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Petitioner: Shaheen Merchant VS Respondent: Federation Of Pakistan/National Tariff Commission JUDGMENT
Court Name: Lahore High Court Judge(s): Jawad Hassan Title:Shaheen Merchant vs Federation Of Pakistan/National Tariff Commission
JUDGMENT
Reported As: 2021 PTD 2126 Result: Order accordingly Judgment JUDGMENT A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people and three things could destroy that confidence and do incalculable damage to society; (i) that people come to believe that inefficiency and delay will drain even a just judgment of its value; (ii) that people who have long been exploited in the smaller transactions of daily life come to believe that courts cannot vindicate their legal rights from fraud and over-reaching; (iii) that people come to believe the law - in the larger sense - cannot fulfill its primary function to protect them and their families in their homes, at their work, and on the public streets quotation. Justice W arren E. Burger , Chief Justice of United States. JAWAD HASSAN, J.----This judgment will decide with heuristic approach the most important question of law with regard to time specific legislation (the "anchor point") whereby an appellate tribunal established under a special law or an adjudicating forum created and mandated to decide the /is or appeal thereagainst which falls under their exclusive jurisdiction, within a specific and certain time period and the effects of failure, non-adherence or non- fulfillment of such statutory obligation on the rights of the parties whose valuable legal rights hinges on that pending adjudications and decisions. The entire discussion in this judgment is whether during the pendency of an appeal, High Court can entertain the matter under the 'Doctrine of Ripeness' as developed by this Court in "Reliance Commodities (Pvt.) Ltd. v. Federation of Pakistan and others" (PLD 2020 Lahore 632) and "Shell Pakistan Limited v. Punjab through The Secretary Ministry of Finance and others" (2020 PTD 1607) because anti-dumping duties has not ripened, before it comes to this Court as an alternate remedy is available to the Petitioner under Section 70 of the Anti-Dumping Duties Act, 2015 (the. "Act"); against which the Petitioner has right to file appeal to the High Court under Section 70(3) of the Act which also has powers to grant an interim relief.
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I. BRIEF BACKGROUND 2. In this case, the National Tariff Commis sion (the "NTC") is the Regulator which took action again st the Petitioner under the Act against which right to file appeal is available to the Petitioner . The Petitioner has duly availed that right by filing an appeal but the same has not been decided within the ambit of time-frame as provided under the Act. The Petitioner has filed this Writ of Mandamus under Article 199(1)(a)(i) of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution ") to direct Respondent No.2, the Anti-Dumping Appellate Tribunal (the "Appellate Tribunal "), to fix his pending appeal and decide it within the timeframe provided under the law, he further prayed that till such decision of the Appellate Tribunal, the Respondent No.3 be restrained to adopt any coercive measures to realize and implement the decision rendered in Final. Dete rmination against the Petitioner because it was the said Final Determination against which such appeal is pending before the Appellate Tribunal and before decision thereon by the Tribunal will tantamount to negation of remedy , which is provided to the Petitioner under Section 70 of the Act. II. PETITIONER'S SUBMISSION 3. Mr. Aamir Shahzad, Advocate for the Petitioner submits that the Petitioner is importer of Polyester Filament Yarn into Pakistan from China and Malaysia and on complaint of domestic industry , the NTC has taken action against him under the Act. He further submits that the NTC is established under the National Tariff Commission Act, 2015, being a Regulator , and it administers the Act and takes action against the dumping of any goods in Pakistan, which injure the domestic industry as defined under Section 2 of the Act. He maintains that when the domestic industry filed a petition before the NTC, the authority/Respondent concerned after due process and observing the aspect of threat to the domestic industry , passed a final determination order under Section 39 of the Act. He contends that the Petitioner has sought a direction from this Court to the Appellate Tribunal to decide his matter , after giving him interim relief as envisaged under the Act. III. RESPONDENTS' SUBMISSION 4. Mr. Waqas Amir, Advocate for the Respondent-NTC submitted detailed report and parawise comments and objected qua maintainability of the petition on the grounds that against final determination dated 25.08.2017 passed by the NTC, the Petitioner has an alternate remedy under Section 70 of the Act; that against the same final determination, the 'Petitioner remained in habit of filing various writ petitions before different Benches of the Lahore High Court, obtained ex parte interim orders and enjoyed the same for months and later on, withdrew by them; that recently this Court in "M/s Saleh Industries (Pvt.) Ltd. v. The Federation of Pakistan and 16 others" (2020 PTD 1245 ) has dismissed the petition with the obse rvation that "Learned Appellate Tribunal is yet to decide the matter and it has all the powers of a civil court as mentioned in Section 72 of the Anti-Dumping Duties Act, 2015, therefore, the said remedy is not only efficacious but also adequate. During the course of arguments, learned counsel representing respondent No.2 further pointed out that if the petitioner submits an application for an early hearing before the learned Appellate Tribunal, the appeal filed by the petitioner will be taken up expeditiously , as per the practice of the learned Appellate T ribunal" 5. Ms. Sadia Malik, Assistant Attorney General has also objected to the maintainability of this petition by stating that the impugned final determination dated 25.08.2017 has been made by the competent authority strictly in accordance with law and the Petitioner has an alternative remedy available under the statute, and that path has already been treaded upon by the Petitioner and his 'appeal is already before the Appellate Tribunal; so he does not have a case to justify and necessitate the interference of this Court under the Constitutional Jurisdiction. 6. Arguments heard. Record perused. IV. ANA TOMY OF NTC BEING A REGULA TOR 7. The NTC is an autonomous investigation authority of Government of Pakistan established under Section 3 of the National Tariff Commission Act, 2015. The functions of the Commission provided under Section 8 of the Act is to advise the Federal Government on:- (a) tariff and other trade measures to provide assistance to the domestic industry; and to improve the competitiveness of the domestic of the domestic industry; (b) trade remedy actions being faced by domestic producers and exporters; (c) rationalization of tariff and proposals for tariff reform; (d) removal of tariff anomalies; and (e) any other matter relating to tariff or trade measures that the Federal
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Government may refer to the Commission. The Commission under Section 8(2) of the Act also mandated to perform such other functions with respect to international trade and other matters that may be assigned to it by the trade remedy laws or any other law for the time being in force. 8. The NTC also conducts safeguard investigations against surge in imports. All such proceedings are carried out in conformity with a rule-based international trading system. The NTC advises the Government on issues related to Pakistan's industry competitiveness, prom otion of exports and customs tariff rationalization. This Court in "Abwa Knowledge Village (Pvt.) Ltd. and others v. Federation of Pakistan and others" (PLD 2021 Lahore 436), "Chenab Flour and General Mills and others v. Federation of Pakistan throug h Secretary Revenue Division and others" (PLD 2021 Lahore 343), "Additional Registrar Company v. Al-Qaim Textile Mills Limited" (2021 CLD 931) and "Ms Jet Green (Pvt.) Ltd through Aftab Ahmad v. Federation of Pakistan and others" (PLD 2021 Lahore 770) has already dismissed roles and functions and duties of (i) the Pakistan Medical Commission; (ii) the Federal Board of Revenue; (iii) the Securities and Exchange Commission of Pakistan and (iv) Civil Aviation Authority , being regulatory bodies, has been vastly discussed and elaborated. 9. By perusing the Act, which was enacte d in 2015 with the preamble for imposing the anti-dumping duties to offset such dumping and for providing a framework to investigate as well as determine the dumping and injury in respect of goods imported into Pakistan and for matters ancillary thereto or connected therewith, it reveals that the Act provides protection to domestic industry defined under Section 2(d) of the Act from any injury as prescribed in Section 2(i) of the Act. It has been noted that the local domestic industry can make a written application under Part- VII (Section 20) of the Act, to the NTC which, then, start investigation under Section 23 read with the provisions of Section 24 of the Act while under Part-VII I (Section 29) of the Act, the timeframe for conclusion of the investigation is also provided and the matter is requir ed to be decided after hearing the parties and the procedure provided under Part-IX (from Sections 34 to 39) of the Act. Along with this constitutional petition, the Petitioner has annexed a copy of the final determination passed under Section 39 of the Act where the Com mission, which is defined under Section 2(b) of the Act as the NTC, can make a final determination of dumping and injury against which remedy of appeal is given under the Act. Suffice to mention here that under Section 39 of the Act once the decision is made, the Commission shall publish a copy of the notice of the final determination in the Official Gazette as per provisions of subsection (5) of this Section. Feeling aggrieved against the final determination, any party may file an appeal before the Appellate Tribunal under Part-XVI (Section 64) of the Act, whereas Section 70 of the Act provides the entire procedure to file such appeal. In this case, the final determination was made on 25.08.2017 (Annexure-A, Page-7) against which appeal (Annexure-C, Page-74) before the Appellate Tribunal was also filed back in 2017 as per the procedure provided under Section 70 of the Act. During the course of arguments, learned counsel for the Petitioner has pointed out that on similar issue the Hon'ble Chief Justice of this Court has already passed two different orders appended with this petition as Annexures "D" and "E". He has specifically referred to the recent order of the Hon'ble Chief Justice, dated 07.10.2021/Annexure-D, whereby the Appellate Tribunal has been directed to decide appeal of the Petitioner of that writ petition within a period of two months and operation of the impugned order/notice has also been suspended, till decision of the said appeal. V. JURISPRUDENTIAL ANTHOLOGY REGARDING THE DUTY OF STATE TO PROVIDE EXPEDITIOUS AND INEXPENSIVE JUSTICE 10. The most important aspect of the matter to divulge into is the fact that the appeal of the Petitioner filed through association in a collective form before the Appellate Tribunal is still pending and is yet to be decided despite a lapse of more than three years. The coined maxim Interest Reipublicae Ut Sit Finis Litium means that it is in the interest of the state that there should be an end to litigation. The law of limitation provides and controls the time- duration as a legally permissible span to bring a justiable lis before a court of law in order to bring certainty and conclusiveness to right of action and to avoid the probability of an indefinite threat of exasperation. Similarly , the Courts are also expected to decide the disputes brought before them by the parties within a reasonable time and in an expeditious manner . The celebrated maxim 'Justice delayed is justice denied' also highlight the significance of dispensation of justice in a timely manner and laid stress on the responsibilities of the Court to decide cases in an expeditious manner . However , considering the nature and signification of a particular subject-matter which requires
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swift and speedy resolution of disputes by the judicial forums, the legislature has always incorporated a time-bound mechanism not only for preferring a dispute or appeal to the judicial forum or Appellate Tribunal, as the case may be, but also specifically prescribe and lays down a definite time limit to give decision thereon to meet the ends of expeditious justice, which is a command of Constitution under Article 37(d) wherein the State is duty bound to ensure inexpensive and expeditious justice to the citizens. 11. Similarly , the right to access justice is also a fundamental right of every citizen. The Universal Declaration of Rights 1948 also gave universal recognition to the right of 'access to justice' in the following manner: Art. 8: Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the Constitution or by law . Art. 10: Everyone is entitled in full equalit y to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations, and of any criminal charge against him. 12. The Honorable Supreme Court in "Muhammad Sharif and others v. Nabi Bakhsh and others" (2012 SCMR 900) also highlighted the importance of expeditious justice as ordained under Article 37(d) of the Constitution while observing that "Article 37(d) of the Constitution requires the State to "ensure inexpensive and expeditious justice. -- --The provisions of Article 37 ibid cannot be ignored ." The Division Bench of this Court in "Muhammad Arif Ameen and 4 others v. The Province of Punjab through Secretary , Home Department, Lahore and 12 others" (2021 PLC (C.S.) 752) laid stress on the duty of the state to provide inexpensive and expeditious justice as per Article 37(d) of the Constitution. It was observed by the Court that "--Article 37(d) of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution), mandates that State shall ensure provision of inexpensive and expeditious justice to the people. The denial of right of appeal by not appointing the appellate forum under section 12 of the Act (if same is not constituted), is not only denial of substantive right but will also be against the dictates of Article 37(d) of the Constitution." The Division Bench of Sindh High Court in "Abdul Haleem Siddiqui and others v. Federation of Pakistan through The Law Secretary , Ministry of Law and Justice, Pakistan Secretariat, Islamabad and others" (2019 PLC (C. S.) 238) also held that "---to provide inexpensive and expeditious justice in terms of Article 37(d) of the Constitution, 1973 it is the responsibility of the State; the Federation cannot shed its responsibility on the premise that it is responsibility of the Province of Sindh. Inexpensive and expedient justice could only be achieved by efficient, comp etent and independent judicial apparatus, which all attributes have direc t nexus with better reward In terms and condition of service and financial independence of the Judiciary ." The Honorable Supreme Court in "Mehram Ali and others v. Federation of Pakistan and others" (PLD 1998 Supreme Court 1445) while dealing with the matter about establishment of specialized criminal courts to hear the cases of terrorists or relating to heinous offences laid down that expeditious and inexpensive justice is a duty imposed upon the State by the Constitution and to realize this goal special courts or forums for expeditious disposition of cases is not undesirable. The Court observed as under:- "Article 37(d) of the Constitution of Islamic Republic of Pakistan, 1973, enjoins upon the State to ensure 'inexpensive' and 'expeditious justice'. Thus visualized, speedy resolution of civil and criminal cases, is an important constitutional goal, as envisaged by the principles of policy enshrined in the Constitution. It is, therefore, not undesirable to create Special Courts for operation with speed but expeditious disposition of cases of terrorist activities/heinous offences have to be subject to Constitution and law". 13. Now, in the case in hand, the Anti-Dumping-Duties Act, 2015 is a special law, which deals with specific subject and is enacted with a specific aim to give effect to the provisions of Article VI of the General Agreement on Tariffs and Trade, 1994, in the country and to consolidate the law relating to imposition of anti-dumping duties to offset such dumping and to provide a framework for investigation and determination of dumping and injury in respect of goods imported into the country . The Sindh High Court in "Ellecot Spinning Mills Ltd. v. Federation of Pakistan through Secretary , Ministry of Trade and Commerce, Islamabad and 6 others" (2016 PTD 1334 ) held that the object and intention behind enacting the Act, 2015, is to protect the local Industry against dumping prices of Foreign Origin goods. Whereas the Islamabad High Court defined the object of Anti-Dumping Act (Ordinance) in the case of "Messrs Home Life through Managing Partner and 10 others v. National Tariff Commission through Chairman, Islamabad" ( 2011 PTD 1007 ) as:-
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The purpose of this is to save the industry of Pakistan. In the case of difference of prices the importer has to pay the Anti-Dumping Duty. which is to be determined on the basis of prices prevailing in the country wherefrom the article is imported and the prices prevailing in Pakistan. VI. LEGAL ANTHROPOLOGY OE TRIBUNAL 14. According to subsection (3) of Section 70 of the Act, the Appellate Tribunal shall handle the appeal, filed by any of the parties, on priority basis and then issue decision on the same within thirty days of its filing but subsection (5) of this Section also deals with the disposal of the said appeal within forty-five days from the date of its receipt while subsection (6) of Section 70 of the Act narrates that the Appellate. Tribunal shall hear the appeal on day-to-day basis. It is noted that the Appellate Tribunal, while making examination of the appeal, has also powers under Section 70(7) of the Act to conduct any inquiry as it may feel necessary , and after giving the Commission and the Appellant an opportunity of being heard, pass such order as it thinks fit, confirming, altering or annulling a determination of the Commission appealed against. 15. Mr. Naveed Suhail Malik, Additional Attorney General along with Ms. Sadia Malik, Assistant Attorney General have placed on record the copy of Notific ation dated 27.08.2019 issued by the Government of Pakistan, Law and Justice Division under Section 67 of the Act by appointing Mr. Nasir Masroor Ahmad (Chairman), Mr. Athar Saleem (Member) and Ms. Samaira Nazir Siddiui (Member) for a period of five years and that tribunal is still functioning. VII. PATHOLOGY REGARDING TIME SPECIFIC TRIBUNAL WITH TIME BOUND MANDA TE TO DECIDE APPEALS UNDER THE ACT 16. Section 70 of the Act specifically stipulates that if an interested party files an appeal against the initiation of investigation or a' preliminary determination as provided under Section 70(1)(i), the Tribunal shall issue its decision within thirty days of the filing of such an appeal as laid down under subsection (3) of Section 70. On the other hand, subsection (5) of Section 70 specifically stipulates that any other appeal filed by an interested party against an affirmative or negative final determination, against a final determination pursuant to a review , against an order of the Commission for termination of investigation and against a determination of the Commission under Section 52 of the Act, must be decided by the Appellate Tribunal as expeditiously as possible but not later than forty-five days from the date of receipt of such an appeal. The purpose of specifically providing a time-frame for the Tribunal to decide the appeal is to make the Appella te Tribunal function within the time specific bounds because the purpose and intent behind codifying the duration of time-frame is to ensure that the appeal before the Tribunal must be decided expeditiously as mandated under Article 37(d) of the Constitution. A careful glance of Section 70 clearly unveils that time is essence of the Appel late procedure whether it be before the, Appellate Tribunal or before the High Court against the decision of the Tribunal as subsection (13) also requires that the High Court shall render a decision within ninety days of receiving an appeal from the decision of the B Appellate Tribunal. The irresistible conclusion that the Tribunal under the Act is a time-specific forum with a time-bound mandate to decide the Appeals, finds further strength from the subsection (6) of Section 70 of the Act wherein it is provided that the Appellate Tribunal shall hear the appeal from day-to-day and its significance as such is further heightened from perusal of Section 69 of the Act, wherein it is provided that even the absence of a Chairman, or the temporary incapacity of the Chairman, shall not affect the other members' ability to act as the Appellate Tribunal which remains competent to exercise its powers and authority under the Act. 17. Perusal of time-bound and time-spec ific provisions of Section 70 of the Act with respect to the conclusion of Appeal under the Act reveals that the expression "shall" has been used in subsect ions (3), (5), (6) and (13) and as per the rules of interpretation the expression shall is considered as mandatory . The Honorable Supreme Court in "Province of Punjab through Secretary Excise and Taxation Department, Lahore and others v. Murree Brewery Company Limited (MBCL) and another" (2021 SCMR 305) laid down this principle while observing that "the general rule expounded by this Court is that the usage of the word 'shall' generally carries the connotation that a provision in mandatory in nature". Similarly , the Honorable Supreme Court in "Province of Punjab through Conservator of Forest, Faisalabad and others v. Javed Iqbal" (2021 SCMR 328) also reiterated the same view while observing that "the word shall, used in the proviso, is commonly construed as mandatory". Moreover , perusal of subsection (5) of Section 70 shows that a negative phrase "not later than forty-five days" has been used and the
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Honorable Supreme Court in the very judgment of Javed Iqbal supra has held that such a phrase is also construed as mandatory . The Court observed as under:- "The phrase not later than two years in the Eroviso passes for a negative phrase and gives an imperative effect. Such negative phrases or words are prohibitive in essence, and are ordinarily used as a legislative device to make a provision in a statute mandatory . Therefore, negative words used in a provision that prescribes some statutory requirement makes, as a general rule, that requirement mandatory even if no penalty is prescribed for non- compliance of that requirement". 18. It is correct that in Section 70 of the Act where a specific time period has been prescribed for deciding an Appeal by the Tribunal, no consequences of non-adherence or deviation from the prescribed period are provided. However , it is to be noted that non-ment ioning of any consequences in case of failure to observe the time-frame requirement while deciding the Appeal, does not render the provision or the requirement ineffective or non-est rather it remains there as a substantive part of the legislation, which is to be observed and applied and any deviation therefrom does not create a valid practice under the law. Even if the time-bound requirement in the absence of consequences on account of non-implementation is considered to be making it as a directory in nature, still construction of the scheme of Section 70 of the Act coupled with the purpose approach of interpretation and in the light of command of the Constitution under Article 37(d), lay emphasis that the Appellate Tribunal under the Act, being a specialized special appellate forum is bound to expeditiously decide the Appeals preferred before it under Section 70 of the Act. 19. The learned counsel for the Respondents has taken a specific stance that since the Petitioner has an adequate alternative remedy in the form of appeal available under the statute, the instant petition is not maintainable within the remit of Constitutional jurisdiction. Indeed perusal of the Act clearly unveils that Appellate Tribunal is established under Section 64 of the Act and consists of a Chairman and two members, qualified and eligible in terms of Section 65 of the Act who do not have any disqualification as stipulated…
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