Per Irshad Hassan Khan, J.
(a) Constitution of Pakistan (1973), Articles 18 & 25
r/w North-West Frontier Province (Supply of Wheat to Flour Mills) Act (XIV of 1999)–Ss. 2(a)(c) & 3
Here, the N.-W.F.P. Government has the power to determine the supply of wheat in its absolute discretion. The law does not lay down the methodology or guidelines for allocation of wheat quota. The High Court was, therefore, right in holding that Article 18 and Article 25 of the Constitution was violated by the impugned legislation. We may also add that clause (a) of section 2 of the Act was saved by holding that the same is not violative of the Constitution. [p. 6] C
(b) Constitution of Pakistan (1973), Articles 141, 18 & 25
r/w North-West Frontier Province (Supply of Wheat to Flour Mills) Act (XIV of 1999)—Ss. 2(c) & 3—
It is true that the Provincial Legislature is competent to promulgate appropriate legislation for abolishing wheat quota or to regulate the supply of the same provided the above threshold-requirements are met and the Fundamental Rights contained in the Constitution are not violated. [p. 6] B
(c) Constitution of Pakistan (1973), Discretion—
A similar question, for consideration before this court in government of West N.-W.F.P. through Secretary v. Mejee Flour and General Mills (Pvt.) Ltd., Mardan 1997 SCMR 1804, wherein this Court dilated upon the well- established general principles for the exercise of discretion to the effect that discretionary decisions should be made according to rational reasons, which means: (a) that there be findings of primary facts based on good evidence and (b) that decisions about the facts be made for reasons which serve the purposes of the statute in an intelligible and reasonable manner. It was held that the actions which did not meet these threshold-requirements are arbitrary and might be considered as a misuse of powers. Our learned brother Muhammad Bashir Jehangiri, J., who authored the judgment, while dealing with the doctrine of structuring discretion, observed :–
“Wherever wide-worded powers conferring discretion exist, there remains always the need to structure the discretion and it has been pointed out in the Administrative Law Text by Kenneth Clup Davis (page 94) that the structuring of discretion only means regularizing it, organizing it, producing order in it so that decision will achieve the high quality of justice. The seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open findings, open reasons, open precedents and fair informal procedure. Somehow, in our context, the wide-worded conferment of discretionary powers or reservation of discretion, without framing rules to regulate its exercise, has been taken to be an enhancement of the power and it gives that impression in the first instance but where the authorities fail to rationalize it and regulate it by Rules, or policy statements or precedents, the Courts have to intervene more often than is, necessary, apart from the exercise of such power appearing arbitrary and capricious at times.” [p. 5 and 6] A
Advocate for the Petitioner :
Imtiaz Ali, Additional Advocate-General, N.-W.F.P.
Advocate for the Respondent (in C.Ps. Nos. 366, 372 to 376, 381 to 384, 399 and 400-P of 2000) :
Zahoor Qureshi, Advocate-on-Record
Date of hearing : 112th October, 2000.