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Petitioner: MAHMOOD MAJID, DIRECTOR, ASIA FLOUR MILLS BWP (PVT.) LTD., BAHAWALPUR VS Respondent: THE STATE and 3 others
Court Name: Lahore High Court Judge(s): Faqir Muhammad Khokhar Title:MAHMOOD MAJID, DIRECTOR, ASIA FLOUR MILLS BWP (PVT.) LTD.,
BAHAWALPUR vs THE STATE and 3 others Case No.: Writ Petition No,29 of 1996/BWP Date of Judgment:1997-11-07 Reported As: PLD 1998 Lahore 296 Result: Appeal accepted Judgment ORDER ' The District Magistrate, Rahimyarkhan, in exercise of the powers conferred upon him under section 3/4 of the Punjab Foodstuffs (Control) Act, 1958 (hereinafter called the Act), notified the impugned order dated 20-12-1995, prohibiting the movement of wheat and its products (i,e, Atta, Suji, Maida) by means of transportation out side the revenue limits of Rahimyar Khan District. The impugned order was in force for a period of three months. 2. The Food Enforcement Staff seized, on 3-1-1996, two Trucks of the petitioner containing 575 bags of wheat Atta at a Check Post of Kot Sabzal, Tehsil Sadiqabad, District Rahimyar Khan. A case F.I.R. No,3 of 1996 under section 3/6 of the Act was registered at Police Station Kot Sabzal, District Rahimyar Khan, at the instance of a Food Inspector. 3. By means of this petition under Article 199 of the Constitution, the petitioner calls in question the validity of the impugned notified order dated 20-12-1995 and the said F.I.R. 4. Mr. Ijaz Ahmad Chaudhry, Advocate, the learned counsel for the petitioner has argued that the impugned notified order is violative of the provisions of the Act and Article 151 of the Constitution being an impediment to the freedom and flow of inter-Provincial trade and commerce. The learned counsel submitted that the impugned notified order had no application to the facts of the present case in which wheat Atta had been brought from Bahawalpur and was to be taken to Quetta in the Province of Balochistan through Rahimyar Khan District by way of transit passage. Reliance was placed on a Division Bench judgment of this Court in an earlier case of the petitioner Mills titled Asia Flour Mills and others v. Director Food and others PLD 1996 Lah. 133.
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5. On the other hand, the learned Assistant Advocate-General, defended the impugned notified order as also the First Information Report on the ground that there was a contravention of the impugned notified order as well as the provisions of the Act. He further argued that no exception could be taken to the registration of a criminal case against the petitioner. 6. I have carefully considered the arguments of the learned counsel for the parties. The preamble of the Act viz. The Punjab Foodstuffs (Control) Act, 1958, clearly lays down the object of the law. It had been enacted in the public interest to provide for the continuance of powers to control the supply, distribution and movement of, trade and commerce in, foodstuffs in the Province of Punjab. Clause (a) of section 2 of the Act gives the definition of "foodstuff" to mean wheat, wheat-atta, maida, rawa, suji, rice, paddy, sugar and such other commodities as may be declared or notified by the Government to be foodstuffs. Under subsection (1) of section 3 of the Act, the Provincial Government is empowered by a notified order to provide for regulating or prohibiting the keeping, storage, movement, transport, supply, distribution, disposal, acquisition, use or consumption of any foodstuffs for maintaining supplies and equitable distribution and availability at fair prices as well as trade and commerce therein. Under clause (c) of subsection (2) of section 3 (ibid), an order by the Government may provide for regulating by licences, etc., the storage, transport, distribution, disposal, acquisition, use or consumption of any foodstuff. Clause (f) empowers the Government to regulate or prohibit any class of commercial or financial transactions relating to any foodstuff which is or is likely to be detrimental to public interest. Section 4 permits the Government to delegate its powers to be exercised by an officer or authority subordinate to it. Section 6 provides for punishment of a person contravening any order made under section 3 and for forfeiture of the property, i,e,, the subject-matter of the offence. Under section 12 of the Act, it is for the accused person to discharge the burden of proof that he had the permit or licence where such person is prosecuted for contravening any order made under section 3 of the Act. 7. The Governor of the Punjab made an order dated 16-4-1976 called the Punjab Wheat, Wheat- atta, Maida and Suji Movement (Control) Order, 1976, under section 3 of the Act. Para. 2 of the said Order reads as follows:-- "No person shall carry or transfer wheat or wheat-atta, maida and suji by any means of transport from any place in a district to a place outside the boundaries of the District: ' Provided that these restrictions shall not apply to wheat, wheat atta, maida and suji carried or transported: (i) on Government account; (ii) on the authority of a permit issued by the Director Food, Punjab, or the District Magistrate of the District concerned or any officer authorised by them in this behalf; (iii) by a bona fide traveller, provided the quantity does not exceed 10 seers in each case; or (iv) for purposes of marketing by growers owning or cultivating land in a particular district to the nearest Mandi located in another district." 8. It will, thus, be seen that the executive power to regulate and prohibit the movement and transportation of the foodstuffs is clearly spelt out by the provisions of the Act as well as the Order, 1976. The expressions "to control", "to regulate" or "to prohibit" are interchangeable in some cases. See the cases of Slattery v. Naylor (1888) 13 AC 446 (PC); K. Ramanathan v. State of Tamil Nadu and another AIR 1985 SC 660; Sh. Inayat Ullah and others v. M.A. Khan and others PLD 1964 SC 126; Pakistan Burmah Shell Ltd. v. Central Labour Commissioner, Karachi and 5 others PLD 1976 Kar. 1118; L. Arjan Das Duggal v. State of Punjab AIR 1958 Punj. 400; Indu Bhushan Bose v. Ram Sandri Dehi and another (1969) 2 SCC 289; Government of Pakistan v. Syed Akhlaque Hussain and another PLD 1965 SC 527 at page 596. It was held therein that the power to regulate, includes the power to prohibit. In the case of Slattery (supra), the question before the Privy Council was whether a bye-law by reason of its prohibiting internment altogether in a particular cemetry, was ultra vires. The
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Municipal Committee had only the power of regulating internments whereas the bye-law totally prohibited them in the cemetry in question. It was said by Lord Hobhouse, speaking for the Privy Council that a rule or bye-law could not be held as ultra vires merely because it prohibited where empowered to regulate, as regulation often involved prohibition. 9. Article 151 of the Constitution guarantees the freedom of trade, commerce and intercourse throughout Pakistan as well as between one Province and another or within any part of Pakistan. Under clause (3) of the said Article a Provincial Assembly and Provincial Government do not have the power to make any law or take any executive action prohibiting or restricting the entry into, or the export from the Province of goods of any class or description, or to impose a tax causing discrimination between the goods manufactured or produced outside such Province and giving a preferential treatment of taxation for the goods so manufactured or produced within such Province. Clause (4) of the said Article, however, permits an Act of a Provincial Assembly which imposes any reasonable restriction in the interest of public health, public order or morality, or for the purpose of protecting animals or plaints from disease or preventing or alleviating any serious shortage in the Province of an essential commodity, if made with the consent of the President. The salutary provision of the Constitution is not only to be interpreted in its textual sense but also in the context of historical background. I find a similar provision of section 92 in the Constitution of Commonwealth of Australia, 1901, which gives an absolute freedom of inter-State trade. Section 297 of the Government of India Act, 1935, denuded a Provincial Legislature and the Provincial Government of their power to pass any law or take any executive action prohibiting or restricting the entry into, or export from, the Province of goods of any class or description or to impose any tax, cess, or toll discriminating between the goods produced or manufactured within the Province with that of similar goods manufactured or produced outside the Province or in different localities of the same Province. Article 301 of the Constitution of India is analogous to our Article 151 of 1973 Constitution. Earlier, identical provisions were made in Article 119 of 1956 Constitution and Article 142 of 1962 Constitution of Pakistan. 10. The object and scope of the freedom of trade and commerce throughout Pakistan including inter-Provincial was examined by the superior Courts of Pakistan in a number of cases. In Mr. Fazlul Quader Chowdhry and others v. Muhammad Abdul Haque PLD 1963 SC 486 at pages 501 and 515, it was laid down as under:-- "With respect, it should be pointed out that Article 142 (now Article 151) is in the same Part as Article 133, yet the wording of Article 142 clearly indicates divided responsibility, some part of which must necessarily fall on the Judiciary. The Article declares that the Legislature of a Province shall not impose restraints upon trade between that Province and another Province, either by placing restrictions upon entry and export or by imposition of discriminatory taxes. The prohibition being absolute, a Legislature which contravenes this provision cannot be thought to be exercising its 'responsibility', in terms of the Constitution properly. But it must be remembered that such restraints are capable of being applied in modes, which by design or otherwise, avoid the appearance of direct contraventions. Such modes have frequently been discovered and the relevant provisions declared void by Courts, in the sub-continent as well as in a number of other countries. It is at least doubtful whether to place the responsibility upon the Legislature of a Province in this respect, is a sufficient safeguard against the kind of discrimination which the Constitution intended to prevent, but, clause (2) of this Article clearly attracts judicial intervention when it says that a law having the effect of restraining trade by import or export restrictions or by taxation should not be invalid provided firstly, it imposes 'any reasonable restriction in the interest of public health, public order of morality or for the purposes of protecting animals or plants from disease or preventing or alleviating any serious shortage in the Province of an essential commodity', and secondly, if it was made with the consent of the President. The latter condition and its satisfaction are easy of
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ascertainment, but there is no doubt that the determination, of the question whether or not a restraint is 'a reasonable restriction' of the kind specified is precisely and exclusively a matter for judicial determination. ... ....... ' Obviously the reasonableness of such restrictions would be a justiciable question." 11. In the cases of Arshad Akram & Co. And 8 others v. DivisionalSuperintendent, Pakistan Railways, Rawalpindi and 5 others PLD 1982 Lah. 109 and Star Flour Mills v. Province of Punjab and others PLD 1996 Lah. 687, it was held that a prohibition of transporting the foodgrains from the Province of Punjab to another Province by an executive order was violative of Article 151 of the Constitution being an impediment to the flow and freedom of inter-Provincial Trade and Commerce. A similar view was also taken by the Sindh High Court in the cases of Kotri Association of Trade and Industry v. Government of Sindh and another 1982 CLC 1252 (Karachi) (DB); Sayphire Textiles Mills Ltd. And 9 others v. Government of Sindh and others PLD 1990 Kar. 402 (DB); Mirpurkhas Sugar Mills Ltd. v. District Council, Tharparkar and 2 others 1990 MLD 317 and Mirpurkhas Sugar Mills Limited v. District Council, Tharparkar through Chairman and 3 others 1991 MLD 715. It was held therein that imposition of an export tax by a Zila Council on goods meant for delivery on destinations in other Provinces was not valid being violative of Article 151 of the Constitution. However, such a tax was valid if the goods were to be exported from one Zila to another in the same Province being an intraProvincial and not an inter-Provincial trade and commerce. It was further observed that reasonable restrictions in the public interest could be imposed by a Provincial Assembly in terms of clause (4) of Article 151. 12. However, the Peshawar High Court in the cases of Messrs Khyber Electric Lamps Manufacturing Limited and others v. Chairman, District Council, Peshawar and another 1986 CLC 533 and Messrs Saif Nadeem Kawasaki Motors Ltd. v. The Government of N.-W.F.P. And another PLD 1992 Pesh. 166 took the view that the freedom of trade, commerce and intercourse had to be regulated and would be subject to restrictions in the public interest placed by the Parliament or a Provincial Assembly in a reasonable manner. It was further held that imposition of an export tax by a Zila Council was not against the spirit of Article 151 of the Constitution being an intra-Provincial tax. 13. There is no doubt that subject to reasonable restrictions in the public interest, the Constitution affords a guarantee for the free trade, commerce and intercourse throughout Pakistan as well as inter-Provincial. But the word "free" in Article 151 does not mean to be free from all laws or regulations or other provisions of the Constitution. Article 151 cannot mean absolute freedom from any restrictions or regulatory measures of the State whatsoever. It must be understood in the context of an orderly society and as a part of the Constitution which envisages a distribution of powers between the Federation and the Provinces. In the very nature of things, it must recognise the need and legitimate chanalization of regulatory control whether by the Parliament or by a Provincial Legislature. In the case of Commonwealth of Australia v. Bank of New South Wales (1949) 2 All ER 755, the Privy Council observed that it was generally recognised that the expression "free" in section 92 of Australian Constitution though emphasised by the accompanying words "absolutely" but must receive some qualification. The Judicial Committee further held that it was common ground that the conception of freedom of "trade, commerce and intercourse" in a , community regulated by law presupposed some degree of restriction on the individual. Thus, their lordships of the Privey Council took a restricted view of the word "free" even where suffixed by the word "absolutely". The words "absolutely free" are not mentioned in Article 151 of our Constitution. Every citizen has a fundamental right guaranteed by Article 18 of the Constitution to conduct any lawful trade or business subject to such qualifications, if any, as may be prescribed by law. The said Article also permits the regulation of any trade or profession by a licensing system. There is, thus, no fundamental right to conduct any and every trade or business but only if it is lawful. This means that a trade or a business can be prohibited in the public interest by declaring it to be unlawful. The
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word "lawful" before the expressions "trade" or "business" mentioned in Article 18 of our Constitution is not there in Article 19(1)(g) of the Constitution of India. The Hon'ble Supreme Court has dealt with the interpretation of Article 18 in the case of Government of Pakistan through Secretary, Ministry of Commerce and another v. Zamir Ahmad Khan PLD 1975 SC 667. It has been held that the Article assures the citizens the right to enter upon any "lawful profession or occupation" and "to conduct any lawful trade and business". It is important to point out that the word "lawful" qualifies the right of the citizen in the relevant field. This clearly envisages that the State can by law ban a profession, occupation, trade or business by declaring it to be unlawful which in common parlance means anything forbidden by law. In The King v. Connare (1939) 61 CLR 596, Justice Starke, J. Of the High Court of Australia interpreted section 21 of the Lotteries and Art Unions Act, 1929, which provided a punishment for selling or offering to sell or accepting any money in respect of the purchase of any ticket or share in a foreign lottery. It was held that the said provision did not contravene section 92 of the Constitution of Commonwealth of Australia which guaranteed inter-State freedom of trade and business. The learned Judge further observed that the provisions of section 21 were aimed at preventing what he graphically described as "illegitimate methods of trading", if sale of lottery was regarded as trading. The Supreme Court of the United States also recognised certain reasonable restrictions and limitations on the freedom of inter-State trade and commerce. See the cases of Champion v. Ames 188 US 321; Stafford v. Wallace 251 US 495; Hammer Swift & Co. v. United States 196 US 375 and Charless H. Baldwin v. G.A.F. Inc. (1934) 294 UC 511. 14. The object of Article 151 seems to be to bring about the economic unity of Pakistan so that its citizens are assured that they are the members of one nation. One of the reasons to achieve this object is the freedom of movement and residence throughout Pakistan as guaranteed by Article 15 of the Constitution. Undoubtedly, the freedom of movement or the passage of goods from one part of the country to another is also important. But Article 151 nowhere says that there can be no restrictions or limitations to be imposed by law for regulating the subject of trade or commerce by the Federal Government or the Provincial Government in accordance with law and in the public interest. Article 151, in my view, is required to be read in harmony with Article 18 and other Articles of the Constitution so that the rights of an individual for the freedom of trade and commerce are balanced. The progress of the country as a whole requires free flow of trade and commerce. At the same time, the State should have the power to check and curb the out-flow and hoarding of essential commodities which is not permitted by the Constitution and the law. Regulatory measures and measures imposing compensatory taxes do not come within the purview of the limitations as contemplated by Article 151. 15. The impugned notified order by the District Magistrate merely prohibited the movement of wheat and wheat products from the District of Rahimyar Khan in the public interest. The same, therefore, cannot be said to be a restriction on inter-Provincial trade and commerce. Such a restriction would equally apply for taking out wheat and its products to the adjacent Districts of Bahawalpur and Rajanpur of the Province of Punjab. At the most, it is a case of reasonable restriction on intr-Provincial business and not the inter-Provincial trade validly imposed under the Act which is an existing law within the meaning of Article 268 of the Constitution. As stated above, the preamble of the Act is itself clear that the Act was enacted in the public interest to control the supply, distribution and movement of, trade and commerce in foodstuffs in the Province of Punjab. The preamble of the Act can be used as a legitimate aid in discovering the purpose of the Act. See the case of The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 SC 279. It is immaterial whether a regulatory or a prohibitory measure is taken by the Legislature directly by the provisions of law or leaving it to the Government functionaries to take such measures. No distinction can be drawn between an action taken by a law or under a law. See the cases of Mian Arif Iftikhar and others v. Lahore Improvement
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Trust and 2 others PLD 1969 Lah. 1087 and Malik Ghulam Abbas v. Malik Muhammad Mumtaz Khan and 2 others PLD 1980 Lah. 718 at pages 743-744, 759-760. The impugned order could not be invalidated as being violative of Article 151 of the Constitution merely because the out-flow of foodgrains from Rahimyar Khan District to the Province of Balochistan was also incidentally obstructed in addition to the other Districts of Province of Punjab. In the cases of State of Madras v. Nataraja AIR 1969 SC 147 and Lakshman v. State of M.P. AIR 1983 SC 656, it was observed that Article 301 could be said to have been violated where the executive or Legislative act operated to restrict trade, commerce or inter-flow directly and immediately. But creation of indirect or inconsequential impediment would not be regarded as infringement of the protection. The impugned order dated 20-12-1995 being temporary in nature was for public good and the interests of the petitioner, if any, had to be subservient to it. In Karachi Building Central Authority v. Saleem Akhtar Rajput and 2 others 1993 SCMR 1451, it has been laid down that in judging the conflict of personal fundamental rights with that of larger interests of society, i,e, , environment, the personal rights must yield. 16. It is also noticed that during the relevant period, an uproar was echoed all over the country including the Houses of Parliament and the Provincial Assemblies that wheat and wheat-atta was being smuggled to Afghanistan which had caused their scarcity and shortage in various parts of the country. In the wake of the shortage of the wheat and its products to an alarming extent, there were demonstrations in the country resulting in violence. In some cases, the demonstrators succeeded in looting stores of the foodgrains. It is possible that under the garb of freedom of trade and commerce, the speculative deals may be conducted in such a manner that essential commodities are stocked and cornered causing havoc to the economy and security of the country apart from their shortage and escalation of prices in various parts of the Federation. 17. It may also be relevant to point out that the Act, namely, the Punjab Foodstuffs (Control) Act, 1958, is an existing law within the meaning of Article 268. Necessary adaptations of the Constitution have to be read into as required by clause (6) of Article 268 of the Constitution. The consent of the President is not required to be obtained. 18. Even in the Commonwealth of Australia, the changing circumstances and the necessities compelled the Courts to reach the conclusion that the conception of freedom of trade, commerce and intercourse in a community regulated by law presupposed some degree of restriction on the individual. One could not but be struck by the generality of language used in section 92 of the Commonwealth of Australia Act, 1901. The full import and true meaning of the general words had to be considered, as years went past, in relation to the vicissitudes of altering facts and circumstances which from time to time emerged. See the cases of Willard v. Rawson (1933) 48 CLR 316; R. v. Vizzard (1933) 50 CLR 30; Ex parte Nelson (No,1) (1928) 42 CLR 209; 0. Gilpin Ltd. v. Commissioner of Road Transport, Tramways (1935) 52 CLR 189; Hughes and Vale Proprietary Ltd. v. State of New South Wales 1956 AC 241 (Privy Council). In his book Australian Constitution, Third Edition, pages 250 and 278, Professor Nicholas has said that "the first paragraph of section 92 reads more like a slogan than as a part of a legal document, and as a slogan it was defended against an attempt in 1937 to alter the Constitution.. ... ... No section in the Constitution has given rise to so much litigation or to so many and such persistent differences to judicial opinion. No such section is so obviously in need of alteration." ' It may be that section 92 is totally inapplicable to an age of planning in the Commonwealth of Australia. 19. The cases of Arshad Akram & Co. And Star Flour Mills (supra) dealt with specific prohibition of movement and transportation of the foodgrains from the Province of Punjab to other Provinces which are distinguishable from the present case. The operation of the judgment of the learned Single Judge has since been suspended in Intra-Court Appeal in the case of Star Mills. In Asia Flour Mills (supra) filed by the present petitioner Mills, the successive orders of the District Magistrate
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passed under section 144, Cr.P.C. Were struck down on the ground that the necessary conditions of the said provision of law had not been satisfied. In the other cases decided by the Sindh and Peshawar High Courts, the imposition of export taxes by Zila Councils on the intra-Provincial export of goods was upheld. In the precedent cases, the impact of Article 18 and the other…
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