SAJJAD ALI SHAH, J.---Through instant petition the. Petitioner has impugned Order dated 12.06.2014 passed by Respondent No,1 whereby the Petitioners request for grant of NOC to establish a Sugar Mill has been regretted.
2. Counsel for the Petitioner submits that the Petitioner had applied for issuance of NOC to establish a Sugar Mill in District Ghotki vide application dated 13.07.2010 which remained pending for almost four years before the concerned authorities whereafter, a petition bearing No,D-2487/2014 was filed before this Court which was disposed of vide Order dated 12.05.2014 by directing Respondent No,1 to decide the Petitioner's application for grant of NOC within 30 days. It is contended that once again vide impugned order / letter dated 12.06.2014 the NOC has been refused by the Respondents without assigning any reason merely by stating that the worthy Chief Minister has regretted the same. Counsel submits that no reason has been assigned for such refusal, whereas, pending request of the Petitioner number of other parties were issued NOCs for establishing new Sugar Mills including expansion of the existing Sugar Mills in District Ghotki, which is not only discriminatory but misuse of the authority and the so called policy by which the establishing of Sugar Mills has been placed on the negative list is only to favour their blue eyed and not in the interest of the province. It was therefore, prayed that the Respondent be directed to issue NOC for the establishment of mini Sugar Mill.
3.The record reflects that on 17.09.2015 when the statement was filed on behalf of the Secretary Industries and Commerce Department, Government of Sindh along with certain documents we had passed the following order:-- "AAG has filed a statement on behalf of the Secretary. Industries and Commerce Department Government of Sindh, which reflects that the summary seeking approval of the Chief Minister, Sindh for installation of mini sugar mills has been rejected on the ground that four sugar mills are already functioning in District Ghotki and granting permission to fifth sugar mills will change the crop pattern of particular district and therefore, request was rejected under the policy. However, we have been provided list of sugar mills by the officer which reflects that in District Ghotki permission to install ten sugar mills was granted out of which four are functional whereas, the NOC of the remaining six has expired and therefore, they have been listed as nonoperational sugar mills in District Ghotki. This only fact makes very clear that the rejection is totally without any justification or at least the justification is without any substance. We have asked Mr. Mustafa Mahessar, AAG to explain that in case four sugar mills could change crop pattern in the district then why permission to ten sugar mills was granted. He says that he needs time to address this particular issue.
4.Let Secretary, Ministry of Industries effect appearance tomorrow at 8-30 a.m. List as well as comments filed by the AAG are taken on record."
The record further reflects that in consequent to our, directions Secretary, Ministry of Industries, effected appearance and submitted that establishment of a Sugar Mill falls within the scope of negative list, vide Notification dated 9.2.1991, and such Sugar Mills can only be established after a NOC is granted by the Chief Minister. She submitted that in the instant matter a proper summary in compliance of orders of this Court was moved on 29.5.2015, however, the same was regretted once again by the Chief Minister. The rejection order passed by the Chief Minister has been reproduced in the statement filed by the Respondent No,1, which reads as under:-- "Ghotki is saturated with sugar mills, main crop in Ghotki otherwise was cotton and wheat in Khareef and Rabei there are so many sugar mills in Sindh as already stated more than four mills are already functioning in Ghotki, more sugar mills will change the crop pattern therefore, the request is rejected under the policy.
' The Secretary should not encourage such requests."
5.To our dismay the record placed before us negates the reasoning detailed for refusing the NOC to the Petitioner for establishing the Sugar Mill. It appears from the record that the Petitioner applied for NOC for establishing a Sugar Mill vide application dated 13.7.2010 at that time as per Respondent's own statement only five Sugar Mills were functioning or were granted NOC for establishing such mill and during the pendency of-the Petitioner's request for grant of NOC, the worthy Chief Minister granted such permission /NOC to five other companies to establish Sugar Mills as is reflected from the statement filed by Syed Azizuddin, Deputy Secretary (Tech) which is reproduced here-in-below:-- S. No. NAME OF SUGAR MILL DATE OF ISSUE LOCATION
1. Messrs Ghotki Sugar Mills 12.08.2006 District Ghotki
2. Messrs Sardar Muhammad Bux Khan Mahar12.02.2007 Taluka Khangarh Sharif, District Ghotki
3. Messrs Deharki Sugar Mills 15.11.2007 Deharki, District Ghotki
4. Messrs Alliance Sugar Mills 05.09.2011 Teshil Obaro, District Ghotki
5. Messrs Sindh Punjab Sugar Mills 17.02.2007 Teshil Obaro, District Ghotki
6. Messrs Adil Sugar Mills (Pvt.) Ltd. 25.11.2009 District Ghotki
7. Messrs Bashir Ahmed Kahloon 02.04.2012 District Ghotki
8. Messrs Bhong Sugar Mills (Pvt.)
Ltd.16.05.2012 District Ghotki
9. Messrs Gulf Sugar Mills 16.08.2012 District Ghotki
10. Messrs Vangurd Sugar Mills (Pvt.)
Ltd.09.10.2013 District Ghotki
6. Perusal of the above would reflect that permission to the companies cited at Serial Nos. 4, 7, 8, 9 and 10 to establish a Sugar Mill were granted during pendency of the Petitioner's application for grant of NOC for establishing a mini Sugar Mill, which fact negates the reasoning of the worthy Chief Minister denying NOC to the Petitioner for establishing of a Sugar Mill. We had shown our concern in Order dated 17.09.2015 that as to how NOC for establishing five Sugar Mills during pendency of Petitioner's application for the grant of NOC, were granted and further as to whether grant of such permission / NOC would not negate the reasoning of the worthy Chief Minister while declining Petitioner request for such NOC. Nothing has been placed before us to justify that in case the reasoning given by the worthy Chief Minister carried some weight or were honest then as to why such reasoning did not come in the way while issuing NOC to five companies to establish sugar mills during pendency of Petitioner's request. However, when nothing could be placed on record to justify the reasoning, it was pleaded that establishment of sugar mill is a policy matter and therefore, has been placed on negative list and unless special permission is granted by the Chief Minister, a sugar mill cannot be established.
7. No doubt that policy matters fall within the exclusively domain of executive as they require consideration of various factual aspect and therefore, normally are not interfered by the Courts unless such policy is perverse, arbitrary, in violation of the "Constitutional mandate", "law" or is patently mala fide. However, in the instant case the policy itself has not been impugned or questioned but the exercise of powers under such policy has been questioned. We without scrutinizing the policy itself on the touchstone of the Constitution or law and for the time being while accepting the Respondents' plea that the grant of NOC for establishment of Sugar Mills falls within the exclusive discretion of the Chief Minister would observe that even if it was so the discretion could not be exercised at the whims of the authority as there are settled principles structuring such discretion, one can refer the cases of Aman Ullah Khan v. Federal Government of Pakistan (PLD 1990 SC 1092), Chairman R.T.A. v. Pakistan Mutual Insurance Company (PLD 1991 SC 14), Pacific Multinational (Pvt.) Ltd. v. I.G. of Police (PLD 1992 Karachi 283), Presson Manufacturing Ltd. v. Secretary, Ministry of Petroleum and Natural Resources (1995 MLD 15), Ramana v. I. A.
Authority of India (AIR 1979 SC 1628), Dwarka Nath Prasad Atal v. Ram Rati Devi (AIR 1980 SC 1992), Ram and Shyam Company v. State of Haryana AIR (1985 SC 1117), Nizamuddin v. Civil Aviation Authority (1999 SCMR 467) and Abid Hassan and others v. P.I.A. C. and others (2005 SCMR 25). The judicial consensus seems to be that the functionaries of any organization or establishment cannot be allowed to exercise discretion at their whims, sweet-will or in an arbitrary manner; rather they are bound to act fairly, evenly and justly.
In the circumstances, we while setting aside the order of Chief Minister whereby the summary of Ministry of Commerce has been rejected by refusing NOC to the Petitioner, would direct Respondent No,1 to issue to the Petitioner permission for establishing of a Sugar Mill as if the summary has been responded in positive, of course by following rest of the procedure.
9. Petition stands allowed in the above terms.