CH. IJAZ AHMED, J.- The brief facts out of which the present writ petition arises are that the petitioner was granted valid licence by respondent No. 4 under the provisions of West Pakistan Food-grains Licencing (Control) Order, 1957. The Section Officer of the Government of Punjab, Food Department vide letter dated 25.6.1994 informed the Director Food, Punjab, Lahore that the petitioner's mill consisting of six rollers bodies of 40" each is enlisted at 120 tons per day with effect from the date it is lifting wheat from the relevant P.R. From the relevant P.R. Centre of this department. The licence of the petitioner was cancelled by the District Food Controller vide his order dated 16.9.1997. The petitioner being aggrieved filed an appeal u/S. 10 of the West Pakistan Food-grains (Licencing Control) Order, 1957 before the District Magistrate who admitted the appeal and suspended the operation of the cancellation order vide his order dated 18.9.1997. On 29.5.1997, Asstt. Director, Food issued direction to the Deputy Director Food in the following terms:-- "Under the existing circumstances, it is not possible to issue wheat quota to any flour mills economically grinding for any other Government Agency."
In obedience of the direction of Asstt. Director Food, District Food Controller refused to release wheat quota to the petitioner in the following terms vide letter dated 12.11.97. #tbs if' j 'J* 1 - #the #tbs L. ' #the #tbs . r #the #tbs #the {{Urdu text}} Hence this writ petition for quashment of the orders dated 29.5.1997 and 12.11.1997.
2. The learned counsel for the petitioner placed on record subsequent policy dated 24.12.1997 which is to the following effect:- "Whereas, Government of Punjab, Food Department have decided to switch over to the policy of liberal releases of wheat during the current wheat scheme to all the enlisted Flour Mills accordance with their milling capacity approved by the Food Department, I, Aitzaz-ur-Rashid Khan, in exercise of powers vested in me under West Pakistan Flour Mills (Control) Order, 1959 as Controller of Flour Mills and in exercise of the powers vested in me under Order, 1957, in order to -ensure that benefit of liberal releases of subsidized wheat reaches the consumers of the Province, direct as under:-
(i) Subsidized wheat will be issued from Punjab Government reserves on daily basis as per demand of. The Flour Mills within their approved milling capacity.
(ii) The Flour Mills will declare their wheat stocks before getting wheat under the liberal release policy.
(iii) Wheat milled will be verified from the electricity bills. Wheat will not be issued to Flour Mills that fail to justify grinding of wheat on the basis of electricity consumed.
(iv)Each mill will declare stocks of wheat and wheat products alongwith daily electric rending on daily basis with the challan submitted for purchase of wheat.
(v)While selling wheat products, Flour Mills shall enter the foodgrains licence number of the buyer alongwith address and the quantity sold in the daily sale register.
(vi)No advance quota will be issued except with the authority of the Director Food.
(vii)Flour Mills shall strictly observe directions of Director Food, Punjab regarding stencilling packing extraction percentage and such other directions as may be issued from time to time under the Flour Mills (Control) Order, 1959/-Food-grains Licencing (Control) Order, 1957.
The Flour Mills getting wheat from the Punjab Government will sign a revised agreement with the District Food Controller of the wheat releasing District of Punjab Food Department.
These directions will be effective from 24.12.1997.
3. The learned counsel for the petitioner contended that on the basis of the above-mentioned policy, the petitioner is entitled to be treated in accordance with all other mill owners. He further contended that Government has the only power by virtue of section 3 of the Foodstuff Control Act, 1958 therefore only the Government has the authority to reduce the quota prescribed in the licence of the petitioner. He further contended that Government vide letter dated 25.1.1994 fixed the quota of the petitioner 120 ton per day with effect from the date it is luting wheat. He further contended that Asstt. Director Food issued direction that under the existing circumstances it is not possible to issue wheat quota to any floor mills economically grinding for any other Government Agency.
Subsequently, on the basis of the letter dated 29.5.97, the quota was stopped to provide wheat to the petitioner vide letter dated 12.11.97. He further contended that the action of the respondents is based on malice under the influence of the MNA of the area, who has criminal enmity with the petitioner. He further contended that on the basis of the latest policy, there is no classification and the competent authority has framed uniform policy for all the mill owners, therefore, the petitioner is entitled to be issued quota according to his grinding capacity on the basis of the latest policy. He further contended that petitioner's mill is grinding wheat of the Ministry of Defence from the year 1982 uptill now and the Department did not take any action for the last 15 years against the petitioner. This fact alone is sufficient that the stand of the respondents is based on malice. He further contended that the action of respondents is discriminatory, as the Federal Government issued a scheme commonly known as Food Stamp Scheme, under which the same facility has been provided to as many as 14 other flour mills, which have been mentioned in the office order 27.6.1997. The distribution of this flour is being made through the Utility Stores under the' management and control of the Federal Government.
4. The learned Asstt. Advocate General contended that Government has made a specific policy that the mill cannot grind wheat of two Government Agencies at the same time vide policy dated 29.5.97. He further distinguished that in the case of Utility Stores, the wheat has to be provided by the Food Department, whereas in the present case, the Defence Department has to provide wheat from his on resources through PASCO. He further contended that the Government is well within its right not to provide wheat to the petitioner on the basis of the said policy. He also contended that on the strength of Section 4-C of the Flour Mills (Control) Order, 1959, Asstt: Director Food is competent to issue letter regarding implementation policy. He further stated that respondents are not issuing wheat quota to any other will of similar circumstances like the petitioner. The learned Asstt. Advocate General was confronted with Annexure-H dated 15th August, 1997 which is only in the field for the specific period from 15th August, 1997 to 13th September, 1997. The representative of the respondents failed to bring on record any fresh policy in substitute of this policy except the letter dated 29.5.1997, issued by the Asstt. Director Food.
The learned counsel for the petitioner contended that the petitioner has taken a specific instance that the petitioner's mill is grinding wheat of the Defence Department's mill is grinding wheat of the Defence Department since 1982, but the respondents did not object to the same and relied upon ground H of the petition alongwith the reply of the respondent for the purpose of comparison, which is reproduced hereunder: - "That the petitioner's mill is grinding wheat of the Ministry of Defence from the year 1982 uptill now which fact was in the knowledge of the respondents and it is for them to explain as to how at belated stage they have earned the sense of reawakeness. The action which remained valid for 15 years cannot be made invalid in the existing circumstances when the Managing Director of the petitioner mill is falling victim of acrimonious feelings and atrocities of the sitting MNA through the Executive Agencies.(Ground H in W.P.) The assertion of the Department on its face value is couched in vague generalization. After lapse of 15 years, the respondent appears to have become more wise in attracting punitive action against the petitioner's mill. (Ground H in rejoinder).
Reply of Ground H in parawise comments.
"Matter stated in this paragraph regarding grinding of wheat in respect of Ministry of Defence from 1982 does not come to the notice of the Department. No comments on the rest of the paragraph."
5. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself with the assistance of the learned counsel for the parties, it is better and appropriate to reproduce the relevant provisions of the Foodstuff (Control) Act, 1958 and the Articles of the Flour Mills (Control) Order, 1959.
Section 2(b): "Government" means the Provincial Government of the Punjab and Section 2(c): "notified orders: means the order notified in the official Gazette.
Section 3. Powers to control supply, distribution, etc. Of foodstuffs.
(1) The Government, so far as it appears to it to be necessary or expedient for maintaining supplies of any foodstuffs or for securing its equitable distribution and availability at fair prices, may, by notified order, provide for, regulating or prohibiting the keeping, storage, movement, transport supply, distribution, disposal, acquisition, use or consumption thereof and trade and commerce therein."
Section 4: Delegation of powers.
The Government may, by notified order, direct that the power to make orders under section 3 shall, in relation to such matters and subject to such conditions, if any, as may be specified in the direction, be exercisable also by an officer or authority subordinate to the Government Article 2-A Controller means the Director of Food and includes any other person notified as such by Government.
Article 4: The Controller may, from time to time, direct the producers generally or any producer in particular-
(a) to procure or purchase wheat from such sources or such places or area as may be specified:
(b) to manufacture such wheat products or to limit the manufacture thereof to such quamities or varieties or not to manufacture such wheat products as may be specified;
(c) to supply such wheat products to such area, march, person or class of persons or organization in such quantities and in such manner as may be specified; and to charge for cleaning or mailing of wheat at such rates as may be specified;
(e) generally to regulate production, sale and delivery of wheat products.
The provision of the Foodstuff Control Act were considered by his Lordship Mr. Justice Zafar Hussain Mirza in Case of Riaz and Kandawalla Ltd. Karachi- .
Trading Corporation of Pakistan, Karachi (PLD 1979 Karachi 300) and the relevant observation is as follows:- "The West Pakistan Foodstuffs (Control) Act, 1958 is a legislation encouraging upon the private rights of citizens in the larger interests of the community. The restrictions imposed upon the sale and distribution of the Foodstuffs, particularly in the matter of price determined under the notified order would directly affect the procurement and supply of such Foodstuffs. If unreasonable restraints are placed upon the importer it would inevitably impede the importation of the commodities in question. Therefore, the provisions relating to the fixation of price in a particular notified order is matter of public policy and as held in the cited case, no importer can contract out of the requirements for the payment of price fixed therein. In any case such a contract would not be enforceable against the importer in a Court of law.
The words "notified order" mentioned in Section 2(c) and Section 3(1) were interpreted in M/s. Kalimullah and Company's case (PLD 1961 (W.P.) Lah. 321) by the Division Bench of the Lahore High Court and observed as follows:- "It would be noticed that the words "notified order" ocular in section 3 of the Act reproduced in the last paragraph.By clause (c) of section 2 of the Act, "notified order" is defined as an order notified in the Official Gazette. The memorandum was not notified in the Official Gazette and its copies appear to have been sent to persons who were affected by it or were to enforce it. A notification in the Official Gazette is one of the modes by which orders passed by Government are conveyed to the people but that is not the only form that such order can take, because the same information may be conveyed by a number of other means. The act, however, requires that an order passed by means of a Notification in the Official Gazette. It was, therefore, not open to the Provincial Government or its officers to adopt any mode other than notification in the official Gazette for conveying the direction contained in the memorandum. Consequently, I would hold that the memorandum has no validity."
The provisions of the Flour Mills Control Order, 1959 were interpreted in Mian Muhammad Allah Bukhsh's case (PLD 1961 (W.P.) Lah. 772) and laid down the following principle:- "The act gave power to the Government to make ancillary provisions for maintaining supplies and for other matters specified in it, and the Order being a measure for carrying into effect the provisions of the statue in the matter of detail is not a provision beyond the scope and limit of the authority conferred by the Act on the Government."
In the aforesaid judgments, the learned Judges also considered the vires of the Notification dated 9th August, 1960 and 8th September, 1960 and observed as follows:- "The direction in the impugned notification that the flour mill should work for 24 hours, is necessary for maintaining supplies and is an order which is competent in exercise of the power, given by the order and within the four comers of the purposes of the Act, under which it has been enforced." it is pertinent to mention here that legislature has specifically mentioned in the Act in Section 2(c) "notified order" and also mentioned the words notified order "in Section 3(1) and Section 4 by notify order and similarly Word "notified" is also used in Article 2(A) of the Control Order, 1959. The Hon'ble Supreme Court of Pakistan has defined the word notification in PLD 1978 SC 190 .As "Notification" means a notification published under proper authority in official Gazette" and the Hon'ble Karachi High Court defined the word Notification in PLD 1964 Karachi 478. Notification is defined in Section 1(41) of the West Pakistan General Clauses Act as a Notification published under proper authority in the official Gazette. For construing the word notification, I have to rely upon the definition given in the General Clauses Act and not the dictionary meaning of the word.
The word "notified" is also observed in reported judgment NLR 1994 Civil 579 as follows:- "Expression notified, notify and Notification used in various statutory instruments of employed to convey sense of making none. Word notification clearly implied that contents of declaration in question must be made known to publish and not mere an issuance of an order in the office of Government authority. Word notify means act of notifying or giving notice."
It is admitted fact that the letter has been issued by the Asstt. Director. Food without any notified order to authorizing him to issue such type of policy letter, therefore, letter dated 29.5.97 is not in accordance with provisions of the Act and Order. It is conditions precedent that on the basis of the above-mentioned provisions of law, the Asstt. Director Food was to be first notified to issue such type of letters, therefore, Asstt. Directory Food was not competent to issue directions dated 29.5.1997 I am fortified by the judgments of the Hon'ble Supreme Court of Pakistan reported as PLD 1971 SC 124 and PLD 1993 Lah. 218. It is also admitted fact from the pleadings of the parties and arguments that petitioner is only affected by the order dated 29.5.1997, and the action of the respondents is discriminatory qua the petitioner, as the Government did not take any action qua the Utility Stores case mentioned above, therefore, action of the respondents is hit by the principle laid down by the Hon'able ^Supreme Court of Pakistan in I.A. Sherwani's case (PLD 1991 S.C. 1041) and the relevant observation is reproduced hereunder:-.
(i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike;
(ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis;
(iii) that different laws can validly be enacted for different sexes, persons in different age, groups, persons having different financial standings, and persons accused of heinous crimes.
(iv) that no standard of universal application to test reasonable less of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances;
(v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary' and is not founded on any rational basis is no" classification as to warrant its exclusion from the mischief of Article 25;
(vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;
(vii) that in order to make a classification reasonable, it should be based- la) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out;
(b) that the differentia must have rational nexus to the object sought to be achieved by such classification.
6. The learned Asstt. Advocate General contended that it is a matter of chance that the petitioner is only hit by the said letter, therefore, question of discrimination does not arise. In my view it is discriminatory qua the petitioner as is held by the Hon'ble Supreme Court in I.A. Sherwani case (PLD 1991 SC 104l). The discretion is also not properly exercised by the Asstt. Director Food justly and fairly, as is held by the Hon'able Supreme Court in Mejee Flour and General Mills Ltd. Case (1997 SCMR 1804) and the relevant observation is as follows:- "It would thus be noticed that notion of human equality had emerged as a reaction to abhorring artificial distinctions between man and man or between one class of man and another class based on consideration, inter alia, or personal likes and dislikes under the garb of discretion."
The petitioner is enjoying the facility constantly for the last 15 years without any interruption by the Department. It is also admitted fact that the District Food Controller cancelled the licence of the petitioner's mill on 16.9.1997, which was suspended by the District Magistrate vide his order dated 18.9.1997 and the respondents issued a show-cause notice to the petitioner on 12.11.1997 on the basis of letter dated 29.5.97 possibility cannot be over-ruled that the action was taken mala fidley, as the order of cancellation was suspended by the appellate authority vide order dated 8.9.97. The learned Asstt. Advocate General failed to bring on record any policy except the aforesaid letter dated 29.5.1997. On the basis of which the quota was refused to the petitioner on the ground that the petitioner also grinds the wheat of the Defence Department, therefore, action of the respondents is based on malice in law, as is held by the Hon'able Supreme Court of Pakistan in Agha Sorish Kashmiri's case (PLD 1969 S.C. 14 and PLD 1988 Lah. 49 Khar's case and PLD 1989 S.C.
26) Ghulam Mustafa Khar's case. The Asstt: Advocate General has also failed to bring on record any other policy except the aforesaid letter dated 29.5.97, which cannot be treated as policy, as is held by the Hon'ble Lahore High Court in PLD 1980 Lah. 15 by virtue of Articles 129 and 139 of the Constitution read with Rules of Business, it is the only Secretary who has the authority to frame the policy and not the Asstt: Director, therefore, the stand of the learned Assistant Advocate General has no force.
7. The contention of the learned counsel for the petitioner has also no force, so far as the action taken by the respondents under the direction of the MNA of the area is concerned, on the principle laid down by the Hon'ble Supreme Court of Pakistan in Saeed Ahmad's case (PLD 1974 SC 151), (PLD 1990 SC 1092). The principle laid down in these cases are that "petitioner has to particularize the specific allegation against the public functionaries but the petitioner has failed to point out any malice regarding the public functionaries specifically.
8. As the Government has changed the policy subsequently on 24.12.97, in which there is no prohibition, therefore, the petitioner is to be treated at par with other mill owners on the basis of the latest policy dated 24.12.1997, The Court can take notice of subsequent events. I am fortified by the reported judgment Zubaida Begum's case (1990 CLC 1969) and the relevant observation is as follows:- "It is thus evident from the above reproduced extracts from the decision of the Supreme Court notwithstanding the fact that in proper cases, a discretion is vested in the Court to take notice of the subsequent events and grant relief to the parties accordingly."
9. In view of the these circumstances, this writ petition is accepted to the extent that the petitioner shall be treated at par with other will owners strictly in accordance with the latest policy dated 24.
12.1997.