Yahya Afridi, J.--Khalid Mehmood has for the third time, through the instant petition, invoked the constitutional jurisdiction of this Court, as he is now aggrieved of the outcome of the directions rendered by this Court in W.P. No. 327/05 vide judgment dated 3.2.2009.
2. The directions given were to the following effect: "Therefore, Respondent No. 1 is directed to decide the representation of the petitioner positively, within a period of one month after hearing both the parties but strictly according to law, rules and practice and procedure of rules of propriety".
In compliance to the aforementioned directions, the respondents decided the representation of the present petitioner in the following terms: "Compliance report: In compliance with the order of the Hon'ble Peshawar High Court; Peshawar dated 3.2.2005 in W.P.
No. 327/2005 titled Khalid Mehmood Vs. Government of 1VWFP, through Chief Secretary, a meeting was convened in the office of the Establishment Secretary on 24.2.2009 on the direction of the Chief Secretary, N.W.F.P. to scrutinized the representation of the petitioner submitted to the Government in the subject case. The parties had been invited for their hearing as directed. Beside the petitioner Khalid Mehmood his counsel Mr.Aamir Javed, Advocate was also present. They were heard at length and the record was also thoroughly consulted.
2. The representation was duly considered impartially. It was found that the forest duty at the rate of Rs. 90/- per Cft has been recovered in good faith in accordance with the government policy invouge, without any discrimination whatsoever. Resultantly, the representation of the petitioner after due consideration has been rejected by the competent authority.
3. Compliance report is submitted accordingly. Mian Sahib Jan Secretary Establishment 27th February 2009."
3. The petitioner has impugned the aforementioned decision of the provincial government and this time prayed for the following:--
(i) Declare the impugned policy of Respondent No. 1 dated 16.10.2003 is without, lawful authority and of no legal effect.
(ii)Declare the impugned policy as unreasonable, discriminatory and illegal to the extent of imposition of forest duty at the rate of Rs. 90/- per Cft.
(iii)Declare that the notification dated 5.5.2005 as illegal and ultra vires to the constitution and the fundamental rights of the petitioner.
(iv)Declare that the petitioner is was liable to pay similar amount of Rs. 40 per Cft as forest duty on importation of timber from Afghanistan through Bin Shahi (Dir) root.
(v)Declare respondent to refund the forest duty paid/extracted from the petitioner-in excess of Rs. 40 per Cft and the amount of one million held as security by the respondents."
4. The matter before us this time relates to the enhancement in the rate of duty on the import of timber from Afghanistan via Bin Shahi vide notification dated 16.2.2005, whereby the rate of duty on the said timber was enhanced from Rs. 40/- per cubic foot ("Cft") to Rs. 90/-Cft, with retrospective effect from 10.1.2004 ("Notification") under Section 56 of North-West Frontier Province Forest Ordinance, 2002 ("Ordinance").
For convenience, the Notification is reproduced as under:-- "Notification Dated 16th February, 2005.
No. SO(Tech) ED/V-544/2004/KC/1203-28.--In exercise of the Powers conferred by Section 56 of the North-West Frontier Province Forest Ordinance, 2002 (NWFP Ord. No. XIX of 2002), Government of the North-West Frontier Province is pleased to direct that in this Department's Notification No. SOFT- I (FFD)/V-221/73/4146-51, dated 12.7.1994 & No. SOFTI(FFW)/V-105/99/7640-49, dated 18.9.1999, the following sub-item is added, in schedule-I after serial No. I (a) namely:-- {{TABLE}} Description of timber/firewood And Other forest produceRate of duty b. Coniferous timber imported/ brought from Afghanistan via Bin Shahi.Rs. 90/- per cubic foot.
Forest Development charges at the rates given below :- Rs.
10/- per Cft on deodar; Rs.
08/- per Cft on Kail; and Rs.
06/- per Cft on Fir/spruce. {{TABLE}}
2. This amendment takes effect with effect from 10.01.2004. Secretary to Govt: of the North-West Frontier Province Environment Department.
5. Mr. Amir Javed, Advocate, the learned counsel for the petitioner, vehemently argued that the petitioner does not challenge the authority of the provincial government to enhance the rate of duty on timber imported from Afghanistan via Bin Shahi under the Ordinance but he was agitated by the retrospectively given to the Notification; that the Notification is "subordinate legislation" or "delegated legislation", which cannot be given retrospective effect as there is no clear authority provided for the same in the parent statute; and that the duty paid by the petitioner on the enhanced rate on the timber imported between 1.10.2004 and 5.05.2005 is to be returned to the petitioner as the same was illegally extracted from the petitioner. In this regard the learned counsel relied upon Chief Administrator Auqaf Vs. Mst.Amina Bibi (2008 SCMR 1717), Mst. Umatullah Vs. Province of Sindh (PLD 2010 Karachi, 236), Muhammad Ashiq Vs. Chief Administrator of Auqaf (PLD 1977 S.C. 639), Muhammad Suleman Vs. Abdul Ghani (PLD 1978 SC. 190), Mian. Musarat Shah Vs. Government of West Pakistan (PLD 1974 Peshawar 18), Imtiaz Ahmad Vs. Punjab Public Service Commission (PLD 2006 SC 472), Commissioner of Sales Tax Vs. M/s. Kruddsons Ltd. (PLD 74 SC 180), ANOUD Power Generation Ltd. Vs. Federation of Pakistan (PLD 2001 SC0340), M/s. Army Welfare Sugar Mills Ltd. Vs. Federation of Pakistan (1992 SCMR 1652), M/s. Pfizer Laboratories Ltd. Vs. Federation of Pakistan (PLD 1998 SC 64).
6. Mr. Lal Jan Khattak, the learned Additional Advocate General, representing the provincial government, aggressively argued that the petitioner was "estopped" by his conduct to agitate the present issue before this Court at this belated stage; that the petitioner had accepted the terms of the Notification, and had also signed a written undertaking in that behalf ("Undertaking), hence he could not challenge it this stage; that the payment had been made by the petitioner in compliance with the Undertaking; and that huge amount of public money was involved, which had lawfully been paid and accepted by the respondent department; and that recovery of money could not be demanded through a constitutional petition.
6. The Valuable arguments of the learned counsel for the parties heard and the available record of the case thoroughly considered.
7. To start with, reviewing the parent statute, we note that the Notification derives its force from Section 56 of the Ordinance, which reads as follows :-- "56. Duty and forest development charges on timber and other forest produce.--(1) Government may, by notification levy a duty or forest development charges, or both, in such manner at such places and at such rates as may be prescribed on any timber or other forest produce which is.
(a)produced in the Province, or (b)brought from any place outside the Province, or is transported from or through any place within the Province, or from beyond the frontier or elsewhere.
(2)In every case in which such duty or forest development charges, or both, are directed to be levied ad valorem, Government may fix, by notification, the value on which such duty or forest development charges, or both, shall be assessed.
(3)All duties on timber or other forest produce listed in Schedule-I and all forest development charges, or both, which at the time when this Ordinance comes into force, are levied therein under the authority of Government, shall be deemed to have been duly levied under the provisions of this Ordinance: Provided that the fees and forest development charges so levied shall not exceeding any case a fair estimate of twenty five percent of the average market price realizable on the sales.
(4)The amount realized from duties and forest development charges shall be credited to the Forest Development Fund."
8. Reading Section 56 of the Ordinance, reveals that the legislature has delegated the authority to the provincial government to levy a duty, inter alia, on import of timber into the province. This is "delegated" or "subordinate" legislation.
The concept of "delegated legislation", has gained momentum with the mushroom population growth, the dire need for "good governance" and the ultimate aim to cater for the essential basis needs of every segment of the society to bolster and fulfill the attributes of a "Islamic welfare state".
Surely, the present day parliament cannot possibly legislate on each and every detail of the vast legislative needs, hence the "delegated legislation", whereby the legislature through legislation delegates to the government or any other specified authority to legislate through rules, regulations, orders, instructions or any other instrument in conformity with the dictates of the parent statute.
What is important to note is that "delegated legislation" can surely be challenged on the grounds of being excessive, beyond the authority of the parent statute, further sub-delegating what was delegated by the parent statute and finally that the same was not properly made public to all.
9. As far as levying duties through "delegated legislation", it is by now settled law that the same is not ultra vires. What is to be considered is that the authority of delegating the said power to levy the duty has to be clear, unambiguous and precisely rendered to a particular authority. However, modern legislation saddles the said power to legislate with the conditions or guidelines of rendering the same. We note that the delegated authority to levy duty provided under Section 56(1) of the Ordinance is "conditional" upon the rules to be framed on the manner, the place and the rates of the duty. As the petitioner has neither objected to nor raised any protest against the vires of the Notification having not fulfilled the said conditions provided under Section 56(1) of the Ordinance. Hence, it would not be proper on our part to comment on the same in the present case.
We leave it to be resolved in a subsequent appropriate case.
10. Now, moving on to the retrospectivity of the Notification. All legislation, more so "delegated legislation", are to be prospective in its effect and applicability unless the same have been expressed to be otherwise and that too with the backing of the parent statute. In the present case, the Ordinance, being the parent statute, does not expressly delegate the authority to the provincial government to levy duty with retrospective effect. Hence, when the parent statute does not provide and expressly delegate such authority to the provincial government to levy duties, retrospectively, the same cannot be so exercised. "Delegatee" cannot go beyond the power delegated by the "
Delegator".
11.In this regard, guidance can also be sought from the provisions contained in West Pakistan General Clauses Act, 1956 ("Act"). The purpose of the Act is to shorten the language used in the provincial statutes and for the application of the provisions contained therein to all provincial statutes. Section 3 of the Act provides; "Coming into operation of enactments.--Where any West Pakistan Act is not expressed to come into operation on a particular day, then it shall come into operation of published in the official gazette and in every such act the date of the first publication thereof shall be printed either above or below the title of the act and shall form part of every act. ii. Government shall, by notification in the official gazette or by any other means available, ensure void decimation of all circulars rules, regulations and instructions having the effect of law."
In addition to the said provision, Section 28 of the Act also provides that: "Application to Ordinances and regulations.--The provisions of this act shall apply in relktion to any ordinance promulgated by the.governor as they apply in relation to acts made by the provincial legislature of the West Pakistan."
The term "notification", has been defined in Section 2 (41) of the Act, which states: "Notification shall mean a notification published under proper authority in the official gazette."
As the term "Notification" has not been defined in the Ordinance, the provisions of the Act would have to be restored to and applied. Accordingly, the Notification in the Ordinance would also have to be published in the Official Gazette before the same can gain legal sanction and lawful effect.
12.View from another angle, it is by now a well settled that in case an instrument of "delegated legislation", such as a Notification, impairs or disturbs or adversely effects or reduces any benefit or imposes a liability or any other way effects the interest or rights of a person, it would always be prospective in operation and not retrospective.
13.Tracing the judicial trend, we note that initially there was a defined inclination towards allowing retrospectively to "delegated legislation". In Burma Oil Company Ltd. Case (PLD 1961 SC 452), the august Supreme Court of Pakistan held that a notification is to operate from the date of its promulgation unless it had been expressly or by necessary intendment made to take effect retrospectively. This trend of judicial interpretation of the operation of a notification was drastically changed when in Commissioner of Sales Tax Karachi Vs. M/s. Kruddson Ltd. (PLD 1974 SC 180), the august Supreme Court held that notification cannot operate retrospectively to impair existing right or to nullify the effect of final judgment, even if the notification be expressly so designed.
Thereafter, the trend has progressively been to ensure that any notification in the form of delegated legislation cannot be made to operate retrospectively, so as to impair an existing or vested right or to impose new liability or obligation, even if the said notification so expressly provides.
The august Supreme Court of Pakistan in. Anoud Power Generation Ltd. Vs. Federation of Pakistan (PLD 2001 SC 340) while dilating upon the scope and legal effect of a notification under a statute has clearly settled the issue by holding that: The conclusion so drawn by the learned High Court is entirely in consonance with the law laid down by this Court from time to time that a notification cannot operate retrospectively and benefits and advantage if already accrued in favour of a party during subsistence of a notification shall be available to it until a notification is amended or ascended.
At this juncture another important aspect of the retrospectivity of the notification may also be noted that if the notification has been used for the benefit of the subject then it can be made operative retrospectively but if its operation is to the disadvantage of a party who is subject of the notification then it would operate prospectively."
In a more recent judgment the august Supreme Court of Pakistan in Chief Administrator Auqaf Vs. Mst. Arnim Bibi (2008 SCMR 1717) has further elaborated the view point taken in the aforementioned judgment by holding that:-- "It has been further asserted that legislation never intended to deprive the citizen of valuable rights by merely printing a notification and not giving it proper publication. Notification, after printing, must be passed on to sales depot and displayed prominently at suitable public places and it has been further asserted that the notification under Section 7 must not only be published and gizzard but must also be served on person in possession of property declared as Waqf. In another case it was held that mere insertion in official gazette of the notification is not enough it should be published in a manner usually adopted for publication of those documents It would be important to note that in a recent judgment of the Sindh High Court in Mst. Umatullah Vs. The Province of Sindh (PLD 2010 Karachi 236) the learned Court referring the provisions of the Sindh General Clauses Act, 1956 held that-- "There is wisdom in enacting Sections 2(41) and 19-A of Sindh General. Clauses Act, 1956 that necessitates publication, in the official gazette of subordinate legislation instruments effecting rights duties and obligations in any manner of any class of persons. The publication of subordinate legislation instrument in the official gazette would, as held in the case of Saghir Ahmad Vs. Province of Punjab (PLD 2004 SC 261) inspire public confidence in the public decision and promote the system of good governance and transparency. Merely issuing a notification without publication in official gazette keeping in a close shrouded secrecy is opposed to public policy and law, otherwise, it would add another tool of impression in the arsenal of the public functionaries, who may arbitrary or selectively confer or in ping any privilege benefit or right of a person at their wimps and fancies for extraneous consideration."
The present issue has been discussed by the august Supreme Court of Pakistan in Tehsil Municipal Administration Faisalabad Vs. Secretary Local Government (PLJ 2006 SC 783), wherein while dilating upon the authority of the local government to levy taxes through notification under the Punjab Local Government Ordinance, 2001 held that:-- "The procedural requirements of the law were satisfied by the petitioner. The learned counsel for the petitioner frankly conceded that the revision of rates and fees would take effect from 10.2.2005 i.e. from the date of publication of the notification in the Punjab gazette and not from 1.7.2004 as mentioned therein."
This view has been consistently followed by the august Supreme Court even in the most recent cases of Tehsil Municipal Administration Vs. Noman Azam (2009 SCMR 1070) and Tehsil Nazim TMA, Okara Vs. Abbas Ali (2010 SCMR 1437).
14.We are in complete consonance to hold that the Notification would take effect from the date of its publication i.e 05.05.2005 and not from the date of the Notification i.e. 16.2.2005 or the date provided in the Notification from which it is to take effect i.e. 10.01.2004.
15.As to the objection of the respondent department regarding seeking recovery of money through constitutional jurisdiction, suffice it to state that when the state organs are abusing their discretion and exploiting their authority, which is apparently' clear from the record and does not require any further inquiry or evidence to be recorded, the same can be agitated and recovered through constitutional jurisdiction. The august Supreme Court of Pakistan has in Pakistan Defence Officers Housing Authority Vs. Shamim Khan (PLD 2005 SC 729) held that:-- "We agree with the learned counsel for the appellant that in case of controversial questions of facts requiring adjudication on the basis of evidence, the High Court should not interfere in its constitutional jurisdiction but in the present case we find that material facts were admitted by the appellant, and the High Court after satisfying the requirements interfered in the matter."
And another land mark judgment of M/s. Pfyzer Laboratories Ltd. Vs. Federation of Pakistan (PLD 1998 SC 64) the august Supreme Court has gone to the extent of holding that:-- "Following are the principles on the point in issue:--
(i) If one party under mistake, whether of fact or law, paid some money to another party which includes a Government Department, which' was not drew by law or contract or otherwise, that must be repaid in view of Section 72 of the Contract Act, 1972
(vii) Where some money is received by the government not lawfully due, the plea of limitation by its department was violative of the principles of morality and justice (ix)There may not be legal liability on the part of the government functionary to refund any amount received by it, as a tax or other levy by virtue of certain special provision under the special law but keeping in view the democratic society governed by rule of law and every government, which claims to have ethical and moral values, must do what is fair and just to the citizens, regardless of legal technicalities.
(x)The fact that the amount of tax of which refund was claimed was voluntarily paid, did not preclude the right to claim refund, if it was not lawfully payable."
Hence, in view of the clear dicta of the August Supreme Court stated above, the objections of the respondent department regarding the jurisdiction and "estoppel" would not legally hold.
16. Accordingly, for the reasons stated above, we accept the present petition and hold that:-- (I)Notification issued under the Ordinance would have legal effect from it is published in the Official Gazette.
(II)The duties paid by the petitioner and received by the respondent department, as import duty on timber for the period between 10.1.2004 and 5.5.2005 at the enhanced rate of Rs. 90/- Cft was not with lawful authority and the excess amount of Rs. 50/- Cft was devoid of any legal sanction, and thus surely returnable, without any delay.
(III)The security deposit of Rs. 1.000 Million retained by. the respondent department from the petitioner be returned forth with.