These are ten suits identical in nature and can be conveniently disposed .Of by a single judgment.
In each case the plaintiff imported from U. S. S. R. Non-ferrous metals, in persuance of import policy dated 26-1-1966 for the shipping period January-June 1966. The sale contracts between the plaintiffs .And the local agents of the suppliers were concluded prior to April 1966, and the goods arrived in Pakistan in August 1966. In the meanwhile on 23-4-1966, the Central Government by Notification No. S. R. O. 49(R)/66, required the importers of non-ferrous metals to pay, in addition to C.I.F. Value, an amount on account of price differential calculated on the basis of -the average landed cost for imports during the last 12 months and actual .Landed cost of imports to be effected now. This notification was followed by a Public Notice dated 25-4-1966, published in the Gazette, Extraordinary ,of Pakistan, to the same effect. The plaintiffs were accordingly allowed to clear their goods on furnishing bank guarantees of tentative price differential payable by them, subject to its determination by the Government. The price differential was finally determined on 19-8-1966 and the plaintiffs in .Each case paid the same on 12th of April 1967.
2. In Suit No. 415 of 1969 the plaintiffs paid Rs. 1,22,050.00; in Suit No. 387 of 1969, the plaintiffs paid the sum of Rs. 1,25,003.54; in Suit No. 418 of 1969, the plaintiffs paid a sum of Rs. 1,26,003.03; in Suit No. 6 of 1970, the plaintiffs paid the sum of Rs. 1,26,003.94 in Suit No. 330 of 1969 the plaintiffs paid a sum of Rs. 1,46,629.00; in Suit No. 284 of 1969, the plaintiffs paid a sum of Rs. 1,26,003.94; in Suit No. 265 of 1969 the plaintiffs paid a sum of Rs. 1,22,050.00; in Suit No. 375 of 1969, the plaintiffs paid a SUM of Rs.
1,26,003.94; in Suit No. 411 of 1969 the plaintiffs paid a sum of Rs. 1,26,003.94 and in Suit No. 161 of 1970, the plaintiffs paid a sum of Rs. 12,59,808.22. It is the plaintiffs' case that the differential so levied and recovered from them was illegal and without any legal basis and thus accord--ingly seek its refund.
3. The defence in each case is that the price differential was legally recovered under the aforesaid notification dated 23-4-1966 and Public Notice dated 25-4-1966, issued by the Chief Controller of Imports and Exports under Export (Control) Act, 1950 and in the alternatively the levy was sought to be justified by Import of Goods (Price Equalization Surcharge) Act, 1967, (Act III of 1967) published in the Gazette of Pakistan, .Dated 5-6-1967.
4. The only issue in this case reads as follows:
(1) Was recovery of Price Equalisation Surcharge known as Price Differential illegal and unwarranted by Law?
(2) To what relief, if any, the plaintiff is entitled?"
5. Issue No.1: ---The learned counsel for the plaintiffs contended that the surcharge was levied and collected in persuance of Notification, dated 23-4-1966 and the Public Notice dated 25-4-1966 and that the Govern--ment had no power to issue any such notification in pursuance of para. 23(iii) of the Import Policy (January-June 1966) Order as they have purported to Jo. The argument further was that the Import Policy Order, which itself has been issued in exercise of the powers conferred by section 3(i) of the Imports & Exports (Control) Act, 1950 nowhere authorises the Central Government to levy an imposition of the nature of price differential.
6. Mr. Shah Jamil Alam, the learned Deputy Attorney-General, conceded this position. It is clear to me that in the 'absence of legislative sanction the levy made and recovered under the aforesaid notification and the Public Notice was illegal.
7. Mr. Shah Jamil Alain, the learned Deputy Attorney-General however sought to justify the levy under Act III of 1967, section 7 of which reads as follows:- "7. Validation.-The price differential levied and collected, or purported to have been levied and collected, by or in pursuance of the Ministry of Commerce Notification No. S. R. O. 49(R)/66, dated the 23rd. April 1966, or by or under any rule, order, notification or other instrument made or issued under the Imports & Exports (Control) Act, 1950 (XXXIX of 1950), shall subject to necessary adjustments, be deemed to have been levied and collected as price equalization sur--charge and the goods on which such price differential has been levied shall be deemed to have been declared to be specified goods as if this Act were in force at the time when such price differential was levied and collected."
8. On behalf of the plaintiffs it was, in reply, urged that the aforesaid section 7 was unconstitutional inasmuch as it retrospectively deprived the plaintiffs of enjoyment of their right to import and clear their goods without payment of any price differential and thus denied to them their right to be governed by law and law alone guaranteed to them under Article 2 of the 1962. Constitution.
Reliance was placed on the case of Adamjee Jute Mills Ltd. v. Controller of Imports & Exports (PLD 1968 Dacca 894) in which it was so held in the following words:- "Mr. Brohi has drawn our attention to the protection given to a person under Article 2 of the Constitution and has contended that the Constitution guarantees to all citizens and certain other persons inalienable right of being entitled to the protection of Constitution and the law. In amplification he has contended that the petitioners cleared the goods at a time when the additional levy they were called upon to pay had no basis in law, and, therefore, they could not afterwards be deprived of the enjoyment of that right by a retrospective piece of legislation. To construe otherwise is virtually to say that the right guaranteed by the Constitution is illusory. Article 2 he has pointed out is not subject to law, and consequently the right guarante--ed by the Article is incapable of being infringed by the will of the ordinary Legislature This view finds full support from a Division Bench decision of this Court in the case of Haji Ghulam Zamin and another v. A. B. Khondkar and others (PLD 1965 Dacca 156). In the case under report it was observed as follows:- "We have held that the Ordinance is ultra vires the Constitution, but even if the Ordinance is taken to be otherwise valid, its validation clause, as embodied in section 10, thereof would be valid in a qualifi--ed sense, that is, subject to the limitation that it would not be per--missible to validate an order which would require a citizen to do something at a time when such order had no legal efficacy in the sense that there was no contemporaneous law to support such a kind of infringement of a present right . . . ."
We may again revert back to the terms of Article 2 of the Constitution. What does it provide? It furnishes a citizen with a constitutional guarantee that he will not be called upon to do something or to refrain from doing anything without a valid provision of law to that effect. This means that there is a constitutional protection in praesenti; or, in the words, whenever an order is made, which invades upon the rights of a citizen or requires him to do something, there must be, in existence, contemporaneously, a law which would authorise such a course. If there is no such contemporary law in existence, the order would fall there and would become tainted with illegality as it would come with--in the mischief of a guaranteed constitutional protection. Obviously what the Constitution-makers gave with one hand under Article 2 of the Constitution, they never meant or could mean to take it away with the other. Section 7 of Act III of 1967 is, therefore, totally ineffective to impose on or realise from the petitioners the said price differential."
9. No doubt the aforesaid decision directly supports the contention raised on behalf of the plaintiffs but with great respect its correctness is open to question. Mr. Jan Muhammad Dawood, the learned counsel for the plaintiffs in Suits Nos. 284 and 330 of 1969 very candidly invited my attention to the observations of the Supreme Court of Pakistan in several reported decisions which do not lend support to the view expressed by the Dacca. High Court in its interpretation of Article 2 of the 1962 Constitution. In the case of Mir Ahmad Nawaz Khan Bugti v. Superintendent, District Jail, Lyallpur .And others (PLD 1966 SC 357), Kaikaus, J. Observed as follows:- "The argument that the Ordinance was ultra vires is based on Article 2 of the Constitution in accordance with which it is the inalienable right of every citizen and of `every other person for the time being within Pakistan', "to enjoy the protection of law and to be treated in accordance with law and only in accordance with law. The conten--petition put forward is that the order of the Commander-in-Chief had not the support of any law on the date on which it was passed and there--fore Sardar Muhammad Akbar Khan Bughti had not been treated in accordance with law when the order was passed and he was arrested in pursuance of it. To validate this action of the Commander-in-Chief, it is urged, would be tantamount to upholding the treatment of a citizen otherwise than in accordance with law. As the contention put forward would appear to lead to the conclusion that Article 2 was a bar to the grant of retrospective effect to any enactment learned counsel for the appellant was questioned as to whether according to him Legislatures in Pakistan were not empowered to legislate with retros--pective effect at all. Learned counsel answered that he was not taking up that extreme position and that he was only objecting to the valida--petition of an order of arrest already passed or the validation of a deten--petition which was illegal. The form which learned counsel chose to Put-- forward his contention was that restrospective effect could not be --given to any enactment which effected rights or liabilities of citizens of"' other persons who are for the time being within Pakistan.
The distinction which learned counsel has drawn between retrospective legislation which affects rights or liabilities of persons and that which does not do so is without any foundation. All legislation affects rights or liabilities the words being used in their widest sense. Legislature either creates a right or takes away a right or restricts or enlarges a right or similarly affects liabilities. It should be clear that if the contention of learned counsel is accepted there could be no retrospective legislation.
Article 2 is intended to negative any claim by a Government that any category of its acts in relation to citizens and other persons in Pakistan are not subject to law at all. Claims have in the past been made by Governments that a particular act which was challenged was an act of State and was, therefore, not liable to be challenged. The view taken by the Courts has been that if an act was in fact an act of State it would not be subject to law, but that there could be no act of State with respect to citizens of a country and that in respect of citizens the Government has only such powers as are granted to it by the municipal law, that is, the law of the country. The acts of the Government, however, in relation to the other Governments or some times in relation to nationals of other States or in relation to enemy aliens are not subject to law."
PLD 1968 SC 101), Cornelius, C. J. (as he then was) while examining the argument that the Displaced Persons Laws Amend--ment Ordinance, 1965 was devoid of effect in relation to all orders made before the promulgation of the Ordinance by effect of Article 2 of the Consti--tution, observed as follows: "The contention is that by the effect of this Article, no person can be treated in respect, inter alia, of property, otherwise than in accordance with the law in force at the time of such treatment, in other words, in accordance with contemporaneous law. In support of this conten--petition, Dr. Nasim Hasan Shah has cited a judgment of the Dacca High Court in the case of Ghulam Zamin v. A. B.
Khan (PLD 1965 Dacca 156) which was followed in another Dacca case that of Ghulam Sabir v. Pan Allotment Committee (PLD 1967 Dacca 607) to give the fullest effect to this argument would operate as a prohibition against the making of laws with retrospective effect in respect of all matters that are specified in Article 2. We do not conceive that the Article was intended to produce so wide an effect in relation to the well-established practice of restrospective or retroactive legislation. It is difficult to construe Article 2 as conveying a fundamental right in every citizen of Pakistan and every person for the time being within Pakistan against the mak--ing of laws by the established Legislatures, which expressly, operate retrospectively or retroactively against his interests. Reference may here be made to the Fourth Fundamental Right which gives protection against retrospective punishment and the argument was raised on the basis of this Fundamental Right that the express protection against retrospective effect being provided in one particular case, is to be construed as having the effect of maintaining the ordinary power of Legislatures to legislate with retrospective effect in cases not specified. These considerations have weight, and will require to be examined at length when the judgment of the Dacca High Court, against which leave to appeal has been granted, in the case of Ghulam Zamin comes up in appeal. Our attention was also invited to the observations made in two judgments by Kaikaus, J., which are relevant to the question.
These observations are to be found in the reports of Quaseemuddin v. Province of West Pakistan (PLD 1959 Lah. 76) and Mir Ahmad Nawaz Bughti v. Superintendent, District Jail, Lyallpur (PLD 1966 SC 357)."
10. In the case of Mohammad Akhtar Hussain and others v. Government of Pakistan and others (PLD 1970 SC 146) Hamoodur Rehman, C. J., observed as follows: "This brings us to the next question as to whether even otherwise the Ordinance XLI of 1963 could be given retrospective effect. The learned counsel appearing on behalf of the public servants in these matters contend that no amendment of the rule could have been made retros--pectively so as to affect vested rights. In any event merely by saying that the repeal shall have effect from the 1st of January 1946, the, Ordinance had not manifested any intention to legislate with retros--pective effect. We are not impressed with either of these arguments. It is well settled that Legislation may be made both prospectively and retrospectively but normally legislation, which is not of a purely pro--cedural nature, will not be given retrospective effect so as to take away vested rights unless the Legislature has used express words in that behalf or such an intention necessarily flows from the language of the statute. In the present case there are express words in the Ordinance giving it retrospective effect. By saying that the Rules of 1943 shall be deemed to have been repealed `with effect on and from the 1st day of January 1946, the Ordinance made its intention abun--dantly clear and there could be no room for doubt that the repeal was being made with retrospective effect.
It has, therefore, already been held of this Court in the case of Mohamed Yousuf v. The Chief Settlement & Rehabilitation Commis--sioner and others (PLD 1968 SC 101) that it was wrong to assume that Article 2 of the Constitution barred the making of retrospective legislation."
11. I may also here refer to a decision of our own Court reported in Syed Sharifuddin Pirzada v.
Federation of Pakistan (PLD 1973 Kar. 132) in which Tufail A.I A. Rahman, C. J., while interpreting Article 3 of the Interim Constitution observed as follows: ---- "It will be seen that this Article is in terms identical with Article 2 of the Constitution of 1962. Now it is elementary in our system of law that the executive has no power except such as has been given to it by law, and that anything done, which in any manner adversely affects a citizen or any other person for the time being in the country, must have the warrant of power duly conferred by law and would otherwise be illegal. I have, therefore, sometimes wondered as to the reed for the incorporation of Article 2 in the former Constitution or Article 3 in the present Interim Constitution.
The difficulty I felt was that it is not lightly to be assumed in the case of any statute that it is making a provision which is wholly unnecessary and I have, there--fore, long endeavoured to find some meaning in the Article which would add to the law as it already exists. I am unable to read it as being a guarantee against legislation of any kind because the whole provision of the Article in question is to enjoy the protection of law and not to impose any restriction on the power to make law itself."
12. It will, therefore, follow that section 7 of Act III of 1967 is not open to question on the ground that it purports to give retrospective effect to levy.
13. Mr. Saeed-uz-zaman, the learned counsel for the plaintiff in Suit No. 411 of 1969 next contended that the levy in this case was made not in pursuance of Notification No. S.R.O. 49 (R/66), dated 23- 4-1966 but under Public Notice dated 25-4-1966 and section 7 of Act III of 1967 validates price differential levied and collected or purported to have been levied and collected by or in pursuance of the said notification only and makes no men--petition of the said Public Notice. The argument loses all substance when we notice that Public Notice is identical reproduction of the aforesaid notifica--petition. Moreover, section 7 itself refers to not only levies and collection mad in pursuance of the said notification but also under any rule, order, notifica--petition or other instrument made or issued under the Import & Export Control Act, 1950. Moreover, it was not the contention of the learned counsel that it was not within the power of the Chief Controller of Imports & Exports to issue Public Notices in matters coming within his purview or authority.
14. Mr. Saeed-uz-zaman next contended that all that section 7 does is that the levy made and collected in pursuance of the aforesaid notification is deemed to be levy made and collected under Act III of 1967 and the defendant must therefore justify the levy under Act III of 1967. In this view of the matter it was argued that before a levy, made earlier, could be deemed to be levy under Act III of 1967 it was necessary that the Central Govern--ment had not only determined but had declared by notification in the official Gazette the highest rate of landed cost under section 4 of the Act, and that the notification dated 23rd April 1967 does not in so many words determine or declare the highest landed cost. The learned Deputy Attorney-General however, invited my attention to a Public Notice dated 19-8-1966 in continua--petition of the aforesaid Public Notice dated 25-4-1966, published in the Gazette of Pakistan of the same date notifying the average landed cost of several non--ferrous metals calculated on the basis of actual import during period of April 1966 to March 1966 and also notification dated 31-8-1967, published in the Gazette of Pakistan of the same day determining and declaring highest landed cost of these items under section 4 of Act III of 1967. The learned counsel was, therefore, not correct in his assumption that the highest rate of landed cost had not at all been notified.
15. It was lastly contended that since the levy must be justified under Act III of 1967 and no rules were framed by the Central Government in pursuance of section 6 of Act III until 16-5-1968, which rules, in any event, did not provide for the assessment and collection of the price equalization surcharge as envisaged by clause (a) of subsection (2) of section 6 of Act III of 1967, the levy and its collection was not validated by section 7 of Act III of 1967. For this purpose reliance was made on the following passage in the Dacca case referred to above:- "It, however, appears to us that for an effective application of the Act, framing of rules thereunder is necessary. We have been told that no such rules have been framed yet. In the case of M. Noman v.
Dacca Improvement Trust and others (PLD 1966 Dacca 671) a Division Bench of this Court has held that in the absence of any rules framed by the Provincial Government under the Town Improvement Act, 1953 the Board of Trustees had no power to start a departmental proceeding against its employee or framing any charge against him, although the Board being the appointing authority had the power of suspending him from service preliminary to or pending the departmental proceeding to facilitate the proceeding. We do not wish to express any definite opinion in regard to this proposition of law. All that we need say at this stage is that having regard to the facts of the case before us in order to put Act III of 1967 into effective operation it is necessary that rules should be framed as provided for in section 6 of the Act, parti--cularly in regard to the assessm ent and payment of the price Equalisation surcharge."
16. To begin with the aforesaid observations do not give any reasons. In so far as the rules relating to collection were concerned the same were until the rules were framed, duly provided for in section 5 of Act III of 1967 which reads as follows:- "5. Procedure for collection of price equalization surcharge: Subject to any rules made under this Act, the price equalization surcharge shall be collected in the same manner as an import duty payable under the Traiff Act, 1934 (XXXII of 1934) is collected and the provisions of the Sea Customs Act, 1878 (VIII of 1878) shall, so far as may be, apply to the levy and collection of such surcharge."
17. As regards the lack of rules on the question of assessment of price equalization surcharge the question is to be answered by examining the Act and to find out whether or not without rules relating to assessm ent the Act could not be put into effect. In so far as the highest rate and the landed cost are concerned the same have been defined in Act III of 1967. As regards the assessm ent of price equalization surcharge it is defined as duty levied under section 3, and that is, the difference between the landed cost and the highest rate declared by the Central Government under section 4. Surely to minus landed cost from the highest rate, which is mere arithmetical exercise, no rules were really required. It would, therefore, appear to me that rules for the assessm ent and collection for price equalization surcharge were not a condi--petition precedent to the exercise of powers conferred under Act III of 1967 for the ascertainment of the price equalization surcharge and its recovery.
18. My conclusion, therefore, is the recovery of the price equalization surcharge from the plaintiffs was duly validated under section 7-of Act III of 1967 and it is not, therefore, open to question.
19. The result is that the plaintiff's fail and the aforesaid suits are dismissed with no order as to cost.
K. B. A.