MUHAMMAD SHAFI SIDDIQUI, J. - The petitioners being aggrieved and dissatisfied with the issuance of amending SRO 84(l)/2012, dated 01.02.2012 (hereinafter referred to as the said SRO) issued under Section 3(1) of Imports & Exports (Control) Act, 1950 (hereinafter referred to as the Act of 1950) read with Para 5(a) of Clause (viii) of Import Policy Order, 2009 (IPO) have invoked the constitutional jurisdiction of this Court challenging the viries, transparency and discrimination being caused to the petitioners besides curtailment of vested rights allegedly acquired by them.
2. Briefly and precisely the facts are that the petitioners No. 1 to 3 are importers of CNG cylinders and petitioner No. 4 is the authorized manufacturer of CNG assembled vehicles. It is alleged that the respondents imposed ban vide said SRO on the import of CNG kits, equipment and cylinders and also restricted the local companies (petitioner No. 4) from conversion of vehicle from petrol to CNG.
3. It is contended by the learned counsel for the petitioners that such ban is causing heavy losses to the petitioners besides being the fact that it is causing a very low impact on the consumption of CNG. It is urged that pursuant to such ban in terms of the said SRO, referred to above, the country suffered 564 Billion extra because of replacing CNG and a sizeable foreign exchange would be consumed on import of petrol and would also expose country to various unemployment. It is contended that the ban on CNG give cause to the re-introduction of petrol and diesel which will cause environmental pollution as consumption of petrol and diesel emit carbon mono oxide 20 times and nitro oxide 3.6 times per kilo meter. Learned counsel in support of his contention submitted that it is violation of Articles 9, 14 and 24 of the Constitution and violation of Environmental Protection Act, 1997. Learned counsel submitted that the said SRO is discriminative as on one hand it restrict/prohibit import of CNG Cylinders and conversion kits falling under respective PCT Heading and on the other hand gives relaxation to public transport vehicle fitted with CNG, such as buses and vans. He submitted that the discrimination is visible as only privately owned vehicles are prohibited which decision is arbitrary, contrary and against the established guidelines prescribed under Sections 21 and 23 of the General Clauses Act, 1897 making it mandatory to invite objections from general public, stakeholders. It is submitted that the petitioners being foreign companies have invested billions of dollars on attraction and incentives of the respondents via Foreign Private Investment (Promotion) Act, 1976, therefore, learned counsel claims that the right to continue the business cannot be adversely affected vide sub-delegated legislative authority.
4. Learned counsel submitted that these foreign companies have made a sizeable foreign and local investment to establish CNG conversion kit and parts assembling industries during last 12 years. Said incentives were available under Section 6 of the Protection of Economic Reforms Act, 1992 and remained intact till 31.1.2012. Such vested rights in terms of the learned counsel, cannot be abruptly taken away through the said SRO. He submitted that the petitioners hold valid licences to import, assemble, convert, market and sale CNG kits and cylinders in the local market as well as export and earned valuable foreign exchange for the country. He submitted that the facility allowed to one and denied to other is discriminatory and it lacks transparency. He submitted that the IPO of 2009 was issued under Sections 2 and 3 of Act of 1950 read with 2(xviii) of Rules of Business 1973 by Joint Secretary, Government of Pakistan while the said SRO was issued by a Section Officer thus not competently amended in view of Sections 21 and 23 of General Clauses Act, 1897. He averred that the said SRO contradicts Clause 21 of IPO 2009 as neither any public interest nor period of its validity is specified in the said SRO which itself claimed to be violative of the Environmental Protection Act, 1997. Thus conclusively he submitted that the said SRO is bad in law, void ab-initio and against the national interest beside violative of Articles 4, 9 and 14 of the Constitution. Learned counsel for the petitioner in support of his contention has relied upon following case-laws:--- Vested Right
(i) Gatron (Industries) Limited v. Government of Pakistan (1999 SCMR 1072)
(ii) Theresa Henry v. Calixtus Henry (2012 SCMR 1074)
(iii) Alleged Corruption in Rental Power Plants, etc. In the matter of (2012 SCMR 773)
(iv) Collector of Customs v. Flying Kraft Paper Mills (1999 SCMR 709)
(v) In the matter of Human Rights Cases (PLD 2010 SC 759)
(vi) Babar Hussain Shah v. Mujib Ahmed Khan (2012 SCMR 1235)
(vii) Ibrahim Fibres Ltd. v. Collector of Customs (PTCL 2010 CL 187)
Discrimination
(i) Government of Pakistan v. Village Development Organization (PTCL 2005 CL 138)
(ii) Mohsin Raza v. Chairman FBR (PTCL 2010 CL 671)
(iii) Chief Secretary, Punjab, Lahore v. Naseer Ahmad Khan (2010 SCMR 431)
(iv) All Pakistan Newspaper Society v. Federation of Pakistan (PLD 2012 Sindh 129)
Transparency
(i) Collector of Customs v. Flying Kraft Paper Mills (1999 SCMR 709)
(ii) Muhammad Afsar v. Malik Muhammad Faruq (2012 SCMR 274)
(iii) In the matter of Human Rights Cases (PLD 2010 SC 759)
Vlries
(i) Muhammad Zargham Eshaq Khan v. University of Engineering (NLR 1989 CLJ 84)
(ii) The Automobile Transport Rajasthan v. The State of Rajasthan (AIR 1962 RAJISTHAN 24)
(iii) Abdul Majeed Zafar v. Governor of Punjab (2007 SCMR 330)
(iv) Nazir Ahmad Peshawar v. Government of Sindh (2005 SCMR 1814)
(v) In the matter of Human Rights Cases (PLD 2010 SC 759)
(vi) Mir Dost Muhammad v. Government of Baluchistan (PLD 1980 Quetta 1)
Environmental Protection Act. 1997
(i) Pollution of Environmental caused by smoke emitting vehicles, traffic muddle. (1996 SCMR 543)
(ii) Muzaffar Khan v. Evacuee Trust Property (2002 CLC 1819)
(iii) Imdad Hussain v. Province of Sindh (PLD 2007 Karachi 116)
5. In reply learned DAG appearing for respondent No. 1 submitted that the petition in the manner and from it has been filed is not maintainable as it is against the policy which cannot be challenged. He submitted that the summary was moved by the Ministry of Petroleum and Natural Resources and after decision of the Economic Coordination Committee (ECC) of the Cabinet, Ministry of Commerce only incorporated the ban in Import Policy Order 2009 vide said SRO. He submitted that the ban was neither abrupt nor sudden as it was not applied to CNG Cylinders and conversion kits for which letter of credits were issued/established prior to 15.12.2011. Learned DAG submitted that in terms of Section 3 of the Act of 1950 the Central Government may order to publish in the official gazette and subject to such conditions and exceptions as may be made by or under the order, prohibit, restrict or otherwise control the import or export of goods of any specified description, or regulate generally all practices (including trade practice) and procedure connected with import or export of such goods.
6. Learned DAG also relied upon sub-section (3) of Section 3 of the Act of 1950 and submitted that all the goods to which any order under sub-section (1) applies shall be deemed to be goods of which the import or export has been prohibited or restricted under Section 16 of the Customs Act, 1969 (previously Section 19 of Sea Customs Act, 1878) and all the provisions of the Act shall have effect accordingly except that Section 183 thereof shall have effect as if for the word "shall" therein the word "may" were substituted. Learned DAG submitted that in terms of Import Policy Order, 2009 vide Section 2(d), banned items means a commodity, import of which is banned under this Order.
7. Learned DAG submitted that in terms of Section 5 of the said Import Policy Order, 2009 the prohibition and restrictions were defined in terms whereof goods specified in Appendix 'A' are banned for import. This ban however is not made applicable to the import of goods by the Federal Government for defence purposes. Learned DAG submitted that in terms of office memorandum dated 26.12.2011 in terms whereof the ECC of the Cabinet in its meeting held on 15.12.2011 while considering the summary on the above subject submitted by Ministry of Petroleum & Natural Resources, inter alia approved the following proposals to discourage new conversion of vehicles:- "(i) A complete ban has been imposed on company fitted CNG cylinder kits in locally manufactured vehicles.
(ii) Moratorium on import of CNG cylinders and conversion kits has been imposed except where letter of credits have been established prior to approval of summary i.e. 15.12.2011.
(iii) CNG fitted public transport vehicles i.e. Buses/vans are exempted from this moratorium.
8. This office memorandum was placed vide said SRO promulgated on 01.02.2012 which reads as under:- "Government of Pakistan Ministry of Commerce Islamabad, the February 1, 2012
S.R.O. 84(l)/2012. - In exercise of the powers conferred by sub-section (1) of Section 3 of the Imports and Exports (Control) Act, 1950 (XXXIX of 1950), the Federal Government is pleased to direct that the following further amendments shall be made in the Import Policy Order, 2009, namely:- In the aforesaid Order:-
(a) In paragraph 5, in sub-paragraph (A) after clause "(vii)", the following new clause shall be inserted, namely:-
(Viii) Import of CNG cylinders and conversion kits falling under respective PCT heading shall not be importable with immediate effect and unfit further orders. This bank shall however not apply on CNG cylinders and conversion kits for whom letters of credit were established prior to 15.12.2011.
Furthermore, the aforesaid ban shall not apply on CNG fitted public transport vehicles i.e. Buses and vans; And
(b) in Appendix-B, in Part-I, against S. No. 54 in column (3), the words "compressed or" within the brackets shall be omitted."
9. Learned DAG submitted that this amendment has been inserted as 5a(viii) in the Import Policy Order, 2009. Learned DAG further submitted that in terms of Item 24 of the Rules of Business the Federal Government is vested with the authority to issue and promulgate such amendment and consequently the said SRO was issued and it was the Federal Government who was pleased to direct the amendment and not the Section Officer. Learned DAG submitted that in terms of rules of business it is the Government Officer who is required to issue such SRO which has been complied with.
10. Learned DAG submitted that there is no discrimination in the promulgation of the said SRO as the ban is imposed on the CNG cylinders and conversion kits whereas the aforesaid ban was not applied to CNG fitted public transport vehicles i.e. Buses and vans. According to learned DAG public transport vehicles are meant for altogether different class of persons i.e. a class which utilizes public transport vehicles and fitted with CNG, CNG cylinders and conversion kits, and petitioners do not claim to be engaged in the business of installing CNG kits in public transport. Learned DAG submitted that under facts and circumstances, no case for discrimination under Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 has been made out. Learned DAG in support of his arguments has placed reliance on the cases of (i) Everlast Enterprises Ltd. v. Government of Pakistan (PLD 1971 Lahore 999), (ii) Zamir Ahmed Khan v. Government of Pakistan (1978 SCMR 327) and (iii) Noor Hussain v. The State (PLD 1966 SC 88).
11. Learned counsel appearing for respondent No. 3 has contended that such policy is neither discriminatory nor unlawful as the same was considered on account of scarcity of natural gas and in terms of the priority for the use and consumption of natural gas such policy measures were taken in consultation with the Ministry of Petroleum and Natural Resources. Learned counsel submitted that the decision for the issuance of the said SRO was neither abrupt nor sudden, the decision was taken in the month of December, 2011 and the said SRO was gazetted on 01.02.2012. Learned counsel further submitted that as far as those LCs which were opened prior to 15.12.2011 are concerned the same were protected and this petition was filed in the month of August 2012 i.e. After more than nine months. Learned counsel submitted that in fact no vested right accrued in favour of the petitioners, which could be said to have been taken away or violated in terms of the said SRO. The petitioners are simply importers and assemblers and they provide such goods to the concerned manufacturer of vehicles or their companies. Learned counsel submitted that the issuance of licence of import does not give any vested right or guarantee to continue the business as long as they wishes. There is nothing on record to show that petitioner who are importing such cylinder/kits have invested huge amount for which government has provided any guarantee amnesty or Incentive or have floated invitation for establishing such assembling units.
12. We have heard learned counsels for the parties and have perused the material available on record and the case-law cited.
13. The petitioners have raised multiple grounds while challenging the amending SRO and on priority wise we may deal with the ground as under.
14. The Import Policy Order, 2009 was issued under Sections 2 and 3 of the Act of 1950. Section 2 of the Act of 1950 deals with definition of (a) Chief Controller, (b) Customs Collection, and (c) import and (d) export whereas Section 3 reads as under:- "3. (1)- The Central Government may by order published in the official Gazette and subject to such conditions and exceptions as may be made by or under the order, prohibit, restrict or otherwise control the import or export of goods of any specified description, or regulate generally all practices (including trade practice) and procedure connected with the import or export of such goods, and such order may provide for applications for licences under the Act, the evidence to be attached to such applications, the grant, use, transfer sale or cancellation of such licences, and the form and manner in which and the periods within which appeals and applications for review or revision may be preferred and disposed of, and the charging of fees in respect of any such matter as may be provided in such order.
(3) All goods to which any order under sub-section (1) applies shall be deemed to be goods of which the import or export has been prohibited or restricted under Section 19 of the Sea Customs Act, 1878, and all the provisions of the Act, shall have effect accordingly except that Section 183 there of shall have effect as if for the word "shall" therein the word "may" were substituted. "
15. The contention of petitioner's counsel that it is to be read with Rule 2(xviii) of the Rules of Business, 1973, as it says that the amending SROs to be issued by Joint Secretary, Government of Pakistan, is perhaps far stretched, It appears that the said SRO was issued in exercise of powers conferred by sub-section (1) of Section 3 of Act of 1950 and it is not to be issued by a Joint Secretary or a Section Officer, as alleged, In terms of Section 3(1) ibid tine Centra! Government is empowered to order to publish in the official gazette and subject to such conditions and exceptions as may be made by or under the order, prohibit, restrict or otherwise control the import or export of goods of any specified description, or regulate generally all practices (including trade practice) and procedure connected with import or export of such goods. This insertion was made in Para 5(a)(viii) in the Import Policy Order, 2009. Thus, it appears that in exercise of powers conferred by sub-section (1) of Section 3 of the Imports & Exports (Control) Act, 1950 such amending SRO was promulgated/issued which is nothing but extension of import and Export Policy regulated under Act of 1950 and Import Policy Order, 2009 which amendment was made pursuant to sub-section (1) of Section 3 of the Act of 1950.
16. Section 6 of the Import Policy Order read as under:- "6. Prohibitions and restrictions imposed under other Laws.-Notwithstanding anything contained in this Order, the prohibitions, restrictions, conditions and requirements as prescribed under .Any other law, Act or rules, for the time being in force, shall b applicable, mutatis mutandis, on specified imports."
17. The arguments of the learned counsel for the petitioners were partially met by a Bench of Lahore High Court in case of Everlast Enterprises Ltd. v. Government of Pakistan, reported in PLD 1971 Lahore 999 In which it has been held as under:- "3. The first point argued was that the Orders contained in Annexs. R/1 and P/2 are of such a nature as fall under Section 3 of the Act, which lays down that such orders should be published in the official Gazette. It was submitted that since these orders were not published in the official Gazette, therefore, they should be declared to be without lawful authority. It may be that so for the orders have not appeared in the official Gazette but since the intention of the Government is manifest that it is anxious to out them into operation and a Gazette can be issued any moment, especially, when the apparent tenor of Annexs. R/1 and R/2 itself shows (see para. Following condition No. 19 in Annex. R/1) - that these decisions are to be announced through a public notice, we are not inclined to give effect to this objection in the peculiar circumstances of the present case.
4............... If once the power to issue Orders under Section 3 is conceded to the Government, then on general principle, as well as on the principle of Section 21 of the General Clauses Act, a power to alter, modify or make additions therein shall also have to be accepted. Even otherwise in Para. 10 of the Public Notice bearing No. 326/102/59-E.P. III, dated 15.1.59, regarding "Export Bonus Scheme", printed in the form of Appendix 17 at page 296 of the "Manual of Imports and Exports Control", it is written that:-
5. ..... It was then argued that the Orders in Annexs. R/1 and R/2 do not possess much merit and are not beneficial to the importers like the petitioners. This Court is not concerned with merits and demerits of a Policy issued under Section 3 of the Act, which is the sole privilege of the Government and which cannot be dictated in this respect by any extraneous agency....."
18. Learned DAG next relied upon the case of Zamir Ahmed Khan v. Government of Pakistan reported in 1978 SCMR 327 in terms of which it has been held as under:--- "Civil Appeal No. 21 of 1973 was preferred in this Court by the Government of Pakistan, and it was accepted on the 3rd of December, 1974, on the view that the law is well-settled that in the generality of cases a licence simpliciter is a privilege and not a legal right; much less there is a legal duty for its grant. Therefore, exceptional cases apart, mandamus would not issue in such matters. It was further held that in such cases the emphasis is on policy, and any discretion vesting in the authorities is directed towards attaining the policy's objectives. Under Section 3(i) of the Exports Control Act. 1950. The Central Government enjoved power of the widest amplitude to prohibit, restrict or otherwise control the import of goods. The decisions taken fall within the realm of policy making, and in all such s made must conform to the policy decisions of the Government.
Accordingly, the amendment made on 9.8.1972 in Item No. 49 signified a change in policy and the petitioner was informed that he was being refused the licence because of the change in policy and not because of any other mason. On these facts it was not possible to subscribe to the proposition that a writ of mandamus would lie against the licensing authority so as to have the effect of defeating the policy competently made by the Federal Government."
19. The signatures of the Section Officer who purportedly issued the said amending SRO does not suggest that it was under his authority that it was issued. For all intent and purposes it was issued in exercise of powers conferred by sub-section 1 of Section 3 of the Act of 1950 which has been highlighted in the said SRO as well.
20. As evident, the summary in relation to Amending SRO was moved by Ministry of Petroleum & Natural Resources and in pursuance of such summary the decision was taken by the Economic Coordination.