' The petitioner i,e, Messrs J.D.W. Sugar Mills Limited Rahim Yar Khan was established by Syed Ahmad Mahmood, Jahangir Tareen and their family members with crushing capacity 4000 Tons per day. After obtaining no objection certificate from Industries and Mineral Development Department Government of the Punjab. The petitioner's project was completed and commissioned for operational activities in 1992. The Provincial Government vide Notification dated 21-11-1998 banned the establishment of Sugar Industry in District Rahim Yar Khan. The petitioner installed additional machinery in the year 1999 to enhance crushing capacity of the Mills in question from 4000 to 7000 tons per day. Respondent No,3 issued show-cause notice to the petitioner on 5-10- 2000 for violation of the provisions of Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963 read with Notification, dated 21-11-1998 issued by the competent authority under the aforesaid Ordinance. The petitioner submitted reply and controverted the allegations levelled in the show-cause notice. Respondent No,3 decided the case against the petitioner vide order, dated 17-12-2000. The petitioner being aggrieved filed an appeal before the Secretary Industries and Mineral Development Department, Government of the Punjab, Lahore who dismissed the same vide order, dated 18-10-2001. The petitioner being aggrieved filed this writ petition.
2. Learned counsel of the petitioner submits that notification, dated 21-11-1998 is only applicable with regard to setting up of new sugar mills and not on enhancement or enlargement of any existing unit as is evident from the contents of the notification. He further submits that petitioner's Mill was planned for 4000 tons crushing capacity per day extendable to 6000 tons as is evident from its agreement with N.D.F.C. And Ittefaq Foundries (Pvt.) Ltd. He further submits that contents of aforesaid agreement clearly revel that capacity of the petitioner's mills is 4000 tons extenable to 6000 tons. The petitioner's mills did not violate any provisions of the aforesaid Ordinance and Notification. The petitioner remained within its crushing capacity of 6000 tons. He further submits that both the Tribunals below have wrongly calculated the actual capacity on the basis of yearly average capacity which is in violation of the mandatory provisions of law. The capacity of the petitioner's mills was extended to 6000 tons on 18-11-1991. Therefore, both the Tribunals below wrongly assumed the jurisdiction and decided the case against the petitioner. He further submits that findings of both the Tribunals below qua the enhancement from 4000 metric tons to 6000 metric tons is not borne out from any record available before both the Tribunals below. He further submits that the petitioner only installed 5 Rollers crushing in the existing plant of the petitioner for the purpose to increase the efficiency of the unit regarding the already capacity. He summed up his arguments that action of the respondent is without lawful authority and is a result of misreading and non-reading of record.
3. I have given my anxious consideration to the contentions of the learned counsel of the petitioner and perused the record myself. It is better and appropriate to reproduce relevant provisions of the Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963 and Notification, dated 21-11-1998 to resolve the controversy between the parties: "3. No person shall establish or cause to be established any industrial undertaking or enlarge or cause to be enlarged any existing industrial undertaking except with the previous permission in writing of Government: ' Provided that the application of any person for the grant of such permission shall not be rejected-
(a) without giving such person an opportunity of showing cause against it; or
(b) unless the Government is satisfied, on the basis of information available to it and after making such inquiry as if may deem fit, that the grant of permission to such person will be prejudicial to the national interest or injuries to the health of or a source of nuisance for, the residents of the local area in which the industrial undertaking is proposed to be set up or, as the case may be, the industrial undertaking which is proposed to be enlarged is situated."
"11. Government may, by Notification in the official Gazette, exempt any industrial undertaking or class of industrial undertakings from all or any of the provisions of this Ordinance or the rules.
' The Punjab Gazette ' Published by Authority ' Lahore Saturday November 21, 1998 ' Government of the Punjab ' Industrial & Mineral Development Department ' Notification ' The 21st November, 1998 2(a) No sugar mill shall be set up in the Division of Multan, Bahawalpur (Excluding Tehsil Bahawalnagar), Dera Ghazi Khan and the District of Okara in the Lahore Division."
Learned counsel of the petitioner has emphasised much on the word "set up" for the purpose that this Notification is not applicable in case of additional or addition of 5 rollers in the establishment for modernization which was established before the Notification, dated 21-11-1998, I would like to mention the meaning of the words mentioned in section 3 and notification according to the dictionaries to resolve the present controversy between the parties. It is better and appropriate to reproduce the meaning of the words set up:--- ' According to Kitabistan's Twentieth Century Practical Dictionary "set up" means "Arrangement of machinery etc. ' In section 3 the word enlarge is used by the legislator. The meaning of the word "enlarge" according to the Black's Law Dictionary is "to make larger" "to increase". "Extend" according to Black's Law Dictionary means to expand, enlarge. Mere reading of section 3 and notification the word "set up" means expansion or enlarge. It is settled principle of law that the whole section to be read together instead of reading the word establishment only. The word "or" is used in the aforesaid section in the sense of injunctive instead of disjunctive. It is admitted fact on the record that the petitioner installed additional machinery in the year 1999. The notification was issued by the competent authority on 21-11-1998. Both the Tribunals below have given concurrent findings of fact against the petitioner. It is pertinent to mention here that the sugar mills association monitors the installed capacities and production of Members mills. The association had issued certificate qua the petitioner mills for the years 1994 to 1998 which clearly shows capacity of the petitioner Mills as 4000 tons per day whereas the subsequent certificate issued by the Association qua the Session 1999 reveals expansion of crushing capacity 7000 tons. The petitioner failed to bring on record any cogent evidence to show that the certificates issued by the Association are not correct. It is also admitted fact that petitioner failed to bring on record agreements executed between the petitioner and N.D.F.C. And Ittefaq Foundaries (Pvt.) Limited on record. It is settled principle of law that this Court has no jurisdiction to substitute its own findings in place of findings of the Tribunals below in Constitutional jurisdiction as per principle laid down by Division Bench of this Court in Musaddaq's case (PLD 1973 Lahore 600). It is also settled principle of law that Constitutional petition is not maintainable against the concurrent findings of fact of the Tribunals below. In arriving to this conclusion I am fortified by the law laid down by the Honourable Supreme Court in Khuda Bakhsh's case (1974 SCM R 279).
Learned counsel of the petitioner failed to point out that both the Tribunals below have passed the orders against the petitioner in violation of any rules and regulations of the respondents, therefore, writ petition is not maintainable as per principle laid down by the Honourable Supreme Court in All Meer's case (1984 SCM R 433). It is pertinent to mention here that respondent No,2 while dismissing the appeal of the petitioner observed the purpose and background with regard to issuing the notification by the competent authority, dated 21-11-1998 which is to the following effect:- "The background for issuance of this Notification was to maintain a balance between growing of sugarcane and cotton crop in the area. The cotton crop is the main stake of the economy and District Rahim Yar Khan is prime area for growing of quality cotton. The cotton and Textile sector is the single largest sector of the economy employing large proportion of skilled/unskilled labour force and is also largest Foreign Exchange earning sector. Any decline of production of Cotton is bound to affect overall performance of the economy. With this in view certain Cotton Growing area had been declared as negative zones for setting up of Sugar Mills." ' and also observed in concluding para:-- "Messrs JDW Sugar Mills have violated the provision of section 33 of the Punjab Industries (Control on Establishment and Enlargement) Act, 1963 by increasing their installed capacity from 4000 tons to 7000 tons and this increase is out of proportion and tentamounts to setting up an additional Mill."
It is pertinent to mention here that in case the contention of the petitioner is accepted then it tantamounts to destroy the effect of the Notification which was issued by the competent authority in accordance with law under the provisions of the aforesaid Ordinance which falls in the area of policy and this Court has no jurisdiction to take the role of policy-maker in the garb of interpretating the law as per principle laid down by the Honourable Supreme Court in the following judgments: ' Zia ur Rehman's case (PLD 1973 SC 49) and Zamir Ahmad Khan's case (1978 SCM R 327).
' In view of what has been discussed above, this petition has no merit and the same is dismissed.