' The petitioners assail through this petition the order dated 3rd April, 1983 passed by the Government of Pakistan (respondent No, 1) by which their application for permission to import 107 units of Isuzu truck/chassis under Gift Scheme was rejected as the same were not of the latest/current Model, as provided in the Press note dated 20th of March, 1983. They further pray that the respondents be directed to reimburse their expenses incurred on the late clearance of other truck chassis due to their illegal orders.
2. Briefly, the facts leading to this case are that one Syed Parvez Amjad, a Pakistan national carrying on business in Doha U.A.E., obtained a certificate of foreign exchange earnings from the Consulate General of Pakistan, Dubai, U.A.E., for a sum of U.S. $ 7,02,225 on 13th September, 1982.
Under the then prevalent Gift Scheme he decided to import commercial and light commercial vehicles and gifted the same to the petitioner No,
1. He also authorised him to obtain import permits and to do all other acts to get the vehicles cleared from Customs authorities.
3. Earlier, on 10th August, 1982 the petitioner No, 2 had booked 2 lots of 126 truck chassis against and advance cash payment of yens 6,217,500 being the 5% of the total price. On 1st October, 1982 the petitioner No, 1 applied to the respondent No, 2 for grant of an import permit for those 126 trucks which were unused but less than 2 years old. Alongwith the application, he supplied a certificate of the maker, attested by the Chamber of Commerce, Japan and authenticated by the Pakistan Mission, to prove the year of manufacture.
3-A. The Government of Pakistan vide an office memo. Dated 30th October, 1982 allowed import of 19 vehicles against the certificate of the maker in the absence of registration documents. As regards the remaining 107 vehicles it was directed that the petitioners will make shipment after the authenticity of its import is cleared by the CCIE. Consequently, the Chief Controller of Import and Export issued an import licence dated 4th of November, 1982 for 10 vehicles. A similar permit for 9 more units was issued on 4th of November, 1982. The petitioners took these permits and other documents to the Customs Authorities to take delivery of the vehicles.
4. The Controller of Imports and Exports vide his order dated 30th of November, 1982 (p. 8), on a telephonic advice of the Ministry of Commerce, directed the Collector of Customs (Appraisement)
Karachi, to allow an officer of his department to physically inspect the trucks (19) but forbade him to release them pending further instructions by the Ministry. Against that order, the petitioners made a representation to the Minister for an early decision to save them of heavy losses and the machinery which was deteriorating in the port godowns. The Deputy Secretary of the respondent No, 1 informed the petitioner on 30th January, 1983 that clearance permits for 19 trucks, which had already been shipped, had been issued as a special case (p. 12). The order in fact meant the cancellation of the import permits, as is clear from the letter dated 16th February, 1983, Annex. P/12, and issuance of the clearance permits instead, which according to the petitioner meant more expenses. The formal clearance permits were then issued and sent to the petitioner vide the letter dated 16th February, 1983. (P./12-A).
5. Earlier, on 28th November, 1982, the petitioner had submitted documents alongwith an application, to the Controller of Imports and Exports for permission to import the 107 trucks, as directed by the Ministry of Commerce. However, on 20th March, 1983, the respondent No, 1 issued another Press note. It was supposed to be a clarification of the Press notes dated 21st May, and 16th July, 1978 and 26th December, 1981 to say that the word 'News used therein means that imported trucks/bus chassis (built or CKD) are of the latest/current model, had not been used physically before and were purchased directly from the manufacturer and their agents. The Controller then issued the impugned letter, of refusal to import, dated 3rd April, 1983 in respect of the 107 trucks. The speaking order of refusal is, however, contained in the letter dated 22nd March, 1983 (Annex. P/19).
Even earlier on 30th January, 1983 the respondent No, 1 had conveyed a similar refusal.
6. It is contended by the learned counsel that as their predecessor-in-interest as well as the petitioners acted on the Gift Scheme and the Press note dated 16th July, 1978 of the respondent No, 1, fulfilled all the conditions therein, as well in the Gift Scheme for the import of 126 truck chassis, against cash advance payment, the respondents had no authority in law to apply, the new description of the goods, retrospectively and refuse the import permits. It is further stated that even the cancellation of 19 import permits once granted, and that too without a show-cause notice or opportunity to be heard, is without lawful authority and of no legal effect.
7. The learned counsel for the respondents did not disagree with any of the facts stated on behalf of the petitioners. He contested this case purely on its legal aspects to plead that the word 'new' in the Press note dated 16th July, 1978 (p. 16) always meant the same as its clarification, i,e, latest/ current models. In the alternative he argued that the respondents were entitled in law to explain and clarify the previous Press note and say that the word 'new' meant the latest or current model.
In other words, it is stated that the respondents could explain that term further and specify that it would have retrospective effect also. He also referred to his record and acknowledged the receipt of the petitioners' application dated 28th November, 1982 for the import of remaining 107 truck chassis alongwith its annexures, i.e:-
(i) a certificate from IMODC giving details of each of the truck chassis sought to be imported, with its year of. Manufacture ; and
(ii) a certificate of the origin of each chassis.
8. The facts given above do go to show that Syed Amjad did act on the gift scheme enforced by the respondent No,
1. He obtained a foreign exchange earnings certificate for the Pakistan Diplomatic Mission in Dubai. He placed orders for the supply of the truck-chassis and made a gift of the same to the petitioner No,
1. The petitioners also paid 5% of the total price as advance money. Even the respondent No, 1 vide its letter dated 30th October, 1982 remarked that "As regards each consignment of remaining 107 units the party make shipment after the authenticity of its import is established". It meant that the respondent knew of all that at least at that time. In this regard the petitioners supplied the requisite certificates of the maker to establish that the truck- chassis had not been registered and used and that they were all 1980 Model. The chassis had even been cleared for export by Customs authorities of Japan. (See p. 18-A). All this was done, on dates prior to 20th March, 1983, when the amended Press note was issued to clarify as to what respondent No, 1, thought it meant.
9. It is now established, on the authority of the Supreme Court that executive orders once acted upon cannot be recalled. The last notable case in the series is Pakistan v. Muhammad Himayatullah Farukhi. In that case, a representation of the respondent to fix his salary was accepted by the President of Pakistan on 1st October, 1959. A communication issued to that effect by the Secretary to President, was endorsed to the respondent by his superior and he noted it on 7th October, 1959. The Minister concerned failed to implement the order, on which the respondent filed a writ petition. The plea taken by the petitioner was that the President had withdrawn his order on 26th August, 1962. The matter went up, ultimately to the Supreme Court which ruled that though the authority, which has the power to make an order, has also the power to recall it, but he can do so only till a decisive step is taken in the matter and not after the order has taken legal effect and in pursuance thereof certain rights have been created, in favour of any individual, who may be adversely affected by its recession or recall. Thus, the mere communication of the order of the President to the respondent created a vested right in that case, inasmuch as, the Supreme Court held that the order became a part of the respondent's terms and conditions of service.
10. In the above-noted case the respondent had merely noted the order of the President passed in his favour. He had not expended any amount and made no other efforts in taking its advantage.
The case of the present petitioners, however, is that they acted on an offer or representation of the respondents, spent huge amount of money and time and will now suffer an irreparable loss if the respondents are allowed to alter their position with retrospective effect. A case of such a nature: Pakistan v. S. Hussain Ali Shah A. Fazlani was also adjudicated upon by the Supreme Court to hold that a licence granted to an applicant after he fulfilled certain conditions, laid down by the Government, in its undertaking, was not a product of any discretionary power but had accrued in the nature of a legal right. The Government, it was held, could not in that view of the matter, withdraw the same unless it had any lawful reason and in any case, only after providing the applicant a reasonable opportunity of hearing.
11. A case, under the same Gift Scheme, which is relied on now, came up before the Sind High Court, at the instance of Mst. Amna Bibi, who had also been granted an import licence, after she complied with the laid down pre-conditions. The Court held that such a licence could not be cancelled, suspended or modified without show-cause notice and without providing an opportunity of hearing. The Court further held that even a right to apply for an import permit is a valuable right, regulated by law and where the pre-conditions prescribed by law had been complied with and accepted, the authorities were obliged to issue the import permit.
12. The learned counsel for the petitioners also referred to the case of Messrs M. Afzal and Sons, which was decided by me. It was held therein, on the authority of inter alia the Supreme Court in Collector of Central Excise and Land Customs v. Azizuddin Industries Ltd., Chittagong and The Privy Council, that if a person acts on an undertaking of a Government, he acquires a vested right in the privilege or the concession offered and the Government cannot withdraw that undertaking to1 2 3 4 5 deprive the person of that concession. It was further held that in any case, the executive orders or subordinate legislation cannot operate retrospectively.
13. The other proposition that the executive order or even a subordinate legislation cannot operate retrospectively, so as to take away or affect vested rights is also well-grounded in the jurisprudence of this country. The B rule is that such an effect can be brought about only by a legislature with the necessary intendment and no other authority. It was held in the Works Co- operative Housing Society v. The Karachi Development Authority that a notification cannot be made to operate retrospectively. Similar was the view of the Supreme Court in Government of West Pakistan etc. v. Nasir M. Khan that no rule can be made to operate retrospectively. The Supreme Court in Income-tax Officer v. Sulaiman Bhai Jiwa, observed that "no rule is more firmly established than the rule with regard to retrospective operation of statute law. It is fundamental rule of law that no statute shall be construed to have a retrospective operation unless such construction appears very clearly in the terms of the Act, " S whereas the executive actions and the rules cannot operate retrospectively, a similar effect even of an enactment was to be expressly manifested in it. Thus, the reliance by the learned Deputy Attorney-General on page 634 of Crazies 5th Edition, to state that as the amended Press note, which explained and clarified the previous one dated 16th July, will have retrospective operation, is misplaced and not valid.
14. In the light of what has been discussed above, the petitioners shall be deemed to have acquired an undefeatable vested right, to obtain import permits, for the truck chassis contracted for, unless it is shown that the word 'new' in the Press note, dated 16th July, 1978(P/16), meant as it has been clarified by the respondents. According to the dictionary, 'new' means not much used, lately made or produced, recent, modern, young or fresh. New, may also be in contradistinction to old or used one. In the Press Not dated 16th July. 1978, this word appears to have been used as opposed t E second-hand. The requirement of the production of the registration certificates for the trucks and buses would also show that the distinction lay in the new i. e. Unused and the second-hand i. e.
Used.
15. Even the departmental interpretation of the word 'new' appears to have been 'unused' as is discussed hereinafter. In the parawise comments, filed by the respondent No, 1, it has been admitted that in pursuance to the Press Note dated 16th July, 1978 the overseas Pakistanis were permitted to import with their foreign exchange earnings, without any restriction of number :- "(a) New standardised bus/truck chassis built up CKD, and (b) Standardised buses/trucks of less than 2 years."
' It has further been stated that though the word 'new' was not elaborated yet it was intended to refer to the brand new bus/truck chassis of the latest model.
16. In paras. 6 and 7 of the same parawise comments, the respondent has referred to the constitution of a Secretaries Committee to decide whether the import of 1980 Model truck chassis was covered by the import policy. The Secretaries Committee on 15th December, 1982 formed a further Committee and directed it to get evidence from the petitioners and see if "the chassis in question were new in terms of ownership i. e. The units had been brought directly from the manufacturers or their agents." The Sub-Committee noted a report of the Pakistan Commercial Councilor in Japan that the 19 units were not directly purchased by the petitioners from the manufacturer or their sole agents but IMODC sold the vehicles to M/s. Tokyo Meritime Corporation, who in turn sold them to the petitioners. The Sub-Committee, however, reported that the units imported by the petitioners were 'new' as they did not appear to have been put on road.
17. Again, even the Secretaries Committee refused the permission to import those chassis, not for the reason now being pressed into service but as the petitioners, in their application, had requested for import of Isuzu trucks, less than 2 years old. The Committee remarked that the vehicles imported were instead truck chassis and that too though new but not of latest Model. The6 7 8 Secretaries Committee, thus refused permission, not on the basis of the inspection of the goods as made by a Sub-Committee or their interpretation of the import policy, but on the contents of the application. Further, it brought in an extraneous reason to say that if import of old Models was allowed, the market would be flooded with them and unscrupulous dealers may sell them, as latest Model, though they would later on turn out to be junk. Apart from the fact that no such consideration should have gone into the decision making process of the case, the argument seems to have been forced and to support a foregone conclusion. It is not understood that if the Government itself had allowed import of old trucks (not more than 2 years old) under the same scheme, did it not know that they too would be junk and may flood the market ? In any case, the relevant conclusion of both, the Sub-Committee and the Secretaries Committee, was that the truck-chassis were in fact new and unused.
18. The question whether a particular vehicles was new or not also came up in Morris Motors Ltd. v.
Lilley. A warranty was provided by the plaintiff company in that case for new cars only. One L purchased a car sold by the authorised distributors to an authorised distributor. On the same day L sold it to the defendant a motor dealer. The defendant advertised the car in a newspaper under the heading 'New Cars'. The defendant also exhibited it at his premises as a new car and later sold it to a purchaser. The Court held that the car ceased to be new when it was sold by retail sale, registered with the local authority, had number plates put on it and had been driven away by the purchasers. Thus, even according to the above test the truck chassis were new.
19. It is thus quite clear that the truck chassis were found to be new but the refusal of the Government to grant import licence for them was not due to the same reason as is being pressed now. The argument of 'old' rested on the contents of petitioners' application which was taken to be, for the import of trucks, not more than two years old. This misconception of facts by the respondents, however, cannot be allowed to form a sound basis for a wrong decision. It will be seen that the petitioners had made their position quite clear and there was no ambiguity, concealment of facts or misrepresentation left on their side. The application dated 28th November, already referred to in para. 7 above, leaves no manner of doubt that the vehicles to be imported were truck chassis, of 1980 Model, though unregistered and unused. The letter Annex. P/18-A, dated 14th December, 1982 of M/s. C. Itoh & Co. Ltd, to M/s. Republic Motors Ltd., Karachi also clarified that the 107 truck chassis, 1980 Model, were produced for Malaysian market in 1980 but as the importer cancelled the contract, the manufacturer sold them to a domestic dealer who, through some agent, sold it to the petitioners, under the Home Delivery Scheme. It further said that the goods had already been cleared for export to Pakistan by the Customs authorities. The representation of the petitioners made to the Minister on 18th December, 1982 also gave out the same fact. Thus, there was no doubt, so far as the record and inspection of the respondent is concerned, that the goods to be imported were the truck chassis which were new, unused, unregistered and had been manufactured in 1980, though purchased not directly from the manufacturer or its export agent but from a domestic dealer through an agent.
20. The outcome of the entire discussion is that the petitioners by acting on the gift scheme and the Press note dated 16th July, 1978 earned a right to get the import licences, for all the 126 truck chassis. The respondents thus could deny or frustrate that right only if they could show that permitting them to do so would be in violation of the same scheme or some other law but not arbitrarily. The respondents, on the other hand, came to the conclusions that the truck chassis imported or sought to be imported by the petitioners were new. They withdrew the import licences already issued and declined to issue the remaining merely for the reason that they were not of the latest/current model. Here they changed the criteria unilaterally and retrospectively which they could not do. Thus, their action in recalling the 19 import permits already issued and refusal to9 permit the import of the remaining 107 was without lawful authority and devoid of any legal effect.
The respondents are, therefore, directed to issue the import licences for the 07 truck chassis. As regards the reimbursement of the extra expenses incurred in the clearance of the earlier 19 truck chassis, no order can be passed in this jurisdiction as it is a question of fact and, in any case, no details of the same have been supplied in this petition. The respondents shall bear the costs of this litigation also.
PLD 1969 SC 407 PLD 1900 SC (Pak.) 310 PLD 1981 Kar. 688 PLD 1978 Lah. 468 PLD 1970 SC 439 PLD 1969 SC 430 PLD 1965 SC 10 PLD 1970 SC 80 (1959) 3 A E R 737