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MESSRS CHAUDHRY SUGAR MILLS LTD. versus PROVINCE OF PUNJAB

ections Section 3, 4, 11 and Preacher - Constitution of Pakistan, Arts 9, 14, 18 and 38 - Amendment to the Law Ordinance (XII of 1972) Section 3 ification Notice No. EA III 3 3/03 (VOL U1) Period 6 12 2006 [Restricted under Section 11 of the Punjab Industries (Establishment and Extension Control) Ordinance, 1963] industrial Restrictions on establishment / expansion of industrial works - Exemption - Public interest considerations sugar Moving existing sugar mills to a new location on the establishment of new sugar mills under the ban and exchange of existing sugar mills the The question before the High Court was whether Punjab Industries should move existing sugar mills to a new area. Whether permission is required in terms of the Res (Establishment and Extension Control) Ordinance, 1963. / Transfer of Sugar Mills The Government has come out of the scope of notification dated 6 12 2006 of AEA III 3 3/03 (VOL III) of Punjab, under which the establishment of new sugar mills has been banned. - Explanation of Punjab Industries (Establishment and Control of Extension) Ordinance, 1963 has shown that the same was designed to protect the social, environmental, environmental, civic and economic interests of the local residents while the industry was planned. And systematic development was coordinated. Constitutional values protect the legitimate interests of the marginalized and the marginalized, along with social and economic justice, as well as the promotion of basic rights and policy principles, especially the promotion of social and economic well-being of the people. Industries needing permission under Section 3 of the Punjab Industries (Establishment and Extension Control) Ordinance, 1963 was for the establishment of industrial initiatives in a local area and for that reason, when an existing sugar mills

P L D 2017 Lahore 848

Before Syed Mansoor Ali Shah, C.J. and Shujaat Ali Khan, J

Messrs CHAUDHRY SUGAR MILLS LTD.—Appellant

Versus

PROVINCE OF PUNJAB and others—Respondents

I.C.A. No. 1456 of 2016, decided on 11th September, 2017.

(a) Punjab Industries (Control on Establishment and Enlargement) Ordinance (XXV of 1963)—

—Ss. 3, 4 ,11 & Preamble—Constitution of Pakistan, Arts. 9, 14, 18 & 38—Law RefÓrm;s Ordinance (XII of 1972) S. 3—Notification No.AEA-III- 3-3/03 (VOL-U1) dated 6.12.2006 [issued under section 11 of the Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963]—Restrictions on establishment/enlargement of industrial undertakings—Exemption—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—Question before the High Court was whether relocation of existing sugar mills to a new area required permission in terms of the Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963 and whether such relocation/shifting of sugar mills fell outside the purview of the Government of Punjab Notification No.AEA-III-3-3/03 (VOL-III) dated 6.12.2006, whereby ban was imposed on setting up of new sugar mills—Validity—Purposive interpretation of Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963 showed that the same was geared to protect social, environmental, ecological, civic and economic interests of local residents while achieving planned and organized growth of industry and such Legislative policy synchronized with the Constitutional values, of social and economic justice and provided safeguards to the legitimate interests of backward and depressed classes and furthermore, also promoted the Fundamental Rights and the Principles of Policy, in particular, the promotion of social and economic well-being of the people—Permission required under S. 3 of the Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963 was for the establishment of an industrial undertaking in a local area and therefore, when an existing sugar mill was shifted or relocated to another local area, it was no different from a sugar mill being established for the first time in such local area—Word "new" sugar mill, under the Notification meant new in the context of the local area and its residents, but not for the owners or proprietors of an industrial undertaking—High Court held that the appellant sugar mills, even though they were relocating or shifting, but for the purposes of the Punjab Industries (Control on Establishment ai d Enlargement) Ordinance, 1963, they were being established anew and required prior permission in terms of S.3 of the Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963—Intra-court appeals were dismissed, in circumstances. [pp. 863, 864] A, E & E

2015 CLC 272; PLD 2014 Lah. 583; The American Heritage (R)Dictionary of the English Language, Fifth Edition, URL; https:// ahdictionary. com/ word/ search.html q= relocate;Oxford Dictionary (LURL: https; //en. oxforddictionar ies. com/def inition/establish) and

Oxford Advance Learner's Dictionary p.498 rel.

(b) Words and phrases —

—"Relocation—Meaning—Relocation meant "to move to or establish in a new place "; to "become established in a new residence or place of business. " [p. 864] C

The American Heritage(R) Dictionary of the English language, Fifth Ediition, URL; https://ahdictionary. com/ word/ search.html q = relocate rel.

(c) Words and phrases —

—"Establish"—Meaning—To set up on a firm or permanent basis or start or create a new organization. [p. 864] D

*

Oxford Dictionary (URL: https;//en. oxforddictionaries. com/ definition/establish) and Oxford Advanced Learner's Dictionary p.498 rel.

(d) Punjab Industries (Control on Establishment and Enlargement) Ordinance (XXV of 1963)—

—Ss. 11, 3, 4 & Preamble—Notifications No. AEA-III-3-5/2011 (Vol-lll) dated 04.12.2015 & No.AEA-UI- 3-3/03 (VOL-II1) dated 6.12.2006 [issued under section 11 of the Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963]—Restrictions on establishment/enlargement of industrial undertakings—Exemption—

Public interest considerations—Relocation of existing sugar mills to a new location—Scope, nature, application and reading down of S. 11 of Punjab Industries (Control on Establishment and Enlargement)

Ordinance 1963—Exercise of power of exemption under S.ll of the Punjab Industries (Control on Establishment and Enlargement)

Ordinance, 1963 —Scope—Question before the High Court was whether Notification No.AEA-III-3-5/2011 (Vol-IH) dated 04.12.2015 issued under S.ll of the Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963, allowing for relocation of existing sugar mills despite ban on establishment of new sugar mills, was ultra vires the Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963—Validity—Power or discretion to exempt enjoyed by executive could not be exercised in a manner that frustrated or defeated legislative policy under the Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963, as it rested on public interest—Power to exempt under S. 11 of the Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963 was to be read down and restricted to situations where Government was satisfied that substantive requirement of S.3 of the Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963 was fully met or theoretically, where there existed such an overwhelming justification (for reasons to be recorded) to override fundamental considerations for even greater public good— Discretion enjoyed by Government for exemption was so structured that it considered and met substantive requirements of S.3 of the Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963 and such exemption was an enabling provision as it provided facility for businesses desirous of setting up new industry—Notification No. AEA-UI-3-5/20U (Vol-IU) dated 04.12.2015 was a clear usurpation of legislative policy under the Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963 and an abuse of limited powers available under S.ll of the same; as it wrongly assumed that relocation or shifting of an existing sugar mill did not affect the requirements of S.3 of the Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963 or in any manner upset legislative assumptions behind imposition of a ban on establishment of new sugar mills—Said notification was held to be ultra vires the Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963 and not sustainable in law, in circumstances, [pp. 873, 874, 875] F, G, H & I

John W. Salmond. Jurisprudence (Stevens and Haynes, London, 1902, p. 127; JDW Sugar Mill's Ltd. and others v. Province of Punjab and others PLD 2017 Lah. 68 and Tariq Khan Mazari and 3 others v. Government of Punjab through Secretary Industries and 3 others PLD 2016 SC 778 rel.__ - _

APPELLANTS BY

Makhdoom Ali Khan for Ch. Sugar Mills Ltd.

Salam Akram Raja, Malik Ahsan Mehmood, Muhammad Shabbir Hussain and Usman Ali Bhoon for Ittefaq Sugar Mills Ltd.

Ali Sibtain Fazal i, Ha sham Ahmad Khan, Umar Tariq Gill and Abad-ur-Rehman for HWSML and Abdullah Sugar Mils Ltd.

Syed Ali Zafar and Mubashir Aslam Zar for Indus Sugar Mills

Ltd.

Imtiaz Rashid Siddiqui, Shaharya Kasuri and Raza Imtiaz Siddiqui for Ashraf Sugar Mills Ltd.

Shahzad A. Elahi for Fatima Sugar Mills Ltd.

Muhammad Raza Qureshi for Tandlianwala Sugar Mills Ltd.

RESPONDENTS BY

Adnan Tariq, Assistant Advocate General, Punjab.

Khawaja Haris Ahmad and Hasam Bin Haris for Punjab Government/Advocates for the Appellants in connected ICAs.

Messrs Aitzaz Ahsan, Shahid Saeed Ch. and Ch. Shaukat Ali Javed for JDW Sugar Mills Ltd.

Waqas Alam, Cane Commissioner, Punjab.

Syed Murtaza Ali Zaidi for Respondent-MEPCO.

Haider Zaman Qureshi for Pakistan Cotton Ginners Association.

Asif Mushtaq Ahmed, Senior Law Officer, Industries, Commerce and Investment Department.

Malik Javed, Senior Economic Advisor, Industries Commerce

and Investment Department.

RESEARCH ASSISTANCE BY

Mohsin Mumtaz, Civil Judge/Research Associate at LHCRC.

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