' The plaintiffs have filed this application in this and the connected suits under Order XXXIX rules 1 and 2, C.P.C. Read with section 151, C.P.C. With the prayer that the defendants, their officers, agents may be restrained from taking any adverse action whatsoever against the plaintiff and they have further prayed for suspension of the operation of the Notification dated 24-12-2002.
2. Briefly the facts of the case are that the plaintiffs are engaged in the business of manufacture and sale of sugar. By Notification dated A 15-11-2002 the defendant No,1 was pleased to specify 15th November, 2002 date for the purpose of the proviso to the section B of the Sugar Factories Control Act, 1950, (hereinafter referred to as the "Act,1950") for crushing season 2002-03. The defendant No,1 through a subsequent Notification dated 24-12-2002 prescribed the minimum purchase price of sugarcane at the rate of Rs,43 per 40 Kgs. For the crushing season 2002- 03. It is stated in the plaint that since long the sugar industry had been regulated by the Government. The consequence of this regulation was that on the one hand the Government would fix the minimum price of, sugarcane at which the sugar factories would purchase the cane from the growers while on the other hand the Government as compensation or quid pro quo would lift the entire sugar produced by the sugar factories at a uniform ex-factory price fixed in advance so as to guarantee minimum profits to the sugar factories. Subsequently the Government deregulated the sugar industry and refused to lift the sugar produced by the factories leaving the sugar factories to sell sugar in open market at prices governed by the market forces. It is the case of the plaintiffs that in the past the plaintiffs purchased the sugarcane at the minimum support price prescribed from time to time, however, now through the impugned Notification dated 24-12-2002 the plaintiff would not be able to break even and would be forced to a situation of loss. This was primarily due to excess/surplus of sugar stocks from previous years, large quantities of surplus from sugar imports from earlier years, surplus production in Punjab finding its way to Sindh and the failure of the Government to provide subsidies on ex?Ort of sugar since at present no export can be undertaken without such a subsidy due to a very low price of sugar in the international market. As such there is a glut/excess of sugar in the market giving rise to a total decline in the selling price of sugar which at present inclusive of sales tax is about Rs,17,250 per ton and the same is likely to go down even further. The plaintiffs have also stated that section 16 of the Act, 1950 is also absolutely ultra vires and unconstitutional.
The plaintiffs after the issuance of the impugned Notification dated 24-12-2002 protested but the protest has fallen on the deaf ears against it but nothing was done about it.
3. Mr. Anwar Mansoor Khan, learned Advocate-General Sindh, has filed counter-affidavit to this application (C.M.A. 45 of 2003) on behalf of the defendants. Through this counter-affidavit the defendants have denied all the allegations levelled against them in the application being devoid of any truth. The learned Advocate-General Sindh has placed on record certain documents through this counter-affidavit. He has taken legal objections on the maintainability of the suit. He has also contended that the notification was properly issued and there was nothing illegal about it. The impugned notification was issued after consultation of all concerned and the Economic Co- ordination Committee of the Cabinet in its meeting held on 17-9-2001 at Mills Gate decided to fix Rs,42 in N.-W.F.P. And Rs, 43 in Sindh and Balochistan Rs,43 per 40 Kgs. Due to shortage of irrigation per acre yield of sugarcane has been affected badly and growers have sustained heavy losses on cane production: The Mills did not start crushing on 15-11-2002 hence they have violated law and are liable to face prosecution and that most of the Mills situated in Sindh accepted the price of Rs,43 per 40 Kgs. And it was after this arrangement that impugned notification was issued, even though the demand of growers was Rs,45 per 40 Kgs. Which was not accepted due to the objections of the Mills and keeping in mind their interest in meeting held on 17-12-2,002 under the chairmanship of Federal Minister for Industries and Production, Government of Pakistan, which was also attended by Pakistan Sugar Mills Association (Sindh Zone) as well as Growers Association and other concerned parties participated in the decision of price fixation, which was finalized and thereafter, impugned notification prescribing Rs,43 per 40 Kgs. Was issued after affording proper opportunity to all concerned. It was further urged in the counter affidavit that it is not a case of irreparable loss or injury and balance of convenience is also not in favor of the plaintiffs, hence the application under order XXXIX, rules 1 and 2 as well as the suits are liable to be dismissed on legal as well as factual grounds.
4. The Advocates for the plaintiffs have filed rejoinder affidavits to the above counter affidavits and have vehemently denied the contents of the counter affidavits. They stated that the suit is very much maintainable in law and on facts and that no law can require a factory to mandatory commence operations. They have challenged the minutes and the authority of the Economic Co- ordination Committee to fix a price. According to the plaintiff they were not represented at the meeting.
5. Learned counsel for the plaintiffs contended that the impugned Notification has been issued in the purported exercise of powers under section 16(ii) of the Act, 1950. He further contended that the said subsection only authorizes the Provincial Government to issue any notification so as to vary the prices fixed in the earlier notification. The price as per the previous Notification dated 22-4- 2002 applicable to the crushing seasons 2001-02 was also Rs,43 per 40 Kgs. And the impugned notification could not have been issued under section 16(ii) of the Act, 1950 which altered the price.
According to him the defendant No, I was only empowered to issue impugned notification under section 16(i) of the Act, 1950 and that too after consultation with other members of the Board. That according to him was not done. He has further elaborated on the various sections of the Act, 1950 to emphasize that the entire Act is without justification and illegal.
6. Learned Advocate-General has defended the issuance of the notice. According to him the notice so issued was as provided by the Act. He has further elaborated that the consultation was not mandatory and in any case the Association had been called and after due consideration the price has been fixed.
7. An application under Order 1, rule 10, C.P.C. Has been moved on behalf of the Intervenor i,e, Sugarcane Growers Association who have stated that any decision given in this suit without hearing them would be a nullity in the eyes of the law as they are directly going to be affected by it.
They have moved an application stating that to further the cause of justice the application should be granted and opportunity should be given to them to plead their viewpoint. No counter-affidavit to this application has been filed and in fact counsel for the plaintiff frankly conceded that he would have no objection to the grant of this application. Accordingly, the application is granted and the Intervenor is impleaded as defendant No,3. An amended title page of the plaint has already been filed.
8. Learned counsel appearing on behalf of the defendant No,3 (Intervenor) has dwelt at length on the fixation of price and its justification. According to him the delay is causing not only tremendous loss to the growers but it is also holding back the sowing of wheat as after the sugarcane is harvested the same land is used for growing of wheat. He has also stated that the delay triggers a chain reaction as the cane growers are not only regulated by the seasons but is also regulated by the availability of water in the canals. They are also regulated by the availability of cash and liquidity as most of them are in debt to the Agricultural Development Bank. The non-availability of liquid cash the fluctuation of prices of diesel, costs of hiring of tractors contribute towards an overall burden upon the cane growers. Once the cane is cut and the sugarcane is allowed to remain in the open the weight of the sugarcane diminishes, this results in the decrease in sucrose content. The returns of such sugarcane would be less then what they would fetch immediately upon the sale of the sugarcane on harvesting. Counsel has also raised certain legal questions which are more in reply to the plaintiffs' contentions and which need to be looked at length before final conclusions can be made.
9. The application under discussions in the Order XXXIV, rules 1 and 2 read with section 151, C.P.C.
Through this application the prayer is made for suspension of the impugned notification dated 24- 12-2002 alongwith all consequential orders, instructions, letters or notifications and also a restraining order against the defendants, their servants, agents, employees from taking any adverse action. The defendant No,2 has filed a lengthy counter-affidavit alongwith several annexures. In respect thereto a rejoinder affidavit has also been filed which contains the annexures. The question that would rise at this juncture of this case is to whether the notification in dispute can be suspended and if it is suspended can it be suspended without any adverse affect on those who would be directly or indirectly involved with this notification. It has been accepted by both the sides that there does exists an Act. Both sides acknowledge that the Act has prescribed certain methods under which a Board is constituted and the different types of persons would be members of the Board. Both sides do acknowledge that through the Act the Government has been regulating such purchase prices of Sugarcane Growers by the Crushers/Mills-Owners. Whilst at the time of argument the counsel for the plaintiff has challenged the regulation of purchase prices by the Government on the grounds of their being no contract between the plaintiff and the sugarcane growers. He has also simultaneously raised several legal technical objections to the impugned notification. A deeper appreciation of his line of arguments at this juncture would not be fair as I am seized of the application under Order XXXIX, rules 1 and 2 read with section 151, C.P.C. And to that extent it is incumbent upon me to see whether prima facie a case has been made out for grant of interim relief. Simultaneously, it has to be seen where the balance of the convenience lies and ultimately to whom would irreparable loss and injury occur in case if the interim orders are passed.
10. I have given my due consideration and thought to all that has been said before me and even though prima facie the plaintiffs may have an arguable case effect of suspending the impugned notification would have grave and adverse effect upon the sugarcane growers as their sugarcane has been harvested. The consequences would be definitely unfair to the sugarcane growers whose losses would be irreparable. The plaintiffs at this stage have not been able to convince me as to what would be their loss in case if they ere directed to purchase the sugarcane at the notified prices. The plaintiffs have taken a plea that the fixation of price is going to have an adverse effect on the business but to what extent would this be calculated in terms of numbers have to be determined eventually after the evidence has been recorded.
11. 1 would, therefore, dismiss the application under Order XXXIX, rules 1 and 2 read with section 151, C.P.C. And hold that the impugned notification should remain in force and keeping in view the fact that the notification is valid for a season, therefore, before next season comes in and a notification is again published this issue should be resolved parties can either file their respective documents and argue out the case and/or in order to prove loss the plaintiffs and the defendant No,3 should get their evidence recorded at the earliest.