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P L D 2017 Lahore 68
Before Ayesha A. Malik, J
JDW SUGAR MILLS LTD. and others—Petitioners
versus
PROVINCE OF PUNJAB and others—Respondents
Writ Petitions Nos.37, 35, 61, 76, 78 and 23145 of 2016, decided on 10th October, 2016.
(a) Punjab Industries (Control on Establishment and Enlargement) Ordinance (IV of 1963) —
—Ss. 3, 4 4& 11—Constitution of Pakistan, Art. 199—Government of Punjab Notifications No. AEA-III-3-5/2011 (Vol-III) dated 04.12.20U and No.AEA-lII- 3-3/03 (VOL-III) dated 6.12.2006; (issued under S.ll of the Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963)—Object, scope and interpretation of the Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963—Restrictions on establishment/enlargement of industrial undertakings—Exemptions—Public interest considerations—Relocation of existing sugar mills to a new location—Nexus between ban on establishment of new sugar mills and relocation of existing sugar mills—Considerations of relocation policy and scheme of the law were location-specific and not production-capacity specific—Judicial review of Government policy—Judicial estoppel—Scope—Petitioners, which were operating various sugar mills, impugned issuance of Notification No. AEA-IU-3-5/2011 (Vol-HI) dated 04.12.2015 (impugned notification”) whereby existing sugar mills were allowed to relocate within the Province—Contention of the petitioners, inter alia, was that under the garb of shifting/relocating of an existing sugar mill, respondents were in fact establishing new sugar mills despite the ban imposed on establishment of new sugar mills under S. 3 of the Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963 read with Notification No. AEA-II1- 3-3/03 (VOL-III) dated 06.12.2006—Validity—Question to be determined was whether relocation of sugar mills fell within ambit of establishment of net sugar mills as provided under Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963r read with the ban imposed by notification dated 06.12.2006—Impugned notification reiterated the ban imposed by the earlier notification dated 06.12.200 .meaning thereby that the ban on establishment or enlargement of new sugar mills continued by way of policy of the Government and bare reading of clauses of the impugned notification revealed that relocate were correlated when seen in the context of the ban and public interest, as the key element for both was the location of the sugar mill and hence relocation of a sugar mill was the establishment of a new sugar mill in the local area, and provisions of Ss. 3 to 12 of the Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963 were therefore applicable to it and thus “relocation” fell within the ambit of establishment of a new sugar mill—Establishment of a new sugar mill was not to be justified simply on basis of production capacity but was also to be seen in the context of its location and factors relevant to the local area, and there could be no relocation of a functional sugar mill without due consideration of the new location— Argument that “relocation ” was different from establishment of a new sugar mill was without merit, as factors considered at time of grant of permission for establishment or relocation of a sugar mill would have punjab identical since both were location-specific—Objective of the unjab Industries (Control on Establishment and Enlargement) Ordinance, 1963 and notifications issued thereunder; was to control the......
....record and public interest—Record further revealed that the Provincial Government has in the past, held the view that relocation and establishment were synonymous and that relocation effectively meant to establish at a new location—Contention that relocation policy was necessary to protect the capital investment of the owners of sugar mills and to respond to change in market conditions was not tenable as said reasons did not justify making relocation a way to shift into cotton growing areas because the policy of imposing the ban on new sugar mills meant that national interest overrode the capital investment requirements of any sugar mill and the need to respond to market ( conditions—Section 3 of the Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963 mandated that individual requirements had to be weighed against national interest, general health of the people and causes of nuisance in the local area and notifications issued under S.ll of the Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963 especially
notification dated 6.12.2006 meant that a sugar mill could not establish in a cotton growing area, therefore while the long standing policy oj the ban prevented setting up mills in cotton growing areas, the relocation policy created a way to defy the ban and thus impugned notification did not benefit the public interest nor did it protect the national interest but on the contrary facilitated sugar mills to bypass the requirements of S.3 of the Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963—Provincial
Government had also taken a contradictory stance on the matter in the present case, than the one taken by it before the Supreme Court, to which the doctrine of judicial estoppel was applicable and as such the position taken before the Supreme Court, wherein the Provincial Government supported the ban on establishing of new sugar mills— High Court observed that the decision making process in the present case, leading to the issuance of the impugned notification, was not initiated in the national or public interest and the process was initiated to protect certain business interests at the expense of public interest— High Court directed that the respondent sugar mills be restrained from carrying out the business in the relocated premises, and that show-cause notices be issued to the same for establishment of new sugar mills without seeking permission from the competent authority under the law—High Court further struck down the Provincial government's policy to the extent of the “relocation”—Constitutional petitions were allowed, accordingly, [pp. 87, 88, 89, 90, 91, 93, 99, 101, 103] D, E, Ff G, H, /, K, P, T, U&V(b) Punjab Industries (Control on Establishment and Enlargement) Ordinance (IV of 1963)— *
---Ss. 7 & 11—Constitution of Pakistan Art. 199—Constitutional jurisdiction of High Court—Efficacious alternate remedy—Scope— Maintainability of Constitutional petition in presence of alternate remedy under S. 7 of the Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963—Petitioners impugned notification issued under S.ll of the Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963, granting permission for sugar mills to relocate—Question before the High Court was “whether the Constitutional petition was maintainable in presence of availability of I alternate remedy of revision and appeal under S.7 of the Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963’’—Held, that petitioners had challenged Government policy on relocation of functional sugar mills and had also challenged intent behind issuance of such policy on the ground that same was mala fide an
(c) Constitution of Pakistan—
—Art. 199—Constitutional jurisdiction of High Court—Judicial Review of administrative action—Public interest and national interest—Exercise of executive authority—Judicial review of
Government policy—Scope—Where Government policy was stated to be against public and national interest, High Court could look into the reasonableness of such policy and review the manner in which the executive exercised its powers to ensure that the rights of citizens were protected—Power of judicial review could also be exercised to ensure that the decision making process was reasonable and not arbitrary or tainted with mala fide—Government notification or policy was not immune from challenge if it was demonstrated that such notification was issued for reasons against public or national interest—Mile) exercising its Constitutional jurisdiction, High Court could look into the reasons for issuance of a policy where there were serious allegations of flouting transparency and good governance-Government could exercise its executive authority and fÓrm;ulate policies necessary for governance and Courts generally did not interfere in such policy matters, however, where there were elements of abuse of power, arbitrariness and violation of the process, High Court could look into the legality of the policy, [pp. 81, 92, 100] B, C, J & R
Engineer Iqbal Zafar Jhagra and others v. Federation of Pakistan and others PLD 2013 SC 224; Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455; Messrs Al-Rahaffi Travels and Tours (Pvt.) Ltd. and others v. Ministry of Religious Affairs, Hajj, Zakat and Ushr through Secretary and others 2011 SCMR 1621; Asaf Fasihuddin Khan Vardag v. Government of Pakistan and others 2014 SCMR 676 and Pir Imran Sajid and others v. Managing Director/General Manager (Manager Finance) Telephone Industries of' Pakistan and others 2015 SCMR 1257 rel.
(d) Judicial estoppel, doctrine of—
—Integrity of the judicial process—Nature of, and rationale for M principle of judicial estoppel—Estoppel by inconsistent positions taW before judicial forums—Approbate and reprobate—Application °l judicial estoppel—Scope—Fundamental duty of court to protect the integrity of the judicial process and a party could not approbate and reprobate at the same time—When a party look ail inconsistent position in the same case or in a prior case, the principle of judicial estoppel should be applied—Judicial estoppel was an equitable doctrine, which precluded a party from taking inconsistent positions before the court and protected the integrity of the judicial system and not of the litigant—Principle of judicial estoppel sought to ensure respect for judicial proceedings and to avoid inconsistency and abuse of process— Under the doctrine of judicial estoppel, court could stop a party from taking up contradictory stances if it was clearly inconsistent with the previous position taken by that party before another Court—Application of judicial estoppel depended upon the facts and circumstances of each case and when a party put forth a position, as a matter of fact in one case and was successful in such an assertion, then that party was estopped from asserting a different position on the same facts in a second case—Party, who was to be estopped in the second case had to be the same party in the earlier case meaning thereby the party is the same in both cases—Issue for which the party was estopped from asserting its facts must have had some nexus in both proceedings and it was imperative that such equitable principle be applied so that a judicial process functions properly and effectively—Litigants must approach the Court in a truthful manner especially if the litigant party was the government—Party could always vigorously assert its position, but could not misrepresent the facts in order to gain some advantage in the process—When a party had fÓrm;ally asserted a certain version of the facts in litigation, he or she could not later change those facts because the initial version no longer suits him or her—For application of the principle of judicial estoppel, the Court must ascertain that a party had asserted a contradictory position before another Court which position was accepted by that Court—Party ys later position must be clearly inconsistent with its earlier position, and the courts should inquire whether the party had succeeded in persuading a court to accept its earlier position and it had to be determined whether the party seeking to assert the inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped—Party’S change in its factual or legal position threatened to produce inconsistent decisions by the courts and therefore, the doctrine of judicial estoppel was necessary to protect the integrity of the court from the harm caused when a litigant engaged in cynical gamesmanship, achieving success on one position yet arguing a different position in another case to satisfy an exigency of the moment—Allowing a litigant to adopt contradictory positions in different courts would mean that one court was misled or perhaps defrauded. [pp. 97, 98] L, M, N & O
Arkison v. Ethan Allen 160 Wn.2d 535 (Wash.2007); New Hampshire v. Maine 532 U.S.742 (2001); Habiba Kassam and others v. Habib Bank Ltd. 1989 CLC 1433; Sheikh Gulzar Ali & Co. Ltd. and others v. Special Judge, Special Court of Banking and another 1991 SCMR 590; Noor Muhammad, Lambardar v. Member (Revenue), Board of Revenue, Punjab, Lahore and others 2003 SCMR 708; Overseas Pakistanis Foundation and others v. Sqn. Ldr. (Retd.) Syed Mukhtar Ali Shah and another 2007 SCMR 569; Amrital N. Shah v. Alla Annapumamma (Andhra Pradesh) 1959 AIR (A.P) 9:1958(2) An.WR 447:1958 ALT 584:1958 ILR (Andhra Pradesh) 509; Cornell Law Review, Volume 89 Issue 1 November, 2003, Article 3, titled Judicial Estoppel and Inconsistent Positions of Law Applied to Fact and Pure law by Kira A. Davis rel.
(e) Public functionary—
—Functions of—Public officials to act as trustees of public funds and public property—Decisions /actions of public functionaries to be transparent, reasonable and free from abuse of public office and from personal advantage—Conflict of interest arising from private interests of public officials—Fairness in the decision-making process of public functionaries—Scope—Public officers were trustees of public funds and public property and were expected to take decisions based on public interest—Transparent and reasonable decision must be free from abuse of public office and from personal advantage—Where there existed a conflict of interest between private interest and public duty; the same must be clearly identified, appropriately managed and effectively resolved in order to ensure public confidence in public institutions— Conflict of interest would arise where an official decision will impact a personal interest, financially or otherwise such that a public official was seen to have gained from that decision or was perceived to have gained from such a decision—Where there existed a conflict between a public officials interest as a private citizen and his duty as a public official, there was potential for a conflict of interest to arise— Jurisprudence on conflict of interest aimed to ensure that private interest would not prosper from decisions taken in public office, while carrying out official duties and responsibilities—Mandate of any elected government was based on trust and public confidence and both such elements found its tools in transparency, good governance and fairness in the decision making process—Any conflict of interest, in fact or perceived, would destroy public trust and malign the decisions making process. [pp. 100] Q, R & S
Pir Imran Sajid and others v. Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan and others 2015 SCMR 1257 rel.
Aitzaz Ahsan and Shahid Saeed for Petitioners (in W.P. No.37.2016).
Shehzad A. Elahi for Petitioner (in W.P.No.35 of 2016).
Syed Ali Zafar for Petitioner (in W.P. No.61 of 2016).
Jawad Hassan, Taimur Akhtar, Umair Saleem, Haider Zaman Qureshi, Rana Muhammad Asif and Ali Usman for Petitioner (in W.P. No.78 of 2016).
Imtiaz Rashid Siddiqui, Barrister Shehryar Kasuri and Muhammad Hamza for Petitioners (in W.P. No.76 of 2016).
Syed Ali Zafar, Shehzad A. Elahi and Mubashar Aslam Zar for Petitioners (in W.P. No.23145 of 2016).
Muhammad Akhtar Shabbir, DAG along with Muqtedir Akhtar Shabbir and Mian Umar Hayat for Respondent.
Ch. Sultan Mahmood, A.A.G, along with Asif Mushtaq Ahmad, Senior Law Officer, Industries Department, Muhammad Bakhsh SO, Food Department; Javed Iqbal, Law Officer; Agriculture Department, Nawaz Malik, Director Law on behalf of Secretary Environment Protection Department and Waqas Alam, Cane Commissioner, Punjab for Respondents.
Salman Akram Raja, Tariq Bashir, Malik Ahsan Mehmood and Usman Ali Bhoon, for Respondent No.9 (in W.Ps. Nos.35 of 2016, 37/2016, 76/2016) and for Respondent No. 17 (in W.P. No.78/2016).
Ali Sibtain Fazli, Hasham Ahmad Khan and Abad-ur-Rehman, for Respondents Nos. 10, 11 and 12 (in W.Ps. Nos. 35/2016, 37/2016, 76/2016 and for Respondents Nos. 18, 19, 20 (in W.P. No,78/2016) and for Respondents Nos. 9, 10, 11 (in W.P. No.61/2016 and for Respondent No. 14 (in W.P. No.23145/2016).
Dates of hearing: 20th June and 28th July, 2016.
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