' Writ Petitions Nos.8460, 8464, 8465, 8526, of 1992, 4740, 4741, 4742, 4759 of 1986, 5110, 4973, 407 of 1987, 5719, 5720, 5721 of 1988, 4655, 4656, 7616, 7927 of 1990, 128, 9527 of 1992, 7116 of 1993, 9277 and 11780 of 1994 were accepted by a short order dated 22-12-1994 and the reasons for such disposal are as hereunder. In all the writ petitions, common question of law and facts is involved.
2. Petitioners are factory owners and produce sugar after purchasing sugarcane from the cane growers. This purchase of sugarcane is regulated under the provisions of Sugar Factories Control Act, 1950, hereinafter called the Act and Sugar Factories Control Rules, 1950, hereinafter called the Rules. Section 16 of the Act empowers the Provincial Government to fix minimum price of the cane and the same is reproduced as under:- "16. Powers to Provincial Government to fix minimum price.--(i) The Provincial Government, after consultation with the . Board, may by notification, determine in respect of any area the minimum price to be paid by occupiers of factories or purchasing agents for cane purchased in that are either generally or related to the sugar contents of the cane or direct that such minimum price shall be calculated in the manner prescribed.
(ii) The Provincial Government may, from time to time, vary, by notification, the price fixed under subsection (i)..
(iii) The occupier of a factory or a purchasing agent shall not make any deduction from the amount due for the cane sold to him by a cane grower or a Cane Growers' Cooperative Society, except such deductions as may be prescribed or as the Provincial Government may, by notification, from time to time allow.
(iv) The Provincial Government may, after consultation with the Board, by notification, direct that in addition to the minimum price to be paid for cane, the occupier of a factory shall pay for special varieties of cane to be specified in the notification and which the cane grower or Cane Growers'
Cooperative Society has agreed to supply, such additional price as the Provincial Government may direct."
' It is manifestly clear that under subsection (i) of section 16, aforementioned, a notification has to be issued fixing the minimum price to be paid by the occupiers of factories or purchasing agents for cane purchased and under rule 13 of the Rules the factory owners shall not nay the price of cane below the minimum price fixed under section 16 of the Act. In case of special varieties of cane, a notification has to be issued under subsection (iv) of section 16 on the terms mentioned therein.
3. In all the writ petitions, a notification under subsections (i), (ii) of section 16 was issued fixing the minimum price of the sugarcane for each crushing season. For instance, in Writ Petition No,4740-86 Notification dated 6-1-1986 issued by the Government is as follows: Government of the Punjab, Food Department.
Dated Lahore, the 16th January, 1986.
NOTIFICATION ' No, SOF (Sugar) 13(127)185.--In exercise of the powers conferred on him by subsections (i) and (ii) of section 16 of the Sugar Factories Control Act, 1950 (N.-W.F.P. Act No,XXII of 1950), the Governor of the Punjab is pleased to fix the minimum price of Sugarcane for the crushing season 1985-86 as given below:-- {{TABLE}}
1. Price payable at factory gate. Price payable at a purchasing centre established under sub-rule
(4) of rule 11 of the Sugar Factories Control Rules, 1950. Rs,24.11 per quintal. Or Rs,241.10 per M. Ton.
Paisas 5 per quintal per kilometre (Paisas 8 per quintal per mile) less than the price payable at the factory gate subject to the maximum deduction for a distance of 40 kilometres from the factory gate. {{TABLE}} BY ORDER OF THE GOVERNOR OF THE PUNJAB, MUHAMMAD AZHAR SECRETARY TO GOVERNMENT OF THE PUNJAB FOOD DEPARTMENT ' Another Notification dated 14-1-1986 was issued by the Government of Punjab and the same is as under:- Government of the Punjab, Food Department.
Dated Lahore, the 14th January, 1986.
NOTIFICATION ' No, SOF (Sugar) 13(71)182.--In exercise of the powers conferred on him by subsections (i), (ii) and
(iv) of section 16 of the Sugar Factories Control Act, 1950, the Governor of the Punjab is pleased to order payment of quality premium by the sugar mills to the cane growers for the crushing season 1985-86 as under:-- "Quality premium at the rate of 11 paisas per maund of cane for each 0.1% of excess recovery on account of higher sucrose contents over and above 8.55% than the recovery assumed in the official price formula should be allowed to the cane growers and paid at the end of the season.
This premium will not be admissible for non-approved varieties. The premium would be worked out on the basis of a crushing season of 160 days. However, if the crushing season is prolonged due to excess production of cane in the mills zones, the entire crushing season may be taken as the base for calculating the excess recovery."
BY ORDER OF THE GOVERNOR OF THE PUNJAB MUHAMMAD AZHAR SECRETARY TO GOVERNMENT OF THE PUNJAB FOOD DEPARTMENT ' In Writ Petition 8460-92, Notification dated 6-8-1991 has been issued in the following manner combining both notifications one for fixing the minimum purchasing price of sugarcane and the other to pay quality premium-- GOVERNMENT OF THE PUNJAB FOOD DEPARTMENT.
Dated Lahore, the 6th August, 1991.
NOTIFICATION ' No, SOF (SUGAR) 13(343)/91.--In exercise of the powers conferred on him by section 16 of the Sugar Factories Control Act, 1950, the Governor of the Punjab is pleased to fix the minimum purchase price of sugarcane at the factory gate for the crushing season 1991-92 at Rs,16.75 per kgs. Or Rs,41.875 per 100 kgs. (per quintal) or Rs,418.75 per M. Tonne. However, the Sugar Factories may deduct from the purchase price the transportation charges incurred by them on the cane purchased at purchase centres or at other locations away from the factory gate at the rate of paisas 5 per quintal (100 kgs) per kilometre subject to a maximum deduction for distance of 40 kilometres from the factory gate.
' In addition, quality premium will be payable by the Sugar Factories at the rate of paisas 22 per 40 kgs. Of cane delivered to the Sugar Factories for each 0.1% excess recovery above the average base recovery of 8.5%.
BY ORDER OF THE GOVERNOR OF THE PUNJAB KHALID SAEED SECRETARY TO GOVERNMENT OF THE PUNJAB FOOD DEPARTMENT
4. The petitioners do not assail the notification issued under section 16 fixing the minimum purchase price of sugaracane but assail vehemently the other notification directing them to pay quality premium as being without jurisdiction. In pursuance of second notification, respondent/Cane Commissioner has raised financial demand which according to the petitioners is equally without jurisdiction.
5. Learned counsel appearing on behalf of petitioners inter alia contend that there is no legal sanction for the second notification directing the petitioners to pay an extra sum in term of ' quality premium' as used in the relevant notification in each writ petition. According to them, the extra demand. Or additional price as quality premium is wholly unwarranted and is unconstitutional and invalid in the eye of law on the following pleas:--
(a) That there is no legal concept of quality premium to be paid in addition to the price paid under sub-section (i) of section 16 of the Act. Elaborating this point further, it is submitted that in case of special varieties of cane, a notification has to be issued under section 16(iv) of the Act and this requirement has not been fulfilled in anyone of the writ petitions. Further, contended that they have already paid the price of sugarcane fixed under subsection (i) of section 16 and they cannot be afflicted with a burden of additional price on account of higher sucrose contents over and above a particular base level fixed by the respondents. Learned counsel repeatedly submit that higher sucrose contents are achieved from the cane for which price has already been paid.
(b) That there was no law directing the petitioners to pay quality premium and this necessitated the respondents to promulgate various Ordinances on the same subject one after the other and finally there was an amendment in the Sugar Factories Control Act, 1950 by Act II of 1991 adding section 16-A and the same is reproduced as under:-- "16-A. Quality premium.--The Provincial Government may direct the Factories to pay quality premium at the end of the crushing season at such rate as may be specified by the Provincial Government in proportion to the sucrose recovery of each factory in excess of base level sucrose contents determined by the Provincial Government, from time to time."
' Elaborating the plea, learned counsel contends - that before insertion of section 16-A, aforementioned, various notifications/demands by he respondents to pay quality premium were wholly void and without jurisdiction otherwise, according to them, there could not be any amendment as aforesaid. According to learned counsel, demand of quality premium, therefore, is not covered under any of the provisions of section 16.
(c) That the amendment in the nature of section 16-A is unconstitutional and against law as the respondents are only empowered to fix the purchase price of sugarcane under subsection (i) of section 16 and in case of special varieties of cane to direct payment of additional price. It is contended that this can be termed as statutory contract between petitioners and respondent/Government and that the former are only liable to pay the price determined under section 16(i) and additional price under section 16(iv) in case of special varieties of cane and no other financial obligation such as quality premium.
(d) That the amendment is uncertain, vague, arbitrary, unreasonable and also suffers from the vices of excessive delegation and that it can be termed as financial bill.
6. Before examining the case of petitioners, it is necessary to reproduce some of the legislation before Act II of 1991 inserting section 16-A in the Act of 1950:
(I) Section 16-A was inserted in the Act by Ordinance IV of 1990 promulgated on 19-3-1990 and is as hereunder: "16-A. The Provincial Government may direct the Factories to pay quality premium at the end of the crushing season at such rate as may be specified by the Provincial Government in proportion to the sucrose recovery of each factory in excess of base level sucrose contents determined by the Provincial Government, from time to time."
(II) Then there was Ordinance X of 1990 promulgated on 29-5-1990, Ordinance XX of 1990 on 8-9- 1990, Ordinance XXX of 1990 on 7-12-1990 and Ordinance VII of 1991 on 23-2-1991 inserting section 16-A exactly in the same language as reproduced above.
(III) Finally the aforementioned section 16-A was added in the Sugar Factories Control Act, 1950 by way of Act II of 1991 on 16-3-1991.
7. The case of all the petitioners is that amendment/notification directing payment of quality premium is void and without jurisdiction and similarly the demand raised by respondent/Cane Commissioner in pursuance of aforementioned notification in each writ petition.
8. As to the first contention of petitioners, after examining various provisions of section 16 it is crystal clear that in each case notification has been issued under section 16(i)(ii) directing that minimum purchase price of sugarcane be paid by-the petitioners for production of sugar and it is a common ground that quality premium is in respect of sugarcane for which the price has already been paid.
Under section 16(iv) the respondent/Government can ask the petitioners to pay additional price but the same is subject to the following limitations:--
(a) That the special variety of cane has to be specified in the notification.
(b) That the exercise has to be done after consultation with the Board; and
(c) That the cane growers or Cane Growers' Cooperative Society has agreed to supply the special varieties of cane.
9. Admittedly no such notification as envisaged under section 16(iv) has been issued nor the same has been brought to the notice of this Court despite the fact that representative of Cane Commissioner was appearing during the course of arguments alongwith Mr. Irfan Qadir, learned Additional Advocate-General. In this view of the matter it is not understandable how the respondents are insisting upon the petitioners for the payment of extra price in the form of quality premium. This alone is sufficient to hold that the action of respondents in raising this extra demand is not only arbitrary but illegal and unconstitutional. The petitioners are liable to pay only the price for cane under subsection (i) and additional price under subsection (iv) of section 16 and no other extra demand can be raised upon them. In this background, it would be necessary precisely to examine section 16-A which has been made the basis of demand. According to the language used if the petitioners are able to achieve higher percentage of sucrose contents in excess of base level sucrose contents determined by the Provincial Government then for the difference payment has to be made according to the rates determined by the respondents and this is called ' quality premium'. For instance, in para. 2 of notification dated 6-8-1991 in Writ Petition No,8460-92, average base level of sugar contents is fixed as 8.5% and if higher sugar contents are achieved, the petitioners have been directed to pay at a particular rate for excess recovery of sugar contents. In case, however, the petitioners are unable to achieve the higher sucrose contents or in many cases below the average base level fixed by the Government, the price of cane purchased by petitioners would be the same and there will be no reduction therein. This situation would give rise to find out what is meant by the word 'premium'.
10. In Black's Law Dictionary {Fifth Edition), 'premium' is defined as "a reward for an act done. Brown v. Board of Police Commissioners of City of Los Angeles, 58 Cal. App. 2d. 473, 136 P. 2d. 617, 619. See also Bonus. A bounty or bonus; a consideration given to invite a loan or a bargain, as the consideration paid to the assignor by the assignee of a lease, or to the transferor by the transferee of shares of stock, etc. So stock is said to be "at a premium" when its market price exceeds its nominal or fact value. The excess of issue (or market) price over par value. See Par. In granting a lease, part of the rent is sometimes capitalized and paid in a lump sum at the time the lease is granted. This is called a 'premium'. The sum paid or agreed to be paid by an insured to the underwriter (insurer) as the consideration for the insurance. The price for insurance protection for a specified period of exposure". In Legal Thesaurus by William C. Burton, 'premium' means "amount over par, bonus, bounty, charge beyond normal, charge to excess, excessive charge, extra, incentive, increased value, over charge, prize. It is further stated as "amount paid periodically, annual commitment, annual encumbrance, annual fee, annual instalment, annual liability, annual obligation, annual payment, annual rate of insurance, annual remittance, contract payment, periodic payment, yearly payment. In Ballentine's Law Dictionary (1979) (Third Edition) "a premium is a reward or recompense for some act done. Alvord v. Smith, 63 Ind. 58), an amount offered by way of a prize to a successful competitor in a contest. 24 AmJ Ist Gaming & 100 et seq. A purse, prize, stake or sweepstake; some valuable thing offered by a person for the doing of something by others, into the strife for which he does not enter. Harris v. White, 81 NY 532. Something given a purchaser of merchandise in addition to the article or commodity purchased. 52 AmJ Ist Trade ST & 11. An amount paid above par value because of quality or of demand. An advance payment of rent in a lump sum, calculated on the basis of present worth of sums to be paid in the future. A sum paid to the master under a contract of apprenticeship, to cover instruction and maintenance. An amount paid by a borrower for the privilege of receiving a loan in preference to other applicants. 13 AmJ2d B & L Assoc & 54".
11. In view of above meaning of 'premium', it is settled that 'premium' is a reward or a bonus for an act done and the persons so doing is entitled to such a reward, If the petitioners are achieving higher percentage of sucrose contents than the base level fixed by the respondents then it is the petitioners alone entitled to claim premium from the Government and not the other way round. But in the above illustration I am of the considered opinion that the petitioners cannot claim such a premium because there is no such agreement with the respondents. Similarly they cannot be asked to pay some extra money for the simple reason that they are doing something good by obtaining higher percentage of sucrose. Some of the petitioners have vehemently raised that they have installed very valuable and latest machinery for producing sugar as compared to the other factory owners and this is the basis for obtaining higher sucrose contents and instead of rewarding, they are being punished to pay the quality premium in the form of additional price which no system of law would permit on facts and circumstances of the case. The plea of petitioners that they have already paid the price of sugarcane under section 16(i) of the Act and, therefore, they cannot be compelled twice to pay the additional price of the same sugarcane is valid and has to be accepted. They are agreeable to pay the additional price for special varieties of sugarcane provided the same is specified in the notification under section 16(iv) of the Act which, as stated above, is riot the case of respondent in anyone of the writ petitions. On this ground alone, extra demand by the respondent/Cane Commissioner against the petitioner in writ petition is without lawful authority and stands on no better footings than without jurisdiction.
12. Various provisions of section 16 of the Act, when examined, clearly postulate, that subsections (i) and (iv) of section 16 are independent of each other and the first could be treated as general provision while the other as special and that there is no ambiguity in anyone of the provisions of this section rather tend to harmonize with each other and this is the proper rule of interpretation of statute. In 1988 SCM R 91 "Messrs Standard Printing Press v. Sindh Employees' Social Security Institution" while analysing the provisions of West Pakistan Employees' Social Security Ordinance it is laid down in para. 7 as follows:-- "The result of these several statements is that construing any statute the Court should adhere to the ordinary meaning of the words used, and to their grammatical construction, unless the words when so read produce some manifest absurdity or injustice, inconsistency, inconvenience or incongruity; or unless the meaning so given be repugnant to the context, or at variance with the intention of the Legislature as it is stated expressly or by implication, or as it may be collected from other parts of the same statute."
' This has been considered to be the first elementary principle which has come to be known as a 'golden rule' stated in the Statute Law by Edward Wilberforce (page 112).
Keeping in view the aforementioned ' golden rule', it is settled once for all that various provisions of a section/statute must be interpreted harmoniously to each other and one provision cannot be interpreted in such a manner so that the other becomes nugatory. Mr. Irfan Qadir, learned Additional Advocate-General filed a brief note of his submissions and placed reliance on AIR 1958 SC 677 "Babulal Bhuramal v. Nandram Shivram" by pointing out that it is the duty of the Court to construe the various provisions in harmony with each other. There is, therefore, no cavil with the proposition and keeping this principle in view, it is amply demonstrated that respondent/ Government can only charge price of sugarcane generally under section 16(i) and additional price under section 16(iv) in case of special varieties which must be specified in the notification which, admittedly, is not issued and neither placed by the respondents in anyone of the writ petitions. This being the case, the petitioners, in law, are not liable to pay any extra demand in the form of quality premium.
13. In AIR 1967 SC 1895 "M/s. Devi Das Gopal Krishnan, etc. v. State of Punjab and others" there was amendment in the Punjab General Sales Tax Act, 1948 of the word 'purchase' so that tax may be levied on a particular goods twice and while analysing the same in para. 25 it was observed as follows:-- "25. Bearing that in mind let us look at clause (ff) in section 2 of the Principal Act in which the said clause was inserted. The ingredients of the definition of 'purchase' are as follows: (i) there shall be acquisition of goods; (ii) the acquisition shall be for cash or deferred payment or other valuable consideration; (iii) the said valuable consideration shall not be other than under a mortgage, hypothecation, charge or pledge. Clause (h) of section 2 defines 'sale' thus: --sale' means any transfer of property in goods other than goods specified in Schedule C for cash or deferred payment or other valuable consideration but does not include a mortgage, hypothecation, charge or pledge." If we turn to the Sale of Goods Act, section 4, therefore, defines a contract of sale of goods. It reads: 'Contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price....'
' The essential requisite of sale or (i) there shall be a transfer of property or agreement to transfer property by one party to another, and (ii) it shall be for consideration of money payment or promise thereof by the buyer. A sale and purchase are different aspects of the same transaction. If look at it from the stand point of a purchaser it is purchase and if we look at it from the stand of the seller it is sale. Whether purchase or sale it shall have the said ingredients both in common law and under the Indian Contract Act. 'Price' has been defined in the Sale of Goods Act to mean money consideration for the sale of goods: see section 2(10) of the Indian Sale of Goods Act. It will, therefore, be seen that the definition of 'purchase' in the Act prima facie appears to be wider in scope than 'sale'. While transfer of goods from one person to another is the ingredients of 'sale' in general law, acquisition of goods, which may in its comprehensive sense take in voluntary as well as involuntary transfers is an ingredient of ',purchase' in clause (ff). While 'price', i,e,, money consideration, is the ingredient of ' sale', cash deferred payment or any valuable consideration is an ingredient of 'purchase'. But a closer scrutiny compels us to give a restricted meaning to the expression 'acquisition' and 'price'. Acquisition is the act by which a person acquires property in a thing. 'Acquire' is to become the owner of the property. One can, therefore, acquire a property either by voluntary or involuntary transfer. But the Sales Tax Act applies only to "sale" as defined in the Act.
Under clause (ff) of section 2 of the Act it is defined as a transfer of property. As purchase is only a different aspect of sale, looked at from the stand point of the purchaser, and as the Act imposes tax at different points in respect of sales, having regard to the purpose of the sale, it is unreasonable to assume that the Legislature contemplated . Different categories of transactions when the taxable event is at the purchase point. Whether it is sale or purchase the transaction is the same. If it was a transfer inter vivos, in the case of a sale, it must equally be so in the case of purchase. Context, consistency mid avoidance of anomaly demand a restricted meaning. That it must only mean transfer is also made clear by the'nature of the transactions excluded from the acquisition, namely, mortgage, hypothecation, charge of pledge -- all of them belong to the species of transfer. We must, therefore, hold that the expression ' acquisition' in clause (ff) of section 2 of the Act means only ' transfer' ."
' Thereafter, conclusions are drawn in para. 29 to the effect 'then it is contended that while section 15 of the Central Sales Tax Act, 1956 (Act 74 of 1956) imposes a restriction on the State not to tax at more than one stage, the Amending Act by introducing the definition of "purchase" enables the State to tax the same goods at the purchase point and at the sale point. But this argument misses the point that goods purchased and the goods sold are not identical ones. Manufacture changes the identity. Therefore, the same goods are not taxed at two stages".
The rule laid down in the aforementioned authority is strictly applicable in this particular case and while interpreting taxing statute, it is held that there cannot be any tax twice on the same goods.
The facts of the present case stand on much higher footings and the petitioners cannot be asked to pay the extra price of the sugarcane, by way of quality premium, for which price was already paid.
14. After analysing the various provisions of the Act, it is amply demonstrated that there is no legal sanction behind the amendment and that in 'any case the same infringes the Fundamental Right 18 of the Constitution of the Islamic Republic of Pakistan, 1973 according to which every citizen shall have the right to enter upon any lawful profession or occupation and to conduct any lawful trade or business. The impugned amendment directing the petitioners to pay extra illegal demand is in the nature of a clog on their business activity and by no stretch of imagination the same is covered by any proviso of this Article regulating this business or trade nor the same can be called reasonable restriction. In AIR 1954 SC 224 "Messrs Dwarka Prasad Laxmi Narain v. State of Uttar Pradesh and others" while interpreting Fundamental Right 19(1)(g) and corresponding to Article 18 of our Constitution, it is held that "the phrase reasonable restriction' connotes that the limitation imposed upon a person in enjoyment of a right should not be arbitrarily or of an excessive nature beyond what is required in the interest of the public". Legislation, which arbitrarily or excessively invades the rights, cannot be said to contain the quality of reasonableness, and unless it strikes a proper balance between the freedom guaranteed under Article 19(1)(g) and the social control permitted by Clause (6) of Article 19, it must be held to be wanting in reasonableness. A law or order, therefore, which confers arbitrary and uncontrolled power upon the executive in the matter of regulating trade or business in normally available commodities cannot but be held to be unreasonable". Viewing the impugned amendment in this context, there can be no manner of doubt that the said provision has no nexus with any provisions or scheme of the Act nor there was any intention of the Legislature that petitioners should be compelled to pay the price of sugarcane at two stages once when they had purchased the same as against price and secondly when they achieve higher sucrose contents. In other words, there is no provision in the existing law applicable to the purchase of cane by the petitioners that apart from price, the quality premium has also to be paid. Any such amendment would be in conflict with the Fundamental Right 18 of the Constitution and has to be struck down.
15. In PLD 1993 SC 341 "Government of Balochistan v. Azizullah Memon", it is observed that "any law which takes away or abridges fundamental rights guaranteed and any law made in contravention of this clause shall to the extent of inconsistency/contravention be void. Therefore, Article 8(1) and
(2) relates to the existing laws as well as the laws which may be enacted after the promulgation of the Constitution". The amendment in question is not only unConstitutional as it offends Fundamental Right 18 but also the existing law covering the purchase of sugarcane by the petitioners. The impugned amendment, therefore, is not enforceable as against the petitioners for payment of quality premium and the same is struck down and consequently all notifications and demands raised by the statutory functionaries are equally without jurisdiction.
16. The other proposition hotly canvassed by the learned counsel for petitioners is that the amendment in question suffers from inherent vice of excessive delegation as it does not provide any reasonable formula for determining the base level of sucrose contents and also the rate at which the differential has to be paid. To my mind, the, proposition does not arise after the impugned amendment is held to be without jurisdiction. However, reliance is placed by the learned counsel on PLD 1988 SC 670 "Messrs Sh. Abdur Rahim v. Federation of Pakistan" and PLD 1965 Dacca 156 "Haji Ghulam Zamin v. A.B. Khondkar". In the first case on page 677 it is observed that "now as to what 'delegation' means is amply illustrated by the opinion of Wills, J. In Huth v. Clarke (1890) 25 QBD 391 at p. 395: Delegation, as the word is generally used, does not imply a parting with powers by the person who grants the delegation, but points rather to the conferring of an authority to do things which otherwise that person would have to do himself. The best illustration of the use of the word is afforded by the maxim: Delegatus non protest delegare, as to the meaning of which it is significant that it is dealt with in Broom's Legal Maxims under the law of contracts: it is never used by legal writers, sb far as I am aware, as implying that the delegating person parts with his power in such a manner as to denude himself of his rights". In the Dacca case in para. 36 it is held "Manifestly, therefore, the Legislature is not permitted to abdicate, or to transfer to others, the essential legislative functions with which it alone is vested by the Constitution. This is clear from the requirement of the Constitution itself and, as such, this proposition is undeniable and it cannot be contested. It is thus established that essential legislative function cannot be delegated or assigned to any extraneous authority, for example, the executive". The entire law as to the principle of 'excessive delegation' has been discussed resulting in conclusion that (i) Legislation being the exclusive, function of the Legislature, it cannot abdicate such function. (ii) The Legislature, after having enunciated the essential legislative principles and standards, is, however, entitled to delegate to outside agencies such, functions which are essential to an effective exercise of the legislative power with which it has been endowed by the Constitution. (iii) The Legislature, however, cannot face itself and delegate all its functions to an extraneous agency.
17. Considering the impugned amendment on the touchstone of the law laid down in the case.-law, there cannot be two opinions that the amendment is in the nature of a naked exercise of power by the respondent/Government to direct the petitioners to pay quality premium which is bad in law and unconstitutional.
18. Last plea of the petitioners is that the amendment is in the nature of fiscal legislation in the form of a tax which is the exclusive power of the Federal Legislature under the Fourth Schedule of the Constitution and items 49 and 52 have been particularly pointed out. Reliance is placed on Maxwell Interpretation of Statutes, page 256 (Twelfth Edition) where under the heading 'Statutes imposing burdens', it is' said that "statutes ' which impose pecuniary burdens are subject to the same rule of strict construction. It is a well-settled rule of law that all charges upon the subject must be imposed by clear and unambiguous language, because in some degree they operate as penalties; the subject is not to be taxed unless the language of the statute clearly imposes the obligation, and language must not be strained in order to tax a transaction which, had the legislature thought of it, would have been covered by appropriate words. 'In a taxing Act; said Rowlatt, J., "one has to look nearly at what is clearly said. There is no room for any intendment. There is no equity about tax.
There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used". But this strictness of interpretation may not always enure to the suject's benefit, for "if the person sought to be taxed comes within the letter of the law he must be taxed, however, great the hardship may appear to the judicial mind to be".
19. Mr. Irfan Qadir, learned Additional Advocate-General relied upon the definition of premium in Ballentine's Law Dictionary and so stated in his brief written note to contend that the petitioners are liable to pay the quality premium and reliance was placed on AIR 1958 SC 677 "Babulal Bhuramal v.
Nandram Shivram". This has been fully discussed above and am not inclined to hold the view of learned Law Officer that the petitioners are liable to pay extra amount by way of quality premium for reasons stated above.
20. C.M. 1192 of 1993 was filed by Ch. Muhammad Anwar Bhindar, Advocate on behalf of Sh.
Muhammad Naseem for impleading him as party and the same was rejected but the learned counsel was allowed to make his submissions. He also adopted the arguments of learned Law Officer with great emphasis that the impugned amendment is valid and that the petitioners are liable to pay extra amount which plea is rejected again for the same reasoning as above. Reliance was placed on 1987 CLC 1647 "Shakarganj Sugar Mills Ltd. v. Cane Commissioner, Punjab, Lahore" which is not at all applicable to the legal proposition arising in this case.
21. Lastly I may point out that in 1981 similar demand was' raised by the respondent as in the present writ petitioners a W.P. No,5828/81 was filed which was accepted by setting aside the demand. Order of this Court dated 18-1-1983 is as follows:-- "Through this writ petition a demand of Rs,8,00,005.05 placed on the petitioner under the Punjab Government, Food Department's Letter No,SCF (Sugar) 13(60) 81, dated 2-12-1981 has been called in question. The background of this communication is that in the meeting of the Sugar-Board and so also in the one held under the Chairmanship of the Federal Minister for Food and Agriculture, a decision was taken that the extra profits earned by the Sugar-Mills on account of higher sucrose contents than that assumed in Ex-factory fixation formula shall be shared with them by the farmers. It was with, the idea of implementing this decision, that the Punjab Government issued the letter aforesaid to the petitioner and other Sugar Mills in the Province and proposed to utilize the recovery in the Sugarcane (Development) Fund.
' The sole point urged on behalf of the petitioner is that there is no legal sanction for such a demand.
' I have heard the learned Deputy Attorney-General and the Assistant Advocate-General. They could not lay hand on any law to sustain the impugned demand and felt it difficult to controvert the stand taken by the petitioner. Their main contention was that there was a gentleman's agreement with the Sugar Mills including the petitioner and that, therefore, the latter was morally bound to adhere to the commitment and pay the amount in question. However, despite sufficient time having been allowed to the respondents no such agreement was placed on the record.
' In this view of the matter, this writ petition is accepted and the impugned demand declared to have been made without lawful authority.
' The parties are left to bear their own costs."
For the reasons stated above, all the writ petitions are accepted and notification issued by the respondent/Government, in each writ petition, directing the petitioners to pay quality premium and in consequence thereof financial demand in the form of quality premium raised by respondent/Cane Commissioner are declared without lawful authority and of no legal effect.
Similarly the amendment dated 16-3-1991 inserting section 16-A by way of Act II of 1991 in the Sugar Factories Control Act, 1950 directing payment of quality premium is unconstitutional and invalid piece of legislation and not enforceable as against petitioners.
' In case the petitioners have paid any amount by way of interim guarantees, the same shall be released/refunded in their favour by the respondents.
' There is no order as to costs.