' This judgment will also dispose of Writ Petitions. Nos.25070, 25071, 25080, 25079, 23726, 24484, 23725, 23723, 27003, 23722, 23724, 23727, 29352, 29419, 23866, 22882, 23348, 23347, 25436, 25437, 25435, 25438, 27733, 28396, 28410, 28400, 28177, 28176, 28175, 28174, 28178, 27980, 27979, 27977, 27574, 27573, 29088, 28671, 17635, 28672, 28781, 24616 of 1997, 5014, 15832, 17883, 17881, 18101, 17034, 17035, 17634, 17038, 17037, 17036, 5706 of 1998, 23865, 23721, 22321, 19223, 19508, 19509, 36650, 25784, 28172, 25785, 25338, 27002, 28673, 27978, 19222, 19499, 19457, 28173, 29353, 29354, 28171, 28666, 27684 of 1997, 3216, 2537, 2830, 27527, 1148, 1457, 15831, 15833, 17882, 17636, 17033, 17032, 4988 of 1998, 25994, 25993, 25990, 26684, 26682, 26683, 26678 and 29456 of 1997 as somewhat similar questions of facts and law are involved therein while some of them are dependent on the other as also the Criminal Originals Nos.917, 918 and 919 of 1997 as they have arisen out of the writ petitions noted above.
2. The petitioners in all the petitions noted above are the flour mills of the Punjab province who are aggrieved of either non-issuance of wheat quota or non-issuance of enhanced wheat quota claimed by the petitioners on the basis of added roller bodies or reduction in wheat quota. This reduction is stated to be the direct result of interim orders passed by this Court allowing the wheat quota to the newly established mills as also enhanced wheat quota allowed to the already established mills on adding roller bodies. The dispute has arisen in the circumstances that various mills were installed in the province of Punjab and since no permit or permission was required to be obtained from any authority, therefore, the citizens acquired vocation or profession of millers in the open field. The mills having been constructed in accordance with the specification and sanctioned plan, applied for the supply of wheat quota from the Government as per the policy in vogue but the same was refused in the case of newly erected mills on the ground that the mills were not enlisted with the department. In almost all the cases, the mills applied for enlistment and kept on waiting for the same but with no fruitful results. Notices were also issued to the Food Department and having failed to elicit any response, the mills approached this Court mainly on the ground that there is no law which require enlistment and since the Government has itself imposed restrictions in regard to food grain licence holders that they are not allowed to keep wheat reserves more than their 72 hours grinding capacity, the Government cannot refuse wheat quota to them. It was also submitted that the Government being the only authority which can procure and hold wheat reserves for an unlimited period, it is obligatory on their part to supply wheat quota to every flour mill. The ground of discrimination was also urged with vehemence and it was maintained that in the times of free trade and the right to acquire any vocation or occupation, the petitioners are being deprived of their lawful occupation and competition in trade which manifestly offends against the equality clause of the Constitution.
' In the cases of enhanced quota it was demanded on the ground that the petitioners have added roller bodies in the mills by spending huge amounts but are not being allowed wheat quota commensurate with their capacity, thus, putting restraint on free trade and free vocation, which is violative of the Constitutional guarantees.
' The third category of cases is very interesting inasmuch as in that the mills are pitched against the mills. The aggrieved mills were granted interim relief whereby the respondents were ordered to allocate wheat quota and supply the same to the newly erected mills as also in the cases of enhanced milling capacity and whenever such an order was passed, the Government in turn reduced the wheat quota of the existing millers thereby saving wheat supply and redistributing the same to the mills. The exact grouse of the petitioners of such a category of cases was that the Government could not do so because the allocation of wheat quota has already been made in their cases and that the same could not be reduced on the ground that they have to supply the wheat quota to the newly established mills or to the mills who had added roller bodies to their capacity. Additionally it was urged that wheat quota being supplied to such mills could not be reduced without notice.
3. Report and parawise comments were called for and has since been filed in the cases of M/s. Al- Mutwakkal Flour Mills, M/s. Ittefaq Flour Mills, and M/s. Khan Flour Mills. In view of the influx of cases, the learned Additional Advocate-General was asked as to whether he would like to submit report and parawise comments or written statements in all the cases, who on the instructions of Mr. Aitzaz-ur-Rasheed, Director Food submitted that report and parawise comments already filed shall suffice as written statement and shall also ensure for the rest of the writ petitions.
' The stand point as disclosed in the report and parawise comments is to the effect that there was no restriction imposed on the construction/erection of a flour mill but it was pleaded that the condition of enlistment was imposed from time to time and in this behalf first reference was made to letter No, SOF-iv-2(30)/89-II, dated 9-101991 whereby such a condition was imposed. The said ban on the enlistment of new flour mills and enhancement of grinding capacity of flour mills was, however, withdrawn vide Letter No, P-189-SOF-IV-2(3)/1989-II, dated 3/5-11-1996. It was then that Memorandum No, SOF-IV/2-30/89-11, dated 12-12-1996 has been referred to contend that the enlistment of flour mills was required by this memorandum hence department could legitimately insist thereon and unless the mill is duly enlisted it could not claim wheat quota from the Government. Section 3 of Foodstuff (Control) Act, 1958 was relied to contend that the Government had the power and jurisdiction to issue orders or such other directions for regulating by licenses, permits or otherwise the manufacture of any article of food from foodstuffs as also for prohibiting the withholding from the sale of any foodstuff ordinarily kept for sale; for collecting any information or statistic with a view to regulating or prohibiting any of the aforesaid matters. It was submitted that indiscriminate and mushroom growth of flour mills would definitely result in cluster of mills in a certain area where the existing mills are already considerably in excess of the local requirement and grinding wheat reducing the grinding hours and increasing the transportation charges whereby milled Atta is to be taken to a deficit area would definitely add to the cost of Atta, thus, discriminating between the citizens/consumers of deficit area in relation to the consumer of surplus area. The plea that the wheat is supplied to the mills at the subsidized rate was also urged with vehemence.
4. In the background afore noted Mr. Shahzad Shaukat, learned counsel for the petitioner having referred to various food laws contended that there is not a single provision in the whole of food laws presently existing on the statute book requiring enlistment of a flour mill and the reference of Food Department to its various letters whereby initially the ban was imposed on the enlistment of new flour mills and was subsequently withdrawn and lastly to the letter of 12-12-1996 whereby enlistment was again relived, it was contended that the contents of the said letter are merely directory in nature and did not partake the character of law, rules or notified orders as understood under the Punjab Foodstuffs (Control) Act, 1958 because the said order was never gazetted nor notified in the press, media, T.V. And radio and even if this policy letter be considered as law on the basis whereof enlistment is considered necessary, it could only be applied prospectively and not retrospectively. The precise argument was that it takes two years to construct/erect a flour mill, therefore, the project which has been undertaken before the target, date i,e,, 12-12-1996 could not be denied wheat quota on the ground of its so-called enlistment. It was submitted that as per the provisions of West. Pakistan Food grain (Licencing Control) Order, 1958, at present the flour mills are not allowed to store wheat beyond 72 hours grinding capacity because as per the provisions of the said Act, no one is allowed to store wheat nor any one is allowed to transport it. The business of grinding Atta is at the mercy of the Government who had purchased. The wheat in the season and stored it for the purposes of allocation of wheat quota to various flour mills. The provisions of Ordinance No, XIV of 1956 i,e, Hoarding and Black-marketing Order, 1956 were also referred with special reference to section 2 sub-clause (3) read with section 3 (ibid) as also the policy that nobody would be allowed to store wheat beyond 72 hours of its grinding capacity to contend that if any body contravenes the above said provisions, he is liable to be hauled up and punished as it is an offence. The department maintains very strong vigilence and every month the mill owners are required to submit their electricity bills so that the same are matched with the wheat quota supplied. The price of Atta is again regularised by the department. Learned counsel for the petitioner relied on "M/s. Asif Flour Mills v. Government of N.-W.F.P." PLD 1997 Pesh. 5 which judgment was affirmed by the Supreme Court of Pakistan in C.P. Nos.389-391 of 1996 by its order, dated 14-12- 1996. Another case decided by the Supreme Court reported as "Government of N.-W.F.P. Through Secretary and three others v. Mejee Flour and General Mills (Private) Limited Mardan and others"
1997 SCMR 1804 was also relied with a further reference to "Star Flour Mills v. Province of Punjab and others PLD 1996 Lah.
687. The arguments were summed up with the note that requiring enlistment and withholding supply of wheat quota on that ground is discriminatory, against the fundamental rights as also violative of equality clause of the Constitution. The case of "M/s. Leghari Flour Mills" (Writ Petition No,22321 of 1997) was specifically referred to contend that the mill in this case was installed after obtaining huge loan which was not enlisted, thus, resulting into enormous loss. The cases of "Brig (Retd.) F.B. Ali and another v. The State" PLD 1975 SC 506, "Pakistan Petroleum Workers Union through its General Secretary v. Ministry of Interior through its Secretary, and another" 1991 CLC 13, "Saeed-ud-Din v. Secretary to Government of N.-W.F.P. Finance Department and three others" 1990 CLC 8 and "Gul Khan v. Government of Balochistan through Secretary Education and 4 others PLD 1989 Quetta 8 were also referred wherein Article 25 of the Constitution has been generally interpreted in so far as discrimination is concerned.
5. Learned Additional Advocate-General, Punjab, on the other hand having also referred to total food laws made a categoric statement that none of the legislation speaks of enlistment but insisted that the contents of letter, dated 12-12-1996 has the force of rules made under Foodstuffs (Control) Act, 1958. It was argued that the Government had the, power under section 3(a)(b)(c)
(ibid) to regulate the affairs in regard to the issuance of wheat quota to the different flour mills and it could legitimately insist on enlistment. It was argued that by insisting on enlistment there is no violation of Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan, 1973. Confronted as to rule of law laid down in M/s. Asif Flour Mills noted supra and 1997 SCMR 1804, the learned Additional Advocate-General, Punjab, fell back on the grounds "F & D" of the comments to contend that while discrimination between flour mill and a flour mill is being gone into, it should also be looked at from the angle of flour mills itself and public in general for the supply of subsidized wheat is meant for the ultimate benefit of the consumer of Atta that too at the regulated price thereof. In this background, it was submitted that total wheat procured in the year, 1997 comes to 12 million tones and 30 million people living in urban population basically shared the supply of Atta because in ultimate analysis, the Atta is meant for urban population. Last season wheat procurement was 11.66 million tones which is about little over 15% of the total wheat available this season in the market. According to him procurement ended in July, 1997 and supply to the enlisted mills started in mid August while during interregnum the mills have been purchasing it from the market. It was submitted that price of local wheat including incidental charges comes to Rs,762 per tone while the same is sold to the flour mills Rs,6,500 per tone, thus, incurring a subsidy of Rs,562 per tone. Apart from the local wheat, it is also imported by the Federal Government and in turn purchased by the Province of Punjab @ Rs,6,500 per tone while Rs,1,132 are incurred on handling charges and another amount of Rs,1,126 is added to it because of transport charges, thus, the total comes to Rs,8,875 per tone. Needless to state that imported wheat is also supplied to the mills Rs,6,500 per tone, thus, the amount of subsidy in the case of imported wheat is Rs,2,378 per tone. He summed up the above said figures by maintaining that total cost of subsidy comes to Rupees three hundred crores. He was at pains to state that the exercise was basically undertaken to provide subsidized Atta to the consumer i,e, citizen and to be more precise the urban population. It was submitted that no doubt all the petitioners applied for enlistment and when they were refused, they filed the present writ petitions. Flour Mills (Control) Order, 1959 was also referred to contend that law and order taken together provide basis for regulating wheat supply to the flour mills in the Province. It was submitted that Government is only regulating the supply of wheat and allocation of quota and the Government has the right to put restriction on procurement of wheat from 1st of May to 20th of July, i,e,, procurement season, during which period the mills have not to worry about the purchase, procurement for storage of wheat nor that of borrowing the money therefor. The financial involvement of the mills is far lesser than the Government while on the contrary Rs,20 billion are involved of the food department. It was then concluded that there can be reasonable classification and the Government can reasonably classify between the mills similarly placed for overall goc4.
Reliance in this respect was placed on "Government of Balochistan v. Azizullah Memon" (PLD 1993 SC 341) and "I.A. Sherwani v. Government of Pakistan etc." (1991 SCMR 1041). He then added that all that is said in the letter, dated 12-12-1996 is to the effect that the quota shall not be allocated nor supplied without enlistment and that the same could not be interpreted to mean that the enlistment shall not be accorded.
6. As far the enhanced capacity on the basis of added roller bodies is concerned, policy letter of 1983-84 was referred to contend that as far back as 1984, it was ordained that new roller bodies shall not be added particularly in view of the lesser procurement of wheat as also supply of the same on subsidised rate. Article 18 of the Constitution was then referred to contend that the same has been subjected to the qualifications, if any, as may be prescribed by law. It was maintained that the policy letter, dated 12-12-1996 and that of 1984 has the force of law inasmuch as the contents of -these letters have the overriding effect upon the rights of the citizens to enter upon any lawful profession or occupation or to conduct lawful trade or business. Similarly the proviso attached to the said article was relied with vehemence whereby it has been provided that nothing contained in the said article shall prevent the regulation of any trade or profession by licensing system as also regulation of trade, commerce or industry in the interest of free competition.
' In regard to reduction in quota of the existing mills, it was maintained that it became imperative because of order passed by this Court whereby the Government was obliged to allocate wheat quota to the newly erected mills as also enhanced wheat quota because of added roller bodies which in turn enhanced their milling capacity. The plea that reduction in wheat quota was made without notice to the mills, however, remained unanswered.
7. Admittedly, there is no law as such prohibiting or restricting the construction of a flour mill. The field being vacant and available, the citizens are free to construct flour mills throughout the country and particularly in the Province of the Punjab. The erection of a mill, however, is no ordinary affair. It involves huge investment in buying the premises, on erecting the mill, on getting electric connection and when it is all set for production, the Government turns around and comes up with the plea that wheat quota cannot be allocated to the mill unless the same is enlisted. The mill owner applies for enlistment but is kept at the bay without an answer in that regard. The reason for enlistment, as given by the Food Department is to the effect that it is necessary in view of the policy instructions as contained in Memorandum No, SOF-IV/2-30-II, dated 12-12-1996 which reads as under:--- POLICY INSTRUCTIONS ISSUE OF PROVISIONAL QUOTA OF WHEAT/ ENHANCEMENT OF MILLING CAPACITY.
' It has been observed with concern that release of wheat are much higher as compared to last year. In order to restrict the release, the following decisions have been taken:---
(i) No provisional quota will be issued without the approval of Food Department and that too in exceptional and hardship cases. Similarly, quota will also not be issued on the enhanced capacity.
Any officer found to have issued provisional quota of wheat or enhanced quota would be doing so at his own risk and will be severely dealt with for violation of these instructions.
(ii) Applications for enlistment of flour mills would only be received by Director Food who, along with his recommendations will refer the case to the Secretary Food for orders. Whenever District Food Controller issued Food Grain Licence it must be issued only subject to the condition that Food Department will not provide the wheat. The same condition would apply at the time of renewal of the Food Grain Licence.
(iii) Wheat will not be issued to any flour mill in excess of its proportionate quota.
' These policy instructions are issued in supersession of all the instructions issued on the subject.
8. A plain reading of the policy instructions afore-referred would show that it is only an inter departmental instructions issued for guidance of various officers of Food Department. It cannot, therefore, partake the character of law, rule or notified order as understood under the Food Control A Act, 1958 for an order to be binding is to be notified in the official gazette as per the intent of definition of "notified order" contained in section 2(c) of the Punjab Foodstuffs (Control) Act, 1958.
Needless to add that the policy which was referred has not been notified in the official gazette.
Faced with the above situation, the learned Additional Advocate-General argued that regulation of trade, occupation or profession is within the competence of Government and perhaps obligation also. He submitted that if the above said policy be not taken as law, rule or notified order, at least it could be considered as regulatory order within the meaning of section 3 of the Foodstuffs (Control)
Act, 1958 and that is within the competence of the Government and the regulation of, trade, occupation etc. Being within the competence of the Government, no valid grouse can be made in regard thereto. The argument is devoid of any force because the regulation as commonly understood does not mean imposition of restriction of substantial nature which could only be done by way of law. It is eminently known that legislature is not permitted to abdicate or to transfer to others the essential legislative function 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. Even otherwise if such a power is conceded to the Government, it would create despotism in the functionaries of the Government and shall also suffer from the vice of excessive delegation. As noted earlier, the millers have erected the mills without there being any restriction in regard thereto and the same having been erected, the only business that could be undertaken by them was to grind wheat so as to produce Atta and for that matter they have to buy the wheat from the Government. It is known in the field that Government has imposed restrictions on the millers not to hoard the wheat for rn than 72 hours of their grinding capacity, therefore, as per the circumstance the millers have to have re-course to the Government for the supply of wheat. The Government on the other hand comes up with the use that any new mill if not enlisted with the Government could not get the quota. This condition of enlistment of mill is nowhere to be found in law. The oblique reference to letter of 12-12-1996 would also be of no help even if it is read in conjunction with section 3 of the Foodstuffs (Control) Act, 1958 because it would not be interpreted to mean that such an enlistment was mandatory or required before the issuance of wheat quota. Again the supply of wheat to one and refusal to another is sheer discrimination which could not be supported on any logical ground and reason particularly there being no law on the subject. Need it be stated here that anything in restraint of trade is illegal, likewise any law, regulation or policy restraining competition is illegal. Monopoly in trade, of particular agriculture produce cannot also be upheld because it tends to destroy the concept of free trade, acquiring of profession or occupation and again it would lead to unbridled power on the part of monopolist who would be vested with the power to use it at his discretion thereby destroying the equilibrium in the society. In the event that supply is refused in certain case, may be on the ground that the mill is not enlisted or on the ground of added roller bodies, and is allowed to be given to certain selected people at the discretion of the department, it would lead to ruthless, naked and unbridled discretion which cannot be countenanced in the days of Fundamental Rights and their enforcement. It must always be remembered that the days of kings degree are over. In a democratic state where citizens are to compete with the citizens and it is free for them to so compete, it is not possible that wheat quota is allowed to certain and denied to others. Article 18 of the Constitution guaranteed valuable right to every citizen subject to such qualifications, if any, as may be prescribed by law to enter upon any lawful profession or occupation and to conduct any lawful trade or business. It has, however, been provided that such a trade or profession may be regulated by a licensing system or by a regulation of trade, commerce and industry in the interest of free competition therein. As would be seen that right to acquire vocation or profession or business has been subjected to two restrictions, firstly, the qualification, if any, as may be prescribed by law. Secondly the regulation of any trade or profession by licensing system or to regulation of trade, commerce or industry in the interest of free competition therein. No such restriction is available in the present case, because, there is no law prohibiting the erection of a new mill or the enlistment thereof. Similarly, there is no licensing system by which it could be said that the supply of wheat could be deemed to be regulated by license.
9. Learned counsel for the petitioner has very aptly relied on the cases of "M/s. Asif Flour Mills v.
Government of N . -W .F . P . " and "Government of N . -W . F .P. Through Secretary and three others v.
Mejee Flour and General Mills (Private) Limited Mardan and others" noted supra wherein the provisions of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, have been considered and relied to hold that the action of the authorities in refusing the wheat quota to the mills on the ground of their being not included in the approved lists (in the present case the quota is refused on the ground of mere enlistment) is sheer discrimination, hence liable to be struck down. The judgment in the case of "Mejee Flour and General Mills contains a profuse reference from the treatise "discretionary powers" which is legal study of official discretion by D.J. Galligan, wherein he has acknowledged that the general principle that discretionary decision should be made according to rational reasons means;
(a) that there be findings of primary facts based on good evidence;(b) that decision about the facts be made for reasons which serve the purpose of the statute in the intelligible and reasonable manner.'
' According to the celebrated author, the actions which do not meet these threshold requirements are arbitrary and may be considered a misuse of powers. It went on to hold that in "Amanullah Khan and others v. Federal Government of Pakistan through Secretary Ministry of Finance, Islamabad and others PLD 1990 SC 1092, Mr. Justice Shafiur-Rehman, who was sitting in the Full Bench has very ably propounded by now well-known doctrine of "structuring the discretion" in the following paragraph of the report on page 1147:--- "Wherever wide-worded powers conferring discretion exist, there remains always the need to structure the discretion and it has been pointed out in the Administrative Law Text by Kenneth Clup Davis (page 94) that the structuring of discretion only means regularising it, organizing it, producing order in it so that decision will achieve the high quality of justice. The seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open findings, open reasons, open precedents and fair informal procedure.
Somehow, in our context, the wide-worded conferment of discretionary powers of reservation of discretion, without framing rules to regulate its exercise, has been taken to be an enhancement of the power and it gives that impression in the first instance but where the authorities fail to rationalise it and regulate it by Rules, or policy statements or, precedents, the Courts have to intervene more often than is necessary, apart from the exercise of such power appearing arbitrary and capricious at times."
' The only plausible deduction from the above is to the effect that the action of the Government cannot withstand the test of structuring the discretion thereby calling for interference by this Court in the exercise of its jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. -10. The reliance of learned Additional Advocate-General, Punjab on the cases of "Aziz-ullah Memon and I.A. Sherwani" to canvass the proposition that their could be reasonable classification and that in the instant case the classification of mills being reasonable could not be objected to any valid ground. In the case of "Aziz-ullah Memon", the plethora of cases available on the equal protection clause was considered to deduce the, following principles:-
(i) the 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 reasonableness 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 to be treated alike both in privileges conferred and liabilities imposed;
(vii) that in order to make a classification reasonable, it should be based--- '(a) on an intelligible differential 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."
' The question was summed up in the following words:--- ''As the judgments from Indian jurisdiction have been considered in the afore stated judgments of this Court, we would not refer to them here. In all these authorities there seems to be a unanimity of view that although , class legislation has been forbidden, it permits reasonable classification for the purpose of legislation. Permissible classification is allowed provided the classification is founded on intelligible differential which distinguishes persons or things that are grouped together from others who are left out of the group and such classification and differential must be on rational relation to the objects sought to be achieved by the Act. There should be a nexus between the classification and the objects of the act. This principle symbolises that persons or things similarly situated cannot be distinguished or discriminated while making of applying the law. It has to be applied equally to persons situated similarly and in the same situation. Any law made or action taken in violation of these principles is liable to be struck down. If the law clothes any statutory authority or functionary with unguided and arbitrary power enabling it to administer in a discriminatory manner, such law will violate equality clause. Thus, the substantive and procedural law and action taken under it can be challenged as violative of Articles 8 and 25."
' It is, thus, obvious that persons or things similarly situated cannot be distinguished or discriminated while making or applying the law. It is to be applied equally to persons situated similarly and in the same situation. Any law made or action taken in violation of these principles is liable to he struck down. The argument that the Government has to supply the wheat involving very heavy subsidy and that the Government undertakes the responsibility of procurement of wheat and storage thereof is no big deal. Government being the mother of the citizens and democratic in nature, as it professes to be, is to look after the welfare and well-being of its citizens rather than to become a businessm an with its own citizens and earn profit from the Foodstuffs supplied to them.
Needless to add that Government has debarred the millers from hoarding the wheat more than 72 hours of their grinding capacity, therefore, it cannot be maintained by them that lot of expenses are incurred in procuring the wheat as also hoarding the same in different Ware-houses of the Government. Being exasperated Mr. Aitzaz-ur-Rasheed, the Director Food who also addressed arguments, offered that the millers can buy wheat from the local market and can produce Atta.
This argument is equally devoid of any force for the reason that in the season when the wheat is cut and marketed, the ban is imposed by the Government that the millers cannot buy the same while most of it is purchased by them. The long argument addressed by Mr. Aitzaz-ur-Rasheed, the Director Food may not be recapitulated here because in substance it was repetition of the arguments addressed by the learned Additional Advocate-General.
11. There is yet another aspect of the matter which need to be attended to inasmuch as there are certain mills which have added roller bodies to their capacity with the result that they asked for enhancement of quota from the Government. The said quota was also refused but without any reason. The mills in turn hale invoked the Constitutional jurisdiction of this Court on the ground that they have added roller bodies to their capacity and are, thus, entitled to more wheat. The one answer given at the time of argument was that addition of roller bodies was prohibited by a letter issued in the year 1984. This could not be done by way of issuing a letter only. As noted earlier, the letter cannot be deemed to be an order within the meaning of section 3 of the Foodstuffs (Control)
Act, 1958, the same ought to have been notified in the official gazette. This having not been done, it cannot be said that this letter has the force of law or the notified order, thus, the mills which have added roller bodies to their capacity are entitled to enhanced wheat quota.
12. This brings me to the last question of those mills whose quota had been reduced on the ground that the newly enlisted mills were allowed quota by way of ad interim order or enhanced quota was allowed to the existing mills in view of their added roller bodies to their capacities. It seems that this has been done purposely by the Government so that the mills are pitched against the mills and the controversy is worst compounded little knowing that such a reduction could not be made without notice as also without hearing and then the Government is obliged under the law to give reasons for such a reduction. Admittedly, no such notice was issued nor they were afforded any opportunity of being heard, therefore, the quota could not be reduced.
13. In result the writ petitions afore-referred are accepted and the insistence of the Government/Food Department in obtaining enlistment of the mills before they could be granted wheat quota as also the refusal of the Government to grant wheat quota on the basis of policy letter, dated 12-12-1996, similarly refusal to grant enhanced wheat quota on the basis of added roller bodies to the capacity of various mills or on any other basis is declared to be without lawful authority and of no legal effect. Likewise, the reduction of wheat quota which has already been approved, allocated and given to the various mills is declared to be without lawful authority and of no legal effect. The Criminal Originals Nos.917, 918 and 919 of 1997 are, however, dismissed as the same were not pressed at the time of arguments. There shall, however, be no order as to costs.
' Note.---The judgment in the case was pronounced in the presence of learned.
' Advocate-General who orally requested that the operation of the order be suspended so that the Government is able to prepare and file an appeal against the same. In support of the argument he relied on Khalid Siraj Textile Mills v. Federation of Pakistan etc." 1990 ALD 446(1). The case relied by learned Advocate-General was that of bank guarantee, therefore, the operation of the judgment in the said case was suspended because otherwise the bank guarantee would have been en cashed and the appeal would have become infructuous. No justification is made out to suspend the judgment in this case. The oral request is declined. /Request declined.