1. SARDAR MUHAMMAD RAZA, J.--Yadgar Flour Mills at Chappar Road Haripur, Kunhar Flour Mills at Mansehra and M/s. Asif Flour Mills at Ganda Road, Chickrali Mansehra, after due approval by the Provincial Government, were constructed and established for the purposes of milling of wheat into flour and cleaning etc. Completion certificate was issued to all the three Mills by the Director/Assistant Director Industries. The three Mills aforesaid were included in the list of those 27 new/under installation flour mills which were approved by the Provincial Cabinet in its meeting held on 26-3-1992 headed by the then Chief Minister N.-W.F.P. Their names appeared at Serial Nos.
24, 26 and 27 of the list concerned.
2. After such completion and being ready for going into production, all the three Mills mentioned above applied for wheat quota to the authorities concerned i,e, Director Food, N.-W.F.P., Peshawar but they were not supplied any quota despite repeated demands. Yadgar, Kunhar and Asif Flour Mills have challenged such action of the authorities as mala fide and have asked for a writ to be issued to the Government under Article 199 of the Constitution for issuance of such wheat quota. All the three writ petitions entered at Serial Nos.52/96, 53/96 and 83/96 involving the same questions of law and fact, shall be disposed of through this single order.
3. This Court had called for the comments of the authorities concerned. Secretary to Government of N.-W.F.P. Food, Agricultural, Livestock and Cooperation Department; Director Food, N.-W.F.P., Peshawar and District Food Controllers, Haripur and Mansehra have filed their comments in the writ petitions of Yadgar and Kunhar Flour Mills while those of Asif Flour Mills were still awaited. A perusal of such comments has revealed that the case of all the three petitioners is fully identical and hence on such comments we propose to decide the matter in issue,
4. With the comments, the problem has been simplified by the Government-respondents to the effect that the approval of construction etc. Of all the three Mills by the Government is admitted.
The fact that the three Flour Mills were included into the list of 27 new/under installation Flour Mills duly approved by the Provincial Cabinet on 26-3-1992 is also admitted. The fact that all the three Mills applied for wheat quota is also admitted with the only difference that in case of Yadgar and Kunhar Flour Mills a summary was duly submitted to the worthy Chief Minister but the quota was refused while in case of M/s. Asif Flour Mills even the summary was not submitted. This denial of quota to the petitioners-Flour Mills is based on one and the only ground that the Provincial Cabinet in its meetings held on 26-3-1992 and 14-9-1994 had imposed ban on issuance of wheat quota to the new Flour Mills.
5. The learned counsel for the petitioner vehemently challenged such conduct on, the ground that the Flour Mills duly approved by the Provincial Government numbering 27, inclusive of the three petitioners-Mills were not at all new and the condition of ban could not have been imposed on them. The most vehement allegation was to the effect that despite imposition of such ban (having no force of law) wheat quota was issued to nine Flour Mills which were never included even in the approved list of 27 Mills. All the three petitioners have given the names of such nine Flour Mills as (1)
Jamal Flour Mills, Nowshehra, (2) Rizwan Flour Mills, Peshawar, (3) Shahabad Flour Mills, Peshawar,
(4) Juro Flour Mills, Swabi, (5) Malakand Flour Mills, Malakand, (6) Super Al-Qurash Flour Mills, Haripur, (7) Komal Flour Mills, Haripur, (8) New Super Al-Qurash Flour Mills, Haripur and (9) Shaikh Abad Flour Mills, Charsadda. This factual aspect of the allegation stands commented upon by the authorities concerned to the effect that a summary was moved to the Chief Minister, N.-W.F.P. And the Chief Minister being the competent authority allowed regular quota of wheat to the aforesaid Flour Mills meaning thereby, that this aspect of the case is also admitted. The learned Assistant Advocate-General appearing on behalf of the respondents has added that a summary in case of Yadgar and Kunhar Flour Mills was moved to the Chief Minister, N.-W.F.P. Who declined to allow the desired quota while no summary at all was prepared regarding Asif Flour Mills by the authorities concerned for presentation before the Chief Minister, N.-W.F.P.
6. So far as the preparation of summary and the permission of quota is concerned, the respondents, along with their 'comments have annexed the decisions of the meetings of the Provincial Cabinet held on 26th March, 1992 which, for convenience of ready reference, are reproduced below:--
(i) approved the recommendations of the committee contained in para. 3(I) of the summary regarding distribution of wheat quota to the flour mills;
(ii) decided that the Food and Agriculture Department should obtain permission of the Chief Minister on case-to-case basis for issuance of wheat quota to the 27 new/under installation flour mills in whose favour the Food and Agriculture Department had already issued No-Objection Certificates;
(iii) decided that in future the Food and Agriculture Department should not issue NOC for wheat quota to new flour mills; ' Through such decisions permission of the Chief Minister was considered necessary on case-to- case basis for issuance of wheat quota to the 27 new/under installation Flour Mills, in whose favour the Food and Agriculture Department had already issued No-Objection Certificates.
7. Extensive arguments were addressed before us in order to see the legal value of the Cabinet decisions aforesaid. The long and short of whatever decision is taken in the Cabinet is that if approved by the Governor, it can be converted into Ordinance by the latter and thereafter it takes the shape of law. A Cabinet decision if placed before the Assembly and converted into an Act would also take the shape of law. In all other cases it simply amounts to an internal working arrangement between the Departments and the Chief Minister-in Cabinet. In the instant case the decision taken by the Cabinet on 26th March, 1992 has neither been translated into an Act nor into an Ordinance and thus would only be appreciated as a departmental arrangement.
8. Keeping in view the aforesaid legal position, we are led to observe that 27 new/under installation Flour Mills were approved by the Provincial Government in the year 1992. Under such approval the construction started and was ultimately completed in-between 1994 and 1995, as per the completion certificates issued. The present three Flour Mills are one of such Mills which were duly approved by the Provincial Government. The quota is issued to all such Mills except the present three petitioners. Whatever be the reasons prevailing with the Provincial Government for refusal of quota to the present petitioners, adding insult to the injury is that nine Flour Mills mentioned above not included in the approved list were given an out-of-turn quota. This, in simple words is an utter discrimination whereby the petitioners are made to run into loss of millions, right under the protective entity of the Government which, under the principles of natural justice, is supposed to be equally protective for all involved under similar circumstances. The learned Assistant Advocate- General could not give us a single reason for the discrimination metted out to the petitioners.
9. Article 25 of the Constitution of Pakistan guarantees full equality before law to all the citizens of the country. In the instant case numerous business concerns are involved in similar business and production but the three petitioner-Mills are prevented from carrying on :their business while the other rival concerns are facilitated to go into production and to remain into production. This is a discrimination seriously offending Article 25 of the Constitution.
10. Accordingly, all the three petitions are accepted and the respondents are directed to release wheat quota to the petitioner-Mills.