' In this Constitutional petition the petitioner seeks direction against respondent No, 1 for issuance of the requisite exemption certificate to him so that he could have the car in question cleared from the Karachi Port without further payment of demurrage or other costs.
2. The facts of the case shortly stated are that the Federal Government framed a scheme to enable the disabled persons to import a motor vehicle without payment of duty. On 22-10-1993 the said scheme was further modified in order to facilitate the imported motor vehicle by such disabled persons as follows:
(a) The engine capacity of the cars under disabled persons scheme was raised to 1300 c.c.
(b) The condition of two doors was dispensed with.
(c) Cars with automatic transmission alone are not permissible under the scheme and it was provided that a person with only left lower limb disability would be allowed a car equipped with automatic transmission system without other special gadgets subject to clearance by the Disability Board after full satisfaction about the genuineness of the need.
(d) Import of motorized wheel chair and three wheelers was also made permissible under the said scheme.
3. It is an admitted fact that late Rana Phool Muhammad Khan who was Provincial Minister and a member Punjab Provincial Assembly at the relevant time was issued licence for import of a Charade motor car with engine capacity of 1000 c.c. Under the said scheme being disabled person.
However, the said car was not imported by him. He was issued a disability certificate by the Chief Controller for Imports and Exports to import a duty free car Toyota Corolla 1300 C.C. With automatic transmission. Since Toyota Corolla car with engine capacity of 1300 c.c. Was being assembled/manufactured in Pakistan, therefore, according to the policy of the Federal Government the same could not be imported, though the locally manufactured Toyota Corolla did not have the provisions of automatic transmission, therefore, the same was not imported. An amended disability certificate was issued to Rana Phool Muhammad Khan deceased to import Honda Civic car with engine capacity of 1300 c.c. With automatic transmission on 2-12-1992 in pursuance of which an import licence was issued to him on 3-1-1993 on payment of Rs,17,400 as import fee. The value/price of the car to be imported was Rs,2,90,000. Letter of credit was opened by late Rana Phool Muhammad Khan to import the said car on 13-1-1993. The car was purchased from the concerned company in Japan and it was shipped on 19-3-1993. However, earlier to that on 14-3-1993 Rana Phool Muhammad Khan had expired.
4. The said car reached Karachi Port and the petitioner who is the son of Rana Phool Muhammad Khan was not allowed to clear the car without payment of duty by the authorities on the ground that the duty was exempted to Rana Phool Muhammad Khan personally which benefit could be availed of by him alone being a facility, granted to him as disabled person from which disability the petitioner was not suffering. The petitioner made an application to Member (Customs), Central Board of Revenue, Islamabad on 17-6-1993 for issuance of an order that he being the sole legal heir of deceased Rana Phool Muhammad Khan should be allowed to clear the car without payment of duty and tax, which request was declined, therefore, he has filed this Constitutional petition.
5. Mr. A. Karim Malik, learned counsel for respondents submitted that the scheme under which a disabled person was allowed to import duty free car was discontinued w,e,f, 1-7-1991, therefore, the amended disability certificate issued to late Rana Phool Muhammad Khan on 2-12-1992 for the import of Honda Civic car with engine capacity of 1300 C.C. With automatic transmission was not valid and did not create any right to import the said car without payment of duty and other taxes.
The argument in my view is not sustainable. As a matter of fact Rana Phool Muhammad Khan deceased was allowed to import Charade car with engine capacity of 1000 C.C. Which he did not import and thereafter he was issued a disability certificate to import Toyota Corolla with engine capacity of 1300 C.C. On 27-5-1991, before the date of abolition of the said scheme. Since the said car could not be imported due to another policy of the Government for the reason that it was being manufactured locally, therefore, as a substitution thereof he was issued amended/modified disability certificate on 2-12-1992 to import Honda Civic car with engine capacity of 1300 C.C.
Having automatic transmission which was required by a disabled person in pursuance of which an import licence was issued to him on 3-1-1993 regarding which he paid import fee of Rs,17,400, therefore, the said modified certificate was as valid as was the original certificate issued on 27-5- 1991 for the import of Toyota Corolla car. This modified certificate shall not be deemed to have been issued afresh. Apart from this the Federal Government having issued the disability certificate on 2-12-1992 and import licence on 3-1-1993 after acceptance of import fee cannot now turn round and raise objection against the validity of the same particularly when the deceased purchased the car and took all steps for shipment of the same from Japan. The rule as laid down by the superior Courts as regards promissory estoppel is fully attracted in this case against the Federal Government, as such, the argument is repelled.
6. Mr. A. Karim Malik then argued that the grant of benefit of exemption from payment of duty and other taxes for importing the said car was personal to disabled person i,e, Rana Phool Muhammad Khan deceased which could not be extended to the petitioner being his heir who admittedly is not disabled person, therefore, he was bound to pay the duty and other taxes before the clearance of the car.
7. I have considered the arguments. In my view the respondents have not looked into and considered the case from its proper angle. It is a case where the car in dispute has devolved upon the petitioner by way of inheritance and he did not of his own import the same. An heir of deceased person under the Muhammadan Law is only liable to pay/discharge the debts of any of the deceased and in that regard he is liable only to the extent of the property of the deceased held by him. The question which arises for determination is as to whether any sum as a debt or other liability was recoverable from Rana Phool Muhammad Khan deceased on account of the car in question as regards duty and other taxes. The answer is certainly no. Rana Phool Muhammad Khan deceased had in fact availed of the facility of importing the car in dispute without payment of duty as before his death he had taken all necessary steps for the import of the said car i,e, opening of letter of credit, after obtaining of import licence on payment of necessary fee and the car had also been purchased by him from the foreign seller. Even if it had been a case where after granting the facility of importing such a car without payment of duty and taxes, the Government had withdrawn the said facility, according to the law as declared by the Supreme Court in judgment reported as Al-Samrez Enterprise v. The Federation of Pakistan (1986 SCM R 1917), Rana Phool Muhammad Khan deceased would not have been liable to pay the duty etc.
8. The view expressed above finds support from the policy decision of the Government itself wherein it has been provided that though the original importer i,e, Rana Phool Muhammad Khan was debarred from selling the car imported under the said facility for a specified number of years, the said embargo was not made applicable to his heirs obviously for the reason that an heir on whom the car would devolve by way of inheritance having not imported the same at his own volition could not be compelled to maintain the same. In my opinion the respondents could not decline permission to the petitioner to clear the car without payment of duty and other taxes including demurrage as he was entitled to clear the same in the same manner as it would have been cleared by Rana Phool Muhammad Khan deceased himself without payment of tax etc.
9. Learned counsel for the respondents maintained that the only direction sought by the petitioner in the writ petition was against Member (Customs), Central Board of Revenue, Islamabad for issuance of exemption certificate for clearance of the car which the said member could in his discretion decline to issue as he was not bound to do so therefore the writ petition was not maintainable. He submitted that in fact a direction should have been sought against the Customs Authorities posted at Karachi Port to release the car without payment of duty and other taxes etc. For if he was entitled to clear the same without payment of tax etc. No further clearance certificate was necessary to be issued by the Customs Authorities.
10. When questioned, learned counsel for the respondents admitted that overall administrative control, supervision and superintendence over Customs Authorities posted at Karachi Air Port vests in Member (Customs), Central Board of Revenue, Islamabad. In this view of the matter the argument is merely hypertechnical therefore the petitioner who is otherwise found to be entitled to a relief having been denied the right to clear the car without payment of taxes etc. Though he is entitled to do so, I am not inclined to dismiss the writ petition on that score. Any direction issued to respondent No,1 would be equally effective and enforceable against all the authorities under his control and supervision including the authorities posted at Karachi Airport who are to release the car.
11. For the foregoing reasons, the writ petition is accepted. It is hereby directed that the petitioner shall be allowed to clear/receive the car in dispute without payment of duty, other taxes and demurrage etc., for the delay in not allowing him to do so is due to the respondents who wrongfully declined him to get the car released. The parties are left to bear their own costs.