The petitioner is flour mill, established in the vicinity of Muzaffarabad city. In pursuance of a scheme introduced by the Government, for production of whole meal atta on Government account, without extraction of fines and bran, an agreement was concluded between the petitioner and the Azad Government of the State of Jammu and Kashmir (hereinafter referred to as the Government) on April 18, 1984. Among others the agreement contained the terms described in its para 7, as: "7) The miller shall charge the following as grinding charges:- Rate per I00 K.G.
0 Milling charges Rs. 6.00 ii) Extra bag 'B' class for filling of Atta. 1 Rs. 0.85 iii) Transportation from Government Godown to Mills. Rs. 9.58 iv) Handling charges. Rs. 0.29 v) Sutli and marking charges. Rs. 0.03 Total:- Rs. 7.75 The miller shall submit a fortnightly bill on 5th and 20th of each month to the. Concerned Storage Incharge Mills for payment."
2. The present petition has arisen out of order of the Director No.P- 3(14) DF/86/12161-65 of December 17,1986, whereby a unilateral action, the respondent, as alleged directed to realise a sum of Rs.88,832.64 as handling charges charged by the petitioner with effect from 1984 to March 1986.
The aforesaid order has been assailed on the following grounds:-
(i) that the impugned action was taken without providing an opportunity of hearing to the petitioner as such, it was violative to the rule of 'Audi Alteram Partem';
(ii) that the agreement was duly approved by the Government in the name of President of the State of Azad Jammu and Kashmir vide order No. SF/Mills-14/179-188/85 of January 21,1985. The approval was retrospective;
(iii) that the Government was incompetent to alter, add or rescind, unilaterally, the terms and conditions of the agreement; and
(iv) that the terms and conditions of -the agreement were fully carried into effect since 1984.
Therefore, the respondent had no locus poententiae to give a different interpretation to the aforesaid term of the agreement.
3. The respondents repudiated the claim of the petitioner and explained in para 6 of their written statement that the impugned order was not issued at the back of the petitioner. The parties clearly understood that handling charges, as mentioned above, will be payable to the petitioner only with respect to stock of the wheat which would be transported by the petitioner on his own. From the nearest Government Godown. Where the wheat was transported to the Mill Godown by the Government, the petitioner was not entitled to charge handling charges. Reference was made to contracts executed in Pakistan between the Flour Mills and the Government. Therefore, the petitioner was not eligible to charge handling charges of such stocks of wheat which were delivered at the Mill on behalf of the Government. In support of the aforesaid averment, reference was made to two bills for the months of may and June, 1984, showing thereby deduction of handling charges as the stocks were directly transported from the Food Departments Godown at Rawalpindi to the site of the Mill. It was further stated that from July, 1984 onwards the petitioner charged the handling charges from the Government as a result of misunderstanding and lack of co-ordination between the officers concerned. When the matter came to light, the aforesaid order was passed for realisation of the amount wrongly paid to the petitioner 0n account of slacks which were directly transported by the Government to the Mill.
4. Mr. Faruq Hussain Kashmiri the learned Counsel for the petitioner argued that the language constituting the terms and conditions of the agreement was quite unambiguous and it admitted no different interpretation as claimed by the respondents. It was emphasised that the interpretation of the agreement was given practical effect by the allowing the petitioner to receive handling"charges on the stock of wheat, irrespective of the fact whether it was transported by the Government or the petitioner himself. Reference was made to the following authorities: P.L.D. 1985 AJK 212; 1976 S.C.M.R. 106; P.L.D. 1976 Karachi 14;and P.L.D. 1956 Karachi 17.
The learned Additional Advocate General controverted the aforesaid points and argued that the petitioner manipulated the payment of handling charges in derogation to the terms of the agreement. It was permissible to the Government to realise the amount wrongly paid to the petitioner. The learned Additional Advocate General made reference to the bills of payment for the months of May and June, 1984 and elaborated that in presence of deductions of handling charges described in the aforesaid bills, the petitioner could not refuse to refund the amount wrongly charged by him.
5. The phrase "handling"has been defined in WORDS AND PHRASES, Permanent Edition, Volume 19, by West Publishing Co., as: "The term "handling" as customarily used in the meat packing industry refers to those operations that start when the packing plant takes possession of live stock and includes all the operations down to the slaughtering of the livestock....
"Handling" means touching, controlling, managing, using, dealing with, etc., with the hand or hands, or as with hands ....
That-use of the word "handling" as applied to freight or express shipment implies control, direction and movement .Of shipment from point of receipt to point of destination is common knowledge."
6. There is no dispute over the meaning and scope of the term "handling" described in the agreement. The only point desired to be resolved confines to interpretation of handling charges, provided in clause (iv) of para 7 of the agreement. Therefore, no further analysis of the term "handling" is warranted.
7. Ordinarily the terms and conditions of an agreement are to be construed strictly to avoid likelihood of ambiguity resulting in prejudice to the parties to the transaction. In this view of the matter, it is evident from the terms of the agreement that on the face of it the petitioner is empowered to charge handling charges at the rate of Rs.0.29 per I0O KG. The language of the clause admits no other interpretation.
8. The written statement contains a very lengthy explanation, as according to the respondents, the parties had impliedly agreed that in case of transportation of the wheat from Government Godowns to the Mill at the instance of the Government, the petitioner shall not be entitled to receive handling charges described in the agreement. Unfortunately, the aforesaid defence finds no support from the terms and conditions of the agreement or from any other evidence, of the parties. The bills for the months of May and June, 1984, appended with the written statement, are photostat copies. These are neither original nor certified photostat copies of the originals.
Therefore, reliance cannot be placed on these documents to accept the explanation furnished in support of defence of the respondents. The correspondence or minutes of the meeting between the parties, if any, were not placed on accept extraneous evidence, of whatever kind, to uphold the defence of the respondents.
9. The impugned order, on the face of it is shown to have been passed by respondent No. 3 in exercise of his powers as Director Food. The order carried the approval and sanction of Secretary Food. The respondents, obviously, ignored the fact that as a party to the agreement, their position and status was equivalent to that of the petitioner and no more. May be that the respondents were officers of the Food Department but by virtue of their official position, they were not empowered to withhold the payment admissible to the petitioner by adjusting it against the alleged past arrears paid as handling charges. The action of the respondents was unilateral, which is unacknowledged by law.
10. It is accepted to the respondents that they paid handling charges to the petitioner over a period of two years without any protest or objection. The objection was raised for the first time after two years, in the shape of the impugned order. In this view of the matter, by virtue of doctrine of acceptance by silence, the respondents were under duty to refrain from realising the amount in question by adjusting it against the arrears admissible to the petitioner. This view finds support from Karachi Gas Company's case, P.L.D. 1975 Supreme Court 193.
11. The learned Additional Advocate General referred to some agreements, between the Government and private parties, in force in Pakistan. An argument was developed that an identical practice was carried in Pakistan, as such, by virtue of such practice, the petitioner was not entitled to receive handling charges on the stock of wheat which was transported by the Government from its Godown to the Mill. The objection finds no force, as no such agreement, stipulating identical terms and conditions, was placed before the Court. Therefore such practice was not enforceable in this case.
12. The explanation that the amount was paid to the petitioner by mistake, also finds no favour as it appears from the terms of the agreement that the handling charges were realised by the petitioner in compliance with the terms of the agreement. Therefore, the explanation that the charges were realised by mistake, is unsustainable.
13. Clause (iii) of Article 7 of the agreement stipulates that Rs.0.58 per I0O KG shall be charged for transportation of wheat from Government Godown to the Mill. This suggests that the item rate for transportation of wheat from Government Godown to the Mill was independent of the conditions relating to handling charges described in clause (iv).It is interesting to note that the agreement does not speak of the party which would be responsible for transportation of wheat stock from Government Godown to the Mill. It is quite silent on that score. This further suggests that the discrimination relating to transportation of wheat from Government Godown to the Mills by either of the parties, was not the essence of the agreement.
14. In view of the aforesaid analysis, the order of respondent No.3 made on December 17, 1986, with the concurrence and approval of respondent No. 2, is without jurisdiction and lawfulfull authority, as such it is ineffective on the right of the petitioner to realise handling charges, stipulated in clause
(iv) of article 7 of the agreement. The order is quashed and shall be deemed as if it was never made to the detriment of the petitioner. Let a writ to that effect may issue in favour of the petitioner and against the respondents with costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.