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Petitioner: Messrs NOORI TRADING (PVT.) LTD. and others VS Respondent: THE FEDERATION OF JUDGMENT
Court Name: Sindh High Court Judge(s): Mamoon Kazi, Majida Razvi, Rasheed Ahmed Razvi Title:Messrs NOORI TRADING (PVT.) LTD. and others vs THE FEDERATION OF
JUDGMENT
Reported As: PLD 1997 Karachi 663 Result: Order accordingly Judgment JUDGMENT ' MAMOON KAZI, C.J.--This judgment deals with interim order which were respectively passed in several Constitutional Petitions filed in this Court, calling into question the legality of action taken by the respondents. The respondents have now invoked clause (4-A) in Article 199 of the Constitution which limits life of such orders to six months. A common question of law is involved in these petitions as to the interpretation of the said clause. 2. The main arguments in the case have been addressed by Mr. Khalid Anwar, learned counsel for the petitioners in C.P. No,D-511 of 1992. The petitioners in this case have called into question the demand made on them by the Collector of Customs for payment of ten percent . Ad valorem customs duty together with import surcharge and "Iqra" surcharge on the import of their sugar consignment. During the pendency of the said petition, interim order was passed, permitting the petitioners to get their consignment of sugar released on furnishing a bank-guarantee, which is now sought to be recalled by the respondents. 3. Although, focus has mainly been thrown by the learned counsel for the petitioners on clause (4- A) of Article 199, but clauses (4) and (4-B) of the said Article have also been called in aid by them. The said clauses are reproduced as under:-- "(4) Where-- (a) an application is made to a High Court for an order under paragraph (a) or paragraph (c) of Clause (1), and
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(b) the making of an interim order would have the effect of prejudicing or interfering with the carrying out of a public work or of otherwise being harmful to public interest or State property or of impeding the assessm ent or collection of public revenues, ' the Court shall not make an interim order unless the prescribed law officer has been given notice of the application and he or any person authorised by him in that behalf has had an opportunity of being heard and the court, for reasons to be recorded in writing, is satisfied that the interim order-- (i) would not have such effect as aforesaid; or (ii) would have the effect of suspending an order or proceeding which on the face of the record is without jurisdiction. '(4-A) An interim order made by a High Court on a application made to it to question the validity or legal effect of any order made, proceeding taken or act done by any authority or person, which has been made, taken or done or purports to have been made, taken or done under any law, which is specified in Part I of the First Schedule or relates to, or it connected with, State property or assessm ent or collection of public revenues shall cease to have effect on the expiration of a period of six months following the day on which it is made, unless the case is finally decided, or the interim order is withdrawn, by the Court earlier. (4-B) Every case in which, on an application under clause (1), the High Court has made an interim order shall be disposed of by the High Court on merits within six months from the day on which it is made, unless the High Court is prevented from doing so for sufficient cause to be recorded." 4. Clause (1) in Article 199 of the Constitution empowers the High Court, in appropriate cases, and subject to the conditions laid down in the said clause, to issue directions in the nature of mandamus, prohibition, certiorari, habeas corpus or quo 'warranto, Clause (4) in the said Article, however, imposes restrictions on power of the Court to pass an interim order if it relates to the class of cases enumerated in the said clause. Further restrictions have been imposed by clause (4-A) which was inserted in the said Article by Constitution (Fourth Amendment) Act, 1975. It curtails life of an interim order to six months, if it relates to the class of cases referred to in the said clause. Among such cases, are those which relate to assessment or collection of public revenues or are connected with State property. 5. The words "assessm ent or collection of public revenues" were interpreted by the Lahore High Court in Punjab Cables v. Government of Pakistan PLD 1989 Lah. 121 to mean as, "process of ascertaining or adjusting; determining the share of a tax or duty to be paid by a person or apportioning the same among different taxable persons". The said expression was held to include "all steps necessary which are taken in the legitimate exercise of power to tax". The expression "revenue" was also interpreted as "the revenue of the Government or State or Nation". The expression "State property" occurring in Article 199, has not been defined anywhere, but the context in which the expression has been used, it would mean property owned or possessed by the State or the Government and it would include all such properties controlled by the State or over which the State exercises any kind of domain. 6. While referring to clause (4-A) in Article 199. Mr. Khalid Anwer has argued that, power to grant interim relief is essential to the exercise of judicial power to preserve the corpus of lis until final disposal of the case. However, since clause (4-A) restricts the power of the Court to pass an interim order, narrowest possible construction must be given to the said clause. According to the learned counsel, an embargo has been placed by clause (4) on the Court's power to make an interim order unless the Court is satisfied as to the fulfilment of conditions, as laid down by clause (4). Therefore, when such power has been exercised, the Court should not lean in favour of construction which tends to destroy such power. The word, "satisfied" occurring in clause (4), according to the learned counsel, when used for the purpose of judicial determination, shows existence of a mental persuasion higher than mere opinion. Therefore, after such power has been exercised, clause (4-A)
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should not be construed in a manner so as to reduce an interim order passed by the Court to a nullity. 7. Reading of clause (4), no doubt, indicates that, it places restrictions on the power of the Court to make an interim order, unless the Court is satisfied that the making of such order would not have the effect of: (i) prejudicing or interfering with the carrying out of a public work, or (ii) otherwise being harmful to public interest or State property, or (iii) impeding the assessment or collection of public revenues. Such embargo, however, would not apply if the Court is satisfied that such order would have the effect of suspending an order or proceeding which, on the face of the record, is without jurisdiction. The expression "satisfied", according to the learned counsel, implies that, sufficient grounds must exist to believe that the interim order passed by the Court would not have the effect, as provided in clause (4), or it would have the effect of suspending an order or proceeding, which on the face of the record, is without jurisdiction. 8. The expressions, "satisfied" or "satisfaction" have received varied exposition, in Dr. Ejaz H. Qureshi v. Government of Punjab PLD 1978 Lab. 1419, the word "satisfaction" was interpreted as implying a "mental state of relief and contentment on the part of the Presiding Officer resulting on clarification of a doubt or uncertainty". The word "satisfied" was held in PLD 1978 Lah. 1419 to signify contentment and conviction. In Abdul Qayoom v. Latif Akbar 1994 CLC 2041, it was observed: "Satisfaction" means, the existence of a state of mental persuasion much higher than mere opinion". In the words of Smith, J., in Augland v. Poyne 1944 NZLR 610., the expression means a mind which has reached a clear conclusion. However, a more comprehensive interpretation of the expression can be found in the judgment of the Supreme Court in Saeed Hassan v. Pyar Ali PLD 1976 SC 6, where the term "satisfaction", has been interpreted as under:-- " 'Satisfaction' is by no means a term of art and appears to have been used in its ordinary dictionary sense. "Satisfaction" is the existence of a state of mental persuasion much higher than a mere opinion and when used in the context of judicial proceedings has to be arrived at in compliance with the prescribed statutory provision and other legal requirements. Far from being a subjectively or capriciously arrived at conclusion, it presumes observance of certain well settled judicial principles and is a firm state of mind admitting of no doubt or indecision or oxcilliation. To be "satisfied" with a state of things is to be honestly convinced in one's own mind. According to Black's Law Dictionary apart from the "legal satisfaction" which is a term of art and connotes discharge of a claim, debt or legal demand, to satisfy in the ordinary sense is to convince. Satisfactory evidence has been explained as sufficient evidence meaning an amount of proof which ordinarily satisfies an unprejudiced mind beyond a reasonable doubt. In Corpus Juris Secundum "satisfy" has been held to be synonymous with, "convince beyond a reasonable doubt" and "satisfaction" has been explained as a state of mind, which connotes a sense of certainty, and conviction or release from suspense, doubt or uncertainty. According to the Oxford English Dictionary "to satisfy" means to furnish with sufficient proof or information or to assure or set free from doubt or uncertainty or convince." 9. Therefore, there cannot be any doubt that, use of the word "satisfied" in clause (4) of Article 199 signifies existence of mental persuasion much higher than mere opinion. The expression, therefore, implies that the Court has been convinced and it has reached a clear conclusion. 10. Learned Deputy Attorney-General has, however, pointed out that the provisions of clause (4) in Article 199 are only regulatory of the jurisdiction of the High Court and they apply when an interim order is passed by the Court. Clause (4-A), on the other hand, cuts short life of an interim order after such order has been passed. Therefore, according to the learned Deputy Attorney-General, there is no nexus between the two provisions and each one of them is intended to operate independently.
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11. Clause (4-A) in Article 199 relates to two categories of cases: Those which relate to any law which is specified in Part I of the First Schedule to the Constitution, and those relating to or connected with State property or assessment or collection of public revenues. If an interim order passed by the Court pertains to such class of cases, clause (4-A) reduces its life to six months. ' So far as the contention that, addition of clause (4-A) in Article 199 amounts to destruction of judicial power is concerned, it may be pointed out that although, clause (4-A) limits duration of an interim order to six months, but neither the said clause nor clause (4) in Article 199 imposes a complete embargo on the power of the Court to pass an interim order, as such power still remains intact. The High Court's power to dispose of the controversy in the case on merits has not been abridged. No doubt, on account of overload of cases in the High Court, it may not be possible to dispose of a case within six months, but nothing turns on the question. However, curtailment of life of an order to six months, does not amount to destruction of judicial power. Jurisdiction of the High Court can always be curtailed or enlarged by process of amendment. The same has been adequately provided for in the Constitution, Jurisdiction of the High Court can even be completely ousted, if such is the intention of the law-maker. However, jurisdiction of the High Court to make an interim order is not in doubt. Only under certain circumstances, such power has been curtailed. The fundamental test, in my opinion, lies in ascertaining the Parliament's intendment underlying B clause (4-A). Clause (4-A) appears to have been inserted in Article 199 to supplement the provisions of clause (4) thereof. Restrictions earlier placed by clause (4) on power of the Court to make an interim order without serving notice on the prescribed law officer and giving him an opportunity of being heard, and obligation imposed on the Court to first record its satisfaction, before passing such order, were clear intended to guard against liberal exercise of power by the Courts to the prejudice of public revenues. It, however, appears that clause (4) could not sufficiently provide for the mischief sought to be cured by the makers of the Constitution by insertion of the said clause as obstacles still remained in the course of recovery of tax by the Government. Therefore, the object behind insertion of clause (4-A) clearly appears to be to guard against any indiscriminate exercise of power by the Court when passing interim orders. The necessity to introduce further safeguards in the Constitution in this behalf, therefore, appears to have been realized by the Parliament, resulting in addition of clause (4-A) in Article 199. In Federation of Pakistan v. United Sugar Mills Ltd. Karachi PLD 1977 SC 397, the underlying object behind the said amendment was described to be, to put an end to gross abuse of process of the Court by which enormous sums of money recoverable by the State as tax were held in abeyance for indefinite period as a result of such orders, which were generally secured by big industrialists and businessm en to the detriment of public revenues. To adopt the language of Muhammad Gul, J., in the said case, this was the mischief that the Parliament plainly intended to eradicate by restricting the duration of an interim order issued by the High Court. 12. It is, therefore, manifest from the two provisions that, although, the object to be achieved by them is more or less the same, but clause (4) in Article 199 is intended to apply when an interim order is passed by the Court and clause (4-A) curtails its life to six months, after such order has been passed. However, as clause (4-A) was added subsequently in Article 199- of the Constitution, if the intention of the Parliament was to provide immunity to any interim order from the mischief of clause (4-A), the same would have been more clearly expressed. However, no such intention appears to have been expressed by the Parliament while adding clause (4-A) in Article 199. On the other hand, the Parliament's resolve to guard against any liberal exercise of power by the Courts when passing such orders, appears to have been further fortified by the inclusion of clause (4-A) in Article 199. Courts are duty-bound to give effect to the plain and unambiguous language used in the Constitution. The Constitution is essentially in the nature of a statute and, therefore, the same rules, no doubt, would apply for construing provisions of the Constitution, as govern construction of
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statute, yet it cannot be overlooked that the Constitution is the fountain head of authority. The Courts themselves are creation of the Constitution and they derive their sustenance from it. Therefore, the Courts are bound to give true effect to the intention of the makers of the Constitution. 13. Mr. Khalid Anwer has, however, pointed out that, clause (4) in Article 199 deals with two kinds of orders: firstly, such orders which fall within the ambit of paragraph (b)(i) thereof and secondly, those referred to in paragraph (b)(ii) of the said clause. The orders falling within the first category are those which pertain to laws falling under Part I of the Fourth Schedule or which may have the effect of impeding assessm ent or collection of public revenues or, as the case may be, are harmful to State property or public interest, and orders falling within the second category include orders passed in excess of jurisdiction. Although, according to the learned counsel, when clause (4-A) is relatable to orders falling within the first category, orders which appear on the face of the record to be without jurisdiction have been intentionally excluded from the purview of clause (4-A). Therefore, according to the learned counsel, if an order has been challenged, as being in excess of jurisdiction, the same would be immune from the mischief of clause (4-A) in Article 199. The contention was further supported by the argument that, while power to levy tax is a legislative function, power to assess or collect the tax is a quasi-judicial or, as the case may be, an executive function. However, as orders relating to levy of tax do not find mention in clause (4-A), therefore, according to the learned counsel, when challenge has been made to a charging section, provisions of clause (4-A) would not apply. 14. The argument consists of two parts, but I would deal with the second part first. It may be pointed out, in the first instance, that, if the Legislature is empowered to levy tax, such power is always supplemented by power to assess or collect the tax. If any challenge is thrown to the legislative power, even power to assess or collect tax would be equally open to challenge. There is no gainsaying that, if validity of a charging section is challenged before the High Court, and an interim order is passed by the Court, the same would equally be subject to the mischief of clause (4-A), if it relates to or is connected with State property or assessment or collection of public revenues. It is not possible to give a restricted meaning to the expression "interim order" appearing in clause (4- A). There is nothing to suggest that the expression "interim order" used in clause (4-A) is to be given a different meaning than what has been assigned to it in clause (4). Although, the categories of orders, referred to in the two provisions, are not the same, nevertheless, one of the elementary rules of construction is that, expressions used in the same enactment are to be assigned the same meaning, unless a different intention has been expressed by the Legislature, which should be clearly spelt out from the legislation itself. However, no such, intention can be spelt out from the language of clause (4-A). Therefore, the interim order referred to in clause (4-A) could not have been intended to be different from an order, which is made by the Court after taking into consideration the limitations imposed by clause (4). There can be no other interpretation that can be given to clause (4-A). The use of the words "relates to" or "is connected with" in clause (4-A) brings within its ambit any such order which is related either to State property or assessment or collection of public revenue or pertains to any law specified in Part I. The provisions of clause (4-A) are, therefore, to be construed independently, without any reference to those, of clause (4) in Article 199 as the former become applicable only when an interim order has been passed. Therefore, even if challenge has been thrown to the validity of a charging provision, clause (4-A) would nevertheless operate, in case the interim order passed by the Court has the effect as postulated in the said clause. 15. However, in this connection a much stronger plea has been raised by Mr. Khalid Anwer. The contention is that, in case the question relating to the validity of an action is under challenge, how an interim order would have the effect, as referred to in clause (4-A)? According to the learned
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counsel, if tax has been imposed without jurisdiction, it cannot be construed as public revenue, because only tax legitimately imposed and collected can be construed as public revenue. 16. It is pertinent to note that, although, as provided by clause (4) in Article 199, the Court is required to record its satisfaction when passing an interim order, the view taken by the Court while passing such order is always tentative. Any question relating to the jurisdiction would be germane at the time of final determination of the case. Mere challenge to an order as being in excess of lawful authority, does not render it as such, until the controversy is finally resolved. The test laid down in clause (4-A) cannot be the same as the Court would be required to apply when the controversy is finally determined by the Court. Therefore, only a prima facie view is required to be taken by the Court while invoking the provisions of clause (4-A). There is nothing to suggest that clause (4-A) in Article 199 cannot be invoked if an interim order has been made by the High Court after complying with the conditions laid down in clause (4) in the said Article. The two clauses are not inter-related, as each operates within its own sphere. It has already been observed that, clause (4-A) was added in Article 199 of the Constitution by an amendment incorporated in the said Article to cure the mischief for which the old law did not provide. Therefore, any construction permitting inventions or evasions for continuance of the mischief is to be avoided and only such construction is to be preferred, as is found to be in consonance with the true intention of the Legislature. 17. The effect of clause (4-A) on interim orders was earlier examined by a Full Bench of this Court in Dewan Textile Mills Ltd. v. Pakistan PLD 1976 Kar. 1368. The question was again dealt with by the Supreme Court in the case of Federation of Pakistan v. United Sugar Mills Ltd. PLD 1977 SC 397. More or less similar view was expressed in the two cases. The contention that clause (4-A) was destructive of the judicial power was completely discarded as incorrect. The said clause was further held to represent the legislative intent to guard against liberal exercise of power by the Courts when making interim orders. 18. I now advert to the first part of Mr. Khalid Answer argument. The contention of the learned counsel is that, the provisions of clause (4-A) cannot apply to order where action taken or the order made, on the face of the record, appears to be without jurisdiction. The learned counsel has argued that if operation of the order which is per se without jurisdiction has been stayed by the Court, the provisions of clause (4-A) cannot apply to such order. Such order, according to the learned counsel, cannot be construed as an order which relates to or is connected with assessm ent or collection of public revenues because, if the demand is illegal, it cannot be construed as such. 19, It may be pointed out once again that, by clause (4-A), protection has first been provided to such orders which pertain to laws which are specified in Part I of the Fourth Schedule. In case of orders falling in this category, protection has been provided not only to orders or actions which are made or taken under the said laws, but even to those which are purported to have been made or taken. However, the said clause further indicates that, no such protection has been provided in case of actions which have been purportedly taken, if the same are connected with assessment or collection of public revenues. Such omission appears to have occurred for two possible reasons: Firstly, actions by State functionaries relating to assessment or collection of public revenues, unlike other administrative functions, must be taken under the authority of law. The subject is not to be taxed unless the statute imposes such obligation by clear and unambiguous words. Fiscal statutes are always subject to strict construction. It can, therefore, be for such reason that the word "purported" has been omitted in case of actions which are connected with assessment or collection of public revenues. The other possible reason can be that actions without jurisdiction were intended to be saved from the mischief of clause (4-A). There can be no manner of doubt as to actions which are taken in exercise of powers given by the legislation. They will be actions validly
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done in due exercise of powers. But so far as actions in purported exercise of power are concerned, there appears to be difference of opinion as to their scope or interpretation. 20. In Municipal Committee v. Menghraj AIR 1966 Madh. Pra. 104, it was held by the High Court of Madhya Pradesh: "purporting to be done under the Act will not include an act which is wholly outside the provisions of the Act, and thus ultra vires" However, in Azimunnisa v. Deputy Custodian E.P. AIR 1961 SC 365, a somewhat different view was expressed as it was observed by the Supreme Court of India: "purporting is, therefore, indicative of what appears on the face of it or is apparent even though in law it may not be so". According to Calcutta High Court AIR 1951 Cal. 466, the expression, 'purporting or professing to be done' cannot be interpreted to exclude acts which are either improper or even mala fide. 21. In Pakistan, the word "purporting" has acquired a significant meaning after the decisions of the Supreme Court in Zia-ur-Rahman's…
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