' IFTIKHAR MUHAMMAD CHAUDHRY, J.--- Above noted appeals and petition for leave to appeal, call in question the judgment dated 25th November, 1998 passed by Peshawar High Court, Peshawar.
2. Precisely stating the facts of the case are that vide Notification No,2125-GKD/Tarrif/T-73, dated 3rd June, 1987 issued by Secretary, WAPDA, Lahore, concession of 50% rebate on electricity tariff was allowed to Industrialists who had established their respective Industries in Gadoon Amazai Industrial Estate (hereinafter referred to as "GAIE"). However, period of 50% rebate was not specified in the notification. In the year 1992, WAPDA imposed surcharge and additional surcharge on the monthly bills of the Industrialists of "GAIE". The imposition of surcharge and additional surcharge was challenged by the Industrialists, and the appellants/petitioner for filing Constitution petitions before the Peshawar High Court. During pendency of the writ petitions before the High Court, the Economic Coordination Committee (hereinafter referred to as "ECC") of the Cabinet vide its decision contained in summary dated 24th August, 1994, fixed the period of 50% rebate in the electricity tariff through letter, dated 23rd February, 1995 for an additional period of five years, to be available up to 28th August, 1999, excluding the Industries mentioned in the negative list.
Subsequently, WAPWA changed the time limit prescribed for 50% rebate up to 2nd June, 1997 from 28th August, 1999. Constitution petitions, challenging the surcharge and additional surcharge; were dismissed by the Peshawar High Court on 2nd October, 1995 and this Court upheld the said order vide judgment, dated 30th July, 1996 Gadoon Textile Mills v. WAPDA 1997 SCM R 641. Later on, appellants/petitioners and few other Industrialists invoked the Constitutional jurisdiction of the Peshawar High Court to challenge the memorandum dated 8th March, 1995 whereby the period prescribed for 50% rebate in the previous notification dated 23rd February, 1995 was reduced to 2nd June, 1995, on the plea that their contention before this Court was not entertained on the ground that it was not agitated before the High Court. The respondent WAPDA contested the petitions, inter alia, on the ground that the matter has been finally decided by this Court, as such it cannot be reopened.
3. It may be noted that in the earlier round of litigation, the appellants/petitioners not only challenged the recovery of surcharge and additional surcharge but they also challenged the withdrawal of 50% concession. However, in the second round of litigation respondents specifically objected to the maintainability of the petitions being barred on this score but apparently the learned High Court did not dilate upon this aspect of the case on the premise that this Court had not entertained the contention on the ground that it was not agitated before the High Court and for such reason despite of recording of the objection, no findings, however, were recorded on it.
4. Learned counsel appearing for appellants/petitioner addressed arguments on the merits of the case, whereas Mr. Makhdoom Ali Khan, learned Attorney-General for Pakistan picked up the thread of his arguments by way of raising objection to the maintainability of the petitions before the High Court, in view of the earlier judgment of this Court in the case of Gadoon Textile Mills (ibid). In order to substantiate his plea, he read out various parts from the majority judgment composed by Ajmal Midn, J. (as he then was) as well as the minority judgment written by Saleem Akhtar, J. (as he then was) and contended that as regards the question of withdrawal of 50% concession, this Court has already delivered unanimous judgment and prayed that on this score alone, appellants/petitioner deserve to be non-suited.
5. Mian Allah Nawaz, learned Advocate Supreme Court for WAPDA strongly subscribed to the view point of Attorney-General for Pakistan and stood by him to seek dismissal of appeals/petition, as the issue has already been decided between the parties, therefore, fresh determination on the same subject is not called for.
6. Learned counsel appearing for the appellants, however, contended that the doctrine of res judicata was never a question of law for decision but its application depends upon pleadings, when opportunity to counter the case of other side, on this score, by producing evidence had been provided and not otherwise.
7. We have heard the learned counsel for parties at length and carefully gone through the available record as well as the judgment in the case of Gadoon Textile Mills (ibid). The respondents' objected seriously to the maintainability of the writ petitions filed by the petitioners, on the premises that the issue had been finally heard and decided, in view of the following preliminary objections in the parawise comments filed before the High Court:--
(1) That the petitioner has got no locus standi to file the instant writ petition.
(2) That the matter has been finally decided by the august Supreme Court of Pakistan and as such it cannot be registered.
(3) That the writ petition is hit by Order II, rule 2, C.P.C.
(4) That the matter suffers from laches.
(5) That disputed questions of fact cannot be gone into in writ petition.
(6) That the petitioner is estopped by his own conduct to file the instant writ petition.
(7) That writ petition is not competent.
8. Learned High Court had also registered the question, raised in this behalf, on behalf of the respondents in the impugned judgment but unfortunately no verdict was returned on this score. Be that as it may now foremost question for consideration would be as to whether the writ petitions filed by the appellants/petitioners were maintainable in view of the principle of res judicata and as to what would be the effect of lack of pronouncement of the judgment on this aspect of the case by the High Court.
' To answer the above proposition of law it would be appropriate to go through, in depth the judgment in Gadoon Textile Mills (ibid). It is to be noted that in the judgment, the facts, giving rise to institute proceedings before the Supreme Court, were prominently highlighted with reference to background of the case, including the recommendations of the E.C.C., who in its meeting, held on 24th August, 1994, recommended that 50% rebate on electricity should be continued for a further period of five years, except with regard to the Industries included in the negative list. Paras.5 and 6 of the impugned judgment, being relevant, are reproduced hereinbelow to substantiate this aspect of the case:-- "(5) The above facts are common in all the aforementioned appeals and petitions for leave.
However, in the writ petitions, which were heard by the Peshawar High Court, besides challenging the above levy of surcharge and additional surcharge withdrawal of 50% reduction in electricity tariff in respect of certain industries established in GAIE was also impugned. It may be pertinent to give brief facts in respect thereof. It appears that on 6-10-1986 the Prime Minister of Pakistan presided over a meeting regarding enforcement of ban on the cultivation of opium, poppy and the establishment of an industrial estate in Gadoon Amazai. The following incentives were offered to the prospective entrepreneurs:--
(i) exemption from import duty, Iqra surcharge on machinery and raw materials;
(ii) ten years tax holiday;
(iii) provision of loans for establishment and operation of the Units from the Financial Institutions and Banks at rates not exceeding 3 per cent. Mark-up;
(iv) at least 50 per cent. Reduction in electricity tariff."
Ii further seems that WAPDA initially resisted the grant of 50% reduction in the electricity tariff for the above new proposed Industrial estate on account of financial constraints, but through office letter, dated 3-6-1987, in exercise of the powers conferred on it by subsection (1) of section 13 read with section 12 and subsection (2) of section 25 of the Act, it notified that all industrial units established within the Industrial Estate in the Gadoon Amazai area of N.-W.F.P. Would be charged at 50% of normal applicable industrial tariffs of WAPDA's Schedule of tariff enforced under which the supply was allowed. It was also stated that this would also include fuel adjustment surcharge. It was further clarified that the other rules, procedures and Abridged Conditions Of supply issued from time to time and other conditions of supply contained in the Schedule of tariffs shall remain in force until amended, altered, changed, omitted or substituted but it. It is the case of concerned appellants/petitioners that pursuant to the above incentives offered to them, they established their factories in GAIE and continued to enjoy the benefits of the above concession till the time the same was withdrawn. It appears that WAPDA submitted a summary for ECC of the Cabinet in January, 1994, highlighting the losses which it was suffering on account of above 50% concession, namely Rupees 120 million per year and made following recommendations:--
7. Recommendations.
' It is, therefore, recommended that:-- ' The energy-intensive industry like steel furnaces, steel re-rolling mills and plastic industry etc. Be put on negative list for all times to come as the current production of these industries is far in excess of the requirement.
' Since steel furnace usually recovers its total investment within the first two to three years of its operation, the subsidy to the existing steel furnaces may be withdrawn on completion of their operation of five years.
' Concession of 50% may be limited to the first 15% of the monthly bill of steel industry (i,e, Energy Charges. MDI FAS, Low Power Factor Penalty). The concession may be reduced to 25% for the next 10% of the consumption and the concession may be eliminated altogether for the balance.
' The revenue loss on account of the provision of this subsidy to consumers may be compensated to WAPDA by adjusting the revenue so lost, against the next profit on hydel-power generation being paid to Government of N.-W.F.P.
' Since the matter was deferred in the ECC meeting held on 24-1-1994, inter alia another summary dated 24-8-1994 was prepared for consideration of ECC whereupon the following decision was taken by the ECC. `The Economic Coordination Committee of the Cabinet considered the Summary dated 24th August, 1994 submitted by the Revenue Division and decided as under:--
(i) Industrialists of Gadoon Amazai should be allowed 25% concession on the livable duties for a period of five years at import stage in respect of existing units and for units coming into production till 30th June, 1995. The concession should apply to each imported consignment and up to a maximum of their assessed annual requirement;
(ii) 50% rebate on electricity should be continued for a further period of five years except to the industries included in the negative list of industries; and
(iii) the concessions as in (i) and (ii) above should not apply to the existing or future units in the industries on the negative list;
(iv) a Committee under the convener ship of Secretary, Finance and comprising Secretaries Petroleum and Natural Resources, Revenue Division and Water and Power Division as its members should finalize the negative list and monitor operation of the concession etc. ' It seems that inter alia appellants' factories in Civil Appeals Nos.12, 22, 25, 29 to 33, 37, 56, 60 to 72 and 73 of 1996 have been included in the above negative list and, therefore, they have been denied the aforesaid 50% concession.
(6) It may also be pertinent to mention that at the time of granting above concession no period was specified, but ECC resolved that the above concession would be available up to 28-8-1999 excluding the consumers mentioned in the negative list. This decision was conveyed by WAPDA through its letter dated 23-2-1995. However, this terminus ad quem was reduced to 2-6-1997 through WAPDA's letter dated 8-3-1995. . "
' It is most important to note that Mr. Abdul Hafeez Pirzada, learned senior Advocate Supreme Court appearing in these cases had also appeared at that time and while arguing the case, he specifically agitated that withdrawal of above 50% concession was hit by the doctrine of promissory estoppel, and, therefore, was illegal. The argument raised by him in this behalf was fully endorsed by Mr. Abdul Latif Yousafzai, who is also appearing in the instant cases as well. Mr. Fakhr- ud-Din G. Ibrahim senior Advocate Supreme Court who appeared on behalf of WAPDA in order to meet the contention of the learned counsel for appellants contended as under:--
(i) that the withdrawal of 50% concession in the electricity charges in respect of certain industries granted on 3-6-1987, which were to be established in GAIE does not suffer from any legal infirmity nor it is hit by the doctrine of promissory estoppel;
(ii) that the above concession of 50% in the electricity charges was granted in respect of tariff obtaining on 3-6-1987 and, therefore, certain industries of GAIE, which are still enjoying above concession have no right to claim above concession in respect of surcharge and additional surcharge;
(iii) that since the concession of 50% in the electricity charges granted on 3-6-1987 was not for a specified period, it could have been withdrawn at any time or any case after reasonable notice, which was in fact given in the case in hand.
' The above arguments of the learned counsel have been dealt with at length in the judgment Gadoon Textile Mills (ibid) from both the sides and conclusion was drawn in the following para., in pursuance whereof relief was declined to the appellants/petitioner:- "(70) As regards the reduction of the period of concession from 28-8-1990 to 2-6-1997, it has been pointed out by Mr. Fakhruddin G. Ebrahim that this was not assailed before the High Court. Since originally no period was specified for the above concession, the withdrawal of the same could have been effected by giving reasonable notice. In the present case, the reduced period for the withdrawal of above concession, namely up to 2-6-1997 was conveyed, to the consumers through WAPDA's letter dated 23-2-1995 "
9. It is equally important to note that Saleem Akhtar, J. (as he then was) disssented with the other learned members of the Bench on the question of levy of surcharge an additional surcharge but to the extent of withdrawal of concession of 50% electricity charges, he separately noted the facts as under:-- "(3) The above documents produced by the appellants demonstrate that from the very beginning i,e, the year 1987 till 1990 the Federal Government, the Provincial Governments and the WAPDA were granting concessions in order to attract persons to make investments and develop the industrial area. The appellants established their industries based on the representation made by the Government and their agencies which provided employment to the local population. It seems that certain concessions were withdrawn which were challenged by the appellants which is not relevant for the present controversy and therefore, need not to be stated here in detail. However, in compliance with the decision of Economic Coordination Committee of the Cabinet (ECC) dated 29-8-1994 WAPDA issued a Circular dated 23-2-1995 notifying its officers that all the existing or future units of industries included in the negative list with the exception of 20 industrial units established before the formulation of the list shall, with immediate effect, cease to have fifty per cent concession in the electricity bills. It further provided that the 50% concession to industries excluded from the negative list shall be available up to 28-8-1999. Again another Circular dated 8- 3-1995 WAPDA in compliance with the decision of ECC, dated 3-1-1995 issued a memo. Dated 8-3- 1995 by which 50% concession on electricity bills in respect of industries in the negative list with the exception of 20 industries established before the formulation of the negative list was withdrawn.
50% concession to industries not included in the negative list was to continue up to 2-6-1997. It further provided that up to 2-6-1997, 20 existing units of metal industry shall be charged according to the latest tariff or any revised tariff and a credit of Ps.49 per KWH worked out on the basis of electricity rate of 1989 shall be given. The following industries from Gadoon Amazai Industrial Estate
(GAIE) as approved by ECC were included in the negative list:--
(A) edible products, i,e, Vegetable, Ghee/cooking oil manufacturing units;
(B) Plastic Products:--
(i) Plastic Film. (ii) Plastic Bags. (iii) Rigid/flexible pipes. (iv) Plastic bottles. (v) Adhesive tapes, manufactured from coated film. (vi) Plastic utensils all sorts and plastic crockery. (vii) Poly- urethane foam and products made thereof. (viii) Ply-propylene woven bags.
(C) Chemical/dye-stuff:--
(i) Caustic Soda. (ii) Manufacture where only mixing or repacking is involved.
(D) Metals:--
(i) Furnaces and rolling/re-rolling mills. (ii) Galvanization units. (iii) Corrugation units. (iv) Metal containers and utensils, all sorts. The appellants challenged these actions of the respondents but failed."
The controversy arising out of above facts was summarized by his Lordship (as he then was) as follows:-- "(57) .... However, one aspect which requires consideration is that by letter dated 22-3-1995 50% concession given to industries excluded from the negative list was to continue up to 28-8-1999. By a subsequent letter, dated 8-3-1995 concession of 50% of electricity tariff in respect of industries not included in the negative list was ordered to be curtailed to 2-6-1997. This decision was taken hardly within two weeks of issuing the negative list. Nothing has been shown that within a period of two weeks conditions and circumstances had arisen which compelled WAPDA to curtail the period.
This may be unreasonable but Mr. Farkhurddin G. Ebrahim the learned Senior Advocate Supreme Court has pointed out that as the appellants were notified in March, 1995 limiting the period of concession to 2-6-1997, it was a sufficient notice and no objection can be taken on this ground. It is well-settled that concession can be withdrawn provided requirement of law or complied with.
Reference can be made to Mian Nazir Sons Industries Ltd. And another v. Government of Pakistan and others 1992 SCM R 883. The respondents have withdrawn concession on reasonable ground and have given notice of such withdrawal well ahead of the cut off date, which is not arbitrary or unreasonable. The withdrawal therefore, cannot be challenged on this plea as well."
10. Learned counsel appearing for appellants/petitioner emphasized that the majority of the learned members of the Bench declined to grant relief because they had not agitated this point before the High Court, therefore, the minority opinion recorded by Saleem Akhtar, J. (as he then was) cannot be considered to be judgment of this Court.
11. We are not inclined to agree with the appellants submission because a careful perusal of the concluding para. From the majority judgment, reproduced hereinabove, clearly indicates that relief was declined to the appellants/petitioner after taking into consideration at length the question whether withdrawal of 50% concession was hit by the principle of promissory estoppel and was, therefore, illegal, and formed opinion, as evident from the judgment, in view of case-law discussed therein, that the introduction of the above concession, without being compensated for the same by N.-W.F.P. Government, would continue to adversely affect the other consumers and simultaneously interference in this behalf was not deemed fit in exercise of discretionary jurisdiction for an added reason that this point was not agitated before the High Court.
12.
12. As has been pointed out hereinabove that there was difference of opinion between majority of the members of the Bench and Saleem Akhtar, J. (as he then was), who had recorded dissenting note regarding the issue of surcharge and additional surcharge but so far as withdrawal of 50% concession by WAPDA is concerned, there was no difference of opinion, as such it would be safely concluded that learned members of the Bench were unanimous on the point that withdrawal of 50% concession was not hit by the doctrine of promissory estoppel, therefore, it was not illegal.
Since this question has already been dealt with in the earlier judgment, therefore, we are of the considered opinion that the issue under discussion, between the parties, has been decided in the previous round of litigation, therefore, in view of the provisions of explanation IV to section 11 of C.P.C., it can be held that the same issue between the parties was finally heard and decided, thus, the present proceedings, being barred by the principle of constructive res judicata, are not open for further discussion. Consequently, we are not persuaded to deviate from the view already expressed in the earlier judgment in the case of Gadoon Textile Mills (ibid), as enunciated by this Court in Ardeshir Cowasjee v. Karachi Building Control Authority 1999 SCM R 2883. Besides it, since this question was not only available to appellants but actually argued by the learned counsel for the appellants/petitioner at that time, notwithstanding the fact as to whether it was raised or otherwise before the High Court, therefore, it would be found that since the question was also available to them, which they virtually raised, and now in view of the provisions of explanation IV to section 11, C.P.C., it can be held that instant proceedings are barred by the principle of res judicata.
Reliance in this behalf may be placed on Amanul Mulk v. Ghafoor-ur-Rehman 1997 SCM R 1796.
Relevant para. Therefrom reads as under thus:-- "(6) We have not been impressed by this submission of the learned counsel. The learned Judge in the High Court has held that the suit, out of which, this petition has arisen, was hit by the principle of constructive res judicata. This doctrine is embodied in Explanation IV to section 11, C.P.C. And is an essential constituent of doctrine of res judicata. It is because of principle of res judicata that the doctrine of res juidicata is rendered fully effective. The aim of the doctrine is to compel both the parties to the suit to raise before the Court in support of their contentions all the grounds of attack and defence available to them. By force of this doctrine, the parties have to bring their whole case to the Court and cannot reserve for the purpose of a second suit grounds available to them in support of their case. The rationale behind the constructive res judicata is that if the parties have had an opportunity of asserting a ground in support of their claim or defence in a former suit and have not done so, they shall be deemed to have raised such grounds in the former suit and it shall be further deemed that these grounds had been heard and decided as if these matters had been actually in issue.
As such, such parties shall be precluded from raising these grounds in a subsequent suit. Such matters will by virtue of this legal fiction be construed to be res judicata "
13. Now the next question is that what would be the effect if the learned Peshawar High Court did not decide the question of res judicata? In our considered opinion although the question of res judicata was specifically raised but somehow no decision was given on it but it hardly makes any difference in view of the fact that final judgment in this behalf had already been rendered by this Court, as noted hereinabove, therefore, appellants/petitioner, are legally estopped from raising this question.
' Thus, for the foregoing reasons, appeals/petition are dismissed with costs.
Appeals/.