The petitioners are foodgrains licence-holders and doing business at Rawalpindi. They purchased certain consignments of rice from the authorised rice-dealers/growers, out of the free-sale quota, placed at the latter's disposal, under paragraph 54 of the Monopoly Procurement Scheme of Rice 1980-81, formulated by the Provincial Government under section 3 of the Punjab Foodstuffs (Control) Act, 1958. These consignments were transported by the petitioners to Rawalpindi, out of the 'controlled area' under the permits issued by the Food Department, in pursuance of the provisions of the Punjab Paddy and Rice (Control) Order, 1978.
2. As the petitioners intended to convey these consignments to different stations in N.-W. F. P., they approached the Commercial Superintendent (Goods) Railway, Rawalpindi, for booking and supply of wagons, which he by means of his orders Annexures'E/1 to E/3' declined, on the plea that the booking of the rice to N.-W. F. P. Without a valid permit of the Food Department was prohibited.
Earlier the Foodgrain Inspector, Railway, Rawalpindi, under the instructions of the District Food Controller, Rawalpindi under his Letter No. 1401/Rice, dated 8-12-1980 (Annexure E/4), informed the Commercial Superintendent (Goods), that the despatch of rice from Rawalpindi to N.-W. F. P. Was banned. In this respect, the Divisional Superintendent, Railway, vide his letter dated 7-1-1981 (Annexure E/3) also directed 'the Railway authorities of Rawalpindi Division, to stop booking of rice/paddy from Punjab to other Provinces a4 a ban on its inter-provincial movement had been imposed. It appears that the refusal of the railway authorities, to book the rice consignments, to N.- W. F. P. Was founded, on Letter No. S. O. F. 11(484)80-81 dated 13-12-1980, sent to the Chairman, Railway Board by the Secretary Food Department, Punjab Government. Since this letter has a bearing on the issues falling for determination in this case it is reproduced below;- "Sub: Inter-District and Inter-Provincial Ban on Booking of Rice from Punjab.
The rice is procured in the Punjab on Monopoly basis for export purposes, as such its Inter-district and Inter-provincial ban is imposed under the Punjab Paddy and Rice (Control) Order, 1978. No bona fide passenger can carry or transport rice exceeding 10 Kgs. In weight as part of his luggage.
Any movement of rice without authority is an offence punishable under the law. Copies of all instructions regarding movement of rice issued from time to time are endorsed to the Railways Authorities.
(2) It has now come to notice that the traders of Rawalpindi were allowed to book rice freely for N.- W. F. P. Without any valid authority. The situation has caused hurdles in the procurement of rice in the Controlled Area. On 23rd August, 1980 a relaxation was allowed for the movement of rice of the crop year 1979-80 through a notified order. A copy of which was endorsed to the Railway Authorities. The relaxation was withdrawn on Ist October, 1980, imposing ban on the movement of Paddy and Rice under the Punjab Paddy and Rice Control Order, 1978. The copy of this notification was duly endorsed to the Railway Authorities (copies of both the notifications attached). In spite of the above-notified orders the booking of rice is being allowed by the Railways Authorities particularly at Rawalpindi, which need your personal attention to take suitable disciplinary action against the staff.
(3) Necessary instructions may please be immediately issued to all concerned to stop the booking of rice/paddy from Punjab to other provinces, because. Inter-provincial ban exists on the movement of Paddy and Rice. Bonus rice can, however, be booked for any station in the country against a valid authority issued by the Food Department.
With best regards.
Yours sincerely, (Sd.) . . , Secretary Food . .
3. Through this writ petition the petitioners have called in question the validity of the communications issued by the Railway and Food Depart--ments, banning the despatch of consignments of rice from Rawalpindi to N.-W. F. P. And their action in this respect, is sought to be declared as without lawful authority. The petitioners have also prayed for issuance of a direction to the Railway authorities to accept for transportation to any station in Pakistan except the border areas, the consignments of rice, brought by them to Rawalpindi, out of free-sale quota, under valid permits.
4'. It is argued on behalf of the petitioners, that the Punjab Paddy and Rice (Control) Order, 1978, as borne out from its paragraph 1(b) applies only to the Districts mentioned therein which do not include Rawalpindi District and that, therefore, it cannot be extended to the latter. Their learned counsel heavily relied on paragraph 55 of the Monopoly Procurement Scheme of Rice, to submit that the `free-sale quota' could be carried any where in Pakistan except the border area. His contention, thus was that the consignments in question which formed part of the free-sale quota, having been lawfully brought by the petitioners to Rawalpindi, which is outside `controlled area' as defined in Paragraph 2(d) of the Punjab Paddy and Rice (Control) Order, 1978, the Food Department had no authority to interfere with the despatch of their . Consignments to any station in Pakistan except the border areas. It was thus urged that the refusal of the railway authorities to provide the wagons to the petitioners .Was unlawful.
5.I On behalf of the Punjab Government the case was argued on each date by a different Assistant Advocate-General but each one of them heavily relied on Notification No. S. O. F. 11(484)-B/79, dated 3-10-1979, which runs as under :- "In exercise of the powers conferred on him by section 3 of the Punjab Foodstuffs (Control) Act, 1958 (XX of 1958), the Governor of the Punjab is pleased to make the following amendment in the Punjab Government - Notification No. S. O. F. (484)/78, dated the 20th September, 1978 namely Amendment
1. Para 1, sub-paras (i) and (fi) shall be substituted by the following;--
(1) No person shall transport or carry paddy of rice including broken rice of any variety by any mean:; of transport from any place within the districts, of `Controlled Area' as defined in the Punjab Paddy and Rice (Control) Order, 1978 to any place within the districts of Jhelum, Mianwali, Rawalpindi and Attock.
Explanation.-Nothing contained in para. Shall be deemed to restrict the movement of rice of any variety including its broken rice within the districts of Jhelum, Mianwali, Rawalpindi, Attock and from the said districts to Azad Kashmir and Northern Area.
(2) . ------------ On the basis of this `Explanation' the law officers strenuously argued that the 'free-sale quota' brought to the four districts which are outside the `Controlled Area', could not be transported out of these Districts to any place other than Azad Kashmir and Northern Area. It was urged that this notification was issued under section 3 of the Punjab Foodstuffs (Control) Act, 1958 which conferred plenary powers on the Provincial Government to regulate and control the movement of any foodstuff. Thus, section 3 and the notification issued in pursuance thereof were the anchor sheet of the Punjab Government in advocating that the directions issued by the authorities concerned to prohibit the movement of rice to N.-W. F. P. Were within their competence.
5. In reply to these submissions the arguments advanced on behalf of the petitioners, however, was that under Article 151 of the Constitution, inter---provincial trade, commerce and intercourse throughout Pakistan is free and only the Parliament or the Federal Legislature can imp-,e such restrictions on the freedom of trade and movement of goods from one province to another as may be required in the public interest. The argument thus was that if under the notification, a ban was intended to be imposed on the movement of rice, from the Punjab Province to other Provinces, it would be violative of Article 151 rendering the notification liable to be struck down.
6, I have heard the learned counsel for the parties at some length. Article 151 of the Constitution, which has been adopted by the Provisional Constitution Order, 1981, ordains that trade, commerce and intercourse, throughout Pakistan shall be free, but subject to only such restrictions as the parliament may by law impose. Sub-Articles (3) and (4) of Article 151 in so far as these are relevant for the purposes of this writ petition are quoted hereunder :- (1)------------------------------.
(2)------------------------------------------
(3) A Provincial Assembly or a Provincial Government shall not have power to-
(a) make any law, or take any executive action, prohibiting or restricting the entry into, or the export from, the Province of goods of any class or description, or
(b) . ------------
(4) An Act of a Provincial Assembly which imposes any reasonable restriction in the interest of public health, public order or morality, or for the purpose of protecting animals or ,plants from disease or, preventing or alleviating any serious shortage in the province of art essential commodity shall not, if it was made with the consent of the President, be invalid."
It is obvious that any notification or executive order, which invades the authority of Article 151, in prohibiting the export of goods of any class, from the Punjab Province to the other provinces and is deterrent to free trade, Commerce and intercourse throughout the country, cannot be saved;
7. A perusal of the letter dated 13-12-80 of the Secretary Food Department, would amply demonstrate that it is not only in conflict with Article 151 but it also travels beyond the scope of section 3 of the Punjab Foodstuff (Control) Act of 1958 and so also the notification dated 3-10-1919.
It cannot be disputed that the executive authority of the province under Article 137 of the Constitution, extends only to the matters in respect of which the Provincial Legislature has the power to make laws. The said letter, however, refers to the export of rice and the imposition of inter- provincial ban on the movement of rice under the Punjab Paddy and Rice (Control) Order, 1978. It is to be noticed that the export from custom frontiers and inter-provincial trade and commerce, are covered by entry No. 27 of the Federal Legislative list read with Article 142. This Article also forms part of the Provisional Constitution Order, 1981. The Federal Legislature, thus, alone has the power to make laws on the subject and the executive orders in this respect can be issued only by the Federal Government. In giving out, that a ban exists on the inter---provincial movement of rice, the Secretary Food, in his letter, has relied on the Punjab Paddy and Rice (Control) Order, 1:`78, which is misconceived. In the first place the Order in its application, is confined only to the 'Controlled Area' and thus cannot have an extra territorial operation. There is nothing in the Order to control the movement of rice when it had gone out of the limits of the 'Controlled Area', under a valid permit. In the second place, section 3 of the Foodstuffs (Control) Act, 1958, much less, legal instrument issued thereunder, cannot be construed so as to confer a mandate on the Provincial Government to issue any order or notification which may impede the free flow of trade and commerce between the different provinces or hamper the movement of goods from one province to another.
8. Since every statute is deemed to be a part of a, system of law, while construing it or a legal instrument issued in pursuance thereof, the pre-existing laws and particularly the Constitutional provisions, are to be kept in view in an endeavour to ascertain its real import. As observed above, the learned law officers, toed the same argument, that the notification in question prohibits the despatch of rice from Rawalpindi to N.-W. F. P. I am afraid if the contraction put by them on this notification is accepted, it shall bring it in direct conflict with Article 151 of the Constitution. Their explicit reliance on' the Explanation is also illfounded. There is nothing in the principal part of the notification to spell out a ban on the movement of rice from Rawalpindi to N.-W. F. P It only restricts the transportation of rice from the 'Controlled Area' to and place within the Districts of Jhelum, Mianwali, Rawalpindi, and Attock The 'Explanation' however, ensures the movement of rice within the four districts, brought from the 'Controlled Area' within the limits of these Districts; under valid permits. It also permits the movement of rice to Azad Kashmir and Northern area. It well settled that an 'Explanation' does not enlarge the scope of main section which it is supposed to explain. It was held so in Kishan Singh v. Prem Singh and others A 1 R 1939 Lab. 587,Generally, an 'Explanation' is added to a section by way of clarification and to facilitate its interpretation, However, the true contraction of an 'Explanation' must depend upon its terms and the language used in it. Upon the language of the 'Explanation' it is not possible to hold that a ban on the movement of rice, from these four Districts to other provinces, has been imposed. Mention of Azad Kashmir And Northern area was seemingly made in the 'Explanation' ex abundanti cautele, because of the special status of these territories. It is not the case of the Provincial Government that the notification was issued with the consent u5 the President is contemplation of Article 151 (4) of the Constitution.
9., It is quite evident, that under Article 151, the Federal Government alone is competent to control the movement of rice from one province to another. In fact the Federal Government in the past has been exercising such control in pursuance of the powers vested in it under sections 3 and 6 of the Essential Supplies Act, 1957. Reference in this connection may be made to Rice (Movement and Restriction) Order, 1958 which was amended by Rite (Movement and Restriction) (Amendment)
Order, 1961. The Essential Commodities Act, 1957, was however, repealed by the Price Control (Pre-- vention of Profiteering and Hoarding) Act, 1977. My attention has not been drawn to any Order or instrument issued by the Federal Government imposing a ban on transportation of rice from the Punjab Province to other Provinces, which may be in force.
10. The correct legal position thus appears to be that it is not wit hi the competence of the Provincial Government to pass an order which may hamper the inter-provincial trade, commerce and intercourse or interfere with G the movement of goods from this province to other provinces. Any such restriction on the movement of rice, would obviously be hit by Article 151 unless it is saved by sub-Article (4). Thus the Provincial Government can K only control intro-province and not inter- province movement of rice. The notification dated 3-10-79 cannot confer such powers on the Provincial Government which are beyond the field allocated to it under the Provisions of the Constitution, forming part of the Provisional Constitution Order, 1931.
11. This writ petition is, therefore, accepted. The impugned orders and the ban imposed by the respondents on the movement of the consignments in question from Rawalpindi to N: W. F. P., are declared to be without lawful authority. The petitioners shall, therefore, be entitled to have their consign--ments which are subject-matter of this writ petition, despatched to any station in N: W. F.
P. The parties are left to bear their own costs.
12. The operation of this judgment shall remain suspended up to 25th July 1981, to finable the Provincial Government to challenge it before the Supreme Court, in case they chose to do so.
S. A. H.