1. C.M.A.No,8947 of 2008 ' NADEEM AZHAR SIDDIQI, J. ---By this application the plaintiff has prayed that the defendant No,1 may be directed to issue NOC to the plaintiff for import of empty cases for use in the manufacture of cartridges of non-prohibited bore.
2. ' The facts necessary for disposal of the application and as pleaded in the plaint are that the plaintiff has been manufacturing non-prohibited bore shot-gun cartridges and beside local supplies also exporting the same and earning foreign exchange. In 2005 the defendant vide letter dated 1-1-2005 granted NOC for import of parts of ammunition of non-prohibited bore on one times basis. The plaintiff again applied for NOC on 8-9-2006 for the import of empty cases for non- prohibited bore shot-gun car ridges. The defendant No,1 inspite of reminders has failed to response the request and the plaintiff was constrained to clear the consignment under D.T.R.E. Scheme on payment of demurrage/storage charges.
3. ' The defendant No,1 has filed parawise comments and submits that the plaintiff is entitled to import raw material and components for manufacturing in accordance with the trade policy in vogue from time to time. In para. 16 of the comments it was stated that as per para 60 of Appendix-B of I.P.O. Parts and accessories of arms and ammunition of non-prohibited bore are restricted items and can be imported, irrespective of import status, by export oriented units sanctioned as such for manufacturing of arms and ammunition meant for 100% export.
4. ' The defendant No,2 has also filed its written statement and counter-affidavit. In the written- statement the defendant No,2 submits that the issue relates to importability of arms and ammunition and since the goods have not yet imported no cause of action accrued against defendant No,2.
5. ' The learned counsel for the plaintiff submits that the plaintiff can import raw-material for manufacture of non-prohibition bore shotgun cartridges without NOC from defendant No,
1. He further submits that import policy order does not prohibit the import of empty shells and even if the same are prohibited the defendant under import policy order is authorised to relax the prohibition and restrictions, which powers have not been properly exercised by defendant No,1 keeping in view the advancement of the purpose of import policy order. He further submits that the public functionaries have to discharge their public duties reasonably, fairly, justly and impartially. The learned counsel has relied upon the following reported cases:--
(1) M/s. Airport Support Services v. The Airport Manager Quaid-eAzam International Airport Karachi and others (1998 SCMR 2268).
(2) Abid Hassan and others v. P.I.A.C. And others (2005 SCMR 25)
(3) Chairman Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Ltd, Rawalpindi (PLD 1991 SC 14)
(4) Shaukat Ali v. Secretary, Industries and Mineral Development Government of Punjab, Lahore and others (1995 MLD 1232).
(5) Shaheen Construction Co. Through Managing Partner/Attorney v. Province of Sindh through Chief Secretary and others (2000 MLD 1660).
(6) M/s. Mirpurkhas Sugar Mills Ltd. v. Consolidated Sugar Mills Ltd. And others (PLD 1987 Karachi 225).
6. ' Mrs. Sofia Saeed- Shah, learned Standing Counsel, submits that the discretion vested with the defendant No,1 has been properly exercised and the relaxation has been refused for valid reasons and that fundamental rights guaranteed under the Constitution cannot be enforced by filing a suit.
7. She further submits that in terms of import policy order ammunition and parts of ammunition, except ammunition for weapons of non-prohibited bore falls in Banned Items (Negative List) and cannot be imported.
8. ' The officer present submits that the spare parts can only be imported by the manufacturer of arms and ammunition for export purpose only. He further submits that in 2005 the plaintiff was not ' entitled to import empty cartridges under the import policy but one time permission was granted as a special case to facilitate the plaintiff.
9. ' Mr. Khalid Jawad Khan in reply submits that under I.P.O. The defendant No,1 has the power to relax the ban if any and the defendant No,1 has to assign cogent reason for non-issuing the N.O.C. And refer to Clause 24-A of General Clauses Act. He submits that the reason assigned by defendant No,1 for refusing N.O.C. Is not cogent and against the sprit of I.P.O. He further submits that defendant No,1 has allowed other commercial importer to import N.P.B. Arms and ammunition and placed on record letter dated 14-11-2007 issued by defendant No,1 to Malik Muhammad Akber, Arms and Ammunition Dealer, for enhancement of import ceiling for NPB. He further submits that when the cartridges can be imported the empty cases of cartridges can also be imported and no prejudice will be caused to the Government and the public exchequer.
10. ' I have heard the learned counsel for the parties and perused the record.
11. ' The plaintiff intends to, import empty shells for manufacturing cartridges for use in shot-gun for non-prohibitory bore. As per the import policy order ammunition and parts of ammunition except ammunition for weapons of non-prohibited bore falls under the Banned Items (Negative List).
12. However, the Federal Government is authorised to relax the prohibition and restriction. The relevant provision of the import policy order is reproduced below:-- "19. Relaxation of prohibition and restrictions.--The Federal Government may, for reasons to be recorded allow import in relaxation of any prohibition or restriction under this order.
(2) The Federal Government may issue import authorization in respect of any item for which relaxation is made under sub-paragraph (1) or for which import authorization is required under this order.
(3) The Federal Government shall issue the aforesaid condonation or authorization on its letter- head, consecutively numbered and duly embossed."
13. From the above it appears that powers were given to Federal Government to allow import in relaxation of any prohibition or restriction under I.P.O.. Federal Government has to assign reasons for allowing the relaxation. In case the Federal Government refused to allow import in relaxation of any prohibition or restriction reasons have to be given which are just and reasonable and not arbitrary. The reasons for not allowing the import in relaxation must be cogent and for the advancement of I.P.O. Mrs. Sofia Saeed Shah appears to be correct that under exception only ammunition can be imported and not the spare-parts but at the same time it has to be seen that when the cartridges can be imported under the exception the empty shells being the part of cartridges can also be imported under the exceptions and above all the powers were given to the Federal Government to relax any prohibition and restriction. The reason assigned by the defendant No,1 is that one time permission was granted and no further permission can be granted appears to be absurd as when no such restriction was imposed by I.P.O. The officers exercising powers under I.P.O. Cannot impose such restrictions and each request for relaxation has to be examined independently on its own merits. The reported judgments cited by the learned counsel for the plaintiff provides guidance for exercising of discretion by the public functionaries. The learned counsel for the plaintiff refers to a portion of an Indian judgment quoted in the case of Shaukat Ali v. Secretary, Industries and Mineral Development, Government of Punjab Lahore and others (1995 MLD 123) which reads as under:-- "Some interests in Government largess, formerly regarded as privileges, have been recognized as rights while others have been given legal protection not only by forging procedural safeguards but also by confining/structuring and checking Government discretion in the matter bf grant of such largess. The discretion of the Government has been held to be not unlimited in that the Government cannot give or withhold largess in its arbitrary discretion or at its sweet will. It is insisted, as pointed out by professor Reich in an especially stimulating article on "The New Property" in 73 Yale Law Journal 733. "that Government action be passed on standards" that are not arbitrary or unauthorized". The Government cannot be permitted to say that it will give jobs or enter into contracts or issue quotas or licences only in favour of those having gray hair or belonging to a particular political party or professing a particular religious faith. The Government is still the Government when it acts in the matter of granting largess and it cannot act . Arbitrarily. It does not stand in the same position as a private individual."
14. ' The learned counsel for the plaintiff also refers to another portion from an Indian judgment quoted in the above cited case which reads as under:-- "The power or discretion of the Government in the matter of grant of largess including award of jobs, contracts, quotas, licences etc., must be confined and structured by rational, relevant and non-discriminatory standard or norm and if the Government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory."
15. ' The learned counsel for the plaintiff submits that the Government has to act in public interest. It cannot act arbitrarily or without cogent reason and if it does so, its action would be liable to be invalidated. The discretion vested in the Federal Government is to be exercised reasonably, fairly, justly and free from any taint of mala fides and without element of discrimination and advancement of the purpose of enactment/I.P.O. And more important fact is that the order/direction would reflect cogent reasons, which is lacking. The public functionaries have no unfettered powers in exercise of'discretion and it cannot pick and choose and the action should be based on reasonable and rational procedure and the discretion must be exercised judiciously and not arbitrarily on sound principle of justice and fairness. The contention of the learned standing counsel that the fundamental rights cannot be enforced by filing of suit has no force. In the reported case of M/sMirpurkhas Sugar Mills Ltd. v Consolidated Sugar Mills Ltd. And others (PLD 1987 Karachi 225) this Court has held that "challenge to any law on the ground that it is inconsistent with the fundamental rights conferred by Constitution can validly be raised in a civil suit". In another reported case of M/s. Arif Builders and Developers v. Government of Pakistan and others (PLD 1997 Karachi 627) this Court has held that "there seems no reason why a Court seized of a cause cannot take into consideration and enforce the fundamental rights embodies in the Constitution, if its contravention is in issue in such proceedings".
16. From the above, the plaintiff has made out a prima facie case and that balance of convenience is also in favour of the plaintiff and in case the NOC/relaxation is not granted the plaintiff shall suffer irreparable losses and injuries which cannot be calculated in terms of money.
17. ' In view of the above the application is allowed as prayed. The defendant No,1 is directed to issue required NOC/relaxation to the plaintiff within fifteen days from the receipt of this order.
18. ' Before parting with this order I deem it fit to direct the plaintiff to import the machinery by the end of March 2008 as stated in para. 8 of the plaint.