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Petitioner: M/s Cherat Cement Co. Ltd, Nowshera and others VS Respondent: Federation of Pakistan
Court Name: Supreme Court of Pakistan Judge(s): Mushir Alam, Syed Mansoor Ali Shah, Faisal Arab Title:M/s Cherat Cement Co. Ltd, Nowshera and others vs Federation of Pakistan
JUDGMENT
Reported As: 2021 SCP 10 Result: Petition allowed Judgment JUDGMENT CMAs No.6341, 6409, 6410. 6417, 6419, 6420 6418 & 6421/2020 MUSHIR ALAM, J. Since the counsels in the main cases have been appointed as Federal Law Minister/Advocate General KPK, subject to all just exception, these applications are allowed, the respective ASCs are granted permission to argue. Let the review petitions be numbered, which shall be disposed of along with other review petitions. 2. Applications for joinder by parties who were either not party in earlier round and/or not heard in the main appeals, in view of the order proposed to be passed in main CRPs all the applications stand disposed of f. All Review Petitions and CMAs 3. The Infrastructure Development Cess Act, 2015 (the GIDC, Act, 2015) became Act of the Parliament on 15.05.2015, Vires of the said Act was challenged. In the Sindh High Court suits were filed on its Original Side. The High Court declared the levy under the said Act to be unconstitutional vide its judgment dated 26.10.2016. Similar challenge was made in the Peshawar High Court by invoking its constitutional jurisdiction, which held the levy under the said act to be intra vires the Constitution, vide its judgment dated 31.05.2 017. Appeals from the judgment of the Peshawar High Court were preferred before this Court, whereas against the judgment of the Single Judge of the Sindh High Court only one High Court Appeal was filed in one suit though judgment dated 26.10.2016 was rendered in 377 suits. 4. On 22.10.2019 when this Court was hearing appeals arising from the decision of the Peshawar High Court it was pointed out to it that in so far as the decision of the Sindh High Court is concerned High Court Appeal No. 361 of
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2016 is pending before Division bench of the High Court. On that date this Court passed an order that in all identical matters pending in all High Courts, opportunity be given to such litigants and their counsel to present their case before us on the merits of the controversy . This was done so that the challenge to the vires of the said Act be adjudicated upon once and for all at this Court's level. Pursuant to our order dated 22.10.2019 several miscellaneous applications for joining in these proceedings as party were filed by those who had challenged the vires of the GIDC Act, 2015 in various other High Courts. All of them were given opportunity to present their point of view on the merits of the controversy . Certain other petitions which were filed against the judgment of the Peshawar High Court and had not come up for hearing at the time of grant of leave to appeal were also taken up for hearing so that the same could be decided together with the appeals. This Court then finally vide its judgment dated 13.08.2020 declared that the Act in question is intra vires of the Constitution. The petitioners in all these petitions fixed before us are seeking review of our judgment dated 13.08.2020. 5. This Court distinguished the principle of res judicata enunciated by this Court in the case of Par Bukhsh & others V. Chairman Allotment Committee (PLD 1987 SC 145) in paragraph 10 and 11 of the judgment under review . The contents of paragraph 10 and 1 1 of the judgment for convenience sake are reproduced below:- 10. Any relief which a litigant seeks in a judicial proceeding with regard to any power or a right or an obligation connected with some property or an office which power or right or obligation is not dependent upon the legitimacy of a legislative enactment and stands or falls on its own strength then in such cases when the decision rendered by a court of competent jurisdiction attains finality , there is no difficulty in applying the principle of res judicata to such a decision. However , it would be difficult to apply such a principle in matters where a power or a right or an obligation solely depend upon the very legitimacy of the enactment that has come under challenge in a Court of law on the touchstone of the Constitution. In such a situation the existence of such power or right or obligation would solely depend on the final adjudication as to the legal validity of the enactment itself. This could be understood from a situation where a controversy as regards constitutional validity of an enactment has come under challenge before two High Courts, one declaring the enactment ultra vires the Constitution and the other intra vires. If the principle of res judicata is applied to the decision of the High Court that declared the law ultra vires as the same was not challenged any further by the Government then two conflicting declarations would stand side by side on the legitimacy of a legislative enactment, one party treating the law valid and the other invalid. This would lead to treating an Act of the parliament valid for some and invalid for others though both the set of persons are similarly placed. If the decision rendered by the High Court that declared the law intra vires the Constitution is only challenged before the Supreme Court and after examining the merits of the case the enactment is declared by this Court to be intra vires the Constitution, then in such peculiar situation when this Court finally validates the legislative enactment then the same has to be applied uniformly to every person falling within its ambit. Such final judicial determination on the legitimacy of a legislative enactment has to be treated as a judgment in rem regardless of the fact that the judgment of the High Court that invalidated the very same enactment was not challenged before this Court. Such a situation warrants departure from the doctrine of res judicata omission of a public functionary to file appeal cannot put fetters on the universal application of a legislative enactment declared by this Court to be constitutionally valid as it would amount to repealing the statute for some and treating it valid for others. Hence conflicting decisions on the vires of a legislative enactment of two. High Courts, decision of one remains unchallenged in the hierarchy as no appeal was preferred and the other is challenged before this Court, then the verdict of the High Court that went unchallenged, which is in conflict with the final decision of this Court has to be treated as outmoded and no longer executable. 11. In the case of Par Bukhsh & others V. Chairman Allotment Committee (PLD 1987 SC 145), on which much reliance was placed by Mr. Muneer A. Malik, the learned counsel for one of the intervenors, the controversy was with regard to a right of allotment of land which did not depend on the constitutionality of a legislative enactment. In that case, the principle of res judicata clearly applied but this principle, as discuss ed above, cannot be applied in the same manner to a case where any power or a right or an obligation of a person solely depend upon the legitimacy of a legislative enactment without which such power or right or obligation has no existence of its own. Hence, when the power of the government to charge and the obligation of the persons to pay a tax or a fee
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depends on the determination of vires of a legislative enactment then the final determination of this Court has to be uniformly applied on all those upon whom the law was intended to apply otherwise it would be applied in a discriminatingly manner to a section of persons belonging to one and the same class of persons. The final determination of this Court on the legitimacy of a law has to apply even to those who had succeeded in obtaining a judgment from a Court lower in the hierarchy that the law is ultra vires the Constitut ion, they too would be bound by the judgment of this Court which being the final Court of the judicature has through a judicial pronouncement declared a legislative enactment to be valid. The power of the Federal Government to charge the Cess and the obligation of the payers to pay under GIDC Act, 2015 would depend upon such final determination by this Court. Such power or obligation arising from an enactment will not cease to exist for the reason that the High Court in some other proceedings has declared the said Act ultra vires the Constitution which remained unchallenged. We in our minds are therefore clear that where there are two conflicting adjudications with regard to the constitutionality of a legislative enactment, standing side by side, then the one that has the binding effect on the other has to become the law of the land on the subject without any distinction whatsoever as an Act of the Parliament in its application cannot be allowed to be regarded as intro vires the Constitution for one set of persons and ultra vires for another at the same time when both belong to the same class of persons. If this is allowed, it would result in discrimination as some would be bound to discharge the obligation arising from the Act of the Parliament thereby putting them in disadvantageous position against those who are discharged from the obligation on the principle of res judicata. Such a position cannot be allowed to be sustained,' 6. The other ground taken in the review petitions is about the non-utilization of the Cess-fee that had been so far collected. This Court dealt with the said question in paragraph 39 of the judgment in review . The findings arrived at were as follows:- 39. The background of the legal history of the controversy in question can be traced back to 2011, when the levy under GIDC Act, 2011 was challenged before the Peshawar High Court which in 2013 declared the levy as ultra vires the Constitution and struck down the GIDC Act, 2011. The Islamabad High Court followed the same course in its judgment in 2014. As a result of these decisions, the matter came before this Court in the case which has come to be known as Durrani Ceramics case, This Court in its judgment refused to interfere with the decision rendered by the Peshawar High Court and declared the GIDC Act, 2011 as unconstitutional, holding that the levy in question was in fact a fee and not a tax, hence, it could not have been imposed through a Money Bill. The case came before this Court again in review , which was dismissed in 2015. Later , the Government enacted the GIDC Act, 2015 as a fee imposing enactment. The constitutional validity of the said Act was also challenged before the High Courts. The Sindh High Court declared the levy unconstitutional vide its judgment dated 26.10.2016 whereas the Peshawar High Court upheld the constitutionality of the new Act vide its judgment dated 31.05.2017. While several other similar matters awaited adjudication before other High Courts issue came before this Court for a second time, in which we vide order dated 22.10.2019 allowed the parties concerned to join the present proceedings as intervenors so that they can have a chance to assist us in the present proceedings and get an opportunity to present their version of the case before us. If we look at this matter in retrospect, there has been continuous litigation pertaining to the constitutional validity of the GIDC cess right from 2011 till July 2020 when we are finally deciding the controversy in these proceedings. Apart from continuous litigation on the issue, we were also told that clue to international sanctions on Iran, the response to international tender for EPC contract was very poor as no contractor was willing to undertake the project. On TAN it is stated that land acquisition proceedings is at an advance stage however work on laying of the pipeline could not start in Afghanistan on account of the insurgency in Afghanistan. It is also stated at the bar that now there are signs that work on laying the pipeline in Afghanistan may commence soon as the final draft of TAPI Project Land Management Law is on final review of the Government of Afghanistan. Hence the delay in the commencement of work on laying the pipelines on account of continuous proceedings in the High Courts as well as before this Court and the levy under both the enactments having been struck down as unconstitutional in the year 2013 and 2016, geopolitical situations in the neighboring countries which are beyond the control of the Fede ral Government. This means that the projects have not been deliberately abandoned and there is also no material on record to doubt the intentions of Federal Government in this behalf The
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Executive, therefore, cannot be blamed for not laying down the pipelines in question. In such a situation where work has not yet started on the laying of the pipelines and no contract has been awarded it would also be premature to ask for laying any report before the National Assembly . 7. An argument, which was extraneous to the scope of the review , was that the benefits granted under its Section 8(2) of the GIDC Act, 2015 are not being extended by the government. We in our decision have not held that the benefit granted under Section 8(2) ibid, which has been extended to a particular class of the consumers of gas on certain conditions shall not be extended. When the GIDC Act, 2015 has been declared to be intro vires by this Court then every provision of it, which either creates an obligation or grants any relief is enforceable in law. We may further clarify that to seek the relief granted under Section 8(2) of the GIDC Act, 2015 to a particular class entitled to it under certain conditions the remedy lies elsewhere and not in review . 8. However , before parting with this order , we may add here that the learned Additional Attorney General, has stated that the government is agreeable to recover the arrears in 48 installments instead of 24 installments but, the government may also be granted one years' time instead of six months as provided in paragraph 46 of the judgment in review . 9. Several other grounds were also urged before us but none of the grounds in our considered view call for review , hence we dismiss all the review petitions. All the CMAs for joinder are also dismissed. ORDER OF THE BENCH By majority of 2:1, all the review petitions are dismissed. Syed Mansoor Ali Shah, J. I have had the privilege to go through the judgment of my learned brother Mushir Alam, J., with which Faisal Arab, J. has concurred. I, with respect, have not been able to agree with the majority view for the reasons discussed hereunder . As matter of background I had recorded a dissenting view in the judgment under review . While I maintain my view I hear the present review petitions not as a judge carrying a dissenting view but as a member of the Bench that delivered the judgment under review . Constitution of a Review Bench 2. It may be pertinent to state that initially a three member Bench was constituted to hear these review petitions of which I as a dissenting judge was not a member . Perhaps for the reason that Order XXVI Rule 8 of the Supreme Court Rules, 1980, which requires that the same Bench to hear the review petition, was over-looked. Subsequently , the roster was revised and I was also made a member of the Bench, making it a four member Bench. The four- member Bench sat and unanimously decided to bring that aforesaid provisions of the Rules to the notice of the Hon'ble Chief Justice for re-constitution of the Bench, vide order dated 21.10.2020. The present Bench, which had earlier heard the case and delivered the impugned judgment, was thus constituted. This made me examine the office noting contained in the file. There seems to be lack of clarity regarding the meaning and scope of Order XXVI Rule 8 of the Supreme Court Rules, 1980. , therefore, before going into the merits of the case wish to state the legal position in this regard. 3. Article 188 of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution") states that the Supreme Court shall have power , subject to the provisions of any Act of Majlis-e-Shoora (Parliament) and of any rules made by the Supreme Court, to review any judgment pronounced or any order made by it. The Parliament has not so far passed any Act under this Article; Order XXVI of the Supreme Court Rules, 1980, however , contains the rules that regulate the power of review of the Cour t. Rule 8 of that Order is relevant to the question under discussion. It is, therefore, reproduced hereunder for ease of reference: 8. As far as practicable the application for review shall be posted before the same Bench that delivered the judgment or order sought to be reviewed. Rule 8 very clearly and firmly prescribes that the application for review shall, as far as practicable, be posted before the "same Bench" that delivered the judgment or order sought to be reviewed. The expression "same Bench" leaves little room to speculate the constitution of the Bench: the "same Bench" means the same judges, as far as practicable, and the same number of judges, i.e., the same numeric strength of the Bench. There is no ambiguity in this regard, in the said rule. Mian Saqib Nisar , J., in the review' of Judges' Pension case observed:1
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There is great wisdom in law, that the review , generally and ordinarily , should be heard by the same. Court and the Court in this context is an interchangeable term with the Judge 4. A seven-Member Full Court Bench of this Court heard the review petition in Zulfikar Ali Bhutto case . The main appeal in that case was decided by a majority of four to three Judges. All the Judges comprising majority and minority , both, were on the Bench hearing the review of the majority judgment. While deciding an application made for adding two other Judges on the review Bench, Anwarul Haq, C.J., speaking for the Bench, held: The position under the Supreme Court Rules is clear and unambiguous. Rule 6 of Order XXVI lays down that "as far as practicable the application for review shall be posted before the same Bench that delivered the judgment or order sought to be reviewed". Now, in the present case, the judgment under review was delivered by seven Judges of this Court, who are all available on the Bench for the disposal of the Review Petition. There is, accordingly , no justification for any departure or deviation from the relevant rule just mentioned. (Emphasis added) A question as to the inclusion of the three learned Judges who gave the dissenting judgment, in the Bench hearing the review petition also arose in that case , and it was held that as they were part of "the Bench that delivered the judgment sought to be reviewed" and were "available for the disposal of the review petition", their presence on the Bench was necessary . Muhammad Akram, J., mentioned the said decision of the Bench on this question, in his final order made on the review petition, thus: At a subsequent stage a question arose as to the position of the three learned Judges of this Court who had recorded dissenting opinions in regard to the disposal of the petitioner's appeal. Again, relying upon the aforesaid rule 6, we took the view that as they were part of the Bench that delivered the judgment sought to be reviewed , their presence on the Bench was necessary , as they were continuing as Judges of the Supreme Court and were available for the disposal of the review petition. (Emphasis added) The notable point in the phrases underlined in the above quoted observations of Anwarul Haq, C.J., and Muhammad Akram, J., are that they both mentioned that the judgment sought to be reviewed was delivered by the Bench comprising seven judges of the Court. They did not consider that judgment as the judgment delivered by only four Judges comprising the majority . These observations of their lordships are in line with the language of Rule 8, which contains the expression "same Bench that delivered the judgment or order sought to be reviewed", and not the majority Members of the Bench who delivered the majority judgment or order sought to be reviewed. 5. It is well-established practice of this Court that when a case is heard by a Bench of two or more Judges, the case is decided in accordance with the opinion of such Judges or of the majority of such Judges. Judgment or order of the Court is pronounced in terms of the majority opinion; such judgment or order is of the Bench that heard the case and, for that matter , of the Court, and not only of the Judges whose opinion prevailed as a majority opinion. This is why a unanimous opinion of a five Member Bench on a legal question can be overruled by a majority of four Judges while sitting in a seven-Member Bench. It is the numeric strength of the whole Bench that determines the judicial power of its Members, and not the numbers of the individual Judges in majority . Justice Nariman of the Indian Supreme Court has stated this position in Shanti Fragrances v . Union of India , as under: Under the present practice, it is clear that the view of four learned Judges speaki ng for the majority in a 7 Judge Bench will prevail over a unanimous 5 Judge Bench decision, because they happen to speak for a 7 Judge bench. It is also a well-established principle of precedent that judgment of a larger Benc h of this Court is binding on the Benches of this Court consisting of Judges less than that larger Bench. A smaller Bench cannot request for constitution of a larger Bench to revisit the opinion of a larger Bench on any question or principle of law; only a Bench of co-equal strength can make such request. This principle also necessitates that the Judge who dissented from the majority judgment should be Member of the Bench that is to hear the review petition, as a judgment pronounced in terms of the majority opinion of a larger Bench cannot be reviewed by a smaller Bench consisting of only the Judges holding the majority opinion. It is utmost necessary to maintain quorum of the Bench that delivered the judgment under review . It is because of this legal compulsion, that new Members are added to the Bench when any of its earlier Members retires or is not available for any other reason, to maintain the quorum of the Bench for2 3 4 5 6 7 8 9
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hearing the review petition. Many instances may be cited in this regard: Gadoon Textiles Mills case was decided by a five-Member Bench with three-two majority . The review petitions were filed against the majority judgment . The dissenting judges, Justices Saleem Akhtar and Fazal Karim, had retired by the time the review petitions were taken up for hearing; therefore, other Judges were added to the Bench to maintain the quorum of five Members, for hearing the review petitions. Benazir Bhutto case was decided by a seven-Member Bench with six-one majority . The review petition filed against the majority judgment of six Judges was heard by the Bench of seven Judges, not of six Judges. The quorum of the Bench was, thus, maintained for hearing the review petition. There are many other cases of our jurisdiction as well as the Indian jurisdiction wherein the dissenting Judges were part of the Benches that heard the review petitions against the judgments of the Court pronounced in terms of the majority opinion. It can, therefore, be safely concluded that a judge who dissented from the majority judgment, if available, must be Member of the Bench for hearing the review petition filed against that majority judgment. 6. So far as the scope of jurisdiction and judicial power of such Judge in hearing the review petition against the majority judgment is concerned, there is nothing in the Constitution or the Supreme Court Rules, 1980 that limits his jurisdiction and judicial power in a review in comparison with the Judges who delivered a majority judgment. He is a Member of the Bench with same jurisdiction and power like the other Mem bers of that Bench. As afore- explained, the judgment pronounced or order made in terms of the majority opinion is the judgment or order of the Bench, and not of the Judges holding the majority opinion. 7. Rule 1 of Order XXVI of the Supreme Court Rules, 1980 provides that subject to the law and the practice of the Court, the Court may review its judgment or order in a Civil proceeding on ground s similar to those mentioned in Order XLVII, Rule I of the Code of Civil Procedure, 1908 and in a criminal proce eding on the ground of an error apparent on the face of the record. As per Order XLVII, Rule I of the Code of Civil Procedure, 1908, the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the applicant or could not be produced by him at the time when the judgment was pronounced or order made, some mistake or error apparent on the face of the record, and any other sufficient reason are the grounds for review of a judgment or order made in a civil proceed ing. These grounds of…
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