MUHAMMAD HASHIM KHAN KAKAR, CJ. Through the above captioned constitutional petitions, filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution"), the petitioners Imranullah Khan and Muhammad Siddique have challenged the validity of the decision taken by the provincial cabinet regarding procurement of wheat from Naseerabad division after allocation of Rs. 500 million at subsidized rates despite bumper wheat crops in the country. Since both the above mentioned petitions pertain to the same subject matter, as such, we propose to dispose of the same by this common judgment.
2. It is case of the petitioners that the provincial government has no capacity to store such huge quantity of wheat i.e. 5 million bags and the same will be damaged. They also averred that grant of subsidy to the farmers of a specific division is discrimination to the farmers of rest of the province as farmers of Naseerabad are using free water of Kachi canal/river whereas, rest of the farmers have to extract underground water after spending huge amount. As per their contention, Food Department, Government of Balochistan is presently paying 20 million rupees interest per day to different commercial banks and the said liability should be cleared prior to purchasing more wheat that too at subsidized rates.
3. On Court's directions, Mr. Zafarullah, Director General, Food Department and Mr. Mumtaz Ahmed Langove, Additional Secretary Finance Department appeared and placed on record a number of documents, which reveal that the provincial cabinet in its meeting held on 20th April, 2024, made a decision in respect of Wheat Procurement Plan and Policy 2024, which reads as under: "(i) The Provincial Cabinet approved the Minimum Support Price (MSP) of wheat @Rs. 4000/40 kg in order to bring it at par with the Government of Sind and achieve the procurement target; ii. The Provincial Cabinet approved the procurement target of 500,000 wheat bags of 100 kg from the four Procurement Zones, i.e. three from Naseerabad Division and the fourth comprising Lasbela, Kharan and Kech; iii. The Provincial Cabinet also approved the procurement and tendering of 884,000 PP bags instead of jute bags and cancellation of tender for jute bags. The tender already called for purchase of 200,000 PP bags of 50 kg be continued; iv. The Provincial Cabinet further approved provision of interest free loan for procurement of 0.5 million bags of 100 kg each with MSP @Rs.4000/40 kg wheat and contingent budget Rs.4.5 million by the Finance department in relaxation of the clauses of earlier MoUs between Finance and Food Departments."
4. It is worth mentioning that the Government of Balochistan procures wheat every year with an objective to maintain strategic food reserves in the province in case of any disaster, famine etc., and also to regulate the market price of the wheat in the province. Till 2018, the wheat procurement used to be carried out through commercial loans from banks. Food Department is yet to clear loan repayment liability of commercial banks even after six (06) years, which is Rs.2.5 Billion. This commercial bank loan repayment needs to be cleared as soon as possible as the department has to pay Rs.2 million per day interest. From 2018 onwards, the Finance Department has been providing interest free loans to the Food Department for the purpose of purchase of wheat.
5. According to the decision made by the Provincial Cabinet, the Government of Balochistan has to procure 500,000 bags (each bag 100 kg) of wheat from local farmers of Balochistan, predominately from Naseerabad Division. The existing strategic reserves, as per information conveyed by the DG, Food, with the Government of Balochistan is around 8,15,000 bags, whereas, maximum storage capacity of godowns, is not more than 01 million.
6. In such circumstances, the first question arises is that why the Government of Balochistan requires 500,000 bags when there is no storage capacity available beyond 01 million. Is there any other plan? If yes, is it in line with the recommendation provided by the NAB regarding storage SOPs. Secondly, this year record bumper crops of wheat have been witnessed across the country.
The price of wheat for 40 Kgs bag in market is quite less than support price fixed by the Government of Balochistan @Rs.4000/40 kgs. Reportedly, the farmers are selling their wheat in open market @Rs.2400/40 kgs bag.
7. It is also astonishing to observe that Punjab, being the biggest province of Pakistan, in terms of population has decided to procure the storage reserves against their planned target, which were 40,000,000 bags of 100 kg this year. The main decisions of not procuring wheat are low price of wheat in open market, heavy import of wheat, and the record production of wheat across the country. It is also worth mentioning that reportedly the procurement mechanism of wheat is faulty and unjust. Wheat is procured from middle man or big landlords instead of poor farmers.
8. When wheat prices in the market are very low then why is the Government of Balochistan maintaining such huge reserves, despite knowing the past scams of spoiling of wheat in godowns when stored for longer period.
9. When the Director General, Food was confronted with such aspects of the case, he frankly conceded and stated that being the Director General and having observed certain illegalities and irregularities, committed by the department, he wrote a letter to the Secretary food and relevant part whereof, reads as under: "The undersigned is well aware of its responsibilities and has smoothly and successfully conducted two previous Wheat Procurement Campaigns. As per your verbal directions all the staff available at Directorate General Food along with their detailed account have been placed at the disposal of Project Director Wheat Procurement Campaign 2024 vide Letter No. 953- E.Admin:/2024/2106-13 dated 17th May 2024. The Project Director Wheat Procurement Campaign 2024, rather than choosing well reputed officials posted those as Incharge Purchase Centers who have a tainted past. It is also acknowledged that majority of the staff including Deputy Project Directors in black and white refused to join the wheat Procurement duty 2024. Why they refused to join their duty at this critical juncture can easily be inferred from numerous media reports and the hue and cry of the farmers of Nasirabad division. This should be thoroughly investigated by an impartial investigation agency.
10. Likewise, he also wrote a letter to the Project Director, Wheat Procurement Campaign, 2024 on 29th May, 2024, relevant part whereof, reads as under:
4. It is worth mentioning that Food Department despite having strategic Reserves and lack of indoor storage capacity has taken this initiative for purchase of additional 50000 M. Tons of wheat only to encourage and support small farmers but due to your failure and incompetence farmers of Naseerabad division are in protest and there are reports of illegal demands, malpractices and distribution of Bandana among middlemen instead of small genuine growers.
11. Similarly, on 30th May, 2024, the DG, Food addressed another letter to the Secretary in respect of distribution of bardana, relevant part whereof, reads as under: "The Project Director wheat Procurement Campaign 2024 and its staff has violated all instructions, rules, regulations and guidelines of Directorate General Food with impunity. The bardana intended for the farmers of Nasirabad division was illegally stored at PRC Sibi by Project Director wheat procurement 2024 and the same has now been shifted out of PRC Sibi and Directorate General Food has neither being informed about its Location nor has been provided bardana distribution plan. The Directorate General Food has been approached by the farmers of Nasirabad division who have reported that bardana is being sold in open market by Project Director and its allied staff directly to the brokers and shopkeepers.
3. It is pertinent to mention here that Project Director has posted all those individuals as Incharge Purchase Centers who were previously involved in malpractices. Irregularities and corrupt practices. The Directorate General Food has pointed out the same but for no avail so far.
4. The Secretary Food being the competent authority is requested to play its designated role and initiate disciplinary proceedings against Project Director and its staff to avoid any untoward situation."
12. The petitioners, also highlighted the issue of discrimination in the grant of subsidies only to the farmers of Naseerabad division. The Constitution of Pakistan guarantees equality before the law and prohibits discrimination on arbitrarily grounds. The differential treatment of farmers, where some benefit from free water for irrigation while others incur substantial costs to access water, raises questions of equity and fairness. The government's policy must be inclusive and equitable to all farmers, irrespective of their geographical location or access to natural resources.
13. So far as the financial complications of the decision in question are concerned, the petitioners have pointed out that the Food Department is currently incurring daily interest liability of 2 million rupees to commercial banks. It is incumbent upon the government to manage its financial resources and prioritize the clearance of existing debts before undertaking new financial obligations, especially when the procurement is not an immediate necessity due to bumper wheat crops in the country.
14. It is also worth mentioning that after the Second World War food items especially wheat shortfall emerged in the world, therefore a rationing system was introduced by different governments to provide basic commodities i.e. wheat, ghee, sugar and coal to the general public which continued till 1987. In this connection, the Government of Balochistan established the Food Department to procure wheat from small genuine growers in order to encourage them to cultivate wheat; to maintain strategic reserves for the general public to meet any emergency and shortfall of wheat in the province; and to maintain the market price in order to discourage monopoly of the mill owners, however, the department has bitterly failed to achieve the said objectives, rather, it has become a liability. As a matter of fact, the huge quantity of food worth billions of rupees is procured every year and mismanaged and lost by a poorly staffed, inefficient and low resourced Directorate of Food. As a result of that, hundreds of staff members of the Department, including secretaries and ex-ministers are facing corruption allegations before the anti-corruption agencies and the courts.
Keeping in view the said anomalies and irregularities in the process of procurement of wheat and performance of the Department, Mr. Abdul Salam Khan Kakar, the then caretaker Minister for Labor, Manpower and Food, after visiting different godowns, established by the Food Department suggested to the Chief Minister on 25.06.2018 as under: "Last but not the least it is my humble -submission to the Competent Authority to review policy of procuring of wheat and abolish the department of food to relieve the Government of defamation because the department has failed altogether to deliver service, and instead earned bad name for the government."
15. Wheat stocks are stored as a strategic reserve for the interest of general public which requires to be equally distributed among all the districts according to the population and monthly off take of the concerned districts, but we are afraid that all these stocks are being stored in Quetta and nearby districts like Pishin and Mastung. We were informed that the food mafia gets all it procured wheat stored in PRC, Quetta, Pishin and Mastung and issue it to the flour mills of both the districts which is easily smuggled to the neighboring country without providing relief to the common men of Balochistan for whom millions of subsidy is granted.
16. When Mr. Sarfaraz Bugti, worthy Chief Minister, who is in attendance, was confronted with the above mentioned facts, while not in a position to defend the decision in question, frankly conceded and fairly suggested that the decision in question is neither reasonable nor prudent. He suggested that after full payment of bank's liability, the remaining amount will be spent in Naseerabad division for establishment of technical center, water supply and town planning.
17. In light of these considerations, and drawing guidance from the principles laid down in "Government of Balochistan v. Azizullah Memon", (PLD 1993 SC 341) and "I.A. Sherwani v.
Government of Pakistan and others (1991 SCMR 1041), which emphasize the need for reasonable classification and the government's ability to regulate for the overall good, we find that the decision of the provincial cabinet does not meet the standards of reasonableness, non- discrimination and prudent financial management.
For the aforesaid reasons, the petitions are allowed and the decision of the provincial cabinet to procure wheat at subsidized rates after allocating 500 million rupees stands as illegal. Chief Secretary is directed to divert the said amount towards payment of loan and establishment of technical center, town planning and supply of drinking water etc. as suggested by the Chief Minister.
Before parting with the judgment in hand, we are of the opinion that keeping in view the weak financial conditions of the province; the government is required to cut expenditures while shutting down loss making departments. Prima facie, the food department has failed to achieve its objectives. Even otherwise the Federal Government has established - Pakistan Agricultural Storage and Services Corporation Limited (PASSCO) with an objective to maintain strategic food reserves in the province in case of any disaster, famine etc., as such, existence of Provincial Food Department is nothing but duplication; overburdening the weak economy of the province. The respondents are directed to form a high level committee for recommendations in respect of winding up many departments which have become a liability.
Registrar of this Court is directed to send the copy of this judgment to the Chief Secretary government of Balochistan as well as to the Principal Secretary to the worthy Chief Minister, Balochistan. We expect that the worthy Chief Minister will look into the matter, who have otherwise "reportedly" resisted the decision in question in the meeting of the Cabinet.