' MUSHTAQ HUSSAIN, J.-A Consortium of French Companies was created under the name and style of "Chaslum Contractors" for constructing the Chasms. Jhelum Link Canal on the basis of a contract awarded by WAPDA on 21st of January 1967. Under the contract Chaslum Contractors were required to supply their own equipment and machinery from their own resources including those of Foreign Exchange. It was postulated that no sooner such machinery reached the site, proprietary rights therein shall vest in WAPDA. As soon as the whole or any part of the machinery was not required any longer for execution of the contract it was to re-vest in the petitioners. The fact that it was no longer required was to be certified by WAPDA. The contract did not stipulate the manner in which and the person to whom the petitioners would dispose of the equipment.
2. Import Permits were issued from time to time to the Company for -the import of machinery and equipment for the aforesaid purpose. Two conditions were rubber stamped on the Permits issued in and from October 1967. These conditions are as follows "(1) Goods including vehicles and machinery/equipment allowed to be imported will not be sold in Pakistan except with prior permission of this office and Ministry of Commerce.
(2) Goods imported against this import permit should not include any banned items as mentioned in Ministry of Industries (Natural Resources Division) 0. M. No, W-III/1(4) 1W T/62 dated 14-7-1962."
' The present litigation concerned itself only with Condition No, 1 and Condition No, 2, therefore, could be totally ignored for this purpose.
3. There were several contractors engaged in the performance of various jobs relatable to the Indus Basin Project. These contractors had obtained Import Permits from the Government from time to time and they did not bear the stamps referred to above. These contractors wanted to dispose of that part of their equipment in Pakistan which were no longer required by them. The Central Board of Revenue and Collector of Customs required them to pay Import duties etc. On the depreciated value of the aforesaid equipment and also to comply with the formalities of Import Trade Control. On a reference being made to the Ministry of Commerce the latter agreed with the 'views of its subordinate officials.
4. On a reference being made to the Law Division of the Government of Pakistan, however, the Government was advised that as the contract executed between WAPDA and those contractors did not include any clause entitling the Government to charge import duties etc. At that stage or to insist on compliance with Import Trade Control formalities. The action proposed to be taken by the Collector and the Central Board of Revenue was not in accordance with law. The Law Division further advised that in future suitable clauses should be inserted in contracts that may be executed between the Government and other parties.
5. The contract between WAPDA and the appellants was executed on 11th of January 1967, le. Long before this advice was given and in fact a substantial part of the material machinery and equipment etc. Had already been imported under Permits which did not bear the rubber stamp.
6. Another important aspect of the matter may be noted at this stage i,e, the appellant paid all import duties etc. To the Government at the time of importation of the equipment of machinery.
Under the terms of the contract, of course, this duty was refunded by WAPDA to the appellants. So far as the Central Board of Revenue and Collector of Land Customs are concerned, therefore, all Government dues including sales-tax etc. Had been paid on the goods at the time of the importation and no part of the import duties etc. Remained unpaid.
7. On 5th of July 1971, the Chief Controller Imports and Exports informed the Managing Director (Water), WAPDA House, Lahore, of instructions to the Indus Basin Contractors including the appellants ordaining that the aforesaid equipment could either be re-exported after the completion of the project or be sold to the Director-General, Investment Promotion and Supplies, Government of Pakistan. Messrs Tipton and Kalmbach Inc.Endorsed this letter to the appellants. It was threatened that action would be taken against the appellants under the contract or under the Imports and Exports (Control) Act, 1950, in case the appellants tried to sell the articles in the open market.
8. The appellants questioned the vires of this action (Annexure 'B') and asked respondent No, 2 to intimate the statutory provision in pursuance whereof the embargo bad been placed. In reply, respondent No, 2 only reiterated the position already taken in their initial letter.
9. The Director General, Investment Promotion and Supplies, Govern ment of Pakistan, then contacted the appellants to hand over the equipment which was not required any longer along with relevant documents so that the office could determine the price. The appellants protested against that.
10. This was followed by a public notice issued by respondent No, 2 and published in various newspapers which was in the following words : "Public Notice No, 8(72) Import-R. (Import Trade Control).
' It is notified for the information of all concerned that prior permission of the Ministry of Commerce or this office is required for the disposal of imported material including machinery, equipment and vehicles by the Indus Basin Contractors. Transactions effected in violation 01 these requirements are, therefore, liable to be treated as invalid and consequential action as provided under the law.
(Sd.) M. K. R. Chaudhry, T. S. P., Assistant Controller, ' for Chief Controller of Imports and Exports. Rawalpindi : 25th February 1972."
11. The appellants challenged this public notice on the 3rd of March 1972, by serving a notice on respondents 1 and 2 through their counsel.
12. Collector of Land Customs meanwhile made an attempt to recover Custom duty and sales-tax etc. From the appellants. This led to the issuance of a direction by the Central Board of Revenue through letter C. No, 11(29)- CUS. Ex./72, dated 23rd of August 1972, in the following words : "Please refer to your letter C. No, V-20 (1)/121/71/38, dated the 31st July 1972 on the subject noted above. The points raised by you have been carefully considered in the Central Board of Revenue.
The fact that the import stage by the contractors were reimbursed to them by WAPDA does not alter basic position that so far as Central Board of Revenue is concerned entire duties/taxes have been paid in respect of the equipment which has already been disposed of or is being disposed of.
The contract also did not include any clause authorising levy of duty etc,, on the sale of imported equipment after completion of the project in question. The decision communicated vide CBR's letter C. No, 3(6)-SS(TAR)/67. Dated: 19-9-1967 was in fact based on the opinion received from the Law' Division to the effect that action cannot be taken retrospectively either to levy duties etc. Or to insist on compliance with I. T. C. Formalitieas I am, therefore, directed to inform you not to levy duties, customs duties or sales-tax on the sale of this equipment by the contractors at this stage. In view of the Law Division's aforesaid advice, the compliance with I. T. C. Formalities cannot apply to contracts which were executed in January 1967, because the decision to stamp the import permits viz., 'the goods imported will not be sold in Pakistan except with the prior permission of C. C. I. & E.
And the Ministry of Commerce', was taken in September 1967. However, as this aspect continues to be under the consideration of the Ministry of Commerce, final decision in the matter as and when received from them would be communicated. Khalil Masood P C & E S, Second Secretary."
' A letter was also received by the counsel for the appellants from the Central Board of Revenue informing him that the Collector, Central Custom and Excise Duty, Lahore, had been advised not to levy customs duty and sales-tax on local sale of machinery, equipment etc. By the appellants.
13. On the 15th of December 1972, the Government of Pakistan in the Ministry of Commerce sent a reply to the appellants' notice dated 3rd of March 1972, which had been sent by Mr. Mumtaz Hussain on their behalf. It is reproduced as under t "Dear Sir, ' Please refer to letter dated 3rd March 1972, on the subject cited above, sent by Mr. Mumtaz Hussain, Advocate on your behalf. The legal position taken by your counsel In the said letter is not accepted and any sale of the machinery and other equipment imported by you under the import permits bearing an additional stamp to the effect that goods including vehicles and other machinery/equipments allowed to be imported, should not be sold in Pakistan with the prior permission of this office and Ministry of Commerce" will be hit by the penal provisions of section 5 of the Imports and Exports (Control) Act, 1950.
Yours faithfully, (Sd.) M. Naseem Qureshi, CSS."
' The appellants were then compelled to have recourse to a writ petition which was partly accepted and partly dismissed by order dated 21st of May 1974. Hence this Intra-Court Appeal.
14. Mr. Saeedur Rehman Khan, learaned Deputy Attorney-General, has raised a preliminary objection to the maintenance of this Appeal. He has submitted that Appeal, Revision and Review being competent against the impugned order under the Import Laws, an Intra-Court Appeal is barred under the Law Reforms Ordinance, 1972. Before 13th of January 1975, when the Law Reforms (Amendment) Act VI of 1975, was enacted, the proviso to section 3(2) read as follows : "Provided that the Appeal referred to in this subsection shall not be available or competent if the application brought before the High Court under Article 201 arises out of any proceedings in which the law applicable provided for at least one appeal to any Court, Tribunal or Authority against the original order."
The addition of the words "or one revision or one review" after the words' "one appeal" was made by Act VI of 1975, which was not retrospective in operation. The impugned order having been passed long before that, an Intra Court Appeal will be barred only if an Appeal was available against the impugned order. The availability of a review or revision would, in any case, not be of any consequence.
15. The law as to appeals is contained in the Review, Appeal and Revision Order, 1957. It provides for an appeal, a review and a revision. Contrary, however, to the normal practice no appeal is allowed against the original order. Only a review petition is available. It is only if a review petition is rejected that an appeal would lie against the order rejecting the review. There is no appeal, therefore, against the original order in any case. The further question of there being a review or revision need not be gone into as it has already been observed above, the bar on the basis of these two categories of reconsideration of an original order was imposed long after the original order in this case was passed.
16. There is another aspect of the case. Even a review lies "in the case of an application for an import or export licence or permit, or revalidation of an import licence or permit, or enhancement of categories or change of item or category consideration by a Licensing Authority of an order passed by it."
17. Licensing Authority under section 2(a) means "Controller Imports and Exports". In the present case no order impugned at any stage was passed by the Controller of Imports and Exports wherefor even a review petition was not available to the appellants.
18. The preliminary objection can, therefore, not be sustained and is repelled. This intra-Court Appeal is competent under the law.
19. Before we proceed further, we would like to examine if an "Import Licence" and "Import Permit" are synonymous. The Imports and Exports (Control) Act, 1950, was enacted "to continue for a limited period powers to prohibit, restrict or otherwise control Imports and Exports into Pakistan". By section 3(2) it provides : "No goods of the specified description shall be imported or exported except in accordance with the conditions of a licence to be issued by the Chief Controller or any other officer authorised in this behalf by the Central Government.
(4) Notwithstanding anything contained in the aforesaid Act the Central Government may, by order published in the official Gazette, prohibit, restrict or impose conditions on the clearance whether for home consumption or for shipment abroad of any imported goods."
' Section 4-B provides that "Except with the previous permission in writing of the Chief Controller or any other officer authorised in this behalf by the Central Government, no person who, In his capacity as industrial consumer, imports any goods against a licence issued to him or, where no licence is required for the import of such goods by an industrial consumer, without any licence, shall sell or otherwise transfer such goods, or use the goods for a purpose other than the purpose or purposes for which the licence was issued or such goods were imported."
20. The Chief Controller of Imports and Exports of the Government of Pakistan issued a Manual of Imports and Exports Control containing rules, regulations and orders governing Imports and Exports Control. It was submitted before the Supreme Court in The President v. Mr. Justice Shaukat Ali (1), that "The rules contained in this Manual do not have the force of law. They are merely administrative instructions and it is possible for the departmental authorities to waive one or the other of the said conditions." Their Lordships repelled this contention and ruled : "But would like to make it clear that we do not accept the contention that the rules in the Imports Manual do not have the force of law."
' Para. 1.5 of this Manual contains "Definitions of Terms and Abbreviations used in the Manual". Clause (a)
(xi) defines : "Licence" means authorisation of import or export involving foreign exchange ; (x1i) "Permit" means authorisation without involving foreign exchange and includes import permit or clearance permit or export permit, as the case may be."
21. All imports, according to para. 2.2 of the Manual are required to be registered with the appropriate Licensing Authority. Para. 2.231 exempts : "( f) Import of goods which does not involves remittance of foreign exchange.
(j) Goods imported as passengers' baggage or against permits." from registration.
22. Under para. 2.35 : "A licence is issued, only after a licence form is presented through a nominated bank for authentication."
' A detailed procedure follows in the following paragraphs. Various imports are classified, for example, commercial importers, industrial consumers and ,other importers. Industrial consumers have been defined in pare 2.5 as : "Those actual users who import machinery, accessories, spare parts and raw material for use in their own manufacturing process."
' In other words, nobody can be an industrial consumer unless he is engaged in a manufacturing process. One thing, however, may be remembered that all these categories utilize Foreign Exchange furnished by the Government.
23. Chapter 3 of this Manual deals with Permits. Para. 3.11 provides that an Import Permit is issued if- "(a) Import of goods is authorised ;
(b) Payment has been made through approved sources ; and
(c) Remittance of foreign exchange is not involved."
' The form on which an Import Permit is issued is duly given as Appendix 36, while the form for an Import Licence is published in this Manual as Appendix 29. Even this Permit makes it clear that it is being granted on an application: "For importing the goods of the description given below which does not involve the remittance of foreign exchange from Pakistan."
(1) PLD 1971 SC 585 ' There is a condition printed on the back of the form for the Import Licence which runs as follows : "5. The goods imported on this licence shall be utilised by commercial importers for sale to trade, by industrial consumers for utilisation in their industrial concerns and by actual users for themselves. If the imported goods are not so utilised within a reasonable time they shall be disposed of in the manner directed by the Chief Controller of Imports and Exports."
' The conditions printed on the back of Appendix 36 i,e, the Import Permit do not contain such a condition.
24. Paragraph 3.2 details the clause of goods for which Import Permits are generally issued and at
(f) is mentioned : "Plant and machinery by foreign participants for investment in Pakistan ;"
25. It is consequently clear that an "Import Permit" is quite differen from an "Import Licence" ; the basis of its grant is equally different ; th conditions for its issuance are reproduced above. There is nothing common between the two.
26. The Review, Appeal and Revision Order, 1957, recognizes I section 3(1)(a) a separate entity of an Import Licence and an Import Permit. Similarly, the Licensing of Permit Fees Order, 1958, also recognizes the difference between the two.
27. The submission that the word "Permit" is synonymous with the word "Licence" because only the latter has been used in the Imports and Exports (Control) Act, 1950, holds no water. Section 3 of the Act gives the general power to the Central Government to prohibit, restrict or otherwise control the import or export of goods of any specified description or regulate generally all practices (including trade practices) and procedure connected with the Import and Export of such goods. The mere fact that it is followed by the words "and such orders may provide for applications for licences under this Act" does not control the power of the Government under the preceding section to control the import of goods by other means including that of the issuance of permits.
28. Para. 3.83 provides that : "Import Permits may be issued to foreign contractors for import of tools and equipment as approved by Government."
This makes it clear that the import by the appellants was under Import Permits and not Import Licences.
29. Section 3, subsection (4) of the Act which authorises the Centra Government by order published in the official Gazette "to prohibit, restrict or impose conditions on the clearance of any imported goods or class of goods" does not relate to the sale or resale after clearance. The conditions can be imposed on the clearance alone. Once the conditions for clearance have been complied with and the goods have been cleared, their disposal cannot be controlled by any subordinate legislation. This view is amply supported by section 4-B which provides such restrictions in the case of industrial consumers by laying down : "Except with the previous permission in writing of the Chief Controller or any other officer authorised in this behalf by the Central Government, no person who, in his capacity as industrial consumer, imports any goods against a licence issued to him or, where no licence is required for the import of such goods by an industrial consumer, without any licence, shall sell or otherwise transfer such goods, or use the goods for a purpose other than the purpose or purposes for which the licence was issued or such goods were imported."
' The Legislature was fully conscious of the fact that such a restriction could not be imposed under the Act as it existed and it was for this reason that it finds it necessary to amend the law and introduce section 4-B in it.
30. Even if it were to be assumed for the sake of argument, without conceding, that a condition on disposal of the goods after clearance could be placed under section 3(4) of the Act, the condition precedent for its being effective is that the order should be published in the official Gazette. It was held by the Privy Council in Nazir Ahmed v. Emperor (1). "The rule which applies is a different and not less well recognized rule, namely, that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden." Non-compliance with the rules or law in this regard has been held to be fatal to such action taken in derogation of them. Similarly, in E. A. Evans v. Mohammad Ashraf (2) : "We are inclined, therefore, to take the view that reading the provisions of the Act as a whole section 30 was not intended to protect private rights, for, mere allottees did not by the allotment alone acquire any right in the property but were designed as a matter of public policy to give general protection to such occupants not only as to irremovability for a reasonable period but also as to occupation upon payment of a reasonable rent.
' Apart from this the rule generally adopted in construing such legislation giving general protection pro bono publico is to prefer the construction which will add force to the protection and suppress subtle inventions and evasions. Thus the view which has prevailed in England in construing Rent Acts which created similar statutory tenancies and contained similar protective provision is that:- ' Notwithstanding the absence of any express statutory provision, it is impossible to contract out of the Acts, whether by a provision in a lease or tenancy agreement or otherwise; nor can the doctrine of estoppel exclude the Acts. An agreement by a tenant to pay more than the rent permitted by the Acts or obliging him (even indirectly) to give up possession where the Acts do not require him to do so, is void so far as it conflicts with the Acts and will not be specifically enforced at the suit of the landlord.' (Vide Megarry's Rent Acts, 9th Edition, page 14).
' Although such provisions cannot be construed to prevent a tenant from giving up possession of the premises in his occupation of his own wish and accord yet this does not mean that an agreement to do so can be lawfully enforced by the landlord. Similarly even though there may be nothing in the Act to prevent a tenant from voluntarily paying more than the rent chargeable under the Act, this would not entitle the landlord to enforce an agreement to pay at an enhanced rate, for, that would be in direct conflict with the provision in the statute which gives
(1) AIR 1936 P C 253(2) (2) PLD 1964 SC 536 a tenant a right to retain possession of the premises upon the same rent at which he held the premises immediately before its transfer. The view, therefore, that because there is nothing in the Act which expressly prohibits the landlord or transferee of the premises from charging rent at a higher rate or that because the Act does not say that it shall not be lawful for the landlord to accept a higher rent the landlord is not necessarily debarred from doing so, cannot be upheld. The provision in the section that it shall be lawful for the transferee to charge rent on the basis of the last assessm ent by necessary implication makes it unlawful for him to charge rent at a different rate upon the well-known, principle of expressum facit cessare taciturn. If a doing of a particular thing is made lawful the doing of something which is in Mad with that will be unlawful. We are of the view, therefore, that a person protected by section 30 of the Act of 1958 could not lawfully contract out of that protection, for, such a contact would be void being against public policy."
31. The practice that this Cowl "will not grant a writ to produce a certain effect if the law provides power to one of the parties affected by the writ to nullify the Court's writ unilaterally and the circumstances enabling such actions are found to be present" was taken note of in Rehmatullah v.
The Deputy Settlement Commissioner (1). That has no effect on this case. Even if a notification were to be issued in the Gazette today it cannot take effect retrospectively for it was observed by the Chief Justice in the same case that "It is, of course, settled law that power given by a statute to act b notification with prospective effect as in section 3, cannot be effectively exercised with retrospective effect, whatever the language that may be employed, and consequently the Central Government's notification of the 12th September 1959, must be supposed to have effect from that date and no earlier date, notwithstanding the use of words calculated to give it effect as from 8th August 1959."
' Admittedly, the restrictions impugned before us have not been the subject. Matter of a Gazette notification so far and are, therefore, completely ineffective and void so far as this case is concerned.
' In these circumstances, the impugned orders are without lawful authority, void and of no legal effect and are so declared. The appeal is accepted with costs.
(1) PLD 1963 SC 633