A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people and three things could destroy that confidence and do incalculable damage to society; (i) that people come to believe that inefficiency and delay will drain even a just judgment of its value; (ii) that people who have long been exploited in the smaller transactions of daily life come to believe that courts cannot vindicate their legal rights from fraud and over-reaching; (iii) that people come to believe the law - in the larger sense - cannot fulfill its primary function to protect them and their families in their homes, at their work, and on the public streets quotation.
Justice W arren E. Burger , Chief Justice of United States.
JAWAD HASSAN, J.----This judgment will decide with heuristic approach the most important question of law with regard to time specific legislation (the "anchor point") whereby an appellate tribunal established under a special law or an adjudicating forum created and mandated to decide the /is or appeal thereagainst which falls under their exclusive jurisdiction, within a specific and certain time period and the effects of failure, non-adherence or non- fulfillment of such statutory obligation on the rights of the parties whose valuable legal rights hinges on that pending adjudications and decisions. The entire discussion in this judgment is whether during the pendency of an appeal, High Court can entertain the matter under the 'Doctrine of Ripeness' as developed by this Court in "Reliance Commodities (Pvt.) Ltd. v. Federation of Pakistan and others" (PLD 2020 Lahore 632) and "Shell Pakistan Limited v. Punjab through The Secretary Ministry of Finance and others" (2020 PTD 1607) because anti-dumping duties has not ripened, before it comes to this Court as an alternate remedy is available to the Petitioner under Section 70 of the Anti-Dumping Duties Act, 2015 (the. "Act"); against which the Petitioner has right to file appeal to the High Court under Section 70(3) of the Act which also has powers to grant an interim relief.
I. BRIEF BACKGROUND
2. In this case, the National Tariff Commis sion (the "NTC") is the Regulator which took action again st the Petitioner under the Act against which right to file appeal is available to the Petitioner . The Petitioner has duly availed that right by filing an appeal but the same has not been decided within the ambit of time-frame as provided under the Act. The Petitioner has filed this Writ of Mandamus under Article 199(1)(a)(i) of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution ") to direct Respondent No.2, the Anti-Dumping Appellate Tribunal (the "Appellate Tribunal "), to fix his pending appeal and decide it within the timeframe provided under the law, he further prayed that till such decision of the Appellate Tribunal, the Respondent No.3 be restrained to adopt any coercive measures to realize and implement the decision rendered in Final. Dete rmination against the Petitioner because it was the said Final Determination against which such appeal is pending before the Appellate Tribunal and before decision thereon by the Tribunal will tantamount to negation of remedy , which is provided to the Petitioner under Section 70 of the Act.
II. PETITIONER'S SUBMISSION
3. Mr. Aamir Shahzad, Advocate for the Petitioner submits that the Petitioner is importer of Polyester Filament Yarn into Pakistan from China and Malaysia and on complaint of domestic industry , the NTC has taken action against him under the Act. He further submits that the NTC is established under the National Tariff Commission Act, 2015, being a Regulator , and it administers the Act and takes action against the dumping of any goods in Pakistan, which injure the domestic industry as defined under Section 2 of the Act. He maintains that when the domestic industry filed a petition before the NTC, the authority/Respondent concerned after due process and observing the aspect of threat to the domestic industry , passed a final determination order under Section 39 of the Act. He contends that the Petitioner has sought a direction from this Court to the Appellate Tribunal to decide his matter , after giving him interim relief as envisaged under the Act.
III. RESPONDENTS' SUBMISSION
4. Mr. Waqas Amir, Advocate for the Respondent-NTC submitted detailed report and parawise comments and objected qua maintainability of the petition on the grounds that against final determination dated 25.08.2017 passed by the NTC, the Petitioner has an alternate remedy under Section 70 of the Act; that against the same final determination, the 'Petitioner remained in habit of filing various writ petitions before different Benches of the Lahore High Court, obtained ex parte interim orders and enjoyed the same for months and later on, withdrew by them; that recently this Court in "M/s Saleh Industries (Pvt.) Ltd. v. The Federation of Pakistan and 16 others" (2020 PTD 1245 ) has dismissed the petition with the obse rvation that "Learned Appellate Tribunal is yet to decide the matter and it has all the powers of a civil court as mentioned in Section 72 of the Anti-Dumping Duties Act, 2015, therefore, the said remedy is not only efficacious but also adequate. During the course of arguments, learned counsel representing respondent No.2 further pointed out that if the petitioner submits an application for an early hearing before the learned Appellate Tribunal, the appeal filed by the petitioner will be taken up expeditiously , as per the practice of the learned Appellate T ribunal"
5. Ms. Sadia Malik, Assistant Attorney General has also objected to the maintainability of this petition by stating that the impugned final determination dated 25.08.2017 has been made by the competent authority strictly in accordance with law and the Petitioner has an alternative remedy available under the statute, and that path has already been treaded upon by the Petitioner and his 'appeal is already before the Appellate Tribunal; so he does not have a case to justify and necessitate the interference of this Court under the Constitutional Jurisdiction.
6. Arguments heard. Record perused.
IV. ANA TOMY OF NTC BEING A REGULA TOR
7. The NTC is an autonomous investigation authority of Government of Pakistan established under Section 3 of the National Tariff Commission Act, 2015. The functions of the Commission provided under Section 8 of the Act is to advise the Federal Government on:- (a) tariff and other trade measures to provide assistance to the domestic industry; and to improve the competitiveness of the domestic of the domestic industry; (b) trade remedy actions being faced by domestic producers and exporters; (c) rationalization of tariff and proposals for tariff reform; (d) removal of tariff anomalies; and (e) any other matter relating to tariff or trade measures that the Federal Government may refer to the Commission. The Commission under Section 8(2) of the Act also mandated to perform such other functions with respect to international trade and other matters that may be assigned to it by the trade remedy laws or any other law for the time being in force.
8. The NTC also conducts safeguard investigations against surge in imports. All such proceedings are carried out in conformity with a rule-based international trading system. The NTC advises the Government on issues related to Pakistan's industry competitiveness, prom otion of exports and customs tariff rationalization. This Court in "Abwa Knowledge Village (Pvt.) Ltd. and others v. Federation of Pakistan and others" (PLD 2021 Lahore 436), "Chenab Flour and General Mills and others v. Federation of Pakistan throug h Secretary Revenue Division and others" (PLD 2021 Lahore 343), "Additional Registrar Company v. Al-Qaim Textile Mills Limited" (2021 CLD 931) and "Ms Jet Green (Pvt.) Ltd through Aftab Ahmad v. Federation of Pakistan and others" (PLD 2021 Lahore 770) has already dismissed roles and functions and duties of (i) the Pakistan Medical Commission;
(ii) the Federal Board of Revenue; (iii) the Securities and Exchange Commission of Pakistan and (iv) Civil Aviation Authority , being regulatory bodies, has been vastly discussed and elaborated.
9. By perusing the Act, which was enacte d in 2015 with the preamble for imposing the anti-dumping duties to offset such dumping and for providing a framework to investigate as well as determine the dumping and injury in respect of goods imported into Pakistan and for matters ancillary thereto or connected therewith, it reveals that the Act provides protection to domestic industry defined under Section 2(d) of the Act from any injury as prescribed in Section 2(i) of the Act. It has been noted that the local domestic industry can make a written application under Part- VII (Section 20) of the Act, to the NTC which, then, start investigation under Section 23 read with the provisions of Section 24 of the Act while under Part-VII I (Section 29) of the Act, the timeframe for conclusion of the investigation is also provided and the matter is requir ed to be decided after hearing the parties and the procedure provided under Part-IX (from Sections 34 to 39) of the Act. Along with this constitutional petition, the Petitioner has annexed a copy of the final determination passed under Section 39 of the Act where the Com mission, which is defined under Section 2(b) of the Act as the NTC, can make a final determination of dumping and injury against which remedy of appeal is given under the Act. Suffice to mention here that under Section 39 of the Act once the decision is made, the Commission shall publish a copy of the notice of the final determination in the Official Gazette as per provisions of subsection (5) of this Section. Feeling aggrieved against the final determination, any party may file an appeal before the Appellate Tribunal under Part-XVI (Section 64) of the Act, whereas Section 70 of the Act provides the entire procedure to file such appeal. In this case, the final determination was made on 25.08.2017 (Annexure-A, Page-7) against which appeal (Annexure-C, Page-74) before the Appellate Tribunal was also filed back in 2017 as per the procedure provided under Section 70 of the Act. During the course of arguments, learned counsel for the Petitioner has pointed out that on similar issue the Hon'ble Chief Justice of this Court has already passed two different orders appended with this petition as Annexures "D" and "E". He has specifically referred to the recent order of the Hon'ble Chief Justice, dated 07.10.2021/Annexure-D, whereby the Appellate Tribunal has been directed to decide appeal of the Petitioner of that writ petition within a period of two months and operation of the impugned order/notice has also been suspended, till decision of the said appeal.
V. JURISPRUDENTIAL ANTHOLOGY REGARDING THE DUTY OF STATE TO PROVIDE EXPEDITIOUS AND INEXPENSIVE JUSTICE
10. The most important aspect of the matter to divulge into is the fact that the appeal of the Petitioner filed through association in a collective form before the Appellate Tribunal is still pending and is yet to be decided despite a lapse of more than three years. The coined maxim Interest Reipublicae Ut Sit Finis Litium means that it is in the interest of the state that there should be an end to litigation. The law of limitation provides and controls the time- duration as a legally permissible span to bring a justiable lis before a court of law in order to bring certainty and conclusiveness to right of action and to avoid the probability of an indefinite threat of exasperation. Similarly , the Courts are also expected to decide the disputes brought before them by the parties within a reasonable time and in an expeditious manner . The celebrated maxim 'Justice delayed is justice denied' also highlight the significance of dispensation of justice in a timely manner and laid stress on the responsibilities of the Court to decide cases in an expeditious manner . However , considering the nature and signification of a particular subject-matter which requires swift and speedy resolution of disputes by the judicial forums, the legislature has always incorporated a time-bound mechanism not only for preferring a dispute or appeal to the judicial forum or Appellate Tribunal, as the case may be, but also specifically prescribe and lays down a definite time limit to give decision thereon to meet the ends of expeditious justice, which is a command of Constitution under Article 37(d) wherein the State is duty bound to ensure inexpensive and expeditious justice to the citizens.
11. Similarly , the right to access justice is also a fundamental right of every citizen. The Universal Declaration of Rights 1948 also gave universal recognition to the right of 'access to justice' in the following manner: Art. 8: Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the Constitution or by law .
Art. 10: Everyone is entitled in full equalit y to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations, and of any criminal charge against him.
12. The Honorable Supreme Court in "Muhammad Sharif and others v. Nabi Bakhsh and others" (2012 SCMR 900) also highlighted the importance of expeditious justice as ordained under Article 37(d) of the Constitution while observing that "Article 37(d) of the Constitution requires the State to "ensure inexpensive and expeditious justice. -- --The provisions of Article 37 ibid cannot be ignored ." The Division Bench of this Court in "Muhammad Arif Ameen and 4 others v. The Province of Punjab through Secretary , Home Department, Lahore and 12 others" (2021 PLC (C.S.) 752) laid stress on the duty of the state to provide inexpensive and expeditious justice as per Article 37(d) of the Constitution. It was observed by the Court that "--Article 37(d) of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution), mandates that State shall ensure provision of inexpensive and expeditious justice to the people. The denial of right of appeal by not appointing the appellate forum under section 12 of the Act (if same is not constituted), is not only denial of substantive right but will also be against the dictates of Article 37(d) of the Constitution." The Division Bench of Sindh High Court in "Abdul Haleem Siddiqui and others v. Federation of Pakistan through The Law Secretary , Ministry of Law and Justice, Pakistan Secretariat, Islamabad and others" (2019 PLC (C. S.) 238) also held that "---to provide inexpensive and expeditious justice in terms of Article 37(d) of the Constitution, 1973 it is the responsibility of the State; the Federation cannot shed its responsibility on the premise that it is responsibility of the Province of Sindh.
Inexpensive and expedient justice could only be achieved by efficient, comp etent and independent judicial apparatus, which all attributes have direc t nexus with better reward In terms and condition of service and financial independence of the Judiciary ." The Honorable Supreme Court in "Mehram Ali and others v. Federation of Pakistan and others" (PLD 1998 Supreme Court 1445) while dealing with the matter about establishment of specialized criminal courts to hear the cases of terrorists or relating to heinous offences laid down that expeditious and inexpensive justice is a duty imposed upon the State by the Constitution and to realize this goal special courts or forums for expeditious disposition of cases is not undesirable. The Court observed as under:- "Article 37(d) of the Constitution of Islamic Republic of Pakistan, 1973, enjoins upon the State to ensure 'inexpensive' and 'expeditious justice'. Thus visualized, speedy resolution of civil and criminal cases, is an important constitutional goal, as envisaged by the principles of policy enshrined in the Constitution. It is, therefore, not undesirable to create Special Courts for operation with speed but expeditious disposition of cases of terrorist activities/heinous offences have to be subject to Constitution and law".
13. Now, in the case in hand, the Anti-Dumping-Duties Act, 2015 is a special law, which deals with specific subject and is enacted with a specific aim to give effect to the provisions of Article VI of the General Agreement on Tariffs and Trade, 1994, in the country and to consolidate the law relating to imposition of anti-dumping duties to offset such dumping and to provide a framework for investigation and determination of dumping and injury in respect of goods imported into the country . The Sindh High Court in "Ellecot Spinning Mills Ltd. v. Federation of Pakistan through Secretary , Ministry of Trade and Commerce, Islamabad and 6 others" (2016 PTD 1334 ) held that the object and intention behind enacting the Act, 2015, is to protect the local Industry against dumping prices of Foreign Origin goods. Whereas the Islamabad High Court defined the object of Anti-Dumping Act (Ordinance) in the case of "Messrs Home Life through Managing Partner and 10 others v. National Tariff Commission through Chairman, Islamabad" ( 2011 PTD 1007 ) as:- The purpose of this is to save the industry of Pakistan. In the case of difference of prices the importer has to pay the Anti-Dumping Duty. which is to be determined on the basis of prices prevailing in the country wherefrom the article is imported and the prices prevailing in Pakistan.
VI. LEGAL ANTHROPOLOGY OE TRIBUNAL
14. According to subsection (3) of Section 70 of the Act, the Appellate Tribunal shall handle the appeal, filed by any of the parties, on priority basis and then issue decision on the same within thirty days of its filing but subsection (5) of this Section also deals with the disposal of the said appeal within forty-five days from the date of its receipt while subsection (6) of Section 70 of the Act narrates that the Appellate. Tribunal shall hear the appeal on day-to-day basis. It is noted that the Appellate Tribunal, while making examination of the appeal, has also powers under Section 70(7) of the Act to conduct any inquiry as it may feel necessary , and after giving the Commission and the Appellant an opportunity of being heard, pass such order as it thinks fit, confirming, altering or annulling a determination of the Commission appealed against.
15. Mr. Naveed Suhail Malik, Additional Attorney General along with Ms. Sadia Malik, Assistant Attorney General have placed on record the copy of Notific ation dated 27.08.2019 issued by the Government of Pakistan, Law and Justice Division under Section 67 of the Act by appointing Mr. Nasir Masroor Ahmad (Chairman), Mr. Athar Saleem (Member) and Ms. Samaira Nazir Siddiui (Member) for a period of five years and that tribunal is still functioning.
VII. PATHOLOGY REGARDING TIME SPECIFIC TRIBUNAL WITH TIME BOUND MANDA TE TO DECIDE APPEALS UNDER THE ACT
16. Section 70 of the Act specifically stipulates that if an interested party files an appeal against the initiation of investigation or a' preliminary determination as provided under Section 70(1)(i), the Tribunal shall issue its decision within thirty days of the filing of such an appeal as laid down under subsection (3) of Section 70. On the other hand, subsection (5) of Section 70 specifically stipulates that any other appeal filed by an interested party against an affirmative or negative final determination, against a final determination pursuant to a review , against an order of the Commission for termination of investigation and against a determination of the Commission under Section 52 of the Act, must be decided by the Appellate Tribunal as expeditiously as possible but not later than forty-five days from the date of receipt of such an appeal. The purpose of specifically providing a time-frame for the Tribunal to decide the appeal is to make the Appella te Tribunal function within the time specific bounds because the purpose and intent behind codifying the duration of time-frame is to ensure that the appeal before the Tribunal must be decided expeditiously as mandated under Article 37(d) of the Constitution. A careful glance of Section 70 clearly unveils that time is essence of the Appel late procedure whether it be before the, Appellate Tribunal or before the High Court against the decision of the Tribunal as subsection (13) also requires that the High Court shall render a decision within ninety days of receiving an appeal from the decision of the B Appellate Tribunal. The irresistible conclusion that the Tribunal under the Act is a time-specific forum with a time-bound mandate to decide the Appeals, finds further strength from the subsection (6) of Section 70 of the Act wherein it is provided that the Appellate Tribunal shall hear the appeal from day-to-day and its significance as such is further heightened from perusal of Section 69 of the Act, wherein it is provided that even the absence of a Chairman, or the temporary incapacity of the Chairman, shall not affect the other members' ability to act as the Appellate Tribunal which remains competent to exercise its powers and authority under the Act.
17. Perusal of time-bound and time-spec ific provisions of Section 70 of the Act with respect to the conclusion of Appeal under the Act reveals that the expression "shall" has been used in subsect ions (3), (5), (6) and (13) and as per the rules of interpretation the expression shall is considered as mandatory . The Honorable Supreme Court in "Province of Punjab through Secretary Excise and Taxation Department, Lahore and others v. Murree Brewery Company Limited (MBCL) and another" (2021 SCMR 305) laid down this principle while observing that "the general rule expounded by this Court is that the usage of the word 'shall' generally carries the connotation that a provision in mandatory in nature". Similarly , the Honorable Supreme Court in "Province of Punjab through Conservator of Forest, Faisalabad and others v. Javed Iqbal" (2021 SCMR 328) also reiterated the same view while observing that "the word shall, used in the proviso, is commonly construed as mandatory". Moreover , perusal of subsection (5) of Section 70 shows that a negative phrase "not later than forty-five days" has been used and the Honorable Supreme Court in the very judgment of Javed Iqbal supra has held that such a phrase is also construed as mandatory . The Court observed as under:- "The phrase not later than two years in the Eroviso passes for a negative phrase and gives an imperative effect.
Such negative phrases or words are prohibitive in essence, and are ordinarily used as a legislative device to make a provision in a statute mandatory . Therefore, negative words used in a provision that prescribes some statutory requirement makes, as a general rule, that requirement mandatory even if no penalty is prescribed for non- compliance of that requirement".
18. It is correct that in Section 70 of the Act where a specific time period has been prescribed for deciding an Appeal by the Tribunal, no consequences of non-adherence or deviation from the prescribed period are provided.
However , it is to be noted that non-ment ioning of any consequences in case of failure to observe the time-frame requirement while deciding the Appeal, does not render the provision or the requirement ineffective or non-est rather it remains there as a substantive part of the legislation, which is to be observed and applied and any deviation therefrom does not create a valid practice under the law. Even if the time-bound requirement in the absence of consequences on account of non-implementation is considered to be making it as a directory in nature, still construction of the scheme of Section 70 of the Act coupled with the purpose approach of interpretation and in the light of command of the Constitution under Article 37(d), lay emphasis that the Appellate Tribunal under the Act, being a specialized special appellate forum is bound to expeditiously decide the Appeals preferred before it under Section 70 of the Act.
19. The learned counsel for the Respondents has taken a specific stance that since the Petitioner has an adequate alternative remedy in the form of appeal available under the statute, the instant petition is not maintainable within the remit of Constitutional jurisdiction. Indeed perusal of the Act clearly unveils that Appellate Tribunal is established under Section 64 of the Act and consists of a Chairman and two members, qualified and eligible in terms of Section 65 of the Act who do not have any disqualification as stipulated under Section 66 of the Act.
Section 70 of the Act stipulates the jurisdiction of the Appellate Tribunal which mandates to exercise Appellate jurisdiction under the Act and hear appeals of the interested parties agains t any of the initial or definite findings/outcomes initiated/undertaken or concluded under the scheme of the Act. Under subsection (1), an interested party may prefer appeal against the initiation of an investigation or a preliminary determination on the grounds of non-fulfillment of requirements provided in Sections 23 and 37 of the Act while subsection (ii) of Section 70 provides that any interested party may prefer an appeal to the Appellate Tribunal against an affirmative or negative final determination made under Section 39 by the Commission. Subsection (iii) on the other hand, postulates the right of appeal to the Tribunal against final determination pursuant to a review and subsection (iv) recognize the right of appeal against Commission's order for termination of investigation under . Section 41 of the Act while subsection (v) provides the right of appeal against a determination of the Commission under Section 52 of the Act. Now this comprehensive remedial algorithm of right of appeal against action and determination of the Commission under the Act which affects the rights and interests of any of the parties relating to the subject-matter leaves no doubt that the law does not only recognize the rights of interested parties but also provides a specially constituted Tribunal to exercise appellate jurisdiction under the Act and to give its reasoned decisions in accordance with subsection (10) of Section 70. Now reverting back to the arguments of the learned counsel for the Respondents that the Petitioner has an adequate alternative remedy available under the law; so the Petition before this Court under Constitutional Jurisdiction is not maintainable, suffice is to state that the said argument would have been profitable to the stance of the Respondents, had the. Petitioner bypassed the said well-articulated remedy of appeal under Section 70 of the Act and would have directly sought intervention of this Court within the parlance of extra-ordinary Constitutional jurisdiction under Article 199, which is admittedly not the case. As a matter of fact, the Petitioner is amongst one of the parties in the pending appeal before the Appellate Tribunal against the Final Determination which was filed collectively by the Association and is still awaiting its fate. Indubitably , when an efficacious, alternate and time bound definite remedy is available before a Tribunal specially constituted under the law then resort to extra-ordinary Constitut ional jurisdiction before this Court does not find favor under the law since the absence of these conditions are sine qua non for exercising Writ jurisdiction. The Honorable Supreme Court in Rana Aftab Ahmad Khan v. Muhammad Ajmal (PLD 2010 SC 1066 ) laid down the very principle while observing as follows:- "When the petitioner has no explanation to offer, as to why the "other remedy", which is a definite one in nature; is time bound and is, specifically designed and prescribed by the legislature keeping into consideration time constraints in the election process, but has not been availed for any good reason, by the petitioner . Whether still the High Court should have imperatively interfered in the matter and the refusal thereof, should be construed as an erroneous or patently illegal order or an order suffering from any jurisdictional defect calling for the intervention by this Court in its instant jurisdiction? The answer is in negative".
" The Honorable Court further concluded:- "12. Resultantly , in the circumstances of the case, the High Court had rightly refuse d 'to interfere in its constitutional jurisdiction, when an appropriate, efficacious and adequate alternate remedy available to the petitioner has not been availed by him without any justification..."
20. Considering the fact that the Petitioner has not averted the remedy provided under Section 70 of the Act and his appeal against the Final Determination is also subject matter of the appeal filed by Association in a collective capacity which is still awaiting the decision of the Tribunal in so far the contentio n of the learned counsel for the Respondents regarding non-maintainability of the. Petition in the presence of availability of alternate remedy is thus not tenable. The Petitioner did not bypass the remedy available under the law rather has taken a collective recourse for it however , the appeal involving Final Determination detrimental to his rights is still pending and unresolved before the Appellate Tribunal, which has yet to give its reasoned judgment on the same and while his rights are still undetermined and pending judicial scrutiny from the Tribunal, the Petitioner sought intervention of this Court within the bounds of Article 199(1)(a)(i) to issue a direction to the Respondent /Appellate Tribunal to decide the pending appeal regarding the. Final Determination violative to his D interests as required by law to do under Section 70(5) of the Act within a period of not later than 45 days and in the meanwhile his interests, so agitated in the Appeal, must not be pre-judged by the Respondent/Commission in the form of imposing the duties having the effect of implementation of the very Final Determination against which his appeal is pending and yet to be decided.
VIII. AETIOLOGY FOR THE DOCTRINE OF ST OP GAP
21. Admittedly , the appeal of the Petitioner regarding the Final Determination is still pending before the Tribunal and the matter has not ripened considering the above discussion and in the light of availability of further remedy in the form of appeal before the High Court against the decision of the Appellate Tribunal. This Court in the Judgment of "Shell Pakistan Limited v. Punjab through The Secretary Ministry of Finance and others" (2020 PTD 1607 ) has already held that doctrine of stop-gap arrangement can be applied in such tax/revenue matters where appeals are pending before the Tribunals and matter has not ripened. It was held as under:- "10. In the case in hand, the appeal of the Petitioner is pending with the concerned authority and the case has not yet ripened because of further appeals to the Appellate Tribunal under Section 66 of the Act and a reference to learned Division Bench under Section 67-A of the Act. Therefore, the Petitioner's rights have not been determined so far by the Tax Authority . However , Article 10-A of the Constitution provides and protects fundamental right of citizen to have fair trial and due process and Courts are charged with duty to protect those rights including the rights of tax payers and under the doctrine of stop-gap, the Courts have granted interim relief during the pendency of the matter . Reliance is placed on Messrs Pak Saudi Fertilizers Ltd. v. Federation of Pakistan and others (2002 PTD 679), Z.N. Exports (Pvt.) Ltd. v. Collector Sales Tax and others (2003 PTD 1746 ), "Messrs Pearl Continental Hotel, Lahore through Director Finance and another v. Customs, Excise and Sales Tax Appellate Tribunal, Lahore and another" (2005 PTD 1368 ), "Sun-Rise Bottling Company (Pvt.) Limited v.
Federation of Pakistan and 4 others" (2006 PTD 535), "Karachi Shipyard and Engineering Works Limited, Karachi v. Additional Collector , Customs, Excise and Sales Tax (Adjudication -HI), Government of Pakistan, Karachi and 2 others" (2006 PTD 2207 ), "Pak Suzuki Motors Co. Ltd. through Senior General Manager (Corporate Planning and Logistics), Karachi v. Collector of Customs through Assistant Collector (Processing), Karachi" (2006 PTD 2237 ) and "Mari Petroleum Company Ltd. v. Appellate Tribunal Inland Revenue and others" (2016 PTD 2406 ) wherein direction was issued to the authorities to decide the appeal and temporary relief was granted as stopgap measures as discussed in the above referred cases by holding that an assessee is entitled to adjudicate in respect of his disputed tax liability by at least one independent forum outside the hierarchy of the Respondent department.
11. Under Article 37(d) of the Constitution, the Courts ensure expeditious justice as the same is an obligation on part of the State. Therefore, Courts invoke doctrine of stop-gap arrangement from time to time in tax/revenue matters.
12. This Court has already explained the doctrine of ripeness in recent reported judgment cited as "Reliance Commodities (Pvt.) Ltd v. Federation of Pakistan and others (PLD 2020 Lahore 632) wherein it has been held that if the matter is not yet ripened with the authorities, no recovery can be made".
The Court further evolved and expounded in detail the concept of statutory right of appeal and inbuilt stay mechanism in detail in the following manner:- "13. The Doctrine of Statutory Rights of Appeal arises out of Articles 199(1) and 199(4) of the Constitution where the High Court, if it is satisfied that no other adequate remedy is provided by law, issues writ of mandamus and prohibition keeping in view Article 199(4 ) of the Constitution and the time frame given therein but this right is subject to notice to the prescribed law officer with an opportunity of being heard and for reasons to be recorded in writing. Article 199 elaborates that in tax matters, after hearing the law officer , if the Court is satisfied, it may make an order for interim relief after recording reasons. Inbuilt interim stay under the statutory appeals are provided in all general laws especially in tax matters therefore, by examining the provisions of the Act read with Punjab Sales Tax on Services (Adjudication and Appeals) Rules, 2012 (the "Rules") it is evident that Section 64 of the Act provides procedure for the appeals to the Commissioner (Appeals) with inbuilt stay by stating that the Commissioner (Appeals) may stay the matter after hearing the parties and can also confirm the same which remains operative upto 60 days. Moreover , the same provision also provides to the tax payer that by filing appeal to the Appellate Tribunal under Section 66 of the Act and under Section 67(2)(3) of the Act, the Appellate Tribunal can also pass the interim order and then confirm the stay which may remain operative for ninety (90) days period. Thereafter , the taxpayer has a right to file reference to the High Court under Section 67A of the Act before the Division Bench which only hears the matters on the question of law. In this case the prayer of the Petitioner is to direct the Respondents to decide the appeal within prescribed period and under Section 64(2) in which the Commissioner (Appeals) may adjourn the hearing of the appeal from time to time and has to dispose off the appeal within a period of 60 days which is time bound provision requiring the Appellate Tribunal to decide a within a given time frame as prescribed by law. The same mechanism also gives a time frame to the Appellate Tribunal to decide the appeal within six months under Section 67(2) of the Act. Above said provisions clarify that the law has itself provided a time bound mechanism for expeditious disposal with inbuilt statutory right of appeal with inbuilt stay mechanism provided under the Statute in which both the Commissioner (Appeals) and the Tribunal have inbuilt mechanism of passing interim orders' and then confirming it within a period of sixty days".
22. This Court in "Dr. Nadeem Kiani v. Federation of Pakistan and others" (2021 CLD 33) has already dealt with a similar situation where the appeal of the Petitioner was not decided by the Board under the Copyright Ordinance and Rules because the post of the Chairman was lying vacant. The Court held that non-appointment of the Chairman, which halted the functionin g of the Board as required under the law, was in negation of the mandate of Article 37(d) of the Constitution as well as also violative of the directive of National Judicial (Policy Making)
Committee, headed by the Chief Justice of Pakistan and also contravenes the fundamental right of access to justice. It was held as follows:- "8. It is noted with great dismay that despite appropriate legislation/mechanism provided under the Ordinance read with the Copyright Rules, 1967 (the "Rules"), the relevant Governmental Authority /Department is not taking any steps for filling vacant post of the Chairman lying at the Board, which is not only against the mandate of Article 37(d) of the Constitution, holding in unequivocal terms that it is the utmost duty of the State to ensure inexpensive as well as expeditious justice, but also against the directive of the National Judicial (Policy Making) Committee (the "NJPMC"). In its meeting held on 29th of February , 2020, under the Chairmanship of the Hon'ble Chief Justice of Pakistan, the NJPMC has observed that in order to provide speedy and expeditious justice to the deserving litigants, it is essential that vacancies in all the cadres of Judiciary , Administrative Tribunals, Boards and Special Courts be immediately filled for clearance of the backlog so that speedy justice may be dispensed with so faith of the litigants on judicial system is not let down. Under the rule of law every citizen of this country has a right of access to. justice and dispensation of justice in a timely fashion. According to the provisions of Article 4 of the Constitution, it is an inalienable right of every citizen to enjoy the protection of law and to be treated in accordance with law (the Ordinance and the Rules) and no action detrimental to the life, liberty , body , reputation or PROPER TY of any person shall be taken except in accordance with law. In the judgment reported as "Watan Party and another v. Federation of Pakistan, and others" (PLD 2011 SC 997), the Hon'ble Full Bench of the apex Court of the Country has held that "Article 4 thereof remained fully operative, which laid down that to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time, being within Pakistan and in particular no action detrimental to the life, liberty , body , reputation or property of any person would be taken except in accordance with law", Under Article 5(2) of the Constitution obedience to the Constitution and law (the Ordinance and the Rules) is inviolable and it is the duty of the State to obey the laws".
23. Section 70 of the Act is an exhaustive provision, which does not only provide the substantive right of appeal and time limitation for preferring and decision of the same but it also lays down the procedural requirements for carrying out the whole appellate procedure. It stipulates a comprehensive scheme of exercising Appellate Jurisdiction by the Appellate Tribunal constituted under Section 64 of the Act against appeal preferred by an interested party either against initiation of investigation, preliminary determination or final determination and also provides limitation to as well as it also provides the procedure for hearing the same including chalking out the requirements for a decision of the Tribunal. Moreover , subsection (13) lays down the substantive right of appeal against the decision of the Appellate Tribunal to the High Court. This whole scheme of remedial procedure is clearly suggestive of the fact that a Determination even though a Final Determination under Section 39 is not absolute and is open for scrutiny before the Appellate Tribunal if any interested party , dissatisfied with the same, prefers an appeal before it. It is further evident that the decision of the Appellate Tribunal pronounced under subsection (9) of Section 70 is further open to judicial exam ination by. the High Court under subsection (13) if an interested party still feels dissatisfied prefers so. These two-f old remedies are itself provided by the Act to an interested party whose rights have been determined and adjudged by the Commission and the Appellate Tribunal contrary to his interests and contradictory to the law in his unders tanding. The right of appeal is always provided by the law to ensure safe administration of justice and to enable an independent higher forum to dissect the decisions of the lower forum on the scale of true spirit and interpretation of law involved in the matter and to ascertain that no miscarriage of justice was caused by the lower forum. The purpose of providing an Appellate authority is always to further the cause of justice and to rule out the probability of wrong decision rendered by the first judicial forum or the First Appellate Authority either due to mistake of fact or wrong application of law. Whenever an appeal is preferred by a. discontented party before the Appellate Forum/Appellate Tribunal in a case, the said Appellate body is competent to set aside, affirm or modify the decision under appeal and if right of further appeal is available to a party against such decision, the second Appell ate body , in this case the High Court, can similarly affirm, vary or alter the decision of the lower Appellate forum/the Appellate Tribunal. It leads to the definite conclusion that the Final Determination of the Commission is not final and ultimate when appeal there against is preferred by the Petitioner in a collective capacity . of Association and the same is pending before the Appellate Tribunal which can equally set at naught or affirm the Final Determination of the Commission. E If that be the case, even thereafter , the Petitioner will have another remedy to file an appeal before this Court in accordance with subsection (13) of Section 70 and the High Court can pronounce a decision thereon.
24. The accumulative effect of this discussion is that when the statute has provide d specific remedies of appeal to the Petitioner against Final Determination, already impugned before the Appellate Tribunal and when right of another appeal is still available after the decision of the Appellate Tribunal, then in such a situation, the impugned Final Determination cannot be given effect because doing so will not only frustrate the pending appeal before the Tribunal but it will also jeopardize the whole purpose of provision of remedy of Appeal under the Act. Needless to emphasize that making the process of hearing appeal by the Tribunal and also by the High Court in a specific time- bound manner within a definite period of 45 days and 90 days respectively , was also.to streamline the whole process of ascertaining the correctness of the decisions of the Commission in a timely fashion, so that if found justified under the law, it can be given effect to or if not affirmed can be rectified in a timely manner , so that both the parties may have a definite decision to pursue their course of action within a reasonable and specific time.
25. During arguments, it has brought to the notice of the Court by Mr. Naveed Suhail Malik, Additional Attorney General .the amendment made in Sectio n 51, in subsection (1), in clause (c) of the Anti-Dumping Act, 2015. The said proviso reads as under: "Provided that where a competent court of law has stayed preliminary or final determination of anti-dumping duty, goods shall be provisionally released against security in shape of bank guarantee or pay order of a scheduled bank along with indemnity bond equal to the amount of anti-dumping duty imposed on subject goods. In case preliminary or final determination is upheld by the court, duty shall be paid by the importer and security with the customs department shall be released otherwise the same shall be en-cashed to settle the duty liability . If the preliminary or final determination is set-aside by the court, security shall be released, if not required for recovery of any outstanding previous liability".
26. In view of the above backdrop, this petition is disposed of with a direction to the Appellate Tribunal to decide the pending appeal of the Petitioner strictly in accordance with relevant, provisions of the Act, as discussed above, within a period of two month' s and application for grant of stay as per Section 51(1)(c)(proviso), if pending, within a period of two weeks from the receipt of certified copy of this judgment.
A copy of this judgment shall be sent to Secretaries, Ministry of Commerce, Law and Justice and Chairman National Tariff Commission and all other relevant departments for circulation.
1 "What's Wrong with the Courts: The Chief Justice Speaks Out (address to American Bar Association meeting, Aug. 10, 1970)"