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Petitioner: Js Bank Limited, Karachi and others VS Respondent: Province Of Punjab through JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Mushir Alam, Amin-Ud-Din Khan, Qazi Muhammad Amin Ahmed Title:Js Bank Limited, Karachi and others vs Province Of Punjab through
JUDGMENT
Reported As: 2021 SCMR 1617 Result: Petition dismissed Judgment JUDGMENT AMIN-UD-DIN KHAN, J.---Thiough this petition filed under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 leave has been sought against the judgment passed by the learned Division Bench of the Lahore High Court dated 11.02.2019 whereby I.C.A. No. 199615 of 2018 in Writ Petition No.4650 of 2016 was dismissed being not maintainable. Seven other ICAs were also decided through the said judgment dated 11.02.2019 by the learned Division Bench of the Lahore High Court and same were also dismissed being not maintainable against which the following Civil Petitions have been filed:- 1. C.P . No. 1077 of 2019 2. C.P . No. 1 168 of 2019 3. C.P , No.1356 of 2019 4. C.P . No. 1449 of 2019 5. C.P . No.1 189-L of 2019 6. C.P . No.1240-L of 2019 7. C.P . No. 1241-L of 2019
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Petitioners have also sought leave against the consolidated judgment of the learned Single Judge of the Lahore High Court dated 12.04.2018 whereby their respective writ petitions were dismiss ed (the said judgment is subject matter of the ICAs noted supra also). The said Civil Petitions are as under:- 1. C.P . No.1242-L of 2019 2. C.P . No. 1049 of 2019 3. C.P . No. 1355 of 2019 4. C.P . No. 1450 of 2019 5. C.P . No.1683 of 2019, 6. C.P . No. 1 188-L of 2019 7. C.P . No.1243-L of 2019 2. The litigation started in this matter when the Cane Commissioner vide his order dated 25.08.2015 declared the pending payments of cane growers recoverable as arrears of land revenue from the Occupier . The Cane Commissioner passed another order on 28.12.2015 allowing the Brothers Sugar Mills to start crushing for fresh season upon their undertaking and offer for sale of sugar stocks. Simultaneously , the Cane Commissioner directed the District Coordination Officer/Additional Cane Commissioner , Kasur , to recover the outstanding amount of cane growers. Some of the cane growers approached the High Court through Writ Petitions for the payment of the price of the sugarcane supplied to the Occupier of a factory (as defined in section 2-K of the Punjab Sugar Factories Control Act, 1950). The banks also approached the High Court under Article 199 of the. Constitution of Islamic Republic of Pakistan, 1973 challenging the orders as well as action of the Cane Commissioner whereby the refined sugar as per their contention, was pledged with the banks against the "Running Finance" facility extended to the Sugar Mills (Occupier) and under the possession of the "Muqaddam" of the Bank, was attached and sold for the payment to the cane growers, and claimed that the banks have a first charge being secured creditors upon the refined sugar . The writ petitions filed by the banks were dismissed whereas those of the cane growers were disposed of (order passed in the Writ Petitions of cane growers is not subject matter of these Civil Petitions). The banks opted to file ICAs before the learned Division Bench of the Lahore High Court. The Intra Court Appeals were dismissed vide order impugned through the instant petition holding that the same were not maintainable. Then the banks opted to file CPLAs Nos. 1242-L of 2019, 1249 of 2019, 1355 of 2019, 1450 of 2019, 1683 of 2019, 1188-L of 2019 and 1243-L of 2019 against the order of dismissal of their writ petitions dated 12.04.2018. 3. It was duty of the petitioners to choose the correct forum available to them under the law, whether the Intra Court Appeal was competent before the Lahore High Court or else a petition was to be filed before this Court against the judgment passed by the learned Single Judge dismissing the writ petitions filed by them. However , they opted to file petitions to challenge the judgment of the learned Division Bench of the Lahore High Court whereby ICAs were dismissed being not maintainable as well as filed Civil Petitions to challenge the judgment of the learned Single Judge of the High Court directly before this Court. Challenging both the orders i.e. the order of the learned Single Judge as well as of the learned Divisio n Bench dismissing ICAs through separate petitions, the stance of the petitioner is not only contradictory but in clear violation of the law declared by this Court in the case reported as "Trading Corporation of Pakistan v . Devon Sugar Mills Limited and others" (PLD 2018 SC 828 ). 4. We have been told that all other mills have cleared their liability of payment of sugarcane prices to the cane growers except the Brothers Sugar Mills, therefore, we refer the record of Brothers Sugar Mills. Paragraphs Nos. 3, 5 and 5(i) of the order passed by , the Cane Commissioner dated 28.12.2015 are relevant which are reproduced:- 3. AND WHEREAS, the mill management filed Writ Petition No. 25077/2015 which was dismissed for non- prosecution vide order dated 3.09.2015 passed by his Lordship Mr. Justice Mamoon Rashid Sheikh, Judge Lahore High Court, Lahore. Subsequently , the said Writ Petition was restored and heard and disposed of by his Lordship Mr. Justice Syed Mansoor Ali Shah, Judge, Lahore High Court, Lahore vide order dated 17.11.2015, wherein it was contended by the writ petitioner that identical matters have already been decide d vide order dated 02.10.2015 passed in Writ Petition No. 23910/2015, whereby the Honorable Court directed the defaulting sugar mills to clear 95% payment upto 30.10.2015 and remaining 5% shall be cleared up to 15.1 1.2015. 4.............................................................
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5. AND WHEREAS, in compliance of the order of Honorable Lahore High Court Lahore, Mian Nishat Ahmad attended this office and submitted request undertakings dated; 18.12.2015 and 22.12.2015 which is summarized as under--- i. Brother Sugar Mills surrenders the stock of 3,10,000 bags of 50 kg sugar worth about Rs:77,50,00,000/- Rs:50/kg against pending liability of Rs:67,89,25,729/- as per SCR-II dated 30.1 1.2015. 5. We have heard learned counsel for the parties at length on the point of maintain ability of the ICAs as well as on merits of the case because the order of the learned Single Judge is also under challenge before us through the Civil Petitions mentioned supra. Learned counsel for the parties have advanced lengthy arguments in the Court as well as they filed written arguments and referred voluminous case law. Although we have considered all the arguments as well as case law' cited by the learned counsel for the parties but we will discuss only the arguments and the case law cited by the learned counsel for the parties which is directly relevant for the determination of point in issue before us. 6. First we will address the point of maintainability of the ICAs. An ICA is competent under section 3 of the 'Law Reforms Ordinance, 1972 (XII of 1972). Proviso to subsection (2) of section 3 of the Law Reforms Ordinance, 1972 is relevant which is reproduced:- (2). Provided that the appeal referred to in this subsection shall not be available or competent if the application brought before the High Court under Article [199] arises out of any proceedings in which the law applicable provided for at least one appeal [or one revision or one review] to any Court, Tribunal or authority against the original order ." Now if the order/action impugned through the writ petitions is out of any proceed ing in which the law applicable provided for at least one appeal or one revision or one review to any Court, Tribunal or authority against the original order , the ICA is not competent. In this view of the matter , the learned Division Bench of the High Court dismissed the appeal on the ground that as under the law applicable i.e. the Land Revenu e Act, 1967 remedy of review , revision and appeal was available, therefore, appeal was not maintainable. We note that admittedly the Punjab Sugar Factories Control Act, 1950 (XXII of 1950) (hereinafter referred as "The Act") and The Punjab Sugar Factories Control Rules, 1950 (hereinafter referred as "The Rules ") are the law applicable and the application brought before the High Court under Article 199 arises out of the proceedings from the law applicable . Admittedly , the sugarcane is a regulated crop from its very cultivation to the sale to the Occupier under "The Act" as well as "The Rules". The purpose of Act and Rules is to ensure the required productivity of every day essential item "white sugar". Hence, the statutory restrictions as well as protections extended to the cane growers are to be interpreted to advance the purpose of A statute. The cane growers and sugar factories enter into 'a mandatory agreement under Rule 9(3) of the Rules, Rule 9 is reproduced:- "Rule 9--Purchase of Cane Grown in a Reserved Area.--- (1) The occupier of a factory shall estima te or cause' to be estimated, by 30th September , the quantity of sugarcane with each grower enrolled is Growers' Register and shall submit the estimate to the Cane Commissioner who may, after such enquiries as he considers necessary , modify the estimates and cause them to be published in such manner as he may direct. (2) A cane grower or a cane growers' cooperative society in a reserved area may offer in Form 6, Appendix II by the 1st October , each year to supply during a crushing season to the occupier of the factory for which the area has been reserved, cane not exceeding, in the case of cane growers, the quantity estimated in accordance with sub- rule (1). (3) The occupier of the factory for which the area is reserved shall enter into an agreement with the cane grower or the cane growers' cooperative society , as the case may be, in Form s 7 and 8, respectively , or in any other Form approved by the Cane Commissioner , within a month of the offer mentioned in sub-rule (2). (4) The occupier of a factory shall spread the purchases made to the reserved area in an equitable manner , and shall in the case cane growers of the reserved area make purchase of cane only after issuing requisition slips. In order to comply with this rule the occupier shall cause identification cards to be distributed to all cane growers of the reserved area to whom requisition slips will be issued, and shall maintain a record of the same.
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(5) Requisition slips and identification cards to members of a cane growers' cooperative society shall be issued by the society . (6) In case of a dispute whether a particular system adopted for the purchase of cane growers in the reserved area is equitable or not the dispute may be referred to the Cane Commissioner , whose decision shall be final." Sub-Rule (3) of the Rule 9 is relevant and in accordance with the said Rule under Forms Nos. 7 and 8 of Appendix II of "The Rules" the agreement is entered by the parties, which are reproduced:- FORM 7 AGREEMENT FORM UNDER RULE 9 (3) BETWEEN CANE GROWERS AND OCCUPIER OF A FACTORY I-------------- son of caste------------a cane grower------------- of village------------- tehsil--------------- District-------------- hereinafter to be referred to as the first party and------------the occupier of----------factory hereinafter to be referred to as the 2nd party , hereby enter into an agreement about the sale and purchase of cane on the following terms: 1. The first party agrees to sell during the season 20----------------20 his sugarcane crop standing on----------------- hecters as per details given in the enclosed statement with an approximate yield of -----------------kgs/quintals to the 2nd party at the minimum price notified by the Government, subject to such deductions, if any, as may be notified by the government from time to time. The first party further undertakes to supply good cane free from leaves, tops and roots at the factory gate or at-----------------purchasing centre in such quantities and on such dates as may be specified in the requisition slip issued by the occupier of the factory in conformity with this agreement and the instructions issued by the Cane Commissioner . 2. The cane shall be taken by the 2nd party in instalments equitably spread over the whole working period of the factory . 3. In the event of wilful failures to supply at least 85 per cent of the estimated yield of cane from the area whose crop has been contracted to be sold after excluding the quantity needed for seed, the first party shall be liable to pay the second party compensation at the rate not exceeding one paisa per six kgs, on such deficit. 4. In case the first party wilfully fails to supply cane to the 2nd party on three consecutive occasions according to the requisition made by 2nd party , the first party shall cease to have a claim to sell cane to the 2nd party . 5. In the event of the, 2nd party wilfully failing to take delivery of the cane, which the first party is ready to deliver in accordance with this agreement, the 2nd party shall be liable to pay to the first party the actual price of the quantity of such cane which it fails to purchase. In the event of the 2nd party otherwise willfully failing to purchase cane in accordance with this agreement, it shall be liable to pay the first party compensatio n at a rate not exceeding ## one paisa per six kgs, for such quantity of cane as the 2nd party fails to buy, provided that for any deficiency in the purchase in the instalments fixed for the period after 1st April, the 2nd party shall be liable to pay compensation to the first party at a rate not exceeding @ two paisas per six kgs. In the event of a breakdown at the factory or of other circumstances due to natural causes, calamities or accidents beyond human control arising, to show that the 2nd party will not be able to purchase the cane it has agreed to purchase, the 1st party after giving a week's notice to the 2nd party and with previous permission of the Cane Commissioner , shall have option of making other arrangements for the disposal of the cane and in such case no compensation shall be payable by either party to the other . No compensation for breach of this agreement shall be payable by either party when such breach is due to natural causes; calamities or accidents beyond human control. 8. Any dispute between the parties regarding the quality and conditions of the cane, the place of delivery , the instalments and other matters pertaining to the agreement shall be referred to arbitration in the manner provided for in the rules. No suit shall lie in a civil or revenue court in respect of any such dispute. Signature of the cane grower (or his thumb impression) Signature of the occupier or his authorized Representative in token of his accepting the above contract. APPENDIX II FORM 8 AGREEMENT FORM UNDER RULE 9, BETWEEN A CANE GROWERS COOPERA TIVE SOCIETY AND THE OCCUPIER OF A FACTORY
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We----------the Cane Growers' Cooperative Society of District---------------- acting through its authorized representatives hereinafter to be referred to as the first party , and occupier of factory , hereinafter referred to as the second party , hereby enter into an agreement about the sale and purchase of cane on the following terms- 1. The first party agrees to sell during the season 20--------------20------------------- -the sugarcane crop of the members of the society standing on---- --------hectors as per details given in the enclosed statement with an approximate yield of------------kg/quintals to the 2nd party at the minimum price notified by the. Government, subject to such deductions, if any, as may be notified by the government from time to time provided that price payable by the second party to the first party shall not in any case be lower than that paid generally by the second to other growers of the village in which cooperative societies operate from. The first party further undertakes to supply good cane free from leaves, tops and roots at the factory gate or at---------------purchasing center in such quantities and on such dates as may be specified in the requisition slip issued by the occupier of the factory in conformity with this agreement and the instructions issued by the Cane Commissioner . 2. The cane shall be taken by the 2nd party in instalments equitably spread over the whole working period of the factory . In the event of wilful failures to supply at least 85 per cent of the estimated yield of cane from the area whose crop has been contracted to be sold after excluding the quantity needed for seed, the first party shall be liable to pay the second party compensation at the rate and not exceeding one paisa per six kgs, on such deficit. 4. In case the first party wilfully fails to supply cane to the 2nd party on three consecutive occasions according to the requisition made by 2nd party , the first party shall cease to have a claim to sell cane to the 2nd party . 5. The 2nd party shall ordinarily send its requisition for cane to the 1st party at least four days before the cane is required and will not make changes within this period without suf ficient reason. 6. In the event of the 2nd party wilfully failing to take delivery of the cane, which the first party is ready to deliver in .accordance with this agreement, the 2nd party shall be liable to pay to the first party the actual price of the quantity of such cane which it fails to purchase. In the event of the 2nd party otherwise wilfully failing to purchase cane in accordance with this agreement it shall be liable to pay the first party compensation at a rate **not exceeding one paisa per six kgs, for such quantity of cane as the 2nd party fails to buy provided that for any deficiency in the purchase in the instalments fixed for the period after 1st April, the 2nd party shall be liable to pay compensation to the first party it a rate **not exceeding two paisas per six kgs. 7. In the event of a breakdown at the factory or of other circumstances due to natural causes, calamities or accidents beyond human control arising, to show that the 2nd party will not be able to purchase the cane it has agreed to purchase, the 1st party after, giving a week's notice to the 2nd party and with previous permission of the Cane Commissioner , shall have option of making other arrangements for the dispo sal of the cane and in such case no compensation shall be payable by either party to the other . No compensation for breach of this agreement shall be payable by either party when such breach is due to natural causes, calamities or accidents beyond human control. 9. Any dispute between the parties regarding the quality , and condition of the cane, the place of delivery , the installments and other matters pertaining to the agreement shall be referred to arbitration in the manner provided for in the rules. No suit shall lie in a civil or revenue court in respect of any such dispute. Signature of the authorised representatives of the Cane Growers' Cooperative Society Ltd. Signature of the occupier or his authorized representative in token of his accepting the above contract. Then comes Rule 17 in the matter in issue, which is also reproduced. "Arbitration. (1) Any dispute touching an agreement referred to in these rules shall be referred to the Cane Commissioner for decision, or if he so directs to arbitration. No suit shall lie in a civil or revenue court in respect of any such dispute. (2). If the Cane Commissioner directs the reference of a suit to arbitration, it shall be referred to a sole arbitrator acceptable to the parties concerned. In case no sole arbitrator is acceptable to both parties, the dispute in question shall be referred to the Board of Arbitration, consisting of one representative of each party and an umpire
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acceptable to both representatives. If the representatives of the parties are unable to elect such an umpire within a fortnight, the Cane Commissioner shall either himself act as Umpire or nominate one. The Umpire shall be the President of the Board of Arbitration, and shall have a vote in case of disagreement between the representatives. (3). The sole arbitrator of the Board of Arbitration shall have the full power of a court in respect of summoning the parties, witnesses and records. (4). The decision of the sole arbitrator or Board of Arbitrator shall be final and binding on both parties and shall not be called in question in any civil or revenue court. (5). The sole arbitrator of the Board of Arbitration shall give an award within the time fixed by the Cane Commissioner failing which the Cane Com missioner may decide the dispute himse lf or appoint another arbitrator or arbitrators for the purpose. (6). Any party considering himself aggrieved by an award may appeal to the Provincial Government within one month of the date of communication of the award and Government shall pass such orders as they deem fit. (7). The Provincial Government's order in appeal shall be final. (8). On application to the Civil Court having jurisdiction over the subject matter of the decision or award, the decision of the Cane Commissioner , or the award of the arbitrator or arbitrators or the Provincial Government's order in appeal against an award, shall be enforced by all court as if such decision, award, or orders in appeal were a decree of that court." In accordance with the Sub Rule (6) of Rule 17 any party considering himself aggrie ved by an award may appeal to the Provincial Government within one month of the date of communication of the award and Government shall pass such order as they deem fit. 7. Admittedly , the matter in issue is a dispute regarding payment of price of sugarcane provided by the cane growers to the occupier of the sugar mills. It is not relevant for the purposes of considering the maintainability of ICA whether the Banks, as claimed by them, were having a right of appeal or not. The only test is that if the application brought before the High Court under Article 199 arose out of the proceedings in which the law applicable provided for at least one appeal. Admittedly , the law applicable provides an appeal. It stands in addition to the findings of the learned Division Bench of the Lahore High Court whereby the ICAs were dismissed being not maintainable. 8. In this view of the matter , no case for leave against the judgment of learned Division Bench of the Lahore High Court is made out, therefore, instant Civil Petition as well as Civil Petition No. 1077 of 2019, Civil Petition No. 1168 of 2019, Civil Petition No. 1356 of 2019, Civil Petition No. 1449 of 2019, Civil Petition No. 1189-L of 2019, Civil Petition No. 1240-L of 2019 and Civil Petition No. 1241-L of 2019 are dismissed and leave is refused. 9. Now we turn to other limb of the matter . C.M.A. 2962 of 2019 in/and C.P. 1049 of 2019, C.M.A.3356 of 2019 in/and C.P. 1355 of 2019, C.M.A. 3570 of 2019 in/and C.P. 1450 of 2019, C.M.A. 4077 of 2019 in/and C.P. 1683 of 2019 C.M.A. 449-L of 2019 in/and C.P. 1188 of 2019 and C.M.A. 1010-L of 2019 in/and C.P . 1243 of 2019, All the above noted applications are for condonation of delay i.e. C.M.A No. 2962 of 2019 for 288 days, C.M.A. No. 3356 of 2019 for 300 days, C.M.A. No.3570 of 2019 for 310 days, C.M.A. No.4077 of 2019 for 318 days, C.M.A. No.449-L of 2019 for 326 days and C.M.A. No.1010-L of 2019 for 331 days. 10. The ground taken in the applications for condonation of delay is almost the same that the applicants considered that the TCAs were competent, hence, they filed the ICAs and the same were dismissed being not maintainable, and they have filed Civil Petitions against the said judgment of dismissal Of ICAs. They still contest that the ICAs were competent and their Civil Petitions against the dismissal order of 1CAs were filed, but as a precautionary measure they also filed the petitions against the order of dismissal of their writ petitions by the learned Single Judge of High Court along with the C.Ms. As we have noted supra in the light of "Trading Corporation of Pakistan v. Devan Sugar Mills Limited and others " (PLD 2018 SC 828), it was petitioners' responsibility to be clear in their mind as regards to what remedy was available to them E under the law. Relevant portion from Para No. 1 1 of the said judgment is reproduced:-
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"In this view of the matter , the impugned judgment of the learned bench of the High Court cannot be sustained. Fair trial, does not envisage recourse to successive remedies one after another against one and the same impugned order on substantially same set of facts and pleadings seeking substantially similar relief, as it would be against the doctrine of election, as expounded above. A tenant confronted with ex-parte order striking out its defence resulting in his ejectment order , quite a few remedi es may be available against such order; namely Appeal under section 24 of the Cantonments Act,…
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