1. ' Nasir Aslam Zahid, J.-- In this petition, the petitioner challenges the demand of the department of a sum of Rs,5,90,000 on account of price of sugar supplied by the Government to the petitioner. The petitioner is a manufacturer of beverages and soft drinks and has its factory at S.I.T.E., Karachi. One of the principal row materials for the products of the petitioner is sugar and the distribution and sale of sugar is controlled by the respondents under the provisions of the Sind Food Stuffs (Control)
2. Act, 1958 (West Pakistan Act XX of 1958). According to the petitioner, respondents had allocated an annual quota of 1,200 tons of sugar to the petitioner, which quota was reduced to 960 tons in 1979 and the month-wise distribution of this annual quota of 960 tons came to 80 tons. The procedure, according to the petitioner, was that the petitioner used to submit an application in the Office of the Deputy Director (Food) each month for releasing its monthly quota, whereupon a permit was issued and then the price of sugar was deposited in the State Bank of Pakistan through a treasury challan, whereupon a release order/delivery order was issued by the Food Department on the basis of which the petitioner took delivery of the sugar from the Government godowns. Before 28th June,1980 the rate of sugar was fixed by the Government for industrial consumers at Rs,6.90 per k.g.
3. The petitioner, before 28th June,1980 had taken delivery of his entire quota for the period expiring 30th June, 1980 and had also taken delivery of 300 tons of sugar in advance i,e, against the quota for the year commencing from 1st July,1980. This advance quota had been withdrawn after making formal application, which was allowed by the Department and the payment of such advance quota had also been made at the then prevailing rate of Rs, 6.90 per k.g. With effect from 28th June, 1980 the price of sugar was increased to Rs, 9.00 per k.g. For industrial consumers. The department thereupon claimed additional amount from the petitioner regarding advance quota of 300 tons at the differential price of Rs,2.10 per k.g. According to the petitioner, a joint representation was made by the group of beverage manufacturers to the Government of Sind against the demand of the department relating to difference in the price but no reply was given by the Government to this representation. The demand of the department in respect of 300 tons of advance quota lifted by the petitioner at the rate of Rs,2.10 per k.g., being the difference between the previous price of Rs,6.90 per k.g. And the new price fixed on 28th June,1980 of Rs,9 per k.g., came to Rs, 6,30,000. According to the petitioner, an amount of Rs,3 lacs out of this additional demand of Rs,6,30,000 was recovered by the department from the petitioner under duress. The price of sugar was then increased from Rs,9 to Rs,10 per k.g. By a Notification dated 26th June, 1981 and a sum of Rs, 2,60,000 has been claimed by the department from the petitioner on account of increase in the prices in respect of 260 tons of sugar lifted by the petitioner in advance upto 30th June, 1981. The total demand of the department on the petitioner, therefore, came to Rs,8,90,000 out of which Rs,3 lacs have already been recovered, as observed earlier. The demand of the department on account of the increase in prices is challenged in the present constitutional petition. We have heard Mr.Khurahid Anwar Shaikh learned counsel for the petitioner and Mr.A.Sattar Shaikh, learned Additional Advocate-General, who has appeared on behalf of the respondents.
2. The demand of Rs,2,60,000 at the rate of Re.1 per k.g. Being the difference in the price prevailing prior to 26th June, 1981 and the price fixed through Notification dated 26th June, 1981 depends upon the validity of the Notification dated 26th June,1981. In respect of this Notification dated 26th June, 1981 the learned Additional Advocate-General was asked whether such notification had been published in the official Gazette, as section 3(1) of the Sind Food Stuffs (Control) Act,1958, requires such order to be notified in the Gazette in view of the meaning of the words "notified order" given in section 2 (c) of the Act, 1958. The learned Additional Advocate-General has very frankly admitted that this Notification was not published in the official Gazette. In view of this statement, the demand of Rs,2,60,000 on the basis of the unnotified order dated 26th June,1981 is without lawful authority.
4. We have already taken this view in the connected Constitutional Petition No,D-657 of 1981 decided by us today.
5. ' As regards demand of Rs, 6,30,000 in respect of advance quota of 300 tons of sugar lifted by the petitioner prior to 28th June, 1980, the contention of the learned counsel for the petitioner was that no lawful order had been shown under which such difference at the rate of Rs, 2.10 per k.g. Could be raised by the department against the petitioner. It is further contended that the sugar had already been lifted and the price paid at Rs,6.90 per k.g. And as such it was a closed transaction and it could not be re-opened. It was also contended that if the Notification dated 28th June, 1980 increased the price from Rs,6.90 per k.g. To Rs,9 per k.g., such increase in price could not be given retrospective effect so as to raise a demand in respect of 300 tons of sugar already lifted by the petitioner, price of which had already been paid to the Government prior to 28th June,1980. In the facts and circumstances of this case, we find no force in the contention of the learned counsel for the petitioner in respect of the demand of the department for the additional amount on account of 300 tons of sugar lifted in advance prior to 28th June,1980. It is an admitted position that 300 tons of sugar in respect of which the demand had been raised was lifted against the quota of the period which was to commence from 1st July,1980 i,e, the sugar was lifted in advance against the next year's quota. Then there is a letter dated 23rd August,1980 of the petitioner addressed to the Deputy Director Food, Karachi (Annexure "A" filed with the counter-affidavit filed on behalf of the respondents) in which the petitioner has stated that they have lifted sugar quota in advance as per schedule approved by the Government at the old rate whereas the Government has increased price of sugar since 1st July, 1980 and therefore the difference amount has to be paid. The petitioner further undertook to pay the difference amount on account of the increase in price. Then, against the total demand of Rs,6,30,000 an amount of Rs,3 lacs has already been paid by the petitioner to the department. In view of these facts, the petitioner is now estopped from challenging the demand of the department in this regard. It was Contended by the learned counsel for the petitioner that the letter dated 23rd August,1980 had been obtained under coercion by the department and that the amount of Rs,3 lacs had been paid under duress. In this constitutional petition we are not inclined to decide the question whether the letter dated 23rd August,1980 had been written and the payment of Rs,3 lacs was made by the petitioner under duress or coercion. It has been denied by the department in the counter-affidavit that any coercion or duress was exercised by the department upon the petitioner. Such disputed facts- cannot be decided in this petition under the constitutional jurisdiction.
6. ' On the basis of the material evidence on record in this petition the factual position that emerges is that 300 tons of sugar of quota had been lifted in advance before 28th June,1980 by the petitioner.
7. Normally this quota would have been lifted after 1st July, 1980. Later on the petitioner agreed that as the quota had been lifted in advance and the price had been increased w,e,f, 1st July,1980, the petitioner will pay the difference and in fact the petitioner paid Rs,3 lacs out of the total demand of Rs,6,30,000. In such circumstances the contention of the learned counsel for the petitioner that the order/notification dated 28th June,1980 could not be given retrospective effect is not relevant. It is not a case of giving retrospective effect to order/notification dated 28th June,1980.
8. ' It is a case where the quota of sugar had been lifted in advance i,e, against the quota of the petitioner for the year commencing 1st July,1980 and the Government demanded the difference on account of the increase in price which became effective on 1st July,1980 and this was agreed to by the petitioner by their letter dated 23rd August, 1980 and even part-payment of Rs,3 Lacs had been made against demand.
3. As a result, this petition is partially allowed to the extent that the demand of Rs, 2,60,000 of the department against the petitioner on the basis of the unmodified notification dated 26th June,1981 is declared to be without lawful authority and to be of no legal effect. There will be no order as to costs.