QAISER RASHID KHAN,---Through the petition in hand the petitioner has made the following prayers:-- "It is most respectfully prayed that the Notification dated 15 October, 2015 as well as the Notification dated 3 November, 2015 may be declared to be of no lawful authority or legal effect to the extent the said Notifications are discriminatory and violative of the Petitioners' rights guaranteed inter alia by Articles 18 and 25 of the Constitution.
' It is further prayed that a declaration may kindly be made that the SSP fertilizer manufactured by the Petitioner-company is entitled to the same subsidy as all other SSP fertilizer sold in Pakistan that is allowed the subsidy amount specified in the Notification of 3 November, 2015 and the respondents be directed to make payment to the petitioner company of the said subsidy.
' In the alternative, it is prayed that the Notifications dated 15 October, 2015 and 3 November, 2015 may be declared to constitute a scheme of discrimination and be declared to be of no lawful authority and legal effect in their entirety."
2. Precise facts as averred in the petition are that the petitioner-company is engaged in the manufacture and sale of high quality fertilizers including the fertilizer known as Single Super Phosphate (SSP) under the brand name "TARA" and is sold across Pakistan; that the Government of Pakistan has announced a subsidy fund of Rs,20 billion for the provision, of subsidies to the manufacturers and importers of phosphate fertilizers which include DAP, NP, NPKs and SSP; that vide Notification No, F .1-11/2012/DFSC-11/Fertilizer dated 15th October, 2015 issued by the Government of Pakistan subsidy has been notified for DAP, NP and NPK fertilizers and vide Notification No,1-11/2012/DFSC11/Fertilizer dated 3rd November, 2015 terms for the grant of subsidy to SSP fertilizers have been specified with the objective to enable the provision of phosphatic content to the farmers of Pakistan at subsidized rates; that Notification dated 15th October, 2015 has specified Rs,500/- per 50 Kg bag of DAP as the baseline subsidy for fertilizers with phosphate content and also specified a subsidy of Rs,217/- per 50 Kg bag of NP and NPK fertilizers while Notification of the 3rd November, 2015 has specified the subsidy of Rs,196/- per 50 Kg bag of SSP fertilizer; that the Ministry of National Food Security and Research had produced a Working Paper dated 20th October, 2015 where from it is clear that the grant of subsidy on SSP fertilizer was proposed to be linked with quality assessment only with the rational that the subsidy be provided on the basis of nutrient content depending on phosphorous contained in the fertilizer supplied and that the latter notification dated 3rd November, 2015 has made the use of imported rock a condition precedent for the grant of subsidy to SSP fertilizers for no reason whatsoever; that in the year 2008 the petitioner had responded to the invitation by the respondent/ Federation through the Ministry of Privatization and Investment and Privatization Commission of Pakistan to acquire a minimum 90% share of Hazara Phosphates Fertilizer (Pvt.) Ltd. Which invitation had stated the availability of local phosphate rock as raw material as one of the attractions for the acquisition of a minimum 90% shares of HPFL. Responding to the said invitation the petitioner-company participated in the process of competitive bidding and acquired 100% of the issued shares of HPFL on 28.11.2008 and HPFL was merged with Agritech in the year 2012; that apprehending discrimination in the grant of subsidy to SSP manufacturers the petitioner-company addressed several letters and representations to the respondents-Federation dated 21st October, 18th September, 9th September, 28th August and 20th August, 2015; that the impugned Notifications dated 15th October, 2015 and 3rd November, 2015 violate Articles 18 and 25 of the Constitution of Pakistan, 1973 as they are discriminatory, unreasonable and arbitrary and are intended to deny the petitioners the freedom to carry out their lawful trade and business, hence the present petition.
3. Learned counsel for the petitioners contended that the petitioners are the leading domestic manufacturers of Single Super Phosphate (SSP) and in the year 2014-15, the petitioner-company produced 77% of the over all production in the country but through the impugned notifications, the petitioners have been singled out for discriminatory treatment. He contended that after the transfer of the manufacturing plant to the petitioner-company through a scheme of merger, approved on 23.5.2012, the petitioner-company has made valuable contribution to the agriculture sector through its fertilizers by making use of the locally rich phosphatic rock and todate, no issue was made regarding the Single Super Phosphate (SSP) manufactured by the petitioner-company but somehow, through the impugned notifications, the petitioner-company has been excluded from the subsidy fund of Rs,20 Billion through impugned notification meant for the manufacturers and importers of phosphatic fertilize Rs, He expressed his grievance from the impugned notification dated 3rd 'November, 2015 wherein it has been mentioned that 'the subsidy would be given. To SSP fertilizer manufactured by using imported rock and that the phosphatic content should not be less than 18%.' He vehemently contended that it is the 18% phosphatic content which is indeed the threshold and by inserting 'imported rock' in the notification dated 3.11.2015, it is the petitioner- company which has been excluded from the relief/subsidy granted through the impugned notification. The learned counsel also strongly disputed the contentions of the respondents whereby it has been asserted that the representatives of the petitioner-company had also participated and acquiesced in the meeting to devise mechanism for distribution of subsidy. To this effect he referred to the letters dated, 28th August, 20th August, 18th September, 9th September and 21st October, 2015 of the petitioner-company which have todate remained unresponded at the respondents end. The learned counsel contended that the impugned notification is violative of Articles 18 and 25 of the Constitution of the Islamic Republic of Pakistan 1973 and contended that the case in hand is a patent example of discrimination. The learned counsel in support of his contentions placed reliance on "I.A Sharwani and others v. Government of Pakistan through Secretary Finance Division, Islamabad and others" (1991 SCM R 1041), "Miss Shazia Batool v. Government of Balochistan and others" (2007 SCM R 410), "Dr. Mobashir Hassan and others v. Federation of Pakistan andothers" (PLD 2010 Sc 265), "Pakcom Limited and others v. Federation of Pakistan and others" (PLD 2011 SC 44) and "All Pakistan Newspapers Society and others v.
Federation of Pakistan and others" (PLD 2012 SC 01). The learned counsel contended that it is the object or for that matter the phosphatic content i,e, P-Content which is of essence and certainly not the process as per the government own standards but through the impugned notifications, punishment has been meted out to the petitioner-company for no legal or factual justification.
4. The learned Additional Attorney General on behalf of the Federation strongly opposed the arguments of the learned counsel for the petitioner-company. He contended that the subsidy/ relief package is meant for the entire country with the-sole object to provide fertilizers to the farmers on subsidized rates and the beneficiaries of the impugned notifications are the farmers of the country and certainly not the manufacture Rs, He contended that the notification dated 3.11.2015 is a unanimously agreed document which has been finalized by all the stakeholders and to this effect he referred to the list of participants in the meeting held on 20.10.2015 to devise mechanism for distribution of subsidy for Single Super Phosphate (SSP) manufacturers wherein the name of one Mr. Khalid Mir on behalf of Agritech Ltd and Mr. Muhammad Faisal Muzammil Group Manager Agritech Lahore appear at S.Nos, 13 and 14 of the list. He contended that once the representatives of the petitioner-company had participated and finalized the document, then they cannot back out from the same by bringing the . Present petition. He next contended that it is only the 'imparted rock' which contains the requisite phosphatic content and in turn used for the manufacture of the desired Single Super Phosphate (SSP) fertilizer. He next contended that the policy decisions of the government cannot be questioned through a writ petition and that too, when the petitioners are estopped by their own conduct in view of their participation in the meeting held to devise a scheme for the distribution of subsidy for the SSP manufacture Rs, He placed reliance on "Secretary Economic Affairs Division Islamabad and others v. Anwarul Hag Ahmed and others" (2013 SCM R 1687), "Dossani Travels Pvt. Ltd and others v. Messrs Travels Shop
(Pvt) Ltd and others" (PLD 2014 SC 01) and "Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others" (PLD 2015.SC 212).
5. On two occasions, the learned Additional Advocate General KPK, present in the court, was directed to file comments on behalf of the Provincial Government and that is how on 8.12.2015, the petition was adjourned as a part heard case to 17.12.2015 but no comments have been filed todate.
The learned Additional Advocate General KPK, when directed to assist this court in the matter on behalf of the Provincial Government, he supported he arguments of the learned counsel for the petitioners and contended that through the impugned notification immense injustice has been 'meted out to the petitioners who are using local rock at Hazara known for its highly rich phosphatic content.
' Arguments heard and available record perused.
6. As narrated above, the petitioner-company is engaged in the manufacture and sale of fertilizers including Single Super Phosphate (SSP) from its industrial unit situated at Hattar Hazara. The petitioner-company is aggrieved of the impugned notification dated 3.11.2015 whereby it has been excluded from the one time subsidy announced by the Government of Pakistan Ministry of National Food, Security and Research Islamabad for the manufacturers of Single Super Phosphate (SSP) based on P-Content of the product. In this respect, it would be more apt to reproduce Clauses ii and iii of the notification dated 3rd November, 2015:-- ii. The Provincial Governments stressed that they would not give subsidy on SSP manufactured from the local rock. iii. The subsidy would be given to SSP fertilizer manufactured by using imported rock. The Phosphate content should not be less than 18%."
7. As per the notification dated 3.11.2015, it was the Provincial Governments which opposed the subsidy on SSP manufactured from the local rock and that is how the Federal Government through the impugned notification has granted subsidy to the manufacturers of SSP fertilizer using 'imported rock.' In a situation where the learned Additional Advocate General representing the Government of Khyber Pakhtunkhwa supported the stance of the learned counsel for the petitioners, we wonder as to which representative of the Government of Khyber Pakhtunkhwa opposed the subsidy on the SSP manufactured from the local rock. Secondly, this catchy phrase 'imported rock also goes unexplained both in the notification as well as in the comments furnished by the Federation. Had it been some particular 'imported rock' from a particular country or countries with their names duly mentioned in the notification, then, of course, it could be understandable that some country or countries have rocks or reserves containing phosphatic content of high value and quality and which is not available anywhere in Pakistan. However, it appears that the impugned notification dated 3.11.2015 was issued in a rather hurried manner without caring for the impending questions and queries which were to arise later on. The same per se raise questions and, of course, eyebrows about the bona fide of the impugned notification. As a suffix it was added after the phrase 'imported rock' that "the phosphatic content should not be less than 18%", meaning thereby that the benchmark or the ultimate threshold while evaluating the value and quality of SSP fertilizer is its 18% P-content and certainly not the mere use of 'imported rock' from some unspecified counfry.
8. In an age, where Pakistan has achieved laurels for itself among the comity of nations as a proud and responsible nuclear power and has to its credit the production of JF-Thunder Fighter Aircrafts with the close cooperation of China, its time tested neighbour and an economic boom insight, still a section of people in the higher echelons of power are blindfold trumpeting and vociferously arguing the case of anything imported from offshore, the phrase 'imported rock' is but one such example. Such people despite the phenomenal progress made by Pakistan in a period of 68 years after its independence which is, of course, a short span in a nation's history, are still skeptical about the inner strength of this country and nation and that is how they term anything imported as kosher. Pakistan is blessed with innumerable resources, some known and others still unknown and untapped. It is about time to place reliance on our own home grown products rather than wasting our hard earned foreign exchange on our foreign exploits and imported stuffs. At this point I am reminded of the verses engraved on the tombstone of late Professor Daud Kamal, former Chairman of the English Department University of Peshawar and a poet of international acclaim which are: "Anchor your dreams ' Neither in the stars nor the sea ' But in the earth ' Where ancestral dust ' Sharpens the taste of ultimate sleep."
' It is the 'ancestral dust' of our motherland which should be the repository of our trust and faith and a mere call to the 'ancestral dust' can herald in an era of economic growth, prosperity and bright future for our future generations. The same can be made possible if we shun all skepticism about the inner power and strength of our country.
9. Above are just passing remarks with a view to draw the attention of the powers that be to the state of affairs as it is.
10. Now coming to the lis before us. In this regard, the authorities that be are in a typical catch-22 situation. Since the phrase 'imported rock' from some unspecified destination goes unexplained at the respondents' end, as per clause-iii of the impugned notification, then it is the 18% P-Content in SSP fertilizers which should be the litmus test or the sine qua non for qualifying for the subsidy announced by the Federal Government through the impugned notification dated 3.11.2015 on the SSP fertilize Rs, Whether a manufacturer of fertilizer uses an imported rock or a domestic rock, it is the end product which is to be examined and analyzed in order to meet the requisite 18% P- Content. Simultaneously it cannot be legally argued that manufacturing plants using imported rock would be granted subsidy without any laboratory analysis of the quality of their end product.
By the same corollary it can be safely said that the classification made between fertilizer made from imported rock and fertilizer made from domestic rock does not constitute intelligible differential having rational nexus to the very object of the subsidy scheme announced by the government. Certainly it IA is the 18% P-Content in the end product or so to say the SSP fertilizer which is relevant and not the source of the raw material. In order to evaluate and analyze the desired 18% P-Content in an SSP fertilizer, we understand that the product should be subjected to undergo the requisite test by a statutory body i,e, Pakistan Standards and Quality Control Authority Standards Development Center (Chemical Division) and if a product or a fertilizer meets the standards of the said authority and possesses 18% P-Content, then there should be no legal justification to deny the manufacturer the subsidy as per the impugned notification dated 3.11.2015.
' In view of the foregoing discussion, this petition stands disposed of in the above terms.