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Petitioner: M/s Cherat Cement Co. Ltd, Nowshera VS Respondent: Federation of Pakistan thr. M/o Petroleum & Natural Resources and others
Court Name: Supreme Court of Pakistan Judge(s): Syed Mansoor Ali Shah Title:M/s Cherat Cement Co. Ltd, Nowshera vs Federation of Pakistan thr. M/o
Petroleum & Natural Resources and others Case No.: C.R.P. No.421 of 2020, etc Date of Judgment:2020-12-07 Reported As: 2021 P C T L R 274, 2021 P SC 309, 2021 SCP 10, 2020 SCP 248 Result: Petition allowed Judgment 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. I, 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 ("Const itution") 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
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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: 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.1 2 3 4 5 6 7
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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 for 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 review which are, in fact, limitations on the power of review of this Court applies equally to the Judges whose opinion prevails for being the majority view and to the Judge whose opinion remains inoperative for being the minority view. The Judge whose opinion remained the minority view in the main case can review the Judgment of the Bench that was pronounced in terms of the majority opinion, on any of the said grounds of review , as can a Judge who delivered the majority opinion. 8. In Zulfiqar Ali Bhutto review case, review petition was dismissed unanimou sly by all the seven Judges who were divided into four-three in the judgment pronounced in the main appeal case. Muhammad Akram, J. speaking for the majority dismissed the review petition with the observations that "the errors and omissions pointed out by [the petitioner 's counsel]...have been found by us to be of inconsequential import, having no material bearing upon the fundamental and essential conclusions reached in the majority Judgment as to the guilt of the petitioner , on the various counts on which his convic tions have been upheld, as well on the question of sentence." And Dorab Patel, J. speaking for the minority also held that the review petition had to be dismissed and further agreed with the view of Akram, J. that the question of sentence could not be raised in a review petition, and if they were to alter the sentence in this review , they would be unsettling the settled law. Similar is the legal position in Indian jurisdiction: In the case of Sheonandan Paswan v. State of Bihar , Justice Tulzapurkar , the Judge who earlier dissented with8 9 10 11 12 13 14 15 16 17
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the majority judgment, was on the review-Bench, and admitted the review against the majority judgment for hearing, along-with two other Judges, i.e., one Judge who was earlier party to the majority judgment and the other judge added due to non-availability of a Judge in majority . Tulsiram case was decided by a five-Judge Bench of the Indian Supreme Court with four-one majority . Justice Thakkar delivered the dissenting opinion. The review petitions filed against the majority judgment were dismissed in limine by the four Judges, but Justice Thakkar held that the issues raised in the review petitions needed examination and the Review Petitions deserved to be admitted for hearing. 9. A judgment of the Federal Court of Malaysia delivered in the case of Terengganu Forest Products v. Cosco Container Lines may also be referred to on this point. The Federal Court, in that case, did not accept the argument that a judge who dissents at leave granting stage should not sit on the Bench hearing appeal, with the reason that the issues, considerations and arguments at the leave stage are different from that of the appeal hearing stage. Likewise, the considerations and grounds at the hearing of the review petition are different from that of the original hearing of the case; therefore, the judge who dissented at the original hearing of the case can sit on the review-Bench, and examine the considerations and grounds of review while hearing the review petition. There is another aspect of the matter to look at, i.e., when a Member newly added in the review Bench due to non- availability of an earlier Member , who was not earlier even part of the Bench, can make review of judgment, then how can any restriction or limitation be imposed on the jurisdiction and judicial power of review of the Member who earlier dissented. There are several instances when Members newly added on the Bench had recalled or reversed the original judgment or order in review jurisdiction despite contrary view of the Member who had earlier authored the judgment of the Court. It can, therefore, be said with certainty that the jurisdiction and judicial power of the Judge who earlier dissented from the majority judgment of the Bench is similar and co-extensive with that of those Judges whose opinion became the majority judgment of the Bench, in hearing the review petition against that majority judgment. Grounds of Review 10. A number of grounds highlighting errors apparent on the face of the record were agitated seeking review of the impugned judgment. It was argued: (i) that the principle of co-relation between the collection and expenditure of the amount of Cess as settled in the judgmen t under review was applied to stop further recovery of Cess, but it was not extended to restrain the collection of arrears of Cess, inspite of the fact that no developmental expenditure has taken place since 2011 and the Government has already collected Cess in excess of what is required for the foreseeable Projects; (ii) that the Court ordered that in case no work is carried out on North-South Gas Pipeline within six months, the Gas Infrastructure Development Cess Act, 2015 ("GIDC Act") would become permanently in-operational and considered dead for all intents and purposes, but has not made any order regarding return of the Cess collected to their payers or how and for what purpose the Cess collected would then be expended; (iii) that the decision of the Sindh High Court in 377 suits declaring the GIDC Act to be ultra vires the Constitution, being res judicata , has attained finality between the parties to those suits as it went unchallenged by the Federal Government, hence arrears, as well as, recovery of Cess in future could not be demanded of the petitioners who are decree holders in those suits. It was urged that the view expressed by a four-member Bench of this Court in Pir Bakhsh was not fully appreciated; (iv) that the Second Schedule of the Act giving different maximum rates of Cess for different sectors is discriminatory as it lacks reasonable classification, giving no intelligible differentia that has any rational nexus with the object sought to be achieved by the statute in question; (v) that while interpreting Entry 51 of Part I of the Federal Legislative List the impugned judgment has disag reed with, rather overruled, the interpretation made in Durrani Ceramics . It was urged that this point was never pleaded before the Court by the parties and no arguments were heard on the point besides this Bench being of co-equal strength could not have so done as per the settled principles of prece dent; (vi) that the GIDC Act does not fall within the scope of Entry No.27 of Part-I of the Federal Legislative List. It was submitted that the petitioners were not heard on this point before holding the said Entry applicable to the GIDC Act; (vii) that the petitioners have been wrongly deprived of the benefit of the first proviso to Section 8(2) of the GIDC Act by making order of recovering arrears of the Cess that18 19 20 21 22 23
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are exempted under that proviso; and (viii) that the statement made in the impugned judgment that the Cess collected may form part of the Federal Consolidated Fund is not consistent with the Constitutional provisions. 11. My learned brothers have dealt with only two grounds: one, relating to res judicata and the other , regarding proviso to Section 8(2) of the GIDC Act. They have disposed of other grounds with the observation that "Several other grounds also urged before us but none of the grounds in our considered view call for review". I, thus, do not have the advantage to see the reasons that prevailed with their lordships in rejecting those grounds. My learned brothers have clarified that the impugned judgment has 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." I respectfully agree with this clarification. However , on the ground of res judicata I have a different view that I shall explain later herein. Co-relation of collection and expenditure of Cess. 12. I now advert to the question wheth er there is any visible co-relation between the collection of Cess and expenditure therefrom. The impugned judgment held: 20.........The other kind of a fee-levying legislation is where Cess is imposed as a compulsory exaction in the same manner where taxes are imposed with the distinction that it is imposed for achieving a specific purpose promised in the enactment itself which when realized would bring some advantage or benefit for the payers in future. It can be described as 'purpose specific' and in many judicial pronouncements have been termed as 'Cess-fee'. In such a form of levy, the specified purpose is pre-committed to the payers before the revenue is collected under the legislation. To quote a few examples, Cess is imposed to meet the extraordinary costs involved in providing infrastructure such as construction of dams or for importing oil or gas from abroad through pipelines or to build farm to mill roads in order to facilitate marketin g of the agricultural produce or for condu cting research and development in some specialized field. In such a form of levy the rule of quid pro quo does not exist in the same sense as it exists in a case where an existing service is rendered or a privilege is extended directly to the payer for a fee. What needs to be taken into consideration is whether the enactment has promised some benefit or advantage for the payers to be made available in future by utilizing the revenue, making it more akin to a fee then a pure revenue raising measure like taxes in general are imposed with no precondition attached for their spending. 25. When Cess as a fee is levied to meet an earmarked financial exigency spelt out in an enactment, it preserves the levy for such purpose only even with the change in the government setup. It cannot be levied as a general revenue collecting tool and the government would not be justified to collect it if the funds are diverted to some other expenditure......The proceeds of Cess should be clearly identifiable in the accounts by using separate accounting codes so that its collection and utilization is reconcilable with the purposes stated in the enactment. A correlation between the revenue collected and the expenditure incurred for the promised specific purpose should always be maintained. In this manner the earmarked levy also provides information on the amount collected and spent. This also inculcates confidence in the payers as it contains the promise that the revenue would be utilized for the specific purpose only for which it was collected and they would have a claim to transparency and accountability of the utilization of the revenue so collected. They can claim that the revenue cannot be utilized for any other purpose other than for which they have been charged. When the revenue can only be utilized for the purpose promised in the fee-levying enactment then in that sense the levy could also be regarded as a temporary levy. Once the purpose for which it was imposed stands served, the justification for its imposition also comes to an end. The collection of Cess therefore should be based on some calculation keeping in view the funding requirements and as and when the purpose is achieved, the government loses it right to collect Cess regardless of the fact that the enactment continues to remain in force. The principle settled by this Court was that there must exist a visible co-relation between the collection of Cess and its expenditure. In a case where the fee is to be utilized for service that is to be rendered in future, it is important to see how the moneys collected are being expended and whether there is a transparent and confidence inspiring co- relation between the two. The other principle settled was that the amount of Cess so collected is for a specified purpose and must be accounted for accordingly . It is not the collection of general revenue which can be utilized
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anywhere. Relying on these principles settled in the impugned judgment, further collection of Cess was stopped in the following manner: 42. ........However , keeping in view the ground realities discussed in the preceding paragraph and the fact that around 295 billion rupees have already been collected towards Cess-revenue and together with the outstanding amount the total sum by the end of this month would be in the vicinity of seven hundred billion rupees, which is more than what is the estimated cost of the projects mentioned in Section 4 of the GIDC Act, 2015, we are constraint to issue following directions: - (i) From the date of this judgment, we restrain the Federal Government from charging Cess which power of the Federal Government shall remain suspended until the Cess-revenue collected and that which is accrued so far but not yet collected is expanded on the projects listed in Section 4 of the GIDC Act, 2015. According to the figures given by the Government the Cess collected as on 30.06.2019 was as under: TOTAL COLLECTION OF GIDC Levy and Collection of GIDC Rs. In Million Sr.# Sector GIDC Accrued GIDC Collected GIDC Outstanding 1 Fertilizer Feed (old) 192,240.31 111,814.62 80,425.69 2 Fertilizer Feed (New) 68,281.71 1,142.89 67,138.82 3 Fertilizer - Fuel 31,772.12 15,205.66 16,566.46 4 General Industry 70,729.64 24,402.27 46,327.37 5 IPPs 60,845.19 51,713.50 9,131.69 6 KESC 40,421.05 3,912.18 36,508.87 7 GENCO/W APDA 67,317.33 44,753.78 22,563.55 8 Captive Power 119,247.65 17,522.73 101,724.92 9 CNG Region-I 53,420.68 11,765.63 41,655.05 10 CNG Region-II 48,073.10 13,169.51 34,903.59 Grand T otal 752,348.78 295,402.77 456,946.01 TOTAL EXPENDITURE OF GIDC ProjectIran Pakistan (IP) Gas Pipeline ProjectTAPI Pipeline ProjectNorth South Gas Pipeline ProjectUnderground Gas StoragesTotal All amounts in PKR Estimated Project Cost271 billion1,500 billion405 billion 75 billion2,251 billion Pakistan share271 billion31.353 billion 20.25 billion75 billion397.6 billion Development Phase expenditure- already incurred funded through GIDC (received to date)Nil 0.483 billion Nil Nil0.483…
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