been discussed above, I find no force in these petitions, same are hereby dismissed.