AMIR HANI MUSLIM, J.--- Through this common judgment we intend to dispose of the above two Constitution Petitions. In Petition .No. D-796 of 1993, the petitioner has claimed the following reliefs:- "(a) to direct and order the respondents to grant the protection to the product namely Aluminium Phosphide locally manufactured by the petitioner, by banning the import of Aluminium Phosphide under the generic or brand name, or in alternate direct the respondents to levy 100% protective duty on the import of aluminium Phosphide.
(b) to direct the respondents not to issue the Registration Certificate and Sales Tax Exemption Certificate for the import of Aluminium Phosphide either under generic name or brand name.
(c) grant any other appropriate relief in the circumstances of the case.
(d) grants costs."
2. The facts as they appear from the pleadings of the parties in C.P. No. D-796 of 1993 are that the petitioner claims to carry on the bushiness of agricultural pesticides previously under the name and style of "M/s. A.G. Services and Supplies" and M/s. Degeshch (Pakistan) Limited as a joint venture with M/s. Begesch GMBH, Germany, for manufacture/formulation of Agricultural Pesticideg particularly 'Aluminium Phosphide'. Petitioner claims that the said agricultural pesticide is used for prevention of insects from damaging foodgrains and besides other Agricultural commodities during storage.
3. According to the petitioner the M/s. Degesch GMBH of West Germany got themselves disassociated with M/s. DEGESCH (Pakistan) Limited. However, the petitioner continued their business under the changed name of M/s. A.-G. Pesticides Limited and got the Agricultural Pesticide 'Aluminium Phosphide' registered under the brand name of AGTOXIN 'R' instead of PHOSTOXIN 'R. The petitioner claims to be the manufacturer of said Aluminium Phosphide since then.
4. According to the petitioner in 1980, the petitioner installed a factory in Baluchistan for manufacturing/formulation of the said Agricultural Pesticides under the sanction granted by the Ministry of Industries, Government of Pakistan (respondent No. 1). The said respondent No. 1, vide its letter No. IPB/CHEM/C-722/AG/79, dated 13.2.1980, while permitting the petitioner to establish new industrial undertaking, imposed the conditions in clauses (m) and
(n) of paragraph 4 of its letter by observing that the petitioner will not be entitled to exemption from import duty on raw material required to be utilized in the manufacturing of the said Agricultural Pesticides with further' condition that the petitioner will not enjoy any protection to indigenously manufactured product against the import of the their product by the other importers.
According to the petitioner, pursuant to their representation, the respondent No. 1 deleted the conditions referred to hereinabove in the permission letter dated 13.2.1980. In this regard, the record reflects that a letter dated 28.6.1980 was addressed by the Deputy Director-General of the respondent No. 1, to the petitioner, in which it was stated that clauses (m) and (n) imposing the conditions referred to hereinabove in the respondent No. l's letter dated 13.2.1980 were deleted.
5. The petitioner claims that pursuant to the assurance given by the respondent No. 1 that the petitioner would be entitled to exemption as well as protection of the indigenous product against import of their product (Aluminium Phosphide), the petitioner established a factory which started production of Aluminium Phosphide, on commercial basis in 1987. According to the petitioner the production of the Aluminium Phosphide was more than the required need of the country. It has further been pleaded that the production capacity of the unit installed by the petitioner, Was 200 metric tons per year while the national requirement was about 75 metric tons per year. The petitioner claims that inspite of assurance of protection of the respondent No. 1 in terms of clauses
(m) and (n) of their letter dated 26.8.1980, the respondent No. 1 is permitting import of 'Aluminium Phosphide' under the different brand names, which has exposed the petitioner to heavy foreign exchange losses. In this respect the petitioner has referred to the case of M/s. Iftikhar Pesticides Lahore, which company, according to the petitioner, was granted protection for another pesticide, namely, BHC/DDT and till date is availing such protection.
6. _ The petitioner has further pleaded that protection in identical manner has also been granted to the Pakistan State Oil. The petitioner, therefore, has prayed for the reliefs incorporated hereinbefore inter alia on the ground that the respondents cannot be permitted to allow import of the product 'Aluminium Phosphide' which is being locally manufactured by the petitioner, in the face of assurance contained in the letter of the respondent No. 1.
7. Mr. Monawar Ghani, learned counsel for the petitioner, has submitted that in view of the written assurance extended by the respondent No. 1 that they would be providing protection to the petitioner and on such assurance the petitioner has invested huge amounts to establish the industrial undertaking for local manufacture of pesticide Aluminium Phosphide, the Respondent No. 1, therefore, are estopped, in law, from granting any permit to any other company in respect of the import of their pesticide. According to the learned counsel the policy of the Government was to encourage locally manufactured pesticides and discourage its import and, therefore, the petition was given the incentive to establish the industrial unit for the manufacture of 'Aluminium Phosphide'. According to him, if the import of the said pesticide is not restricted it would expose the petitioner to heavy losses. Learned counsel in support of his arguments has relied upon the, cases of Fazal Din v. Lahore Improvement Trust, reported in PLD 1969 SC 223, Al-Samrez Enterprise v.
Federation of Pakistan, reported in 1986 SCM R 1917, Pakistan v. Salahuddin, reported in PLD 1991 SC 546, Pakistan v. Hussain A.I, reported in PLD 1960 SC 310 and Ghulam Nabi v. Province of Sindh, reported in PLD 1999 Kar. 372 and Bashiran v. Divisional Superintendent, Pakistan Railway, reported in 2001 PLR (Qta) 1289.
8. The Joint Director (Technical), Department of Plant Protection, Karachi, has sworn two counter affidavits, on behalf of respondent No. 1, in which he has stated that the industrial unit of the petitioner did not meet the needs of the national requirement. According to the averments made in the counter-affidavit, filed on behalf of the respondent No. 1, it has been pleaded that the assurance extended to the petitioner in regard to protection against competition was subject to petitioner's meeting the national requirement, which the petitioner has failed to. It was further stated in the counter-affidavit that the petitioner imports entire raw material from abroad and after mixing of the raw material formulates Aluminium Phosphide in Pakistan resulting in marginal savings in foreign exchange. Therefore, the protection, which the petitioner is seeking, would amount to allowing the petitioner to monopolize the trade, being the only manufacturer.
9. In regard to the petitioner's objections to the protection extended to M/s. Ittehad Pesticides Limited, which is a public sector concern, it has been pleaded in the counter-affidavit that M/s. Ittehad Pesticides Limited utilizes over 50% of the raw material from local market and, therefore, the case of the petitioner doe snot stand on the same footing, whereas in the case of Pakistan State Oil, which too, has been granted protection in regard to different pesticides, also manufactures its product from the raw material which they purchase locally and, therefore, the objections of the petitioner in regard to the protection given by the respondent No 1 to the said public concerns, were untenable.
10. Respondents Nos.4, 5, 6 and 7 were also joined as respondents in these proceedings on their making an application under Order I, Rule 10, CPC, inter alia, on the ground that the reliefs sought by the petitioner would affect them as respondents Nos.4 to 6 are importers whereas the respondent No. 7 is the Province of Punjab, which intended to import pesticides but on account of ad interim order operative in these proceedings, the respondent No. 7 was stayed from permitting import of the pesticide Aluminium Phosphide.
11. The learned Deputy Attorney General, Syed Zaki Muhammad, has submitted that the petitioner was never extended any assurance and submitted that the petitioner, in fact, had monopolized the business of pesticides, which is not permissible in law. According to the learned Deputy Attorney General, the Federal Government frames its policy under Section 3 of Imports and Exports (Control)
Act, 1950, keeping in view the public requirement and a letter on behalf of the respondent No. 1 cannot restrict the Government from permitting import of the Pesticide Aluminium Phosphide in terms of the provisions of the Act of 1950.
12. Mr. Omer Soomro, learned counsel for the respondent No. 4, has submitted that the letter dated 28.6.1980 deleting the condition and extending the concession of protection has no legal sanctity as such letter cannot be treated as Notification under the Imports and Exports (Control) Act, 1950 or under any provision of the Agricultural Pesticides Ordinance, 1971, and or the Rules framed thereunder:-
13. It has further been submitted by the learned counsel for respondent No. 4, Mr. Omer Soomro, that the reliefs sought in this petition are not permissible in law as the letter dated 28.6.1980 cannot override the provisions of Imports and Exports (Control) Act, 1950 and Agricultural Pesticides Ordinance, 1971. He further submitted that the two letters dated 7.1.1980 and 28.6.1980 have no force of law. It has been submitted by the learned counsel that the assurance through such letters cannot override the statutory provisions of law as there can be no promissory estoppel against the statute. In support of his contention he has relied upon the cases of Pakistan v. Salahuddin, reported in PLD 1991 SC 546, Federation of Pakistan v. Ammar Textile Mills (Pvt.) Ltd., reported in 2002 PSCC (Pak) 249, M. Y. Electronics Industries (Pvt.) Ltd. v. Government of Pakistan, 1998 SCM R 1404.
14. Mr. Mazhar Jaferi, learned counsel for the respondent No. 6 has submitted that in different auctions bids were invited by the Government for supply of the Pesticide Aluminium Phosphide. The respondent No. 6 also participated in the bids and the rate of the petitioner were much higher than the rate of the respondent No. 6 and other participants which ultimately affects the public revenue.
It was submitted by the learned counsel that in fetter dated 7.1.1980 of the Section Officer of the respondent No. 1, the petitioner was informed that the protection sought for Aluminium Phosphide would be considered when the unit starts its production. According to the learned counsel even this concession of protection was subject to petitioner's meeting the national requirements.
According to the learned counsel the petitioner has failed to meet the national requirements as has been pleaded in the Counter-affidavit, sworn on behalf of the respondent No. 1, and, therefore, this by itself was sufficient ground to dismiss the present petition.
15. It was further submitted by the learned counsel for the respondent No. 6 that the questions involved in these proceedings" are dependent upon the factual controversies, besides the fact, that such questions can be decided by recourse to the provisions of the National Tariff Commission Act, 1990, which provides remedy for the reliefs sought by the petitioner. The petitioner, according to the learned counsel, instead of availing the remedy under the National Tariff Commission Act, 1990, has approached this Court, therefore, the petitioner having failed to avail remedy, the petition merits dismissal. The learned counsel has relied upon the cases of Pakistan v. Sa/ahuddin, reported in PLD 1991 SC 546, Federation of Pakistan v. Ammar Textile Mills (Pvt.) Ltd., reported in 2002 PSCC (Pak)
249 and. M. Y. Electronics Industries (Pvt.) Ltd. v. Government of Pakistan, reported in 1998 SCM R 1404, on the question of promissory estoppel.
16. The learned Assistant Advocate-General, Punjab, Mr. Syed Muhammad Jalaluddin Khaled, appearing for the respondent No. 7 has submitted that on account of ad-interim order operating in these proceedings, the Punjab Government has ben restricted to invite tender for import of Aluminium Phosphide as a result of which, the Government of Punjab, which is a wheat growing province, has to award all the contracts of Aluminium Phosphide to the petitioner on much higher rates as, according to him, this is the only pesticide which has been recommended for use of wheat storage and since the rate of the petitioner are on higher side, it is causing concern to the Provincial Government. It is further submitted that the petitioner through these proceedings is seeking writ of mandamus, which the law does not permit in the given circumstances of the case.
He has relied upon the case of Muzaffar Khan v. Evacuee Trust Property, reported in 2002 CLC 1819, in support of his arguments.
17. We have heard the learned counsel, and have gone through the record. The questions in these proceedings are whether the petitioner can seek direction in writ jurisdiction against the Federal Government to frame policy protecting the petitioner's Pesticide Aluminium Phosphide by restricting import of the same product. The second question that has been raised in these proceedings is to restrain the Authorities constituted under the provisions of the Agricultural Pesticides Ordinance, 1971, from issuing registration certificate to the importers or those who deal in the business of Aluminium Phosphide and or sales, tax exemption certificate for the import of Aluminium Phosphide.
18. Before dealing with the first question, we would like to dilate upon the second question.
19. Section 4 of the Agricultural Pesticides Ordinance, 1971 (Ordinance II of 1971), is reproduced hereinbelow:- "4. Pesticides to be registered: No person shall import, manufacture, formulate, sell, offer for sale hold in stock for sale or in any manner advertise any pesticide which has not been registered in the manner provided by this Act or the rules framed thereunder: Provided that the Federal Government may, by notification in the Official Gazette, direct that a pesticide specified in the notification and not having a trade name will be imported only by a class or classes of importers as specified; except a pesticide having a trade name and registered in the country of manufacture which may be imported without undergoing the registration process but subject to the conditions notified from time to time by the Federal Government."
20. The language of the aforesaid section suggests that no person, in law, can import, manufacture, formulate, sell, offer for sale hold in stock for sale any pesticide unless such pesticide is registered by the Federal Government by Notification in the official gazette . Section 5 of the said Ordinance further provides the procedure for registration of the pesticides. The Prayer. Clause (B) in the petition, as has been reproduced in the first paragraph of this judgment, by which the petitioner seeks a direction of this Court against the Federal Government to retain them from issuing registration certificate and sales tax exemption certificate to the companies dealing in the business of Aluminium Phosphide, which the Federal Government, in law, is obliged to issue under the provisions of Sections 4 and 5 of the Agricultural Pesticides Ordinance, 1971. It is an admitted position that the petitioner has not challenged the vires of the. Agricultural Pesticides Ordinance, 1971. Mr. Monawwar Ghani, learned counsel for the petitioner, when confronted by us on this issue as to how the petitioner can seek a direction of the nature through these proceedings when the petitioner has not challenged the vires of provisions of Section 4 of the Agricultural Pesticides Ordinance, 1971, he frankly conceded that the petitioner cannot seek a relief of the nature and has, therefore, made a statement that he does not press the prayer Clause (B) of the petition.
21. In regard to the prayer made in Clause (A) of the petition, we may observe that the different correspondence exchanged between the petitioner and the respondent No. 1 in regard to the concession of protection has no legal sanction. The letters dated 7.1.1980 and 28.6.1980, in no way override either the provisions of the Imports and Exports (Control) Act, 1950, or the provisions of Agricultural Pesticides Ordinance, 1971. The Federal Government in terms of Section 3 of the Imports and Exports (Control) Act, 1950, frames policy, keeping in view the demand and or national requirement of import of different items. The policies of the Government are framed and modified at times with the changed circumstances. These policies are normally framed by the Federal Government after examining its requirements keeping in view the larger interest of public. The policies cannot be framed to benefit individuals nor could such a direction be at all given to the Federal Government to frame its policy in a particular manner, in order to give effect to an assurance which the law does not recognize.
22. The argument of the learned counsel for the petitioner that the Government is estopped from issuing import licences and/or framing policies to import Aluminium Phosphide through different imports is misconceived, in the face of the provisions of the Agricultural Pesticides Ordinance, 1971, and Imports and Exports (Control) Act, 1950. There can be no estoppel against the statute and the Government, in law, is obliged to give effect to its policies, which it frames to benefit the public at large. Moreover, the Government policies cannot be challenged through writ unless it is shown that policy in question has violated a vested right guaranteed under the Constitution.
23. The different letters, which are placed on record by the petitioner in no manner, would come in the way of the respondent No. 1 to allow import of pesticide in order to cater to the needs of the country. We may also observe that, even otherwise, any assurance to the petitioner by way of protection in respect of a pesticide, the raw material of which is being imported from abroad and the same is utilized by the petitioner only to formulate/manufacture the Aluminium Phosphide could not estopped the Federal Government to discharge its obligations under the law nor would it be in the interest of the Government: It is not the case of the petitioner that they manufacture the Aluminium Phosphide by procuring the raw material from the local market. Moreover, the protection to the petitioner, for a pesticide manufactured from the raw material imported from abroad on a higher price, is not in the interest of the public at large. Such a protection amounts to allowing the petitioner to monopolize the business of. Aluminium Phosphide by excluding the importers who, if permitted to market the pesticide, would supply it on a cheaper price.
24. There is another additional factor, which comes in the way of the petitioner. Under the provisions of National Tariff Act, 1990, the petitioner under Section 4(a) can approach the Commission to seek protection for the indigenous industries. A complete procedure is provided under the said National Tariff Commission Act, 1990, which entitles a party to seek protection. Once an alternate, efficacious remedy available has not been availed by the petitioner, this Court, in exercise of its Constitutional jurisdiction would not permit the petitioner to seek such relief through these proceedings. Even on this score alone, this petition, merits dismissal. The cases cited by the learned counsel for the petitioner are distinguishable on facts and are of no help to him.
25. We, for the aforesaid reasons, are not persuaded with the arguments advanced by the learned counsel for petitioner and hold that assurance by the respondent No. 1 through the letters referred to hereinabove having no legal sanction cannot be made a basis to seek relief of protection as claimed by the petitioner. We would, therefore, for all the foregoing reasons, dismiss this petition alongwith all the listed applications.
Constitution Petition No. 0-2263 of 1994
26. This petition has been filed by M/s. Edgro (Pvt.) Ltd. Against the respondents Nos. 1 and 2, which are the official respondents, and respondent No. 3; M/s. A.-G. Pesticides (Pvt.) Ltd. Petitioner in C.P. No. D-796 of 1993, praying for the following reliefs:- "(1) to declare that the assurance/promise given to the respondent No 3 is void and nullity in the eye of law.
(2) to declare that the petitioner is entitled to the Registration Certificate as guaranteed under the said Ordinance and Rule 9-A of the Agricultural Pesticides Ordinance, 1971.
(3) to issue writ of mandamus directing the respondents Nos. 1 and 2 to consider the application for granting registration in accordance with law as expeditiously as possible.
(4) to direct the respondents Nos. 1 and 2 to register the product KING TOXIM (Aluminium Phosphide).
(5) to award costs of this petition to the petitioner; and
(6) to grant such other/additional/further relief or reliefs, order or Orders, command or commands as the Honourable Court may deem or otherwise appropriate in or about the circumstances of the case.
27. It appears from the record that the respondent No. 3 in these proceedings filed a Constitution Petition No. D-796 of 1993, on 29.3.1993, against the respondent No. 1 and by order 29.4.1993 passed by this Court, respondent No. 1 was restricted from registering any pesticide in terms of Section 4 of the Agricultural Pesticides Ordinance, 1971. The said ad-interim order was operative when the petitioner appears to have applied for registration of pesticide under Section 5 of the Agricultural Pesticides Ordinance, 1971, read with Rule 9-A of the Rules framed thereunder, Apparently, on account of the ad-interim orders passed by this Court in the connected Petition No. D-796 of 1993, the respondent No. 1 has declined registration 'compelling the petitioner to file the present petition.
28. In the connected Constitution Petition No. D796 of 1993 the Counsel appearing for the petitioner who happens to be the respondent No. 3 in these proceedings, has conceded that a direction to the Federal Government to decline registration in terms of Section 4 of the Agricultural Pesticides Ordinance, 1.971, cannot be sought by them in their Petition No. D796 of 1993, therefore, this petition is allowed. The respondents Nos. 1 and 2 are directed to register pesticide of the petitioner in terms of the Agricultural Pesticides Ordinance, '1971 and the Rules framed thereunder. Since this petition has direct nexus with the Petition No. D-796 of 1993, therefore, we are disposing of both the petitions with this common judgment, in above terms. .