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Writ Petition No. 1 of 1983, decided on 16th March, 1983.

(a) West Pakistan Industries (Control on Establishment and Enlargement) Ordinance (IV of 1963)‑----

‑‑ S. 3‑Provisional Constitution Order (1 of 1981), Art. 9‑No Objection Certificate granted to petitioner for setting up Cooking oil Mill on condition that Government would closely watch progress of installation and in case of delay withdraw permission‑Petitioner called upon more than once to apprise department concerned about progress of project and was duly served with final show‑cause notice before withdrawal of No‑Objection certificate‑Petitioner, held, not condemned unheard and principles of audi alteram partem not violat ed in circumstances.‑[Natural justice, principles of].

(b) West Pakistan Industries (Control on Establishment and Enlargement) Ordinance (IV of 1963)‑----

‑‑ S. 3 ‑Provisional Constitution Order (I of 1981), Art. 9‑Grant of No‑Objection Certificate for setting up Cooking Oil Mill with condi tion that implementation would not be delayed‑Government, held, has power and right to withdraw No‑Objection Certificate if condition not fulfilled‑Imposing of condition not barred by Ordinance cannot be treated as extraneous to law and petitioner accepting No‑Objection Certificate with condition could not question same‑Plea that decisive step had already been taken and power to recede namely locus poenitentiae not available to Government; held further, not sustain able in view of conditions.

‑‑ Art. 9‑West Pakistan Industries (Control on Establishment and Enlargement) Ordinance (IV of 1963), S. 3‑Writ jurisdiction -Questions requiring investigation, held, not subject for adjudication in writ petition.

Ch. Tanbir Ahmed Siddiki v. The Province of East Pakistan and others P L D 1968 S C 185 and Province of East Pakistan v. Kshiti Dhar Roy and others P L D 1964 S C 636 rel.

‑‑‑ Art. 9‑Writ petition‑Plea of mala fide‑Particulars of mala fide not given‑Plea, held, cannot be agitated.‑[Mala fide].

Farzand Ali v. Government of Pakistan P L D 1970 S C 98 rel.

Q. Muhammad Jamil for Appellant.

Amirzada Khan, A. A.‑G. for Respondent No. 1.

A. R. Kazi and Muhammad Ashfaq for Respondent No. 2.

Date of hearing: 6th March, 1983.

Jawad Hussain has by this constitutional petition called in question the order of respondent No. 1 withdrawing the No Objection Certificate granted to him for installation of Cooking Oil Mill at Bannu.

The facts forming the background of the impugned order briefly are that a No‑Objection Certificate was issued to the petitioner on 22nd March, 1979 for setting up a Cooking Oil Unit at Bannu. The petitioner pur chased a plot of land in Gandi Khan Khel for construction of the Mill and obtained loans from the Industrial Development Bank of Pakistan and Investment Corporation of Pakistan. The sale of plot in favour of the petitioner was pre‑empted and the suit decreed in favour of the pre‑empter but the decree was set aside by the District Judge on 29th May, 1982. On the request of the petitioner a piece of land had been allotted to him in the Industrial Estate, Bannu. He could not commence construction on the said land for want of electricity, water and sewerage facilities. He, however, was reminded time and again to expedite the implementation of the N. O. C. but he failed to take positive steps towards the construction of the Mill. He was duly served with notices but on his failure to avail himself of the opportunity afforded to him, the N.O.C. was withdrawn.

The learned counsel for the petitioner strenuously contended that the petitioner had been clothed with a vested right by the N.O.C. but the same was withdrawn without his being heard in the matter in violation of the principle of audi alteratn partem. The learned counsel for the respondent, on the other hand, maintained that despite notices the petitioner did not come forward to explain the circumstances under which the execution of the project had been delayed and that it could not be said that he had been condemned unheard. The impugned order whereby the N. O. C. was withdrawn is dated 7th. August, 1982. The relevant record was placed before us and a perusal of it shows that the petitioner was often reminded to expedite the finalisation of the Mill. A final show‑cause notice dated 13th May, 1982 was sent to him and it reads as under :‑--

Subject: Final show‑cause notice.

Dear Sir,

The Provincial Government viewed with great concern that the pro gress on implementation of your above project is very slow and far from satisfactory. The Federal Government is already pressing hard for the early implementation of cooking/ghee project sanctioned in 1979.

You are hereby served with this final notice to accelerate the physical implementation of project and if it is still found unsatisfactory, it will be presumed that you are no longer interested in your project and Government will be obliged to withdraw the permission granted to you and will be offered to other suitable parties.

Please send your reply within a fortnight and also acknowledge the receipt of this letter.

Yours faithfully,

Section Officer‑II (Ind.).

The peon book shows that the letter was received by one Umara Khan with whose signature appears the seal of the General‑Manager of the petitioner's Mill. It was followed by a letter, dated 2nd June, 1982 wherein it was said that the stipulated period of a fortnight had already passed but neither any progress report had been sent nor the receipt of the letter acknowledged by the petitioner. It was added that "your permission will, however, be considered as cancelled if you still not send any reply till 15th June, 1982." Another letter, dated 17th July, 1982 was sent to the peti tioner calling upon him to discuss with the Industries Minister the progress of his project on 28th July, 1982. He neither submitted any reply nor visited the Industries Minister as desired. It is manifest that the petitioner was called upon more than once to apprise the department concerned about the progress of his project and he was duly served with a final show‑cause notice but he, for the reason best known to him alone, did not respond and it led to the impugned order whereby the N. O C. granted to him was withdrawn. It cannot, in the circumstances, be said that he had been con demned unheard and the principle of audi alteram partem had been violated.

The learned counsel for the petitioner next contended that the N. O. C had been issued under section 3 of the West Pakistan Industries (Control on Establishment and Enlargement) Ordinance, 1963 and respondent No. 1 was not competent in law to withdraw the N. O. C. inasmuch as the aforesaid Ordinance had provided for the organized and planned growth of Industries in West Pakistan and the Provincial Government was not authorised to supervise the working of industries thereafter. He added that the condition incorporated in the N. O. C. was extraneous to law and was without lawful authority. It is contemplated by section 3 of the Ordinance that no person shall establish or cause to be established any industrial undertaking or enlarge or cause to be enlarged any existing industrial undertaking except with previous permission in writing of the Government. Both the learned counsel for the parties are agreed that the N. O. C. was issued to the petitioner under section 3 of the Ordinance referred to above. A look at the N. Q. C. shows that it was conditional and para. 3 of it reads as under:‑---

You (the Principal parties) are advised to immediately apply on proper form to the Investment Promotion Bureau, Karachi. It may also be noted that the Government would closely watch the progress made by you towards the setting up of projects at the location cited above. It would withdraw the permission given to you, if it is found that the implementation is being delayed and give it to the alternate parties.

It is clear from what has been reproduced above that the Government who gave the N. O. C. reserved the right of its withdrawal if the implemen tation was being delayed. This was the oral condition for withdrawal of the N. O. C. If the Government had the power of issuing the N O. C. with a particular condition it also had the power of withdrawing it on the sole ground that the implementation was being delayed and the condition not fulfilled. The contention of the learned counsel for the petitioner that the Government had no power to withdraw the N. O. C. would not, there fore, prevail. There is no bar in the Ordinance with regard to incorpora tion of condition in the N. O. C. pertaining to the organized and planned growth of industries and the condition cannot be treated as extraneous to law. The question of the supervision of the working of the industries after their establishment, as suggested by the learned counsel for the petitioner does not arise. Moreover, the N. O. C. was accepted by the petitioner with its condition and it does not lie in his mouth now to question it. Further more, the plea that decisive step had already been taken and the power to recede, namely, locus poenetentiae was not available to the Government would not, in view of the aforesaid condition, be tenable.

It is true that the petitioner secured loans from the Industrial Develop ment Bank of Pakistan and Investment Corporation of Pakistan, besides obtaining consent under the capital issue for a considerable amount, but it is complained that beyond this paper work no physical steps were taken towards the implementation of the project. A pike of land was purchased in Gandi Khan Khel but it became the subject‑matter of pre‑emption suit, and on the request of the petitioner a plot of land was allotted to him in the Industrial Estate, Bannu. He did not comply with the terms and condi tions of allotment and later on the allotment was cancelled. On his initia tive the plot was reallotted to him but again he failed to make the required deposit, execute the lease‑deed and start construction work on the site. These are the factors pointed out by the learned counsel for the respondent to show the snail pace of the progress of the project. It is observed in Ch. Tanbir Ahmed Siddiki v. The Province of East Pakistan and others (P L D 1968 S C 184) that disputed questions of fact and law requiring investigation was not a suitable subject for adjudication in a writ petition. A similar observation has been made in the Province of Writ Pakis:an v. Kshiti Dhar Roy and others (P L D 1964 S C 636) that complicated and disputed questions of fact involving an elaborate investigation cannot be gone into in writ proceedings. The question whether there had or had not been sufficient delay in implementa tion of the project warranting the withdrawal of the N. O. C. therefore, can not be investigated in this writ petition.

The learned counsel for the petitioner lastly contended that the impugned order had been passed mala fide. It is pertinent to note that the particulars of mala fide have not been given in the writ petition. It is remarked in Farzand Ali v. Government of Pakistan (P L D 1970 S C 98) that mala fides have to be alleged with particularity and mere assertion of a general malice cannot be sufficient for this purpose. In the absence of particulars of they mala fide the plea cannot be agitated before us.

As a result of the foregoing discussion, we find no merit in the writ petition and dismiss it with costs.

M. Y. H Petition dismissed.

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