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Petitioner: MUZAFFAR KHAN and others VS Respondent: EVACUEE TRUST PROPERTY through Deputy JUDGMENT
Court Name: Lahore High Court Judge(s): Muhammad Saeed Akhtar Title:MUZAFFAR KHAN and others vs EVACUEE TRUST PROPERTY through Deputy
JUDGMENT
Reported As: 2002 CLC 1819 Result: Petitions allowed Judgment JUDGMENT ' I propose to dispose of the writ petitions by a common judgment as a common question of law and facts is involved in the following writ petitions:-- (1) Writ Petition No,659 of 2002, (2) Writ Petition No,506 of 2002, (3) Writ Petition No,536 of 2002, (4) Writ Petition No,537 of 2002, (5) Writ Petition No,566 of 2002, (6) Writ Petition No,567 of 2002, (7) Writ Petition No,568 of 2002, (8) Writ Petition No,664 of 2002, (9) Writ Petition No,669 of 2002, (10) Writ Petition No,688 of 2002, (11) Writ Petition No,689 of 2002, (12) Writ Petition No,690 of 2002, (13) Writ Petition No,709 of 2002, (14) Writ Petition No,710 of 2002, (15) Writ Petition No,731 of 2002, (16) Writ Petition No,754 of 2002, (17) Writ Petition No,795 of 2002, (18) Writ Petition No,802 of 2002, (19) Writ Petition No,816 of 2002, (20) Writ Petition No,821 of 2002, (21) Writ Petition No,838 of 2002, (22) Writ Petition No,841 of 2002, (23) Writ Petition No,842 of 2002, (24) Writ Petition No,873 of 2002, (25) Writ Petition No,887 of 2002, (26) Writ Petition No,906 of 2002, (27) Writ Petition No,907 of 2002, (28) Writ Petition No,937 of 2002, (29) Writ Petition No,968 of 2002, (30) Writ Petition No,973 of 2002, (31) Writ Petition No,980 of 2002, (32) Writ Petition No,998 of 2002, (33) Writ Petition No,1039 of 2002, (34) Writ Petition No,1077 of 2002, (35) Writ Petition No,1148 of 2002, (36) Writ Petition No,1159 of 2002, (37) Writ Petition No,1160 of 2002; (38) Writ Petition No,1162 of 2002; (39) Writ Petition No,1203 of 2002, (40) Writ Petition No,1215 of 2002, (41) Writ Petition No,1249 of 2002, (42) Writ Petition No,1292 of 2002, (43) Writ Petition No,1311 of 2002, (44) Writ Petition No,1318 of 2002, (45) Writ Petition No,1418 of 2002, (46) Writ
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Petition No,2941 of 2002, (47) Writ Petition No,621 of 2002, (48) Writ Petition No,622 of 2002, (49) Writ Petition No,623 of 2002, (50) Writ Petition No,624 of 2002, (51) Writ Petition No,1437 of 2002, (52) Writ Petition No,1391 of 2002, (53) Writ Petition No,1515 of 2002, (54) Writ Petition No,1642 of 2002, (55) Writ Petition No,1739 of 2002 and (56) Writ Petition No,1052 of 2002. 2. Succinctly stated the petitioners who are tenants under the Evacuee Trust Property Board constituted under section 3 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 (hereinafter called the Act, 1975), have assailed the amendment in clause 11 of the Scheme for the Management and Disposal of Urban Evacuee Trust Properties, 1977 vide S.R.O. No,464(I)/2001 which came into force on September 14, 2001. Before the amendment, clause 11 of the said Scheme stood as under:-- "11 Enhancement in rent of each sub-unit will be 30% over the rent assessed with effect from. The 1st January, 1987, provided that- (I) the rent of a sub-unit rented out by auction after the 1st January, 1987 shall be. Enhanced from the 1st January, 1993; and (II) the case of significant disparity in the rent of sub-unit having similar condition and located in the same property or vicinity may be referred to the Administrator concerned by the District Officer or the tenant and after affording opportunity of being heard to the parties, the Administrator shall forward his recommendations to the Chairman for appropriate orders." ' The amendment vide S.R.O. 464(1)/2001 substituted clause 11 as under:-- "(6) for clause 11, the following shall be substituted namely:-- (II) Periodical enhancement in rent of each sub-unit shall be thirty per cent. Over the rent assessed from the years 2002, provided: (I) From the year 2002, the minimum monthly rent of the urban evacuee trust properties shall be assessed and charged on the basis of covered areas at the rates specified for each floor, `in accordance with the categorization to be determined by the District Officer by an order, area-wise, or property-wise, as the case may be, in respect of each District" as follows namely:-- Category DescriptionShops, show rooms display centers onlyOffices, workshops go downs or any use other than residential Location (per s. ft.)Condition
(per s. ft.)Total Rs.
(per s.ft.)Location
(per s. ft.)Condition
(per s. ft.)Total Rs. (per s.ft.) A. Ground floor Rs.10 +Rs. 10 = Rs.20 Rs.3 + Rs.3 - Rs.6 1st floor/ mezzanineRs.6 + Rs.6 = Rs.12 Rs.2 + Rs.2 = Rs.4 Basement/O. floorRs.3 + Rs.3 = Rs.6 Rs.1 + Rs.= Rs.2
B. Ground floorRs.5 + Rs.5 = Rs.10 Rs.2 + Rs.2 = Rs.4 1st floor/ mezzanineRs.3 + Rs.3 = Rs.6 Rs.1.50 + Rs.1.50 = Rs.3 Basement/ O. floorRs.1.50 + Rs.1.50 = Rs.3 Rs.1 + Rs.1 = Rs.2 C. Groundfloor Rs.3 + Rs.3 = Rs.6 Rs.1.50 + Rs.1.50 = Rs.3 1st floor/ mezzanineRs.2 + Rs.2 = Rs.4 Rs.1 + Rs.1 = Rs.2
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Basement/ O. floorRs.1.25 + Rs.1.25 = Rs.2.50 Rs.0.75 + Rs.0.70 = Rs.1.50 D. Ground floorRs.2 + Rs.2 = Rs.4 Rs.1 + Rs.1 = Rs.2 1st floor/ mezzanineRs.1.25 + Rs.1.25 = Rs.2.50 Rs.0.60 + Rs.0.60 = Rs.1.20 Basement/O. floorRs.1 + Rs.1 = Rs.2 Rs.0.40 + Rs.0.40 = Rs.0.80 E. Ground floor Rs.1 + Rs.1 = Rs.2 Rs.0.75 + Re.0.75 = Rs.1.50 1st floor/ mezzsanineRe.0.50 + Re.0.50 = Re.1 Re.0.40 + Re.0.40 = Re.0.80 Basement/O. floorRe.0.35+ Re.0.3 = Re.0.70 Re.0.25 + Re.0.25 = Re.0.50 F. Ground floor Re.0.50 + Re.0.50 = Re.1 Re.0.35 + Re.0.35 = Re.0.70 1st floor/MezzanineRe.0.37 + Re.0.38 = Re.0.75 Re.0.25 + Re.0.25 = Re.0.50 Basement/ O. floorRe.0.25 + Re.0.25 = Re.0.50 Re.0.15 + Re.0.15 Re.0.30 Residential Category Location (per s. ft.)Condition (per s. ft.)Total Rs.(per s.ft.) Category "A" Ground floorRe.0.75 + Rs.2.25 = Rs.3 1st floor/ mezzanineRe.0.50 + Rs.1.50 = Rs.2 Basement/O. floor Re.0.25 + Rs.0.76 = Re.1 Category " B Ground floor Re.0.50 + Rs.1.50 = Rs.2 1 floor Re.0.37 + Rs.1.13 = Re.1.50 Other floors/basementRe.0.25 + Rs.0.75 = Re.1 Category "C" Ground floor Re.0.37 + Rs.1.13 = Rs.1.50 1 floor Re.0.25 + Rs.0.75 = Re.1 Other floors/basementRe.0.19 + Rs.0.56 = Re.0.75 Category "D" Ground floor Re.0.25 + Rs.0.75 = Re.1 1 floor Re.0.15 + Rs.0.45 = Re.0.60 Other floors/basementRe.0.10 + Rs.0.30 = Re.0.40 Category "E" Ground floor Re.0.19 + Re.0.36 = Re.0.75 1 floor Re.0.12 + Re.0.38 = Re.0.50 Other floors/basementRe.0.08 + Re.0.22 = Re.0.30 Category "F" Ground floor Re.0.12 + Re.0.38 = Re.0.50st st st st
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1 floor Re.0.08 + Re.0.22 = Re.0.30 Other floors/basementRe.10.6 + Re.0.19 = Re.0.25 Explanation. Criterion for determination of category of location commercial. Category Location 1 2 A Areas having value of Rs.5 lacs per Marla and above as per D. C. rate. B Areas having value above Rs.2 lacs and below Rs.5 lacs per Maria as per D.C. rate.
C Areas having value of Re. l lac to Rs.2 lacs per Marla as per D.C. rate. D Areas having value of Rs.50,000 to Rs.l lac per Marla as per D.C. rate. E Areas having value of Rs.25,000 to Rs.50,000 per Marla as per D.C. rate. F Areas having value of upto Rs.2500 per Marla as per D.C. rate. ' RESIDENTIAL A Areas having value of Re. l lac and above per Marla as per D. C. rate. B Areas having value of Rs.75,000 to Rs.l lac per Marla as per D.C. rate. C Areas having value of Rs.50,000 to Rs.75,000 per Marla as per D. C. rate D Areas having value of Rs.25,000 to RS.50;000 per Marla as per D.C. rate. E Areas having value of Rs.10,000 to Rs.25,000 per Marla as per D.C. rate. F Areas having value up to Rs.10,000 per Marlas as per D.C. rate. Criterion for determination of category of condition (Commercial + Residential)
A 1st Class Brick masonry in cement mortar having R.C.C./R.B.C. slab up to 30 years construction period. B (i) 1st Class Brick masonry in cement mortar having R. C. C. /R. B. C. slab beyond 30 years construction period. (ii) 1st Class Brick masonry in cement mortar having T.Iron/girder/tile roofing beyond 30 years construction period. C (i) 1st Class Brick masonry in cement mortar having T.Iron/girder/tile roofing beyond 30 years construction period: (ii) 1st Class Brick masonry in cement mortar with other type of roofing up to 30 years construction period. (iii) 1st Class Brick masonry in clay mortar with Girders and T.Iron/tiles roofing beyond 30 years construction period. D (i) 1st Class Brick masonry in cement mortar with other type of roofing beyond 30 years construction period. (ii) 1st Class Brick masonry in clay mortar with Girders and T.Iron/tiles roofing beyond 30 years construction period. (iii) 1st class Pacca Brick Masonry in clay with other type of roofing up to 30 years construction period.st
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(iv) Sheds having R.C.C./R.B.C. roofing. E Pacca construction in shape of sheds and buildings having other types of roofing. F Katcha bricks masonry in shape of built-up area. (i) The categories shall be subject to amendment to be made from time to time in view of change in value of property or for any other plausible reason to commensurate with the rentals of private properties and prevailing situation in the area. (ii) ....................................................................................................................... (iii) The Board may publish a booklet for general guidance, specifying the categories applicable to each district on the basis of location and use of evacuee trust properties for the purpose of assessm ent of rent. (iv) The category-wise rates of rent mentioned above shall be subject to increase by thirty per cent. After every three years. (v) If the existing rent of the property is more than the minimum rent specified above for its category, the same shall continue to be charged accordingly, subject to thirty per cent. Increase after every three years. (vi) The reserve bid in respect of a property to be rented out through auction shall be fixed at the above mentioned minimum rates of its category or at the existing rent whichever is higher: ' Provided that in case of three auctions having been held and the rate of bid being found less than the reserve bid the Chairman may revise the reserve bid which may not be less than the highest bid received during the previous auctions. (vii) The Chairman or the concerned Administrator may at any time, on his own motion or otherwise call for the record of any property for the purpose of satisfying himself as to the correctness or propriety of fixation of category by the Deputy or Assistant Administrator, and may pass such order in relation thereto as he may deem fit after affording opportunity of being heard to the parties. (viii) The rent of sub-unit rented out by auction after the 2002 shall be increased proportionate to the period in between date of periodical enhancement in rent and date of auction. (ix) The case of disparity in rent of sub-unit having similar conditions and location in the same vicinity or the cases where the increase in the rent under sub-clause (i) of clause 11 is more than 300 per cent. In case of residential sub-units and more than 500 per cent. In case of commercial sub-units, may be referred to the Administrator concerned by the District Officer or the tenant and after affording opportunity of being heard to the parties, the Administrator shall forward his recommendations to the Chairman for orders as may deem fit." The main effect of the amended clause 11 is that the rent of the urban A evacuee trust properties has been enhanced varying from 150% to 2240.92%. 3. All the learned counsel for the petitioners were given opportunity to address their arguments. Mainly, the arguments were addressed by Sh. Iftikhar Ahmad, Mr. Muhammad Saliheen Mughal, Hafiz Saeed Ahmed Sheikh and Mr. Muhammad Ameen Jan, Advocate. The other counsel adopted the arguments of the aforementioned learned counsel. The main thrust of the arguments was that:-- (a) The petitioners were not associated by the Board in the enhancement of the rent and no opportunity of hearing was provided to them which was against the rules of natural justice; (b) previously the Deputy Administrator was empowered to 'make periodical assessment after three years. There was a right of appeal before the Administrator and a revision before the Federal Government. The right of appeal and revision has been impliedly taken away by the amendment and has rendered sections 16 and 17 of the said Act, 1975 ineffective and unworkable;
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(c) the enhancement of the rent has been made to 150% to 2240.92% which is arbitrary and unreasonable. The repairs are made by the tenants and no adjustment is made in the rent the Board does not spend even a single penny on the maintenance of the properties; (d) the amendment in the Scheme has made it (i) unreasonable, (ii) oppressive, (iii) arbitrary, and (iv) ultra vires the Statutes; (e) the scheme is against Articles 2A, 4, 5 and 25 of the Constitution of Islamic Republic of Pakistan, 1973; and (f) the increase of rent under Punjab Rent Restriction Ordinance, 1959 is 25% in commercial properties after every three years whereas under the Scheme, the amendment in the Scheme has been made under the delegated power and there seems to be no end to it. Under the unamended Scheme the rent was increaseable after every three years at the rate of 30% over the rent assessed. ' Reliance was placed on (i) PLD 2001 SC 1, (ii) PLD 1997 SC 582, (iii) PLD 2002 Kar. 60, (iv) PLD 1981 Lah. 74, (v) PLD 1988 Kar. 279, (vi) PLD 1986 Kar. 397, (vii) PLD 1988 SC 416, (viii) PLD 1989 SC 613, (ix) PLD 1982 SC 174, (x) PLD 1991 SC 1034, (xi) PLD 1973 SC 49, (xii) PLD 1957 SC 157, (xiii) PLD 1958 SC 41, (xiv) 1999 SCMR 4671072, (xv) 1997 SCMR 1854, (xvi) 1985 SCMR 365, (xvii) 1993 SCMR 1533, (xviii) 2002 SCMR 312, (xix) 1999 MLD 2505. ' Conversely, notice was issued to the learned Attorney-General. In pursuance to the said notice, Ch. Sultan Mansoor, learned Deputy Attorney-General appeared and made his submissions. Learned Deputy Attorney-General submitted that the Scheme has been framed under section 30 of the said Act, 1975, the Scheme is already in existence and that the Board has the legislative competence to make an amendment. It was argued that the amendment in the Scheme is neither arbitrary nor unreasonable nor oppressive. The power has been exercised reasonably, justly and fairly. A uniform policy has been made and nationalized under the supervision of the Board. Categorization of the property has been made to check the discretionary powers conferred on the officers of the Board. Under the amendment, the rent is being charged according to the location and condition of the property. Previously a very nominal rent was being paid by the tenants. The Board was delegated the power in order to meet the needs of the Society and to make the Scheme workable. He has placed a chart prepared by the Board showing the previous rent and the new rent. Reliance was placed on Jehanzeb Khan and another v. Federation of Pakistan through Secretary, Law Justice and Parliamentary Affairs, Islamabad and 5 others 1999 MLD 2505. 4. I have perused the record and considered the submission of the learned counsel for the parties. 5. The "Evacuee Property" attached to charitable, religious or educational trusts or institutions were previously governed by Displaced Persons (Compensation and Rehabilitation) Act, 1958 and Displaced Persons (Land Settlement) Act, 1958. The haphazard state of existing charities and the lack of information about them necessitated the Legislature to provide for management and disposal of evacuee trust properties and the Evacuee Trust Properties (Management and Disposal) Act, 1975 was enacted. Under section 3 of the said Act, 1975, Evacuee Trust Property Board was constituted for the management and disposal of evacuee trust properties. The Board was conferred the power by section 4(f), "to assess or reassess the rent or lease amount of the evacuee trust property". Under section 30 of the said Act of 1975, the Board was empowered, with the prior approval of the Federal Government, to "prepare one or more schemes for the management, maintenance and disposal of evacuee trust property and for the efficient performance of its functions". ' The Scheme for management and disposal of Urban Evacuee Trust Properties, 1977 was published after receiving the approval of the Federal Government vide Letter No,18-20/75-ETP, dated 17th July, 1976. The amendments in the Scheme were made from time to time. Under para. 3(ii), the existing occupants of a property were treated as tenants who were in actual physical possession since
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before the 9th July, 1971. This date was extended from time to time and the latest date is 31st December, 1905. Under para. 3(iii)(A), on the express consent, in writing of the previous tenant the change of tenancy could be allowed by a District Officer, an Administrator or the Chairman with certain conditions. The periodical enhancement was to be made by the District Officer concerned after every three years. Para.10 is reproduced as under:-- "The periodical enhancement in rent shall be made by the District Officer concerned after every three years. The next reassessm ent will take effect from the 1st January, 1990." ' Before amendment of para.11, the enhancement in rent of each sub-unit will be 30% over the rent assessed w,e,f, 1st January, 1987 provided the rent of a sub-unit rented out by auction after 1st January, 1987 shall be enhanced from 1st January, 1993. ' According to the impugned amendment, from the year 2002, the minimum monthly rent of the Urban Evacuee Trust Properties shall be assessed and charged on the basis of covered areas at the rates specified for each floor, in accordance with the categorization to be determined by the District Officer by an order area-wise or property-wise as the case may be. The minimum rent has been fixed for each category and each category has been defined. Only the determination of category has been left out to the District Officer. ' Admittedly the enhancement in rent is from 150% to 2240.92%. 6. The. Scheme has been framed under section 30 of the said Act, 1975 and the amendment has been made under the same power. Under section 21 of General Clauses Act, 1897 power to issue notification, orders, rules or bye-laws includes the power to add, amend, vary or rescind orders, rules or bye-laws. The power resides in Board to make the amendment in the Scheme. The delegated legislation may be described as orders, rules, regulations, schemes, licences and instruments. Any nomenclature can be used by the enabling Act. The term "Scheme" is used where, as the name suggests, power is given to make detailed arrangements for some matter considered to be in need of general statutory administration. See Bannion, on Statutory Interpretation, London Butterworths, 1984. ' The Scheme/Bye-laws can be struck down as ultra vires on the five main grounds:-- (a) The statutory procedure prescribed for making them, has not been followed. (b) They are repugnant to a provision of some other Statute. (c) They must not conflict with the Parent Act itself. (d) They are uncertain. (e) They are unreasonable. ' See Administrative Law by J.F. Gamer; Introduction to Administrative Law by David Foulkes, Judicial Review of Administrative Action by S.A. De Smith, Craies on Statute Law, Saleh Muhammad v. Traffic Manager, Port Trust, Karachi PLD 1961 (W.P.) Kar. 349, S.M. Sharif v. Federation of Pakistan PLD 1981 Lah. 74 and Hashwani Sales and Services Limited v. Karachi Building Control Authority PLD 1986 Kar. 393: "Acting for improper motives, failing to take account of relevant considerations, failing to respect the requirements of natural justice and fettering a discretion by adopting a rigid policy will all amount to unreasonableness as understood by the Courts. The term `unreasonableness' may thus be seen as an `umbrella concept' which subsumes all the major headings of review." (Constitutional and Administrative Law by Hilaire Barnett). Vagueness, ambiguity, arbitrariness, uncertainty may render a regulation/scheme void. In the instant case, the Board has been empowered under section 4(f) to assess or reassess the rent or lease amount of the evacuee trust property. The Board has done so by framing a Scheme for management, maintenance and disposal of Evacuee Trust Properties under section 30 of the said Act, though, with the prior approval of the Government.
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An item of delegated legislation is, by a paradox, grant of IF executive power to a person or body under legislative powers conferred by the enabling Act. In my view, the replacement of clause 11 by the new one enhancing the rent under the formula given therein amounts to unreasonableness. Under the old clause 11 the enhancement in rent for each sub-unit was 30% over the rent assessed w,e,f, 1st January, 1987. Under para. 10 of the Scheme, the periodical enhancement was to be made after every three years commencing from January 1, 1990. Under the new formula, the rent has been enhanced manifold from 150% to 2240.92% according to the categories enumerated in the Scheme. The argument of the learned counsel for the petitioners that in an area a property situate at the main road may fetch more rent and the property in the same vicinity in a lane will not fetch the same rent, is not devoid of force. Both the properties may fall in the same category, the basis on which the rent is to be paid is covered area per sq. Ft. Floor-wise. But in reality they may not fetch the same rent. The classification made by the Board is not reasonable. The argument of learned Deputy Attorney-General that the categorization of the properties has been made and uniform policy has been framed and rationalized has no force. The classification in order to be reasonable must be founded on reasonable distinction or reasonable basis. It should be based on- -- (a) an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out; and (b) that the differentia must have rational nexus to the object sought IG to be achieved by such classification. ' See L A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041; Zaheerud Din and others v. The State and others 1993 SCMR 1718; Mst. Aziz Begum and others v. Federation of Pakistan and others PLD 1990 SC 899 and Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341. Rationality implies reasonableness. "Unreasonableness" may entail a decision ... 'so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it'. (Council of Civil Service Unions v. Minister for the Civil Service (1984) 3 All ER 935. ' In Rooke's case (1598) 5 Co Rep 99b, Coke, LJ observed: " and notwithstanding the words of the commission give authority to the Commissioners to do according to their discretions, yet their proceedings ought to be limited and bound with the rule of reason and law. For discretion is a science or understanding to discern between falsity and truth, between wrong and right, between shadows and substances, between equity and colourable glosses and pretences and not to do according to their wills and private affections...." ' The Honourable Supreme Court in the case of Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Ltd., Rawalpindi PLD 1991 SC 14 observed that:-- "Wherever wide worded powers conferring inception are found in statute, there remains always the need and the desirability to structure the discretion..." ' An excerpt from Administrative Law test by Kenneth Culp Davis was quoted with approval in the following words:-- "Structuring discretion means regularizing it, organizing it, producing order in it, so that decisions will achieve a higher quality of justice... The seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statement, open rules, open findings, open reasons, open precedents, and fair informal procedure...." Although the Board has been confided the power by the Legislature to assess or reassess the rent but the discretion has to be exercised in I H accordance with the principles as stated above. The objections or proposals were not invited by the Board or by the Federal Government from the tenants and they were not associated in the preparation of the formula. The process of decision
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making by public functionaries should exhibit transparency. Failure to observe basic rules of natural justice or failure to act with procedural fairness towards the persons who will be affected by the decision will render the decision susceptible to judicial review. The Honourable Supreme Court of Pakistan in the case of Collector of Customs, Excise and Sales Tax, Peshawar and 3 others v.…
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