P L D 1996 LAHORE 687
STAR FLOUR MILLS
PROVINCE OF PUNJAB AND OTHERS
Per Ihsan-ul-Haq Chaudhry, J
(a) Constitution of Pakistan (1973) Article 151, 268, 199.
r/w West Pakistan Foodstuffs (Control) Act (XX of 1958)—–Preamble & S.3——
It is clear from the Article 268 that all Acts, Ordinance have been declared a valid piece of legislation and in contradistinction to the laws to be passed, made, enacted after the promulgation of the Constitution of 1973 those were called ‘existing laws’. The existing laws by fiction have been treated as validly enacted statutes by Article 268. In other words, these Acts, Ordinances, Rules, Bye-Laws etc. would be deemed to have been enacted as provided for in the Constitution of 1973, therefore, their vires qua the Constitution and other laws could be determined like any future Acts, Ordinance etc.[p. 692]A
It is, therefore, clear that not only the notification but even the vires of the existing laws could be examined. If this argument is accepted as valid then the existing laws would completely nullify the Constitution and it provisions in many respects.[p. 693]B
It is, therefore, clear from the preamble that it empowers the Provincial Government to control supply etc. of the foodstuffs in Province. In other words it provides for restrictions, control within the Province and it has no application on the Inter-Provincial Trade. The question was precisely considered in the case of Arshed Akram & Co. and 3 others (supra), where in it was held as under :-
“The correct legal position thus appears to be that it is not within the competence of the Provincial Government to pass an order which may hamper the inter-Provincial trade, commerce and intercourse or interfere with the movement of goods this Province to other Province. Any such restriction on the movement of rice, would obviously be hit by Article 151 unless it is saved by sub-Article (4). Thus, the Provincial Government can only control intra-Province and not inter Province movement of rice… … …” . [p. 693]C
It is clear from this Article that trade, commerce and intercourse throughout Pakistan shall be free and subject to the restriction by an act of Parliament. The Provincial Government can also impose reasonable restriction but that is not under the normal situation but only in case of special situation on account of public health public order or morality or for purpose of protecting animals or plants from disease or preventing or alleviating any serious shortage of essential commodity, therefore, the same cannot be invoked on artificial or imaginary grounds. There must be real emergency. Moreover, the Act is to be made with the consent of the President. It is patently clear that restriction cannot be subject-matter of executive orders by the Provincial Government to its functionaries. The Provincial Government in no circumstances has any authority to issue any order or notification which impede the flow of trade and commerce between the different Provinces or create hurdles in the movement of the goods of any sort from one Province to another, therefore, the notification is plainly contrary tot he Constitutional provision. The learned counsel for the petitioner rightly referred to the cases of the District Collector of Hyderabad and others, State of Mysore and Arshad Akram & Co. and 8 others (supra) in this behalf.
The upshot of the above discussion is that notification dated 12-6-1996 issued by respondent No.1 under section 3 of the Punjab Foodsuffs (Control) Act, 1958 (XX of 1958) is hereby declared ultra vires, illegal and set aside by accepting this writ petition.[p. 694, 695]D