1. ' NASIM HASAN SHAH, J.--This petition is directed against the judgment of a Division Bench of the High Court of Sind at Karachi passed in Constitutional Petition No,D-1184 of 1986, dated 25-4-1988.
2. ' The declaration claimed by the petitioners in their Constitutional petition was that they were entitled to the full entitlement of 31,99,112 sq. Yards, which was the quota available to them for the year 1986 and that they should be allocated a like quota accordingly.
3. ' To appreciate the above contention it may be mentioned that export of cotton textiles to the U.SA.
4. And other EEC countries is under quantitative restrictions imposed by the importing countries which is regulated by the Multi Fibre Arrangement entered into through bilateral agreements with all the aforementioned countries. The policy regulating allocation of quotas to Pakistani exporters as well as the manner and documentation required for exporting cotton textiles to U.SA. Etc. Is accordingly advertised by the Export Promotion Bureau (hereinafter referred to as EPB) in the newspapers from time to time. According to the prescribed policy, 90% of the available quota for an item is allocated to the individual exporters on past performance basis and the balance is allocated to new-comers. No exporter is allowed to export more than the quota allocated to him.
5. Thus in the Public Notice dated 20-12-1984 it was provided in para. 19 that Excess shipments over the allocated quantity shall be dealt with and allowed against payment of penalties at the rate of at least 10% of FOB value subject to the availability of quota ceiling". The expression "excess shipment" used above was explained to mean, in the subsequent notice dated 6-1-1985, as "marginal excess shipment".
6. ' It appears that the entitlement of the petitioners on the basis of their export performance in 1984 was 24 lac sq. Yards of cloth to U.SA., as against this entitlement they actually made a shipment of about 37 lac sq. Yards. Accordingly, an excess shipment was made by them of about 13 lac sq.
7. Yards (12.92 lac sq. Yards to be exact) for which they had no quota entitlement. As the excess entitlement was not a marginal excess shipment they had clearly violated the quota policy referred to above and were thus liable to be penalized. But the Ministry of Commerce taking a sympathetic view of the matter recommended to the EPB to protect them by granting an additional quota allocation. Accordingly, the Export Promotion Bureau decided to allow an additional quota of 12.92 lac sq. Yards but on two conditions, namely, that this excess shipment was to be adjusted against their entitlement for 1986 and that they must pay a penalty of 10%. This decision was conveyed to them by a letter dated 15-9-1985 which may be re-produced below:- '`M/s. World Trade Corporation, 1st Floor, Kabul Cloth Market, Mandir Gall No,3, Rail Bazar, Faisalabad.
8. Subject:- Allocation of cotton textiles export quota, for U.S.A.
9. Dear Sir, ' Please refer to your letter No,WTC/FSD/786/Qta 84-8 dated 28th July, 1985, on the above subject.
2. Your request has been considered and it has been decided to allow you an additional quota of 12.92 lac sq. Yards against your entitlement for 1986. However, this would be allowed only after payment of 10% as penalty. You are also advised to refrain from over shipment, as such request would not be considered again. Yours faithfully, Sd/- (Nighat Parveen) Deputy Director"
10. ' These conditions were apparently accepted because the pay orders for 10% penalty were deposited and EPB requested to issue the necessary export certificates (visas). Later on, however, after the petitioners had realized the sale proceeds of the excess shipment (as a result of the additional quota given by the Export Promotion Bureau) representations were lodged against the condition allocating the quota against their entitlement for 1986. This plea was not accepted and it was explained that the petitioners had committed a serious irregularity by making unauthorised shipment of 12.92 lac sq. Yards which could have debarred them from allocation of any quota in the subsequent years but a sympathetic view had been taken and this was not done. However, in order to protect the quota rights of other exporters in 1986, the Export Promotion Bureau was constrained to deduct a quantity of 12.92 lac sq. Yards from the 1986 entitlement of the petitioners.
11. It was, however, added that this deduction would not affect their entitlement in 1987 or future years.
12. ' The petitioners feeling aggrieved by this response challenged the decision of the Export Promotion Bureau firstly before the Wafaqi Mohtasib, who, after a very thorough and pains taking inquiry, rejected the complaint finding that the additional quota of 12.92 lac sq. Yards allowed in 1985 could be adjusted against their entitlement of 1986 in pursuance of the two conditions which the Export Promotion Bureau had imposed while allowing the petitioners to regularize the excess shipment of 12.92 lac sq. Yards in 1985. The petitioners then moved the High Court by filing a Constitutional Petition but this too was dismissed as the High Court found "that the above additional export (of 12.92 lac sq. Yards) was regularised by respondent No,1 on the condition that the same would be adjusted against the petitioner's entitlement for the year 1986".
13. ' Mr. Fakharuddin G.Ibrahim in support of this petition submitted before us that the conditions imposed in the letter dated 15-9-1985, relied upon by the High Court were, in fact, waived by a subsequent letter dated 17-9-1985 sent by Miss Nighat Parveen (who had earlier conveyed the decision of the Export Promotion Bureau vide letter dated 15-9-1985 ibid). This letter has been placed at page 167 of the Paper Book and is reproduced below.-- "No,EPB-1(12)/85-TEX. I Sept. 17, 1985 M/s. World Trade Corporation Ist Floor, Kabul Cloth Market, Mandir Gall No3, Rail Bazar, Faisalabad.
14. Subject: Allocation of additional quota, Dear Sir, Please refer to our letter No,WTC/EPB/85 dated 16th September, 1985 on the above subject.
2. Your case has been re-considered and it has been decided that the quota allocated to you to regularise your excess shipments of 12.92 lac sq. Yards is to be treated as an additional allocation, against 10% Penalty only. The condition of adjustment against 1986 entitlement has now been waived. Yours faithfully, Sd/- (Nighat Parveen) Deputy Director"
15. ' The respondents have seriously challenged the authenticity of the aforesaid letter dated 17-9- 1985 describing it as fabrication and a forgery. In this connection, it is submitted that no objection was taken to the conditions contained in the letter dated 15-9-1985 in the letter addressed to the EPB on 16-9-1985. On the other hand, the petitioners deposited pay orders for 10% penalty and requested the Export Promotion Bureau to issue necessary export certificates (visas) in their letter No,WTC/FSD/786/84-85 dated 16th September, 1985. It was only after they had realised the sale proceeds of the excess shipment as a result of the additional quota given to them by the Export Promotion Bureau that they began to agitate against the condition deducting the additional allocation from their entitlement for 1986. Mr. Nurul Hassan, learned counsel for the respondents, drew our attention to the letter .Dated 18-2-1986 of the petitioners (at page 166 of the Paper Book) in which no reference is made to the letter of 17-9-1985 of Miss Nighat Parveen waiving the two conditions. Indeed Miss Nighat Parveen, the so-called author of the said letter, submitted an affidavit wherein she vehemently denied having issued any such letter and in Para.4 of the affidavit she affirmed as follows:- "That I have been informed by respondent No,1 that I wrote a letter to the petitioner Annexure 'C' being alleged No,EPB(12)/85-TEX. I on 17th September, 1985 to the effect that the conditions of adjustment against 1986 entitlement have now been waived. I have seen the photo copy of Annexure 'C' and I vehemently deny that the said alleged letter was ever written by me. It does not bear my signatures and the same have been forged by the interested quarters. The entire letter is a forgery. This letter is on plain paper and the date given on it is 17th September, 1985 in reply to a representation dated 16th September, 1985 and I was not competent to take a decision in favour of the petitioner and convey to it on the next day. My statement finds support from the petitioner's letter bearing No,WTC-EPB/86 dated 1&h February, 1986. In the first three lines it says that the petitioner's letter dated 16th September, 1985 (copy enclosed) has been completely ignored. The reference made by the petitioner is the representation bearing No,WTC/EPB/85 dated 16th September, 1985, against which it has been alleged that I issued that forged letter dated 17th September, 1985."
16. ' Mr. Nurui Hassan has also pointed out that an application under Section 476 Cr.P.C. Read with Section 151, C.P.C. Has been filed for taking action against the petitioners for forgery committed by them.
17. We do not feel called upon to decide this aspect of the matter but in all the circumstances we are inclined to agree with the view expressed by the High Court that there is no reliable material on the record on the basis of which it can be concluded that respondent No,1 had waived the disputed condition. We would also agree with the further observation of the High Court that "as the petitioner has availed of the above regularisation on the conditions contained in the aforesaid Deputy Director's letter dated 15th September, 1985, they have no cause to maintain a Constitutional petition".
18. ' This petition, accordingly, must fail and is dismissed hereby, with costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.