' MD 1 KHUDA BAKHSH MARDI, C. J.-This Constitutional Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan challenges Notification No, F-1-6/66.69/II1 dated 30th July, 1976, Annex. 'E', by Secretary Food, Government of Baluchistan, as having been passed without lawful authority.
2. Briefly the facts are that petitioner Syed Mohd. Anwar Proprietor, Zamindar Flour Mills, is one of the fourteen Flour Mills owners (chakkiwallas), at Quetta. All the chakkiwallas, it is alleged, made representation to the Government to supply them wheat at lower price than that available in the open market for the purpose of running their business. This request was acceded by Notification No, F-1-6/66-69/I11, dated 28th April, 1972, whereby amongst others, in exercise of powers under section 3 of the West Pakistan Foodstuffs (Control) Act, 1958, the Government of Baluchistan with immediate effect and till further orders directed the release of wheat from the Quetta Provincial Reserve at the prescribed rate of Rs, 17 per maund, including bag, to all chakkiwallas functioning in Quetta Town.
3. In pursuance of the above order various quantities of wheat quota was fixed by the Government for each chakki including the petitioner, which they used to lift and this arrangement with time to time chase in price appears to have been continued up to month of July, 1976 ; when the petitioner and other chakkiwallas went to collect their quota of wheat they were verbally informed that they would not be issued their quotas of wheat on account of taking over of certain categories of Flour Mills in Town of Quetta on 31st July, 1976 the petitioner made an application to respondent No, 1, as President Mills Owners' (Chakki) Association, Annex. 'D', whereby he requested that their fixed quota of wheat may be released, but he was, however, handed over a copy of the Notification No, F-1- 6/66-69/III dated 30-7-1976, where he was informed that only those Roller Flour Mills at Quetta, the ownership and management of which has been transferred to Baluchistan Development Authority, shall henceforth receive wheat on Government account from the Food Department, Government of Baluchistan. The Notification is as uncert- "No, F-1-6/66-69/III.-In exercise of the powers conferred by section 3 of the West Pakistan Foodstuffs (Control) Act, 1958 (Act XX of 1958), the Government of Baluchistan is pleased to order that only those Roller Flour Mills at Quetta, the ownership and management of which has been transferred to Baluchistan, Development Authority by Central Government, shall with effect from 1st August, 1976, receive wheat cn Government account from the Food Department, Government of Baluchistan. No other Mill or chakki shall receive wheat from Food Department on Government account.
' This Department Notification No, F-1-6/66-69/1H, dated 25th April, 1976 is hereby rescinded.
' By Order the Government of Baluchistan (Sd.)
Imtiaa Masrur, Secretary Food, Government of Baluchistan."
4. We have heard Mr. I. H. B. Hanafi, Advocate for the petitioner and Mr. Mohammad Ahmed Mirza, Advocate-General for the respondents. Counsel for the petitioner challenged Notification, Annex. 'E', on the grounds that it is clearly mala fide and having been passed without lawful authority and that respondent No, I had no authority under section 3 of the West Pakistan Foodstuffs (Control)
Act, 1958, to withhold release of quota to the petitioner, and that the petitioner being grantee acquires a right to the enjoy- , ment of the privilege in accordance with and subject to the terms and conditions of the grant and his right cannot be taken away during the term of the grant save for a cause and that the impugned order has been passed in violation of principle of natural justice as no show-cause notice was given to the petitioner. Over and above he submitted that Annex. `E' is not a speaking order. It is arbitrary and does not disclose any reason and ground on which it was made.
5. On the other hand learned Advocate-General submitted that the petition is not maintainable on the ground that the petitioner can come to this Court only to challenge a vested right and no vested right has been interfered with without any show-cause notice or without hearing him. In the present case the petitioner was only a grantee and that grant was also qualified and conditional as Annex. 'A' clearly states that the grant was still further orders of the Government. He further submitted that the quota of wheat to the petitioner and other chakkiwallas was stopped after the Federal Government promulgated an Ordinance called the Flour Milling Control and Development Ordinance, 1976, according to which the grinding of the official wheat issued to the people through the provisioning system has been taken over by the Government. All the Flour Milling Industry equipped with Rollers have been taken over by the Federal or Provincial Government, wherever necessary, in pursuance of the objects of the Ordinance. Therefore Baluchistan Development Authority moved the Food Department and requested it not to Issue any wheat from the Government godowns to the non-acquired units as it will jeopardize and nullify the very objects of the Ordinance. The quota of Government wheat which was previously being allowed to chakkiwallas had to be stopped forthwith. As the Ordinance of Flour Milling Control and Development Ordinance, 1976, had already been promulgated, it was felt that no further notice to the petitioner was necessary. He however, added that the petitioner being a chakkiwalla, having not taken over his chakki by the Government, is free to buy wheat from open market and grind it.
Out of an estimated production of 1.50 lac tons in Baluchistan alone, the Government intends to procure only 25,000 tons. The rest of the 1.25 lac tons will continue to be sold and bought in the open market, and that in the circumstances there is no mala fide and that the Secretary, Food Department has the authority under section 3 of West Pakistan Foodstuffs (Control) Act, 1958 to regulate the supply and distribution of wheat and Atta etc., and that no milling unit could claim it as a matter of right that the Government is bound to issue Government wheat to Baluchistan Development Authority and that the Government has full powers and authority to stop the release of Government wheat to any milling unit as it deems fit. In the present situation as no option was available with the Secretary, Food Department by virtue of promulgation of the Ordinance, 197E, there was no necessity of issuing any show-cuase notice.
6. During the course of arguments, counsel for the petitioner added another submission that lately the respondent is issuing wheat to ARDS at Rs, 32 per mound. In this regard he produced Annex. "A- 1' dated 5-3-1977, where on an application of the petitioner, respondents did not controvert the submission but through another order of the respondent issued by Secretary, Food Department, Baluchistan, Quetta, dated 10th Jan. 1977, it is stated that private mills and chakkis desirous of purchasing wheat will be supplied without any limitation @Rs, 42 per maund from all Government District Food Controllers in Baluchistan. Counsel for the petitioner also took exception to this order on the ground that the respondent cannot make discrimination between the taken-over and other Flour Mills with regard to price of wheat and there is discrimination between the two, because taken-over Mills are supplied at the rate of Rs, 32 per maund while the private owners are to pay 10 rupees higher, that is Rs, 42 per maund. That being the position this policy of the Government according to the counsel not only violates the fundamental rights of the petitioner and is discriminating in nature but also ultimately will put them out of their job and livelihood.
7. Counsel for the petitioner did concede that if Annex. 'E' confers a vested right to the petitioner then the same cannot be taken away without show-cause notice but if it is otherwise, then the petitioner has no case.
8. Before proceeding further let us reproduce relevant statutory provision of section 3 of West Pakistan Foodstuffs (Control) Act, 1958, as under:- "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.
(2) Without prejudice to the generality of the powers conferred by subsection (1) an order made thereunder may provide- (a)for regulating by licenses, permits or otherwise the manufacture of any article of food from any foodstuffs ; (b)for controlling the prices at which any foodstuff may be bought or sold ;
(c) for regulating by licences, permits, or otherwise, the storage, transport, distribution, disposal, acquisition, use or consumption of any foodstuff ; (d)for prohibiting the withholding from sale of any foodstuff ordinarily kept for sale ;
(e) for requiring any person holding stock of any foodstuff to sell the whole or a specified part of the stock to such persons or class of persons or in such circumstances as may be specified in the order ;
(1) for regulating or prohibiting any class of commercial or financial transactions relating to any foodstuff which, in the opinion of the authority making the order is, or likely to be, detrimental to public interest ; (g), (h) &
9. It may be noted that the learned counsel for the petitioner has not challenged the validity of the Act XX of 1958, or the provisions of section 3 stated above. He, however, in support of his contention relied on Fir Sarfraz Ahmed v. Government of Pakistan through the Secretary, Home Departmant, Lahore and 2 others (1). This was a case where a person was appointed as a Notary Public by a notification issued under section 138, Negotiable Instruments Act, 1881. By a notification issued under rule 8 (3) of
(1) 1971 SCMR 557 ' the West Pakistan Notaries Rules, 1965. He was removed from his office without issuing notice of any kind to him. He challenged the impugned notification of the removal from his office before the High Court through writ petition on the ground that principles of audi alteram partem were not complied with because no opportunity to show cause against termination of his appointment had been given to him. The High Court of West Pakistan Karachi Bench, dismissed his petition but he filed an appeal before the Supreme Court successfully, wherein ft was held that office of Notary Public is an office of profit under rules framed under section 139 of the Negotiable Instruments Act, therefore his removal from office without show-cause notice amounts to depriving him a valuable right which accrued to him as an incumbent of that office. They further held that "this Court had, in no uncertain terms, laid down that the principle embodied in the maxim audi alteram partem had been applied by this Court in all cases "where orders passed by Administrative tribunals of authorities, affecting the rights of citizens, in point of property, or other rights, had been passed, without giving an opportunity for defence to the person concerned". Indeed, this Court had gone so far as to point out that in the absence of any express words in the enactment giving such power, excluding the application of the principles of natural justice, the Courts of law are inclined generally to imply that the powers so given "is coupled with a duty to act in accordance with such principles of natural justice as may be applicable in the facts and circumstances of a given case". In our opinion this judgment is distinguishable than the case before us and will not be of much help to the petitioner because he is only a grantee of a privileg and that also qualified and conditional. Over and above, the section cite above clearly gives powers to the Government as su'omitted by learned Advocate-General, to distribute and control the price of wheat from time to time. Counsel for the petitioner on questioning did agree that, in fact, the price of the wheat has undergone many changes than earlier price of Rs, 17 and the petitioner has been lifting wheat at different times under different rates and it is not his case that at the same old price the wheat should provided to him even now. That being the position, we are at a loss t understand as to how the petitioner at this late stage when so many changes statutory, and wheat price have come into play, can say that he should be provided wheat at the same price, as provided to the taken-over Flour Mills, particularly so, when by section 3, it is the Government to control the price of the wheat according to the time and market conditions, issuing and cancelling licences and otherwise regulate supply of foodstuffs to the Flour Mills.
10. On the other hand learned Advocate-General relied on Mian Rafiuddin and 6 others v. The Chief Settlement and Rehabilitation Commissioner and 2 others (1), wherein the question before us as to what is a vested right came for decision, and it was held : "A 'vested right' and 'accrued right' or a 'substantive right' does not mean only title to property of office ; a right, benefit or an advantage conferred by a statute, if availed of by doing a thing as required by the statute, is also a right of this kind. Again, if a right, benefit or advantage conferred by a statute is dependent on the happening of a contingency, then the same becomes a 'vested or accrued right' after the contingency has happened.
(1) PLD 1971 SC 252 ' Similarly, the right to obtain specific performance of a contract of sale is a right conferred by statute. This is his vested 'right of action' in the sense that it is he who alone can seek specific performance of the contract. This right is to be availed of by the presentation of a plaint in Court.
After he gets a decree becomes his property and his right there to his 'vested right'."
11. Learned Advocate-General submitted that a mere reading of the impugned Notification, Annex.
'E', makes it clear that the grant was contingent, qualified and conditional and it could be withdrawn by the respondents at any time. Therefore, it cannot be said that the respondent was bound by any contractual obligation or otherwise to supply the petitioner wheat on the same price as to the taken-over Flour Mills and that is the reason, he submitted, that the petitioner could not contest that he should be issued wheat at the price of Rs, 17 as per earlier notification and in fact, he had been lifting wheat at different times at different price and there cannot be any violation of any fundamental right or discrimination because the Government has powers, as noted earlier, to control the wheat price of the market according to contingency of the time. Over and above he submitted that there is sufficient wheat in the market and with the Government of the petitioner and other chakki-holders to purchase on fixed price of Rs, 42 which again is always subject to fluctuation.
12. Both the counsel for the parties cited some other judgments on the same point, as to the vested right, but we are of the opinion that the judgment of the Supreme Court reported in PLD 1971 SC 252, clinches the matter.
13. We are, however, of the opinion, for the reasons given above, that the petitioner has failed to satisfy us that he has any vested right so as to enable us to exercise our discretionary jurisdiction in his favour. We, therefore, see no force in this petition which is hereby dismissed but make no orders as to costs.