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Petitioner: SHERSHAH INDUSTRIES LTD. VS Respondent: THE GOVERNMENT OF SIND AND 4 Other
Court Name: Sindh High Court Judge(s): Nasir Aslam Zahid, Ajmal Mian Title: SHERSHAH INDUSTRIES LTD. vs THE GOVERNMENT OF SIND AND 4 Other Case No.: Constitutional Petition No. 1736 of 1979 Date of Judgment:1981-11-18 Reported As: PLD 1982 Karachi 653 Result: question according
JUDGMENT
JUDGMENT NASIR A. ZAHID, J. This judgment will dispose of this Constitution petition and 129 other connected petitions details whereof are given in the last paragraph of this judgment. Common law points are involved in all these 130 petitions. What we propose to do is to give the facts of one of these petitions in some detail and then refer to the differences generally in facts in other petitions. 2. In Constitutional Petition No. D-1136 of 1979, the facts are that on 6-5-1979 the petitioners, Shershah Industries Limited, were granted an import licence by the Chief Controller, Imports and Exports, Government of Pakistan, for the import of an unserviceable ship for the purpose of scrapping. The petitioners entered into an agreement with the foreign seller for the purchase of the vessel known as "m. v. SPICA" and established a letter of credit. Through their bankers in favour of the foreign seller. It is alleged by the petitioners that the said vessel arrived and its delivery was taken by the petitioners at the Outer Anchorage, which location, according to the petitioners, is outside the Karachi Port. Thereafter, it is the case of the petitioners, the said ship was taken directly to Gadani Beach, in Lasbella District of the Province of Baluchistan, where it was beached. It is then averred that customs rummaging party boarded the vessel at Gadani and all the customs formalities including assessm ent of the duty payable on articles, examination of holds, stores and documents pertaining to the sale, purchase and transfer of the aforesaid vessel were completed at Gadani. Import duty and sales tax levied by the custom authorities was paid by the petitioners. At the time of the filing of the petition, the said ship was being dismantled and scrapped and the petitioners wanted to bring the ship scrap into Karachi by road but the Octroi Post of K. M. C. Located at the R. C. D. Highway demanded the production of a copy of the bill of entry relating to the import of the ship together with the receipt showing that Octroi had been paid by the
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petitioners at the Octroi Seas Dues office of K. M. C. Located in Karachi, before the trucks loaded with ship scrap were permitted to enter the K. M. C. Limits. The petitioners thereupon approached the Superintendent Octroi of the K. M. C. Sea Dues Post who demanded that octroi be paid at the rate of 2 % ad valorem of the duty paid value of the vessel. The petitioners called upon the Superintendent Octroi to pass an order in writing which was done and a demand for Octroi at 2 ad valorem of the duty paid value of the vessel which came to Rs. 41,394 was made by order dated I1- 10-1979. The petitioner moved an application dated 14-10-1979 before the appellate authority, the Taxation Officer/ Director, Taxation, K. M. C. Stating the facts and informing that they were willing to pay octroi at Rs. 3'50 per ton on the scrap being brought by them into Karachi through trucks via R. C. D. Highway, and asking the Taxation Officer to issue a direction to the Octroi Post on R. C. D. Highway to allow the scrap to pass on payment of octroi at Rs. 3'50 per ton. They challenged the demand of octroi at 2 % ad valorem of the duty paid value of the vessel. Urgent orders were also solicited from the Taxation Officer. As no orders were passed, the petitioners filed the constitutional petition before this Court on 23-10-1979. 3. In each of the other constitutional petitions which also are being disposed of by this common judgment, a ship was imported for purposes of scrapping. In certain cases the facts are more or less identical to the facts in Constitutional Petition No. D-1736 of 1979 detailed in the previous paragraph. In some cases the ships had come with cargo which was discharged at the wharves of the Karachi Port and then the ships were taken to Gadani for scrapping. In a few cases it is alleged that the ships remained on the high seas and went straight to Gadani for scrapping. In all petitions the challenge is to the demand of octroi at 2 % ad valorem of the duty paid value of the vessels but petitioners in all cases are ready to pay duty at Rs. 3.50 per ton on the scrap of the vessels being brought by road from Baluchistan to Karachi. Vires of the relevant rules pursuant whereof the demand on ad valorem basis has been made have also been challenged. On facts it . Is the case of the petitioners that the ships in question did not enter the Octroi limits of K. M. C. It has been argued that the waters in the Karachi Port do not fall within the Octroi limits of K. M. C. And for this reference was made to the Notification dated 11-10-1960 of the Government of Pakistan. It was argued that in any case the outer-anchorage is outside the boundaries of Karachi Port and outside the Octroi limits of K. M. C. 4. On behalf of K. M. C. The assertion that the ships in question did not enter the Octroi limits of K. M. C. Has been denied. It was contended that the Karachi Port with all its waters came within the Octroi limits of K. M. C. It is the case of K. M. C. That in all cases the ships came into the Octroi limits of K. M. C. Challenge to the vires of the relevant rules was also strongly resisted. Interpretation put by the petitioners on the Notifica--tion dated 11-10-1960 was also challenged. 5. We have heard the learned counsel who have appeared for the various parties in these petitions. On behalf of the petitioners, the main arguments were addressed by Messrs Tariq Husain, Haider Mota and Khurshid Anwar Shaikh. Other counsel namely Messrs Abbas Ali, Mohsin Tayebally, Akram Zuberi, Mustafa Lakhani, Hassan Inamullah and Azhar Ali Siddiqui also appeared for petitioners in some cases. Main arguments on behalf of K. M. C. Were addressed by Mr. A. A. Fazeel, Mr. Syed Muslim Naqvi also appeared on behalf of K. M. C. And supplemented the arguments of Mr. Fazeel. Mr. A. Sattar Shaikh, Additional Advocate-General, appeared on behalf of the Government of Sind, which was also impleaded as a respon--dent, and he adopted the argument of Mr. Fazeel. 6. Before we deal with the contentions raised before us, reference may a1 be made to two preliminary objections to the maintainability of these petitions raised by Mr. A. A. Fazeel, learned counsel who represented the K. M. C. It was first urged by Mr. Fazeel that in these petitions disputed questions of fact are involved inasmu ch as there is a serious dispute between the opposing parties whether the ships in question entered the K. M. C. Octroi limits before going to Gadani in Baluchistan Province for scrapping and that there was also a dispute as regards the exact extent of
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the Octroi limits of K. M. C. It was further contended that according to the Notification dated 11-10- 1960 the Port of Karachi is within the K. M. C. Octroi limits, but this was disputed by the petitioners. It was urged by Mr. Fazeel that for deciding all these disputed questions of fact evidence has to be recorded. In these circumstances, according to learned counsel, writ or constitutional petition was not the remedy and this Court should decline to entertain these petitions. In support of his contention that in cases where disputed questions of fact were involved, writ was not the appropriate remedy, learned counsel relied upon the following judgments :- (a) Province of East Pakistan v. Kshiti Dhar Roy PLD 1964 SC 636. (b) Mohomed Anwar v. Alah wasaya 1969 SCMR 178. (c) Mehboob Alam v. Secretary Government of Pakistan 1969 SCMR 217. (d) Nawaza v. Additional Settlement Commissioner 1970 SC 39. (e) Nawazish Ali Shah v. Merajdin 1970 SCMR 196. (f) Yasin Sakaffshah v. Government of Pakistan 1970 SCMR 494. (g) Pakistan v. Province of Punjab PLD 1975 SC 37. Learned counsel appearing for the various petitioners had, however, contended that there was no difficulty in reading and following the notification dated 1-I1-1960 ; that the ships in question never came within the Octroi limits of K. M. C. And that there were hardly and disputed questions of fact. 1n addition, it was urged by Mr. Khurshid Anwar Shaikh that even otherwise, in appropriate cases, questions of fact could also be determined in writ proceedings. Learned counsel referred to Rahim Shah v. Chief Election Commissioner PLD 1973SC24,for the proposition that then High Court may even record evidence to determine the legality of the act done or proceedings undertaken. Learned counsel also referred to the following passage Irshad Ahmed v. Settlement Authority Punjab 1981 SCMR 758 "There was no legal impediment in the way of the learned Judge in the High Court interfering with a finding of a fact recorded by the Deputy Settlement Commissioner which was clearly against the material on record. It is well established that ordinarily a finding of fact will not be interfered with by the High Court in the exercise of its writ jurisdiction, but if the finding is not based on any evidence whatsoever, or proceeds in disregard of material evidence, then it can be set aside." In these petitions we do not propose to decide any question of fact on which there has been any dispute between the opposing parties, but are deciding these petitions, as would be observed later, on the basis of admitted facts. As our decision on these petitions does not involve any investigation into disputed facts, the contentions raised hereinabove by learned counsel on the question of maintainability of these constitutional petitions are rendered irrelevant. 7. Mr. A. A. Fazeel, learned counsel for K. M. C. Had also raised an objection challenging the very maintainability and competence of these constitu--tional objection petitions on the ground that remedy of appeal was available to the petitioners under the 1964 Octroi Rules. It was pointed out by learned counsel that in some cases the petitioners did not avail this statutory remedy, and in other cases appeals have in fact been filed by the petitioners before the Director, Octroi K. M. C. Under rules 48 and 216 which appeals are pending. Mr. Fazeel referred to several reported judgments of the superior Courts of Pakistan in aid of his plea in this behalf. In reply to this contention Messrs Haidermota and Khurshid Anwar Shaikh on behalf of the petitioners argued that the alternate remedy of appeal in the instant case was neither efficacious nor adequate and that even otherwise the present petitions are competent and not liable to be dismissed on this preliminary objection. They also relied upon case law to support their plea. Mr. A. A. Fazeel, learned counsel for K. M. C. Referred to the following judgments in support of the proposition that appeal under rules 48 and 216 of the 1964 Octroi Rules was an adequate and/or alternate remedy available to the petitioners and as the same had not been resorted to or exhausted by the petitioner, they could not seek the
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constitutional remedy under Article 199 of the 1973 Constitution or Article 9 of the Provisional Constitution Order, 1981 :-- "(i) Habib Ahmed v. Income-tax Officer 1972 SCMR 556. (ii) Zuhair Siddiqi v. M. H. Sufi PLD 1964 Lab. 453. (iii) Beco Industries v. K. M. C. PLD 1976 Kar. 1011. r (iv) Mehboob Ali v. Mubina Khatoon PLD 1977 Kar. 568." Mr. Haidermota, on the other hand relied upon the following judgments for the contention that in spite of the availabillty of the appeal, present constitu--tional petitions were competent :- (v) Muhammad Amir Khan v. Controller of Estate Duty PLD 1961 SC 119. (vi) Nagina Silk Mill v. Income-tax Officer PLD 1963 SC 322. (vii) Usmania Glass Sheet Factory v. Sales-Tax Officer PLD 1971 SC 205. (viii) Murree Brewery Co. Ltd. v. Pakistan PLD 1972 SC 279. (ix) SITE Ltd. v. Central Board of Revenue PLD 1975 Kar. 123. (x) Municipal Committee Multan v. Burmah-Shell PLD 1976 Lab. 726. (xi) Begum.Vusrat Bhutto v. Income-tax Officer PLD 1980 Lab. 449.' (xii) Syed Riaz Husain Zaldi v. Md. Iqbal PLD 1981 Lab. 215. Mr. Khurshid Anwar Shaikh, learned counsel for the petitioners in some cases, relied upon the following three judgments for the plea advanced by Mr. Haidermota :- (xiii) Premier Cloth Mills Ltd. v. Sales-tax Officer 1972 SCMR 257. (xiv) Ali Mohomed v. Husainbux PLD 1976 SC 37. (xv) Ghulam Ali v. Commissioner Lahore PLD 1981 Lab. 368. In 1972 SCMR 556 a petition under Article 98 of the 1962 Constitution filed to challenge an assessm ent order of the Income-tax Officer was dismissed by the Peshawar High Court. The petitioner bad preferred an appeal against the assessment order also. Supreme Court of Pakistan refused to grant leave holding as follows;- "The petitioner should have been left to pursue his remedy by the appeal which he had already filed. He should not, therefore, have been allowed to simultaneously pursue an alternative remedy under Article 98 of the 1962 Constitution." In PLD 1964 Lab. 453 a learned Single Judge of the Lahore High Court observed at page 457 as follows :- "As regards the order of the Deputy Settlement Commissioner, dated the 31st of December, 1962, no exception can be taken to the execise of jurisdiction by him. The petitioner himself had applied to- the Chief Settlement Commissioner for demarcation of the property. The Deputy Settlement Commissioner was performing the duty of doing so under the orders of the Chief Settlement Commissioner. All that he did was to demarcate the property. If the petitioner is in any way aggrieved by the actual demarcation and he has, in fact, a genuine cause to complain that any portion of his property has wrongly been demarcated on the side of the respondent No. 2, he can have his grievance remedied in appeal. Against this order the petitioner has preferred an appeal to the Additional Settlement Commissioner who, on an erroneous ground that the writ petition was pending in the High Court, refused to exercise the jurisdiction vested in him by law. The refusal is patently wrong. The matter is still pending before him, and the Additional Settlement Commissioner will have to decide it on merits. Since the petitioner has already resorted to an alternative remedy by way of appeal, the petition under Article 98 of the Constitution of the Republic of Pakistan against order of the Deputy Settlement Commissioner is not competent." In PLD 1976 Kar. 1011, which was a case relating to Octroi, a Division Bench of this rt, Couin the circumstances of that case, held that the provisions of Article 199 of the 1973 Constitution could not be invoked firstly on the ground that adequate and alternate remedy by way of appeal under rule 64 of the 1964 Octroi Rules was available and it had not been pursued, and secondly the matter
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involved certain questions of fact which could properly be determined only by K. M. C. Authorities. The Constitutional petition was dismissed. PLD 1977 Kar. 558 is another Division Bench judgment of this Court. In that case the petitioner had, lost before the Family Court and against the order of the Family Court filed an appeal which was dismissed by an Additional District Judge. Then the petitioner came to the High Court by way of a petition under Article 199 of the 1973 Constitution. One of the defences taken by the other side was that the petitioner could not challenge the order by the appellate Court as be had himself invoked the jurisdiction of the appellate Court by filing the appeal. This contention was repelled by the High Court observing as follows :- "The contention is incorrect for 'an order which is without jurisdiction ordinarily has got to be challenged in appeal, if appeal is provided, as constitutional requirement before seeking remedy in constitutional jurisdiction. Therefore, if such an order is not set aside on appeal it I can still be challenged by way of a constitution petition." In the well-known case reported in PLD 1961 SC 120, while dealing with the question of the alternate remedy, the Supreme Court, at pages 127-128 of the report observed as follows; "Before proceeding to discuss the points raised in the two appeals the first preliminary objection raised by the Attorney-General has to be disposed of. The objection is that before the "appellants could be entitled to invoke the writ jurisdiction of the High Court they ought to have exhausted the remedy by way of appeal against the order of the Controller to the Appellate Tribunal. The rule that the Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring the jurisdiction of the Court. It is a rule by which the Court regulates the exercise of its own discretion. As stated in Halsbury at page 107, 3rd Edn. Vol. 11 "The Court will, as a general rule, and in the exercise of its discretion, refuse an order of mandamus, when there is an alternative specific remedy at law which is not less convenient, beneficial, and effective." One of the well-recognized exceptions to this general rule is a case where an order is attacked o-- the ground that it was wholly without authority. This exception was referred to in the very case on which reliance is placed by the learned Attorney-General, I.e. Tariq Transport Co. v. Sargodha- Bhera Bus Service PLD 1968 SC 437, and also in the later case of this Court S. A. Haroon v. Collector of Customs PLD 1959 SC 177. In the last mentioned case an appeal against the order of Collector of Customs was actually pending when the writ petition was decided by the High Court, yet this Court refused to give effect to this preliminary objection on "the ground that the order of the Collector was attacked as in excess of authority and a question of interpreta--tion of law which was of general importance was involved. It may be pointed out here that in accordance with a passage in Halsbury (p. 130, 3rd Edn., Vol. 11), which is reproduced in S. A. Haroon v. Collector of Customs, the objection as to existence of the right of appeal which is available in a petition for mandamus is not available in a petition for certiorari at all. The passage runs;- "There is no rule in regard to certiorari, as there is with mandamus, that it will lie only where there is no other equally effective remedy; and provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute." This is not in accord with what is stated in Ferris on Extraordinary Legal Remedies, but it may be pointed out in support of the statement in Halsbury that if the existence of a right of appeal be an obstacle to petition for certiorari, then petitions for certiorari against the orders of the Custodian, the various Election Tribunals and Industrial Tribunals, will have as a general rule to be dismissed because an appeal by special leave does lie in all such cases to this Court and the grounds of such appeal are surely not narrower than the grounds for certiorari. The existence of the right of appeal to this Court has however never been -regarded as a bar to the entertainment of petitions for certiorari by the High Court. So far as proceedings in excess of jurisdiction are concerned it is
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accepted even in Ferris on Extraordinary Legal Remedies that certiorari will lie even though a right of appeal exists. In the present case, the attack was on the very jurisdiction of the Controller to proceed with the assessm ent of estate duty on account of the section 74-A of the Estate Duty Act. An appeal had been filed during the pendency of the writ petition, but that could not stand in the way of the exercise of writ jurisdiction by the High Court. In fact, in cases where an order is challenged as wholly without jurisdiction a petition for a writ appears to be a more appropriate remedy". In PLD 1963 SC 322, the Supreme Court, on this question observed (at pages 326-327) as follows:- "In the present two cases, writs of certiorari had been prayed for in the High Court for quashing the impugned orders which were alleged to suffer from lack of jurisdiction. The circumstances in which certiorari may issue to quash the orders of administrative Tribunals that are required to act judicially, fell for consideration in two recent cases decided by this Court and reported as S. A.Haroon v. Collector of Customs, Karachi PLD 1959 SC 17 7 and Pakistan v. Ziauddin PLD 1962 SC 440. In both cases certain orders passed by Customs authorities had been challenged by means of writ petitions in the High Court. It was laid down that the general rule undoubtedly is that it is wrong on principle to entertain petitions for writs except in very exceptional circumstances, when the law provides a remedy by appeal to another Tribunal, fully competent to award the requisite relief. At the same time, it was held that in cases of absence or excess of jurisdiction or where the impugned order suffers from illegality on face of the record, a certiorari may be granted even though the right of statutory appeal had not been availed of. A certain amount of flexibility is allowed by the law in the case of a prayer for a writ of certiorari as compared with a case for a mandamus. It was further observed that if the application for certiorari is made by a party aggrieved, then it ought to be granted ex debito justitiae and the High Court, has not the general discretion which it would have, when the application is made by a member of the public, who is no; personally concerned. This would specially be the case where the alternative remedy provided by the relevant statute is not as efficacious, speedy or convenient as the one available under the writ jurisdiction of the High Court. This principle would be found discussed in Ferris on Extraordinary Legal Remedies at pp. 185-187, 1926 Edn. That relief in these cases could not have been obtained as quickly or with as such facility and convenience under the Act which provides for a series of appeals, revision and reference to the High Court on law points, on condition that the tax assessed is first paid, as by recourse to the writ jurisdiction of the High Court, can hardly be contested." Then in PLD 1971 SC 205, it is observed at pages 209-210 as follows :- "The objection of the respondent that the appellant had alternative remedies by Departmental means is also not of much substance. It has been held by this Court that in a case where the dispute arises between the parties in respect of a fiscal right based upon a statutory instrument the same can be easily determined in writ jurisdiction. In the case of Burma Oil Company (Pakistan Trading) v. The Trustees of the Port of Chittagong PLD 1962 SC 113, it was held as under :- "We consider that since the question which arose was one of fiscal right based upon a statutory instrument, it was easily and conveniently determined in a writ petition as by means of a suit. By the exempting notification, a duty was cast upon by the taxing authority viz. The Port Trustees to relieve the subject against certain imposition and thereby a corresponding right to such relief was created in favour of the subject. Mandamus is in every way an appropriate remedy for the assertion of such a right by enforcement of the corresponding duty." To the same effect there is a decision of this Court in the case of Pakistan and another v. Qazi Ziauddin PLD 1962 SC 440. This point was also considered in the case of Abdul Ghani and another v. Government of Pakistan and others PLD 1968 SC 131. It was held in that case that "any thing done beyond or in excess of powers conferred by statute can be brought within the power of avoidance vested in the High Court. In such a case, the High Court can examine if the Officer
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concerned has acted in accordance with the powers conferred upon him by the statute". I would, therefore, repel the preliminary objections raised on behalf of the respondent." Affirming its view expressed in the aforementioned case of Muhammad Amir Khan v. Controller of Estate Duty PLD 1972 SC 279the Supreme Court observed as follows (on page 287) :-- "It is thus evident that the appellant challenged the very jurisdiction of the Capital Development Authority (hereinafter referred to as `the . C. D. A.') to make the impugned acquisition under the Ordinance. If it bad succeeded in establishing that the impugned acquisition was ultra vires the Ordinance, its appeal under section 36 would have been an exercise in futility. It was held by the Supreme Court in Lt.-Col. Na1vabzada Muhammad Amir Khan v. Controller of Estate Duty and others PLD 1961 SC 119 that the rule that the High Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring jurisdiction but a rule by which the Court regulates its…
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