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Petitioner: ZAHUR TEXTILE MILLS LTD. VS Respondent: FEDERATION OF PAKISTAN and others
Court Name: Supreme Court of Pakistan Judge(s): Muhammad Arif, Ajmal Mian, Sh. Riaz Ahmad Title: ZAHUR TEXTILE MILLS LTD. vs FEDERATION OF PAKISTAN and others Case No.:Constitutional Petition No,2087/93 Civil Appeal No, 702 of 1995 Civil Appeal
JUDGMENT
Reported As: PLD 1999 Supreme Court 880 Result: Appeals dismissed Judgment JUDGMENT 'AJMAL MIAN, C.J.--By this common judgment, we intend to dispose of the above 8 appeals and 106 petitions for leave to appeal. It may be observed that except Civil Appeals Nos.1295 of 1998, 1536 of 1998 and 1537 of 1998, which have arisen out of the judgments rendered by Division Benches of the High Court of Sindh, all the remaining appeals and the petitions for leave to appeal are directed against the judgments/orders passed by various Division Benches and learned Single Judges of the Lahore High Court in writ petitions. In all the above cases the High Courts have held that the interim prohibitory orders passed in the above writ petitions inter alia in respect of assessment and collection of public revenues have expired and have ceased to have any legal effect in view of clause (4-A) of Article 199 of the Constitution of the Islamic Republic of Pakistan (hereinafter referred to as the Constitution). In the above 8 appeals leaves were granted, inter alia to examine the scope and effect of clauses (4-A) and (4-B) of Article 199 of the Constitution. Whereas in the above petitions leave has not been granted but after interim chamber orders the same were ordered to be listed along with the above appeals. 2. Raja Muhammad Akram, learned counsel has appeared for the appellants in Civil Appeals Nos.702 to 704 of 1995 and for the petitioners in Civil Petitions Nos.51 and 70 to 74 of 1999. Whereas,
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Mr. Muhammad Akram Sheikh learned counsel has represented the petitioners in the above 104 Civil Petitions. Mr. Hamid Khan, learned counsel has appeared for the petitioners in Civil Petitions Nos.1857-L and 1865-L of 1998. Mr. Abdul Mujeeb Pirzada, learned counsel has represented the appellants in Civil Appeals Nos.1536 and 1537 of 1998. Mr. Akhlaq Ahmed Siddiqui, learned counsel has represented the appellants in Civil Appeal No,1295 of 1998. Sheikh Izharul Hag, learned counsel was to appear on behalf of the respondents, but he was reported to be sick. He could not attend the above cases but the Government's point of view was presented by Mr. Tanvir Bashir Ansari, learned Deputy Attorney-General. We would have adjourned the above cases, but as the controversy at issue, namely, the scope and effect of clauses (4-A) and (4-B) of Article 199 of the Constitution, is affecting a large number of cases in the various High Courts, we thought it appropriate not to postpone the above cases and to proceed with the same. 3. (a) Raja Muhammad Akram, learned counsel has submitted, as follows:-- (i) That in order to understand the scope of clause (4-A) of Article 199 of the Constitution, the same is to be read with paragraph (b) of clause (4) thereof. (ii) That clause (4-A) is attracted if an interim order impedes the assessment or collection of public revenues but it does not include levy. (iii) If an order of assessm ent of collection of public revenues is without jurisdiction clause (4-A) of Article 199 is not attracted and, thus, an interim order would not lapse on the expiry of six months' period. (iv) That since the High Court has failed to dispose of the writ petitions in which interim orders were passed within a period of six months from the date of the above order as mandated by clause (4- B) of Article 199 on account of shortage of Judges the tax payers should not be made to suffer because of clause (4-A) of Article 199 and, therefore, the interim orders passed cannot be treated as having expired. (b) Mr. M. Akram Sheikh, learned senior counsel has urged as follows:-- (i) That in the case of Siddique Trust v. Income Tax Officer 1987 CLC 2366 a Division Bench of the High Court of Sindh to which one of us (Ajmal Mian, C.J.) was a party, found clauses (4-A) and (4- B) of Article 199 deficient inasmuch as it was observed that either in clause (4-A) the period of six months be extended to a reasonable period or the Court may be empowered under clause (4-B) to extend the period of stay in case where an authority itself is at fault and as the Legislature has not taken any action pursuant to the above observation, the Court should supply the omission in the above clauses through interpretive process. (ii) That clause (4-A) of Article 199 and Rule 4A of Order 39, C.P.C. Are identical, but a Civil Judge under Rule 2-B of Order 39, C.P.C. Has jurisdiction to extend time but this power is not available to a High Court which supervises and controls the subordinate Courts in view of Article 203 of the Constitution. (iii) That clauses (4-A) and (4-B) of Article 199 of the Constitution are to be read as complementary and if there is no possibility of reconciliation between the two, clause (4-A) having lesser right shall yield to clause (4-B) having higher right. (iv) That the use of the word "shall" in clause (4-B) is mandatory and not directory and a High Court is bound to dispose of the case within six months in which an interim order has been passed. (v) That by plain reading of clause (4-B) of Article 199 of the Constitution, it is manifest that there is an omission and the same can be supplied in order to avoid causing injustice. (vi) That clause (4-A) of Article 199 has its limited application by choice of the words employed in the above clause and it does not admit blanket and wholesale application to all cases. (c) Mr. Hamid Khan, learned counsel has submitted as under:-- (i) That clauses (4-A) and (4-B) of Article 199 are to be read together and to be harmonized, and all cases be disposed of within six months and only exceptional cases may go beyond six months
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for reasons to be recorded by the Court. (ii) That clause (4-B) of Article 199 has been added after the period of ten years of the incorporation of clause (4-A) of Article 199 and, therefore, clause (4-B) being subsequent in time has the effect of controlling and modifying clause (4-B). (iii) That taxing statutes are to be construed strictly and in favour of the subject and if this principle of interpretation is superimposed on clauses (4-A) and (4-B) more favourable picture will emerge in favour of the subjects/tax payers. (iv) That since this Court is construing a provision of the Constitution, which is an organic document, all its provisions are to be read together including clauses (4-A) and (4-B) of Article 199. (v) That since there was no fault on the part of the petitioners and the High Court in para.12 of the impugned judgment has given reason of heavy pendency for non-disposal of the Writ Petitions in terms of clause (4-B) of Article 199 of the Constitution, such a general reason cannot be a sufficient reason for non-compliance of the mandate of the Constitution under above clause (4-B). (vi) That there are three views which have been expressed by the Courts as to the scope and import of clauses (4-A) and (4-B) of Article 199, namely, (i) that clause (4-A) does not apply when prima facie the impugned order of assessment and collection of revenues lacks jurisdiction, (ii) that the petitioners could not be made to suffer, (iii) that the Government should have extended the period of six months to a reasonable period in clause (4-A) of Article 199, or should have given power to the Court under clause (4-B) to extend the period of six months for the operation of the impugned order. (d) Mr. Abdul Mujeeb Pirzada, learned counsel has submitted as under:-- (i) That clause (4-A) of Article 199 does not put any embargo on the power of the High Court to modify its first interim order and that six months' period can be reckoned from the date of modified order. (ii) That an action which perpetuates injustice, or is mala fide, coram non jtclice, and in excess of jurisdiction cannot be activated under clause (4-A) of Article 199 upon the expiry of six months. (iii That the interim order cannot be terminated automatically upon the expiry of six months' period but the Court will have to apply its mind on the above question, either suo motu or on application of a party and to pass an order for ceasing of the interim order. ' Mr. Akhlaq Ahmad Siddiqui, learned Advocate Supreme Court adopted the arguments of M/s. M. Akram Sheikh and Hamid Khan 4. Mr. Tanvir Bashir Ansari, learned Deputy Attorney-General has urged as under: (i) That clauses (4-A) and (4-B) of Article 199 of the Constitution are independent, and therefore, the factum that the case in which interim order was passed could not be disposed of within six months in terms of clause (4-A) of Article 199 would not affect the operation of clause (4-A). (ii) That there is no inconsistency between clauses (4-A) and (4-B) of Article 199 of the Constitution as to attract any principle of interpretation of statutes/Constitution. (iii) That since clause (4-A) of Article 199 is clear and unambiguous, namely, that interim order inter alia against an assessm ent and collection of public revenues is to expire on the expiry of six months from the date of its grant, the Court cannot negate the above mandatory provision of the Constitution on any principle. 5 . In order to appreciate the point at issue, it may be pertinent to refer to the relevant portions of clauses (1) and (4) of Article 199 of the Constitution. It may be observed that paragraph (a) of clause (1) of Article 199 empowers the High Court upon an application of an aggrieved party to make an order "directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, or a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or declaring that any act done or proceedings taken within the territorial jurisdiction of the
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Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect." It may further be pointed out that paragraph (c) of clause (1) of Article 199 empowers a High Court "on the application of any aggrieved person, to make an order giving such direction to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II". ' It may further be observed that paragraph (a) of clause (4) provides that where an application is made to a High Court for an order under paragraph (a) or paragraph (c) of clause (1), whereas paragraph (b) thereof lays down that if the making of an interim order would have (i) the effect of prejudicing or interfering with the carrying out of a public work, (ii) or otherwise being harmful to public interest or State property, (iii) or of impeding the assessment or collection of public revenues, the Court shall not make an interim order unless the prescribed law officer has been given notice of the application and he or any person authorised by him in that behalf has had an opportunity of being heard and the Court, for reasons to be recorded in writing, is satisfied that the interim order (a) would not have such effect as aforesaid, or (b) would have the effect of suspending an order or proceedings which on the face of the record is without jurisdiction. ' It may be pointed out that clause (4-A) of Article 199 was incorporated by the Constitution (Fourth Amendment) Act, 1975 (Act 71 of 1975) with effect from 21-11-1975. The object of inserting the above clause was to limit the period of the operation of an interim order by sixty days. However, by President's Order No,14 of 1985 the period of sixty days was substituted by six months and the words "State property" were added after the words "in Part I of the First Schedule or relates to, or is connected with". The above President's Order No,14 of 1985 also added clause (4-B), which enjoins a High Court to dispose of the case within six months in which an interim order has been passed. It may be pertinent to reproduce the above amended clause (4-A) and clause (4-B) of Article 199, which reads as follows:-- "(4-A). An interim order made by a High Court on an application made to it to question the validity or legal effect of any order made, proceeding taken or act done by any authority or person, which has been made, taken or done or purports to have been made, taken or done under any law which is specified in Part 1 of the First Schedule or relates to, or is connected with, State property or assessm ent or collection of public revenues shall cease to have effect on the expiration of a period of six months following the day on which it is made, unless the case is finally decided, or the interim order is withdrawn, by the Court earlier. (4-B). Every case in which, on an application under clause (1), the High Court has made an interim order shall be disposed of by the High Court on merits within six months from the day on which it is made, unless the High Court is prevented from doing so for sufficient cause to be recorded." 6. The perusal of above quoted clause (4-A) of Article 199 indicates that an interim order made by a High Court on an application made to it to question the validity or legal effect of any order made, proceeding taken or act done by any authority or person, which has been made, taken or done or purports to have been made, taken or done under any law which is specified in Part I of the First Schedule or relates to, or is connected with, State property or assessment or collection of public revenues shall cease to have effect on the expiration of a period of six months following the day on which it is made, unless the case is finally decided, or the interim order is withdrawn, by the Court earlier. ' It may further be noticed that clause (4-B) of Article 199 provides that every case in which, on an application under clause (I), the High Court has made an interim order shall be disposed of by the High Court on merits within six months from the day on which it is made, unless the High Court is prevented from doing so for sufficient cause to be recorded.
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' The above clauses (4-A) and (4-B) of Article 199 have been the subject-matter of interpretation by the Superior Courts including this Court. The thrust of the arguments of the learned counsel for the appellants/petitioners was that since the High Courts had not disposed of the cases as mandated by clause (4-B) within a period of six months, the period of six months mentioned in clause (4-A) is to be extended by the Court inter alia by pressing into service the interpretive process. 7. It will not be out of context at this stage to refer the cases decided by the Superior Courts on the interpretation of the above clauses. (i) Dewan Textile Wills Ltd. v. Pakistan and others PLD 1976 Karachi 1368. ' In the above case the interpretation of clause (4-A) of Article 199 and its validity were involved. A Full Bench of the erstwhile High Court of Sindh and Balochistan while holding the above clause as valid held that the words "purports to have been made, taken or done" are relatable to the first part of the above clause (4-A), namely, an interim order made by a High. Court on an application made to it to question the validity or legal effect of any order made, proceeding taken or act done by any authority or person under any law which is specified in Part I of the First Schedule, or "purports to have been made, taken or done". It was further held that the words "purports to have been made taken or done" do not cover the second part of the above clause, namely, an interim order made by a High Court on an application made to it to question the validity or legal effect of any assessm ent or collection of public revenues. (ii) Federation of Pakistan through the Secretary, Ministry of Finance, Government of Pakistan, Islamabad and others v. United Sugar Mills Ltd., Karachi PLD 1977 SC 397. ' In the above case five appeals were filed with the leave of this Court. The vires of the above newly- added clause (4-A) in Article 199 was assailed on various grounds. This Court while upholding the validity of the above clause observed as under: "As I look at the matter, the question at the root is to ascertain the Parliament's intendment underlying clause (4-A) in Article 199 of the Constitution. It was pointed out by the learned Attorney-General, that the whole object was to put an end to what he described as gross abuse of process of the Court by which enormous minis of money recoverable by the State as taxes are held in abeyance for indefinite period as a result of they stay orders which are generally secured by big industrialists and businessm en to the detriment of public revenues. Indeed, the amount which has accumulated and has become due since the stay was originally granted by the High Court in C.P. 152-R brings into sharp focus, the rationale underlying the amendment. Similarly, in the case of Chaudhry Texitle Mills (referred to already) in consequence of the stay granted by the High Court, arrears representing 25% of the taxes held in abeyance, amounting to Rs,54,76,650.61. Thus, this was the mischief which the Parliament plainly intended to eradicate by restricting the duration of the interim order issued by the high Court to not more than 60 days. ' Once we reach that conclusion and were to hold at the same time that the High Court will also have the power to repeat the order for interim relief after the expiry of the previous order, it will reduce the Constitutional provision of clause (4-A) other vise competently made to a complete farce. It is wholly wrong to think that clause (4-A) stultifies the judicial power of the High Court, for a does not control the manner in which the abridged jurisdiction of ad High Court will be exercised. The correct view is that the provinon is merely regulatory of the jurisdiction of the High Court." Hassan Mahmood and others Federal Land Commission etc. 1985 Law Notes (Lahore) 121. ' In which a Division Bench of the Lahore High Court had held that any order or assessment by any funaionary, which runs counter to the provision of clause (4-A) of Article 199 extending time of interim order beyond six months is illegal (iv) Messrs Siddinue Trust v. Income Tax Officer and another 1987 CLC 2366.
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' In the above case the facts were that the petitioners filed a Constitution Petition Impugning the notices issued against them under sections 56 and 61 of the income Tax Ordinance, 1979 by the Income Tax Officer, Central circle BLII, Karachi on the ground that they being a Trust under the Trusts Act, 1882 were not liable to be assessed. While the above Constitution Petition was pending an application under section 151, C.P.C. Read with clause (4-B) of Article 199 of the Constitution was filed praying for the following relief: "It is therefore, respectfully prayed that as an ancillary and incidental step to the exercise of jurisdiction this Hon'ble Court may grant stay for a further period of 3 months and direct that the case may be decided within this period." ' In support of the above application very elaborate arguments were advanced and reference was made to Latin Maxim Actus curiae neminem gravabit (An act of the Court shall prejudice no man). It was contended that since the High Court had failed to dispose of the main Constitution Petition though mandated under clause (4-B) of Article 199, the petitioner should not be made to suffer on account of the above omission/default on the part of the High Court and, thus, the period of a stay order beyond six months as envisaged under clause (4-A) be extended by three months. The above contention was repelled as follows: "The maxim Actus curiae neminem gravabit can be pressed into service so long as it does not violate any express provision of law and can be given effect in exercise of inherent power of the Court which has not been negatived by any express provision of law. In the present case , clause (4-A) of Article 199 of the Constitution expressly provides that the stay shall cease to have effect on the expiration of a period of six months following the day on which it is made, unless the case is finally decided, or the interim order is withdrawn, by the Court earlier. Nothing contrary to this has been provided in clause (4-B) of the above Article 199. The Court, therefore, cannot negate the above mandatory provision of clause (4-A) by extending the period of stay on the basis of the above maxim Actus curiae neminem gravabit." ' It was also contended that clause (4-B) being curative/remedial provision should be given liberal construction so as to advance the remedy and suppress the mischief. The above contention was also rejected and it was held that the Court could not add in the Constitution to what has not been provided therein. ' As regards the contention that if two constructions are possible, the one which favours the citizen/tax payer should be preferred, the following observations were made: "Admittedly, the above-quoted clause (4-B) does not empower the Court to extend the period of a stay order beyond six months as provided in clause (4-A) of the same Article 199. If two constructions of the above clause would have been possible, one which would have empowered the Court to extend the period of a stay order beyond six months and the other which would not have empowered the Court to extend the period of a stay order, the Court would have preferred the former. But the language of the above clause is clear and free from any ambiguity and does not warrant the former construction." ' The contention that the Court can grant a relief on the basis of the principle that the Court which can grant the final relief can grant interim relief being ancillary and incidental to the main relief, was also not accepted for the following reasons: "We are inclined to hold that the above principle can be invoked as long as there is no express prohibition. In the present case as pointed out clause (4-A) expressly provides that the stay shall not operate for more than six months and, therefore, the above principle cannot be pressed into service." ' Incidentally it may be stated that one of us (Ajmal Mian, C.J.) was the author of the above judgment. (v) Bibi Zuhra v. Member, Federal Land Commission and others 1988 CLC 129..
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' In the above case the question at issue was, as to whether an interim order could be passed upon a second application upon the dismissal of the application for interim order in default. It was contended that since the impugned order passed by the Federal Land Commission was without jurisdiction, the Court could pass second interim order. The above contention was repelled by a Division Bench of the High Court of Sindh, the author of the judgment was Nasir Aslam Zahid, J. (as he then was) as under: "We find no substance in the contention of the learned counsel. Admittedly in this matter an interim order had been obtained by the petitioner as far back as 5-5-1982 and thought his interim order expired by an efflux of time on the expiry of six months from the date of the passing of the said interim order, in any case the interim application was dismissed for non-prosecution by order dated 24-9-1984 and as such even if the said interim order of status quo had remained in the field, it came to an end on 24-9-1984. The submission made by the learned counsel on the basis of 1984 SCMR 861 and PLD 1976 Peshawar 66 is not relevant. The point being considered is the interpretation and application of clause (4-A) of Article 199 of the Constitution. Admittedly the order that has been passed purports to be an order under a law specified in Part I of the First Schedule to the Constitution. As a result, clause (4-A) of Article 199 is attracted and the interim order lost its efficacy on the expiry of six months of the order dated 5-5-1982. It is now settled that once an interim order has remained in the field for six months and it expires then in view of clause (4-A) of Article 199 of the Constitution, a second interim order cannot be passed which will have the effect of nullifying the provisions of clause (4-A) of Article 199 of the Constitution." (vi) Punjab Cables v. Government of Pakistan PLD 1989 Lahore 121. ' In the above case four miscellaneous applications were filed by Punjab Cables in a pending Constitution Petition . For restraining the respondent from realising the bank guarantees submitted by them, pursuant to the interim order dated 9-4-1988, which had expired…
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