Punjab Food Authrotiy vs Aleem Ashraf etc.

Stereo HCJDA-38 Judgment Sheet

IN THE LAHORE HIGH COURT, MULTAN BENCH

MULTAN

JUDICIAL DEPARTMENT

Writ Petition No.2779 of 2025 Punjab Food Authority Versus Aleem Ashraf & another

JUDGMENT

Date of hearing 29.09.2026

Petitioner by: M/s Noor ul Ain Fahad and Muhammad Nouman Iqbal, Advocates/Legal Consultant with Javed Iqbal, Assistant Director,PFA, Multan Division.

State by Mr. Arshad Pervaiz Qureshi, Assistant Advocate General Punjab.

Ghulam Sarwar Nihung. J:- Through this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as “Constitution”), the Punjab Food Authority (hereinafter referred to as "Authority") calls in question the legality of the order dated 29.01.2025 passed by the learned Magistrate, Section 30, Burewala, District Vehari, whereby the application filed by respondent No.1 for de-sealing/removal of the Emergency Prohibition Order (hereinafter referred to as “EPO”) was allowed.

2.The facts, in brief, as stated in the petition, are that on 16.10.2024, a Food Safety Team (hereinafter referred to as the "Team") of the Authority inspected the premises of respondent No.1, namely Burewala Oil Mill, situated at 06-K.M. Multan Road, Tehsil Burewala, District Vehari. During the course of inspection, a vehicle bearing registration No. SWN-216 was allegedly found carrying approximately 30,000 litres of rendered fat oil. According to the Authority, the requisite oil-testing record and certificate of analysis were not available at the spot. Consequently, an EPO was imposed under Section 18 of the Punjab Food Authority Act, 2011 (hereinafter referred to as “Act”). Samples of the rendered fat oil were

collected and sent to the Government Public Analyst for examination. The petitioner further states that FIR No. 1099/24, dated 16.10.2024, was registered at Police Station Sadar, Burewala, in connection with the alleged violations of the Act. The Authority maintains that the enforcement action was taken in discharge of its statutory responsibility to ensure compliance with food safety standards. Feeling aggrieved, respondent No.1 filed an application for de-sealing/removal of the EPO before the learned Magistrate, Section 30, Burewala, who, through the impugned order dated 29.01.2025, accepted the application. The Authority has challenged the said order on the ground that the learned Magistrate exercised jurisdiction not vested in him by law.

3.Learned counsel for the petitioner contends that the impugned order has been passed without lawful authority, as the learned Magistrate could not assume jurisdiction to interfere with an EPO issued under Section 18 of the Act. It is argued that the Act provides a specific statutory mechanism for reconsideration of such an order, which must be followed by the aggrieved person. It is further contended that the jurisdiction of the learned Magistrate to try offences under the Act does not confer upon him an unrestricted power to set aside regulatory orders passed by the Authority. The petitioner also maintains that the impugned order was passed without properly appreciating the statutory scheme and the nature of the action taken by the Food Safety Officer.

4.After going through the file, it has been noticed that process of notice was issued firstly on 13.03.2025 and the matter was fixed for 15.09.2026, when fresh notice was issued to respondent No.1 but he remained unrepresented. On 25.09.2026, the learned Assistant Advocate General Punjab was orally directed to ensure service upon respondent No.1 for 29.09.2026 but when the matter was taken up on the said date, the learned Law Officer stated that respondent No.1 had been informed telephonically; nevertheless, no one appeared on its behalf. Accordingly, respondent No.1 is proceeded against ex parte.

5.Arguments heard. File gone through.

6.The question for determination is whether the learned Magistrate had the authority to de-seal the premises when that power was vested in the Authority under section 18(2) of the Act. The record indicates that respondent No.1 sought de-sealing through a brief application filed before the learned Magistrate, without invoking any specific provision of law. The application was allowed without notice to or hearing the Authority. The impugned order was thus passed without first determining whether the learned Magistrate had jurisdiction to grant the relief, and without affording the Authority an opportunity to be heard. The relevant portion of impugned order is reproduced as under:- “In view of the above, this Court hereby orders the de-sealing of the Factory/Oil Mill Situated 06-K.M towards Multan Road, Tehsil Burewala. The order dated 16.10.2024 is set-aside and factory premises be de-sealed forthwith.

The applicant be permitted to resume operations at the factory premises. The petitioner shall be allowed to resume business activities forthwith. The authorities shall ensure that the applicant is not harassed or intimidated in any manner.”

Above said order has been passed without reason, which was totally without jurisdiction conferred to the Magistrate.

7.The action of respondent No.1 approaching the Magistrate is against the Article 4 of the Constitution which gives an alternate right to be treated in accordance with law read with Article 10A of the Constitution.

8.It has been observed that in a similar matter this Court in its elaborated judgment reported as District Education Officer and 2 others Vs. Zahid Mehmood and another (2017 PLC (C.S.) 1009) has discussed in detail the issue and has allowed the petition.

9.The procedure for passing an order under section 18 is prescribed in section 18(2) of the Act. A person aggrieved by the Authority’s decision may challenge it through the statutory appeal provided under section 39(2) of the Act.

10.In the instant petition, controversy, in its essential form, concerns the competence of the learned Magistrate to grant the relief sought by respondent No.1. Before examining the circumstances relied upon by the learned Magistrate, it is necessary to determine the statutory source of the power exercised by the Food Safety Officer, the mechanism prescribed for reconsideration of such action and whether the learned Magistrate was empowered by law to set aside the EPO.

11.Article 175(2) of the Constitution, provides: "No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law." The constitutional command is unequivocal. Jurisdiction is conferred by law and cannot be assumed merely because a particular relief is sought before a Court or because the circumstances may appear to warrant equitable intervention. A Court must trace its authority to a constitutional or statutory source. Where the Legislature has prescribed a particular mechanism for the exercise or reconsideration of a power, that mechanism cannot be displaced by an assumption of jurisdiction unsupported by law. In “Khalid Mehmood vs. Chaklala Cantonment Board through C.E.O and others” (2023 SCMR 1843), while referring to “Hitachi Limited and another vs. Rupali Polyester and others” (1998 SCMR 1618), the Hon'ble Supreme Court of Pakistan held that "The principles of common law or equity and good conscience cannot confer jurisdiction on the Courts in Pakistan which has not been vested in them by law. In this regard reference may be made to clause (2) of Article 175 of the Constitution of Pakistan, which provides that no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law." Similarly, in case reported as “Dossani Travels Pvt. Ltd. And others vs. Messrs Travels Shop (Pvt.) Ltd.and others” (PLD 2014 SC 1), the Hon'ble Supreme Court reaffirmed that: "High Court was the apex court in a Province or in the case of Islamabad, of the capital territory, but they were creatures of the Constitution and they had only that jurisdiction which has been conferred by the Constitution or under any law for the time being in force-Article 175(2) specifically mandated, 'no court

shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law."

In another case reported as “S.M. Waseem Ashraf v. Federation of Pakistan through Secretary, M/o Housing and Works Islamabad and others: (2013 SCMR 338), the Hon'ble Supreme Court emphasized that "No court should exercise any jurisdiction in any matter brought before it until and unless, such jurisdiction had been conferred upon it by the Constitution itself or under any law."

The above judgments establish that the existence of jurisdiction must precede its exercise. Neither equitable considerations nor the perceived desirability of a particular outcome can substitute for the statutory conferment of judicial power.

12.In the present case, the action challenged by the Authority was taken under Section 18 of the Act. The said provision deals with Emergency Prohibition Orders and reads as follows:

"18. Emergency prohibition orders.-

(1)If the Food Safety Officer is satisfied that the health risk condition exists with respect to any food business, he may, after serving a notice on the food operator and for reasons to be recorded in writing, restrain him from carrying on the food business with or without specifying conditions or period of such restraint.

(2)The Food Safety Officer shall, within twenty four hours of the action taken under sub-section (1), report such action to the Food Authority which may, after serving a notice on the food operator and for reasons to be recorded in writing, confirm, modify or set aside the order of the Food Safety Officer."

A plain reading of Section 18 of the Act demonstrates that the Legislature has provided a statutory framework for the issuance and subsequent consideration of an Emergency Prohibition Order. Under subsection (1), the Food Safety Officer may restrain a food operator from carrying on the food business where the requisite health-risk condition exists. The exercise of that power is, however, subject to the statutory requirements relating to service of notice and recording of reasons in writing. The power is therefore not unfettered and must be exercised within the limits prescribed by the Legislature. Of particular significance is subsection (2), which

requires the Food Safety Officer to report the action taken under subsection (1) to the Food Authority within twenty-four hours. It further empowers the Food Authority, after serving notice upon the food operator and recording reasons in writing, to confirm, modify or set aside the order of the Food Safety Officer. The statutory scheme thus expressly identifies the Food Authority as the authority competent to reconsider an Emergency Prohibition Order passed under subsection (1). An aggrieved food operator may seek consideration of the order by the Food Authority in accordance with the mechanism prescribed by subsection (2). The provision does not, however, confer upon the learned Magistrate a corresponding power to confirm, modify or set aside such an order.

13.The distinction between the jurisdiction to try an offence and the authority to reconsider an administrative or regulatory order is fundamental. The designation of a Magistrate under Section 30 of the Act, or his competence to deal with offences created by the Act, does not by itself vest him with a general appellate or supervisory jurisdiction over every regulatory measure taken by the Authority. The jurisdiction to try an offence and the power to set aside an Emergency Prohibition Order operate in distinct fields. The former concerns criminal proceedings instituted in accordance with law, whereas the latter concerns reconsideration of a regulatory measure under the statutory framework governing food safety enforcement.

This Court in judgment reported as Adnan Khurshid Vs. Director General Punjab and others (2026 CLC 933) has held that right of appeal when expressly provided by statute was a substantive legal right.

14.In the present case, the learned Magistrate, while allowing the application, set aside the order dated 16.10.2024 and permitted respondent No.1 to resume his business activities. The question is not whether the learned Magistrate considered the circumstances of respondent No.1 sympathetically, but whether the law empowered him to grant that relief. In the absence of a statutory provision authorizing the learned Magistrate to set aside an Emergency Prohibition Order under Section 18, the exercise of such power cannot be sustained merely on the basis of his designation

under Section 30 of the Act or his jurisdiction to deal with offences thereunder.

15.The question of seizure under Section 13 of the Act is distinct from the question of restraint imposed through an Emergency Prohibition Order under Section 18. A remedy relating to an article seized under Section 13 cannot, without an enabling statutory provision, be enlarged into a general jurisdiction to set aside or suspend an order passed under Section 18.The distinction between the two statutory regimes is also reflected in a case reported as “Abdul Qadeer v. The State” (PLD 2026 Lahore 744), wherein, while examining the scheme of seizure under Section 13 of the Act, this Court observed as under:

"Under the Food Authority Act, there are 'three regulatory regimes', namely the FSO, FA, and the Special Court. Each regulatory authority has its own distinct function."

The above observation is of particular relevance in the present case, as the jurisdiction available in relation to a seizure under Section 13 cannot, merely by virtue of the designation of a Magistrate as a Special Court under the Act, be extended to a regulatory order made under Section 18, where the Legislature has prescribed a separate statutory mechanism. In this context, it is also relevant to note that, in exercise of the powers conferred under Section 57 of the Act, the Punjab Food Authority has framed the Sealing and De-sealing of Food Business Premises Regulations, 2016. Regulation 2(2) thereof defines the expression "competent authority" as follows:

"(2). 'competent authority' means; (a) Food Safety Officer for the purposes of sealing of premises; and (b) The Director General for the purposes of de- sealing of the premises;"

The aforesaid provision identifies the Director General as the competent authority for de-sealing of premises. The regulatory framework, therefore, reinforces the distinction between the powers relating to seizure under Section 13, the statutory mechanism governing Emergency Prohibition Orders under Section 18, and the authority designated for de-sealing of premises. The provisions of the Act and the regulations framed thereunder must be applied within their respective fields, and the jurisdiction of the learned Magistrate cannot be extended beyond that conferred by law.

Where the action is an Emergency Prohibition Order, the matter must be considered within the framework prescribed by Section 18. In this regard, light is also taken from the case law reported as “Messrs Lung Fung Chinese Restaurant, Lahore and others vs. Punjab Food Authority and others” (PLD 2021 Supreme Court 684). The Supreme Court held as under:

"More importantly, a similar power has been actually vested in the FSO under section 18 of the Act for passing emergency prohibition orders whereby a food operator can be restrained from carrying on food business. The difference is that within twenty-four hours the aggrieved party can approach the Food Authority for its redressal against such order (Section 18(2))."

16.The settled principle of statutory construction is that where the law prescribes that a thing be done in a particular manner, it must be done in that manner and not otherwise. In a case reported as “Zia ur Rehman v. Syed Ahmed Hussain” (2014 SCMR 1015), the Hon'ble Supreme Court reiterated as under:

"If the law required a particular thing to be done in a particular manner, it had to be done accordingly, otherwise it would be non-compliance with the legislative intent."

The same principle is reflected in “Federation of Pakistan through Secretary Finance, Islamabad and another vs. E-Movers (Pvt.) Limited and another” (2022 SCMR 1021), wherein it was emphasized that "When the law stipulates that something has to be done in a particular manner that is how it should be done."

17.The principle is not confined to procedural formality. It preserves the statutory allocation of powers and prevents a forum from assuming a function which the Legislature has entrusted to another authority. Where Section 18(2) expressly empowers the Food Authority to confirm, modify or set aside an Emergency Prohibition Order, that statutory arrangement cannot be bypassed by invoking a jurisdiction which has not been conferred upon the learned Magistrate. The impugned order, insofar as it sets aside the order dated 16.10.2024 and directs de-sealing of the EPO, therefore suffers from a jurisdictional defect.

18.The financial hardship pleaded by respondent No.1, the asserted validity of his license and the other circumstances relied upon before the learned Magistrate may be relevant to the consideration of his grievance by the competent authority, subject to the applicable law. Such circumstances, however, cannot independently confer jurisdiction upon a Court where the law has not vested it with the power to grant the relief sought. Equitable considerations may inform the exercise of an existing jurisdiction, but they cannot create jurisdiction where none exists. The existence of hardship, howsoever substantial it may be, does not authorize a Court to assume a statutory power entrusted to another forum.

19.It is necessary to clarify that the present proceedings do not call for a determination of the merits of the enforcement action taken by the Authority. This Court is not deciding whether the health-risk condition contemplated by Section 18 existed, whether the Food Safety Officer complied with the requirements of notice and recording of reasons, or whether the Emergency Prohibition Order was justified on its merits. Nor is any finding being recorded concerning the safety of the rendered fat oil, the evidentiary value of the laboratory reports, the alleged violations of the Act, or the criminal liability of respondent No. 1. Those matters are distinct from the jurisdictional question presently under consideration and shall remain open for determination by the competent authority or forum in accordance with law.

20.For the foregoing reasons, this Court holds that Section 18(2) of the Punjab Food Authority Act, 2011 provides the statutory mechanism for the Food Authority to confirm, modify or set aside an Emergency Prohibition Order passed by the Food Safety Officer under Section 18(1), subject to compliance with the requirements prescribed therein. The jurisdiction to try offences under the Act does not, by itself, confer upon the learned Magistrate a general power to set aside such an order or direct de-sealing of the EРO.

21.The impugned order dated 29.01.2025, insofar as it sets aside the order dated 16.10.2024 and permits respondent No.1 to resume his

business activities, was passed without lawful jurisdiction and cannot be sustained. Consequently, this constitutional petition is allowed, order dated 29.01.2025 passed by the learned Magistrate, Section 30, Burewala, District Vehari, is hereby set aside. However, respondent No.1 shall remain at liberty to approach the Authority for consideration of the Emergency Prohibition Order in accordance with Section 18(2) of the Act. Any such request shall be considered independently, on its own merits, in accordance with law and after observance of the prescribed procedure.

(Ghulam Sarwar Nihung) Judge

Approved for reporting.

Judge

Announced, dictated, prepared and signed on 29.09.2026.

*M.Fayyaz*