NAIMUDDIN J.--1. This constitution petition and Constitution Petitions Nos. D-200/78, D-375/78, D- 376/78, D-377/78, D-378/78, D- 379/78, D-380/78, D-381/78, D-382/78, D-383/78, D-384/78, D- 385/78, D-386/78, D-387/78, D-388/78, D-389/78, D-390/78, D-391/78, D-392/78, D-393/78, D- 394/78, D-393/7B, D-396/78, D-397/78, D-398/78, D-399/78, D-400/78, D-401/78, D-402/78, D- 403/78, D-404/78, D-403/78, D-1185/78, D-365/78, D-691/77, D-692/77, D-693/77, D-694/77, D- 695/77, D-696/77, D-697/77, D-698/77, D-699/77, D-700/77, D-701/77, D-702/77, D-703/77, D-704/77, D-705/77, D-706/77, D-707/77, D-708/77, D-709/77, D-710/77, D-711/77, D-712/77, D-810/77, D-756/77, and D-867/77, involve common questions of law and are based on identical facts. We therefore, propose to dispose of all these petitions by this one common judgement.
2. In these constitution petitions the petitioners have questioned the levy of regulatory duty on the goods imported by them, by the Notification bearing No. S.R.O. 635(0/76, dated 1-7-1976, as being illegal.
3. We have heard Mr. Zia Pervez learned counsel for the petitioners in this Constitution Petition and 58 connected petitions and Mr. Khurshid Anwar Shaikh learned counsel for the petitioners in Constitution petitions No. D-635 of 1977, and Mr. Aziz A. Munshi, Deputy Attorney General for the respondents.
4. The learned counsel for the petitioners have raised before us two points, which have been mentioned in the next paragraph, in support of their petitions. According to them the third point namely, whether the Federal Government could levy regulatory duty on the goods in question in excess of 50 per cent of the rate of duty specified in the First Schedule to Customs Act, 1969, stands already conclusively answered so far as this Court is concerned, by the judgment of the Full Bench in Constitution Petition No. 689 of 1977, Messrs Sterling Engineering Corporation vs. Collector of Customs which was constituted in view of the conflict of opinion expressed by the two Division Benches of this Court in constitution Petition No. D-404 of 1977. Messrs Hashim Tanvir Traders v.
Ministry of Finance &. Central Board of Revenue and in Constitution Petition No. 1178 of 1975. Messrs Yousuf Re-rolling Mills Karachi vs. Collector of Customs, Karachi and another PLD 1977 Kar. 911.
5. The two points now raised before us are:
(1) That in levying the regulatory duty by the impugned notification the Federal Government has not followed the procedure provided for levying of duty in Protective Duties Act, 1950?
(2) The power delegated to the Federal Government under S. 18(2) of the Customs Act, 1969 to levy regulatory duty suffers from vice of excessive delegation.
6. Now, taking up the first point it was argued by Mr. Zia Pervez that the procedure provided in the Protective Duties Act, 1950, should have been followed while levying regulatory duty and since the same was levied without following the procedure therein the levy of the regulatory duty was illegal.
7. We asked the learned counsel whether there is any provisions in the Customs Act or in the Protective Duties Act whereby it is made obligatory to follow the procedure provided in the Protective Duties Act in levying of regulatory duty, the learned counsel fairly conceded that it was not specifically provided. He however, submitted that it must be deemed to have been made applicable, but has not referred to any provision in either of the two Acts where from it could be so inferred. Further it is settled rule of construction of statutes that the constitutional safe guards or other provisions of statutes cannot be pressed into service while construing another statutory provision which has to be dealt with upon its own language. See: Chairman 'Employee' Old-age benefit institution and others v. M. Ismail Munawar 1984 SC MR 143. Similarly, the provisions of an enactment cannot be applied to another statute in the absence of any express provision therein, save the provisions of the General Clauses Act and no provision thereof has been referred to us by the learned counsel.
We therefore, find no substance in this point.
8. Now, taking up the second point namely, that the powers delegated to the Federal Government under S. 18(2) of the Customs Act, 1969, to levy regulatory duty suffers from vice of excessive delegation, it was argued by the learned counsel for the petitioners that under the provisions of S. 18(2) the Federal Government has been delegated the powers to levy regulatory duty at its will at any rate with the limits provided therein, without providing any policy or guidelines for exercise of such powers and therefore, the delegation of power is unconstitutional. In support of this point the learned Counsel relied on (1) Sobho Gyanchan- dani v. Crown PLD 1952 FC 29, Jibendra Kishore Achharyya Chowdhury and 58 others v. The Province of East Pakistan and Secretary Finance and Revenue (Revenue) Department Government of East Pakistan PLD 1957 S.C. (Pak.)
9. Messrs East and West Steamship Company v. Pakistan PLD 1958, SC (Pak)
41. Tl, Province of East Pakistan and others v. Sirajul Haq Patwari and others PLD 1966 SC 854, Zaibtun Textile Mills ltd. Karachi and others v. Central Board of Revenue and others PLD 1971 Kar. 333. Messrs Sh. Abdur Rahim Allah Ditta v.
Federation of Pakistan through Secretary, Ministry of Finance Government of Pakistan, Islamabad and another PLD 1976 Lah 886.
9. Mr. Khursheed Anwar Shaikh learned Counsel for the petitioner in C.P. No. D-635 of 1977, has also relied on three American decisions namely, J. W. Hampton Jr. &. Company v. United States 276 UC
394. A. L. Schechter Poultry Corporation v. United States of America (No. 854), 295 US 494, and Mr. John H. Fahey and A. V. Ammann v. Paul Mallonee et al 332 US 245.
10. On the other hand the learned Deputy Attorney General submitted that the policy and guide lines both are discernible from the provisions under S. 18(2) of the Customs Act and referred to Zaibtun Textile Mills Ltd. Karachi and others v. Central Board of Revenue and others PLD 1963 SC 358 and Messrs Sh. Abdur Rahim Allah Ditta v. Federation of Pakistan (Supra); which was also referred to by Mr. Khursheed Anwar Shaikh.
10. We do not consider it necessary to discuss the cases relied upon by the learned counsel for the petitioners for the decision of the Lahore High Court in Messrs Sh. Abdur Rahim Allah Ditta v.
Federation of Pakistan directly deals with the provisions of S. 18(2) of the Customs Act impugned in this constitution petition, while the same have not been considered in the other case relied upon by the learned counsel for the petitioners. Over-ruling a similar contention as raised by the learned counsel for the petitioner Dr. Nasim Hasan Shah, J. Who expressed the opinion of the Division Bench in paragraph 16 of the judgement at page 896 of the report observed as follows: ".......... Thus the objection raised on the point that no guide lines are available for the Federal Government to indicate the circumstances in which it may issue a notification to levy regulatory duty is answered by reference to the above speeches. Even otherwise the reference to the provisions of S. 18 is sufficient to repel the contention of Mr. Mumtaz Hussain, the learned counsel for the petitioners. The articles on which the regulatory duty may be levied have been specified in the various clauses of sub section (2), the maximum rate on which the duty can be imposed for the different categories, has also been specified. The duty, moreover can only be for a specified period (sub section (4) of S. 18). Thus sufficient indication is provided by the law, to the executive authority within the limits of which it may exercise the power of levying the regulatory duty. The Legislature has sufficiently expressed its will and as the fluctuations in the world market require speedy action, which can be more easily taken cognisance of by the Federal Government charged with the operation of the licensing system in questions, the objection that there has been an impermissible delegation of legislative functions is not correct. Moreover, the direction vested in the Federal Government has been circumspectly exercised, is shown by the fact that out of hundreds of items on which the duty could be levied, only the items falling under Chapter 73 have been selected for levy of the additional customs or regulatory duty. Thus, neither has there been any abdication or surrender of the legislative power nor has discretion conferred on the executive authority been exercised arbitrarily. There is no force in the contentions raised on behalf of the petitioners." We cannot give a better and direct answer to the point raised by the learned counsel for the petitioners than the one quoted above. We may however, here elaborate that under S. 18(2) of the Customs Act, 1969, regulatory duty can be imposed in a financial year for a period not exceeding the end of current financial year as a notification imposing such duty under the provisions of S. 18(2) of the Customs Act, if not rescinded earlier, stands rescinded on the expiry of the financial year and the legislature is always seized of the matter before the end of the financial year and is in a position to review the same, before enacting the next Finance Act or Ordinance and decide to continue the same at such rate and on such goods as it considered necessary by incorporating the same in the next Finance Act or Ordinance, It is clear that the legislature has delegated the power to the Federal Government only for a limit duration. The reasons for giving such powers and the ambit and validity thereof may be stated in the words of Hamoodur Rahman, J. (as hi-s lordship then was) in the Province of East Pakistan and others v. Sirajul Haq Patwari and others PLD 1966 SC. 854: "1 do not wish, however, to dispute that the Legislature cannot abdicate altogether from its Legislative functions or totally efface itself but where Legislature has sufficiently expressed its will and exercised its judgment as to the territorial extent, scope and subject-matter of the legislation the provision of details, particularly when such details are by their very nature incapable of being laid down by the Legislation itself, can well be left to be done by another agency in whom the Legislature places confidence.
The line of separation between the powers that have to be exercised directly by the Legislature itself and those that to be delegated is incapable of clear definition. Difficulties therefore, often arise not in determining the governing principles but in the application of those principles to concrete cases. The tendency, as already indicated, even in the United States of America is towards the enlargement of the powers of delegation due to the growing complexity in the function of the State. The powers of delegation have, therefore, been given to vary not only with the scope of the authority of the delegating body but also by the variety of the conditions and circumstances as particular law is intended to meet and the status and authority % of the body to which the power is delegated. The nature of the law-whether it is of a penal nature or merely of a regulatory character has also been considered to be of importance in this connection. Where the provisions are not new and unknown to existing law or where it is a subject-matter in which "accumulated experience" has established well-defined practices or where the delegate is an expert in whom the Legislature has confidence, even the American jurists concede that a greater degree of latitude may be conferred upon the Legislature of delegating legislative powers for adequately and effectively carrying out the purpose of the legislation. In such circumstances, to require more would", as suggested by Douglas, J. In the case of Sunshine Anthracite Coal Company, "be to insist on a degree of exactitude which not only lacks legal necessity but which does not comport with the requirements of the administrative process."
12. The point has again been considered in the very recent decision of the Supreme Court in Zaibtun Textile Mills Ltd. v. Central Board of Revenue and others PLD 1983 S.C. 358, wherein not only the several cases cited by the learned counsel for the petitioner have been discussed but also some cases from foreign jurisdiction have been considered. It may be useful to quote two paragraphs from there. These read:
21. From the aforesaid analysis of the judgements it would appear that it is too late in the day to maintain that the Legislature cannot delegate authority to subordinate or outside authorities for carrying the laws enacted by it into effect and operation, in view of the long history of legislative practice committing the rule-making powers having the force of law, to such subordinate functionaries or agencies. As held in Hodge v. Regina (1883) 3 App. Cas. 117), by the Privy Council as early as 1883, much power of delegation is inherent and ancilliary to legislation, it is also futile to seek and apply the constitutional theories underlying the doctrine of impermissible delegation of legislative power as applied under the American system as these theories were irrelevant in our system (as obtaining under the 1962 Constitution). It is now well established as observed by Hamoodur Rahman, J. (as he then was) in Province of East Pakistan v. Sirajul Haq Patwari that the powers of the Legislature in the Indo-Pak Sub-Continent have always been as plenary as those of the British Parliament. Mr. A. K. Brohi in his argument also did not put his contention as high as to canvass a total absence of power to delegate any part of the legislative function in connection with a particular statute to outside authorities by the Legislature. But this submission was, as mentioned hereinbefore, that the impugned provisions were invalid inasmuch as the Legislature had effaced itself and abdicated it essential legislation function in favour of a subordinate authority i.e. Central Board of Revenue who has been given power to levy and collect the duty in question in all its dimensions, levying it unfettered discretion to formulate its own policy and standards according to which the tax was to be levied.
22. The question raised in this argument essentially concerns the question of the constitutional limits to legislative power. In other words the question is as to what extent and on what principles delegation of legislative power to outside authorities is permissible under the Constitution. The Constitution does not expressly lay down and prescribe the limits within which such delegation would be permissible. Nor is there any provision in the Constitution which may define what constitutes the essential legislative function, which may then be kept as a norm to strike down the legislation by which such essential legislative power is entrusted to other agencies. The question whether in a given case the Legislature has incompetently delegated its powers has to be determined by the Courts in the exercise of their judicial power under the Constitution. The cases reviewed in this , judgement bear testimony to the, fact that the Courts in the various jurisdictions have not been able to evolve a consensus on a fixed rule or test to determine this question. Indeed they illustrate the difficulty with which the objection, regarding impermissible delegation of administrative power has been applied in individual cases. No uniform test has been laid down in these cases to determine this objection. In Hodge v. Regina (supra) a case from the year 1883 the were test that where the Legislature retains the power to destroy the agency it has created and set up another or take back the matter directly into own hands, was applied to resolve this controversy and was reiterated as recently as 1967 in the case of Cobb & Co. v. Kropp (1967) IAC 141). This view holds that until the Legislature constitutes another legislative power or separate legislative body armed with general legislative authority, it cannot be said that the Legislature has effaced itself. On the other hand in the case of Sobho Gyan- chandani the Federal Court of Pakistan held as ultra vires a piece of legislation empowering the executive Government to give a fresh lease of life to a temporary enactment passed by the Legislature, on the ground that such power created a parallel Legislature. This objection was found, inapplicable in the case of East West Steamship Co. v.
Pakistan on the ground that it would not be possible for the Legislature, in view of the subject- matter' of legislation to lay down the details how the Outside authority was to act in varying situations, which necessitated the conferring of unfettered discretion to exercise subordinate legislative power, In the case of District Magistrate Lahore v. Raza Karim PLD 1961 SC 178, this Court upheld the validity of a legislation which laid down no criterion for the guidance of rule-making authority or even define the general policy from which guidance could be sought. The objection of excessive delegation was avoided on the ground of plenary power enjoyed by the Legislature in the matter of legislation. Once again the impossibility of providing for every detail and machinery to carry into effect the object sought to be achieved by the Legislature, was regarded as sufficient ground to uphold the validity of the enactment. In this case a view similar to that held in Hodge v.
Regina (supra) was taken that the legislation retains its legislative powers intact to do away with the agency under the enactment. The case of Muhammad Ismail & Co. Etc V. Chief Cotton Inspector PLD 1966 SC 388, is perhaps the each case in Pakistan which attempted to lay down a general rule for determining the question of impermissible delegation, as it was observed that only "essential legislative power" is incapable of being delegated. In this case also reference was made to the laying down of the policy of the legislation in the enactment for the guidance of the rule- making authorities. In the last case referred to viz Province of East Pakistan v. Sirajul Haq Patwari (Supra) also no uniform test could be laid down by the learned Judges delivering their separate opinion but the validity of the impugned enactment was held not open to the objection of impermissible delegation although it did not in itself (ay down any policy or guidelines for the executive authorities to carry into effect the object of the legislation. In this case I would particularly point put what Hamoodur Rahman, J. Held to be in his opinion constitutionally permissible, namely, that the provision for details in a statute, particularly when details are by their very nature incapable of being ascertained by the Legislature itself, can well be left to be worked out by another agency in whom the Legislature places confidence. In the final analysis this being a question of the vires of the assertion of a constitutional power, has to be decided with reference to limitations placed by the Constitution on the scope of the powers of the Legislature, either expressly or impliedly by necessary intendment. The framers of the 1962 Constitution did not adopt the distribution of powers as found in the Constitution of the United States with all the implications of that doctrine, but an overall consideration of the provisions of-the 1962. Constitution relating to the setting up of the various organs of State, does suggest that they contemplate a scheme for distribution of functions of the Government into the three well-known departments, each being separately charged with the duty and being constituted a repository for the respective power in the relevant field of governmental functions of the State. Viewed in this context that the Constitution comitted to the Legislature as its primary obligation to be discharged by it with exercise of powers conferred on it, cannot be entrusted by the Legislature to another organ of the State or to a body of its own creation. That would negate the very basic arrangement adopted by the Constitution and its place create, a mode of the discharge of legislative function, in a manner not envisaged therein or contrary to the instrument which constituted it. A reflection of this proposition will be found in the following observations of S.A. Rahman, J. (as he then was) in the judgment of this Court in Fazlul Quadar Chowdhary v. Shah Nawaz PLD 1966 SC 105. "The Constitution contains a scheme for the distribution of powers between various organs and authorities of the State, and to the superior judiciary is allotted the very responsible though delicate duty of containing all other authorities within their jurisdiction, by investing the former with powers to intervene whenever any person exceeds his lawful authority."
13. As regards the American cases relevant to the point, it may be useful to state the opinion of Cornelius, C. J. Expressed in the Province of East Pakistan and others v. Sirajul Haq Patwari and others and summarised by Noorul Arfin, J. In Zaibtun Textile Mills Ltd. v. Central Board of Revenue and others, which is as follows: "(3) the concept of excessive delegation, which is derived from Judge-made law in the United States, and where now it is losing much of its authority, must be applied in this country with greatest circumspection, in that laws of the Legislature in this country are made in constitution of pre-existing laws dating from the early nineteenth century, and that this rule, if it has to he applied should be applied after the fullest consideration of the entire administrative and legislative complex, not only as it exists after making of the law in question, but with reference to the immediately preceding conditions and in relation to the technique employed".
We therefore, find no substance in the second point too.
14. For the reasons stated above we find no merits in all the petitions and dismiss the same leaving the parties to bear their own costs in the circumstances of these petitions.
Petitions dismissed.