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Petitioner: WAHEED SHAHZAD BUTT VS Respondent: FEDERATION OF PAKISTAN through Director Legal- JUDGMENT
Court Name: Lahore High Court Judge(s): Shams Mehmood Mirza Title:WAHEED SHAHZAD BUTT vs FEDERATION OF PAKISTAN through Director Legal-
JUDGMENT
Reported As: PLD 2016 Lahore 872 Result: Petition allowed Judgment JUDGMENT ' SHAMS MEHMOOD MIRZA, J.--This writ petition is brought by the petitioner against the decision of the President modifying the order passed by the Federal Tax Ombudsman as an appellate authority in terms of section 21 of the Freedom of Information Ordinance, 2002 (FOI .Ordinance). The underlying question in this writ petition is whether the recommendations of Alternate Dispute Resolution Committee are not public record and accordingly excluded from the purview of FOI Ordinance . 2. The petitioner by having recourse to the provisions of the, FOI Ordinance applied to the Chairman, Federal Board of Revenue (the Board), respondent No,2, through letter dated 09.08.2012 seeking information and access to record pertaining to the recommendations made by Alternate Dispute Resolution Committee (ADRC) constituted under section 134A of the Income Tax Ordinance, 2001 and section 47A of the Sales Tax Act, 1990 and the orders passed by the Board on the said recommendations. As the Board declined to pass the decision on the information sought for, the petitioner lodged a compliant with the Federal Tax Ombudsman (the Tax Ombudsman) under section 19 of the FOI Ordinance. The Tax Ombudsman vide order dated 10.01.2013 directed the. Board to provide information/record requested for to the petitioner within a period of 21 days. The Board filed a representation before the President of Pakistan through the Ministry of law on 14.02.2013 under section 32 of the Federal Tax Ombudsman, 2000. The President partially accepted the representation on 14.10.2014 by holding that the record relating to the recommendations of the ADRC will not be provided to the petitioner. The order of Tax Ombudsman was accordingly modified by the President on the following terms.
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' The upshot of the above discussion is that the subject representation of Agency has been allowed only to the extent of non providing the record relating to recommendation of the respective committees constituted in terms of the above mentioned provision of the tax statute. In these circumstances the impugned decision of the learned F.T.O. Is modified in the following manner: (i) FBR is ordered to provide the requester with the information but excluding therefrom the record of recommendations of the said committee, in the format given by him, within 21 days from the date of receipt of this order and requester/complainant should also specify the description of court(s) case in which the information requested is required; (ii) It is further clarified that requester/complainant does not need to file a fresh application and that an additional application will form part of the original application of August 09, 2012 wherein case details are to be mentioned." 3. Learned counsel for the petitioner, inter alia, argued that the 'representation filed by the Board before the President was not valid as no such remedy was provided for by the FOI Ordinance: On merits it was stated that there was no prohibition in the FOI Ordinance for providing the necessary information/documents to the petitioner. Learned counsel for the respondents, on the other hand, stated that representation to the President was permissible in terms of section 32 of Federal Tax Ombudsman Ordinance, 2000 and that that right was reaffirmed in section 14 of the Federal Ombudsman Institutional Reforms Act, 2013. The learned Standing Counsel representing the Federation also took a series of objections by stating that the complaint to the Tax Ombudsman was filed by the petitioner alleging mal-administration under section 3 of the Federal Tax Ombudsman Ordinance, 2000 and that by virtue of section 23 of the said Ordinance, the representation before the President was thus competent in terms of sections 32 and 37 of the Federal Tax Ombudsman Ordinance, 2000 and sections 14 and 24 of the Federal Ombudsman Institutional Reforms Act, 2013. In this regard reliance was placed on judgments reported as Muhammad Hussain and others v. Islamic Republic of Pakistan PLD 1991 SC 385 and S.M. Rahman and Co. v. Motabar and others PLD 1981 SC 282. It was also urged that the record sought by the petitioner fell in the exclusions contained in section 8(c), (g) and (h) of the FOI Ordinance and, therefore, the Board was justified in not providing the said record to the petitioner. 4. From the arguments advanced by the learned counsel for the parties, the following issues of law have arisen requiring decision by this Court. (a) Whether representation by the Board before the President against the decision of the Tax Ombudsman was competent in terms 01 section 32 of Federal Tax Ombudsman Ordinance, 2000? (b) Whether the information/documents sought for by the petitioner fall in the exclusions mentioned in section 8 of the FOI Ordinance? 5. The various provisions of the FOI Ordinance relied upon by the counsel to provide guidance towards its true construction, scope and intent need reproduction in whole or in summary form. The object of the FOI Ordinance is conveyed by its preamble, which states that ' WHEREAS it is expedient to provide for .Transparency and freedom of information to ensure that the citizens of Pakistan have improved access to public records and for the purpose to make the Federal Government more accountable to its citizens, and for matters connected therewith or incidental thereto; The right of access to information/record is given by section 3 of the FOI Ordinance which declares that no requester shall be denied access to any official record except for the exemptions provided in section 15, which relate to international affairs, and that the FOI Ordinance shall be interpreted so as to facilitate and encourage, promptly A and at the lowest reasonable cost, the disclosure of information. Under the FOI Ordinance, both the existence and the access rights attach to "information" and "public record". Section 2 (h) and (i) of the FOI Ordinance provides the definitions of "public body" and "record". Section 7 thereof is relevant and is reproduced hereunder
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7. Declaration of public record.--Subject to the provision of section 8, the following record of all public bodies are hereby declared to be the public record, namely:- (b) Transactions involving acquisition and disposal of properly and expenditure undertaken by a public body in the performance of its duties; (c) information regarding grant of licenses, allotments and other benefits and privileges and contract and agreements made by a public body; (d) final orders and decisions, including decisions relating to members of public; and (e) any other record which may be notified by the Federal Government as public record for the purposes of this Ordinance. ' In recognition of the delicate balance between the public's interest in knowing and in expressing its opinion and the need in some cases to protect confidentiality and privacy, FOI Ordinance provides a wide range of exclusions, as mentioned in section 8, which reads as under 8. Exclusion of certain record.- Nothing contained in section 7 shall apply to the following record of all public bodies, namely:- (a) noting on the files; (b)minutes of meetings; (c) any intermediary opinion or recommendation; (d) record of the banking companies and financial institutions relating to the accounts of their customers; (e) record relating to defence forces, defence installations or connected therewith or ancillary to defence and national security; (f) record declared as classified by the Federal Government; (g) record relating to the personal privacy of any individual ; (h) record of private documents furnished to a public body either on an express or implied condition that information contained in any much documents shall not be disclosed to a third person; and (i) any other record which the Federal Government may, in public interest, exclude from the purview of this Ordinance. Similarly, section 19 of the FOI Ordinance in the context of the first issue identified by this Court is most relevant and is reproduced hereunder 19. Recourse of the Mohtasib and Federal Tax Ombudsman.-(1) If the applicant is not provided the information or copy of the record declared public record under section 7 within the prescribed time or the designated official refuses to give-such information or, as the case may be, copy of such record, on the ground that the applicant is not entitled to receive such information or copy of such record, the applicant may, within thirty days of the last date of the prescribed time for giving such information or, as the case may be, of such record, or the communication of the order of the designated official declining to give such information or copy of such record, file a complaint with the head of the public body and on failing to get the requested information from him within the prescribed time may file a complaint with the Mohtasib and in cases relating to Revenue Division, its subordinate departments, offices and agencies with the Federal Tax Ombudsman. (2) The Mohtasib or the Federal Tax Ombudsman, as the case may be, may, after hearing the applicant and the designated official, direct the designated official to give the information or, as the case may be, the copy of the record or may reject the complaint. 6. The examination of the above provisions show that the citizens have been granted a right to access to official/public record and that an applicant (requester) need not provide any reason for seeking such record and it is for the designated official to determine whether the record sought for does not constitute public record or that the record sought for is excluded under section 8 of the FOI Ordinance. Section 19 of the FOI Ordinance itself provides a three tier process and is a complete code for processing the application of a requester with self help remedies in case of denial of his
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request. Down the chain is the designated official to whom the application is made in terms of section 13 of the FOI 'Ordinance. In case of denial by the designated official to provide the information or the record, as the case may be, the requester has the remedy to approach the head of the public body with the complaint. In case the requester fails to get the information or record from the head of the public body, he can approach the Tax Ombudsman or the Mohtasib, as the case may be. For all intents and purposes, the Tax Ombudsman or the Mohtasib under the provisions of FOI Ordinance is the last appellate forum to entertain the complaint and redressal of grievance of a requester. Another important distinction that needs to be brought to light is that section 19 of FOI Ordinance stands on a different footing in comparison to other laws which create the office of Mohtasib in that the Tax Ombudsman under the FOI Ordinance passes a decision on the complaint of a requester rather that making recommendation on maladministration of the delinquent officials. This difference must not be lost sight of as it brings into sharp focus the type of jurisdiction being exercised by the Tax Ombudsman under section 19 of the FOI Ordinance. 7. Keeping in view the three tier process provided for in section 19 of the FOI Ordinance and the fact that no further appeal was provided against the decision of the Tax Ombudsman, it appears that FOI Ordinance intended finality to be attached to the orders of the Tax Ombudsman. It is an elementary principle of law that is well settled by now that appeal is a creature of statute and unless provided it cannot be resorted to by recourse to the right of appeal provided in another law. Which brings us to the submissions made by the learned counsel for the respondents that the right of representation, which is akin to that of an appeal, provided in Federal Tax Ombudsman Ordinance, 2000 and Federal Ombudsman Institutional Reforms Act, 2013 is available to the Board against the decision of Tax Ombudsman. The learned counsel for the petitioner relied upon judgments reported Mst. Bibi Ghazala v. Member, Board o Revenue, Punjab, Lahore and others 2011 SCM R C 749, Capital Development Authority through Chairman Raja Muhammad Zaman Khan and another PLD 2007 SC 121 and Mst. Tabassum v. Waqar Hussain and another 2011 M LD 351 to argue that appeal is a creature of statute and unless available in the relevant law cannot be invoked by resorting to other laws even if are of similar nature and that in the absence of a right of further appeal, the only remedy available to a person is to invoke the writ jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution). This position was controverted by the learned Standing Counsel who relied upon case law to the contrary. 8. In Muhammad Hussain and others v. Islamic Republic of Pakistan PLD 1991 SC 385 relied upon by the learned Standing Counsel, the issue was with regard to the availability of revision with the Labour Appellate Tribunal against the decision of the Labour Court passed in appeal under section 17(1) of the Payment of Wages Act, 1936 as there were conflicting opinions on the issue by the Lahore High Court and the Sindh High Court. The Lahore High Court relying upon a judgment reported as Pakistan v. Maqsood Ali 1981 PLC 307 held that the Labour Appellate Tribunal was concerned only with matters arising out of proceedings taken under Industrial Relations Ordinance and that the appeal heard by the Labour Court under Payment of Wages Act fell outside its revisional jurisdiction. The Sindh High Court, however, came to a totally opposite conclusion by holding that the disputes under the Payment of Wages Act and the Industrial Relations Ordinance bear such close resemblance that there is no reason to hold that the Legislature did not intend to make available the remedy of revision against the decisions of the Labour court delivered under the Payment of Wages Act. Relying upon section 35 (5) (d) of Industrial Relations Ordinance, it was thus held by the Sindh High Court ' In our opinion, when a matter under any special law is transferred to the Labour Court under a statutory provision its adjudication and determination by the Labour Court becomes a proceedings under the I.R.O. By virtue of subsection (5) (d) of section 35 so that it is amenable to the revisional jurisdiction of the Appellate Tribunal.
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The Hon'ble Supreme Court relying upon the ratio of S.M. Rahman & Co. v. Motabar and others PLD 1981 SC 282 also came to the similar opinion by holding that ' In our opinion, the provisions of clause (d) of section 35(5), Industrial Relations Ordinance should put an end to the controversy. It will appear from this clause that the performance of functions under other laws is a part of the normal duties of a Labour Court. That being so, even when it exercises jurisdiction under other laws it does not act as a special forum outside the ambit of the Industrial Relations Ordinance, but, on the other hand, it is performing a function specifically provided for by the Ordinance. 9. Pakistan Fisheries Ltd., Karachi and others v. United Bank Limited PLD 1993 SC 109 was a case in which the Hon'ble Supreme Court, however, took a contrary view. In the said case, the issue was whether an appeal lies under section 15 of the Code of Civil Procedure (Amendment) Ordinance, 1980 against the interlocutory orders passed by High Court in suits under Banking Companies (Recovery of Loans) Ordinance, 1979. It was held that ' The jurisdiction conferred on the High Court under the Ordinance is a special jurisdiction and while exercising such jurisdiction the High Court bears the fictional character of a special court as deemed in the Ordinance. It is a fundamental rule, that where an enactment creates a new jurisdiction, prescribes the manner in which that jurisdiction is to be exercised and further specifies the remedy, such remedy is exclusive and the party aggrieved of an order made in the exercise of that jurisdiction must seek only such remedy and no other. ' The judgment in Pakistan Fisheries' case, it would thus appear, was in stark contrast to the judgment in Muhammad Hussains' case and also to S.M. Rahman's case. The latter case, incidentally, was relied upon by the appellants in Pakistan Fisheries' case but was distinguished by the Hon'ble Supreme Court. The ratio of the judgment in Pakistan Fisheries'- case, it may be stated, has ever since been accepted to have laid down the correct law that special law confines the party to the remedies provided therein without having recourse to other laws. The ratio of Pakistan Fisheries' case has never been deviated ever since by the Courts in this country. Also being later in time, the judgment in .Pakistan Fisheries' case is binding on this Court and according to its ratio, the decision of Federal Tax Ombudsman on a complaint filed by a requester under FOI Ordinance is final with no further remedy available to the Board. 10. There are other features in this case on the basis of the applicable law that distinguish the judgment render in Muhammad Hussains' case and makes it ratio inapplicable. In Muhammad Hussain's case, as is apparent from the excerpt quoted above, what clinched the issue in favour of the appellants was clause .(d) of subsection (5) of section 35 of Industrial Relations Ordinance, which stipulated that a Labour Court shall ' exercise and perform such other powers and functions as are or may be conferred upon or assigned to it by or under this Ordinance or any other law. ' Based on the afore-mentioned clause, the Hon'ble Supreme Court found the decision of the labour court passed under section 17(1) of the Payment of Wages Act to be amenable to revisional jurisdiction exercised by Labour Appellate Tribunal under section 38 of the Industrial Relations Ordinance. In the present case, however, there is no comparable provision in Federal Tax Ombudsman Ordinance, 2000. Section 37 of the said Ordinance was referred to by the learned counsel for the parties to find support for the premise that finality attached to the decision of the Federal Tax Ombudsman would yield to the remedy of representation to the President provided for in section 32 thereof. The argument is misplaced and the basis thereof is not free from difficulties in as much is section 37, in the language it is couched, merely grants effect to the provisions of the Federal Tax Ombudsman Ordinance over other laws for the time being in force but no more. The purpose of a non obstante clause of the nature found in section 37 is nothing more than to point out that it shall have precedence over anything contrary in any other law in force. The object
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appears to prevent reliance on any other law to the contrary. However, FOI Ordinance having been promulgated in the year 2002 and also being a special law, its provisions cannot be made subservient to the Federal Tax Ombudsman Ordinance, which was an earlier law. Both being special laws, the later in time shall prevail. In Sheikh Khalid Mahmood v. Banking Tribunal, IVWFP, Peshawar and another 1997 CLC 1812, while faced with reconciling inconsistencies between two special laws, it was held that ' It is a settled proposition of law that if two provisions of two different enactments are in clash with each other and cannot be reconciled, then the latter in date shall prevail. ' Similarly, in Solidaire India Ltd. v. Fairgrowth Financial Services Ltd, and others (2001) 3 SCC 71, it was held that ' It is clear that both these Acts are special Acts. This Court has laid down in no uncertain terms that in such an event it is the later Act which must prevail. ' Be that as it may, on a careful examination of the scheme of both FOI Ordinance and Federal Tax Ombudsman Ordinance, it becomes apparent that there is nothing inconsistent or contradictory between the two enactments inasmuch as the subject matter of both the enactments is different and distinct. FIO Ordinance is specially designed to provide access to the citizens to the information and public record and deals, inter alia, with the procedure for providing documents/record of the public bodies to a requester subject to the exclusions contained in section 8 thereof. In fact it is a complete, self-contained, exhaustive code in regard to a person's right to access to information/record of public, bodies. The legislative intent thus is apparent that any person desirous of obtaining information /record of public bodies must have recourse to the procedure provided for in FOI Ordinance. The Federal Tax Ombudsman Ordinance, as is clear from its preamble and other provisions, deals, inter alia, with the investigation and redressal of injustices done to a person on account of maladministration by the officials of the revenue department. Both the enactments by the plain reading of their text, thus, have nothing in common. When the object and aim of a statute is clearly expressed in its provisions, the scope and intent thereof cannot be restricted or rendered nugatory by the provisions of another statute particularly when the other statute does not contain any provision inconsistent with it. The Courts cannot ignore the express language and the plain meaning of the various provisions of a statute in attempting to find the object of the law and the goals 'fixed by the legislature. By section 19 of the FOI Ordinance, a final remedy of approaching the Tax Ombudsman has been provided to a citizen who has been denied information or public record. The FOI Ordinance does not provide any further appeal beyond the forum of Tax Ombudsman and as such finality must be attached to its decisions subject to the challenge made in the Constitutional jurisdiction of this Court. By providing the forum of Tax Ombudsman for lodging complaints by a person denied access to information or public record does not mean that the remedy of representation to the President provided for in section 32 of Federal Tax Ombudsman Ordinance, 2000 also becomes available to the public bodies. This interpretation would be in violation of the ratio of the Pakistan Fisheries' case and is not borne out from the provisions of Federal Tax .Ombudsman Ordinance, 2000. The Federal Ombudsman Institutional Reforms Act, 2013 too stands on no better footing. Its section 2(b) provides the definition of ".Ombudsman" to mean Ombudsman appointed under the "relevant legislation". The Freedom of Information Ordinance, as defined in section 2 (c), is not included in the definition of "relevant legislation". Recourse to section 14 of the said Ordinance is, therefore, of no avail to the respondents. 11. Even otherwise, section 32 of the Federal Tax Ombudsman Ordinance by its terms provides the remedy of representation before the President against the recommendation of the Tax Ombudsman. It was alluded to in the earlier part of this judgment that unlike other laws pertaining to Ombudsman, the Tax Ombudsman passes a decision on the complaint of an aggrieved person
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under the FOI Ordinance whereas while exercising jurisdiction under the Federal Tax Ombudsman Ordinance, he merely makes recommendations. The two expressions "decision" and "recommendation" have different connotations. A decision is a binding adjudication of rights and claims between two or more persons whereas recommendation denotes something in the nature of a suggestion. It is, therefore, held that the President had no jurisdiction to entertain and pass a decision on the representation filed by the respondent department against the decision of the Tax Ombudsman. 12. This Court has on merits also come to the conclusion that the President was wrong in modifying the order of the Tax Ombudsman. The petitioner requested for the record of the recommendations made by the ADRC constituted under section 134-A of the Income Tax Ordinance, 2001 and section 47-A of the Sales Tax Act, 1990. The said provisions envisage the formation of an ADRC by the Board upon the application of an aggrieved person in regard to a matter which is pending before an Appellate Authority and which involves a dispute or a hardship case. The Board may appoint an ADRC consisting of an officer of Inland Revenue and two persons from a panel comprising of a chartered accountant, advocate, income tax practitioner or reputable tax payer. ADRC is required to make its recommendations within a period of 90 days to the Board whereupon the Board may pass an order as it may deem appropriate. The order passed by the Board on the recommendation of ADRC is to be finally submitted before the authority, tribunal or court where the matter was sub judice for its consideration and passing appropriate orders. The afore-mentioned…
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