' While hearing two interlocutory applications filed on behalf of plaintiff, two legal objections to the maintainability of suit were raised by the learned counsel for the defendants. These objections are incorporated in their respective written statements. By consent, it was ordered that these objections be heard first and decided before hearing applications filed on behalf of plaintiff.
2. Plaintiff is a sole proprietorship concern which had imported aluminium broken auto parts with iron attachment under harmonised Code No,7602.00 from Coloon, Hong Kong; that on 15-8-1995, the consignment arrived at Karachi Port per vessel Nor dysel; that on 22-8-1995, bill of entry for consumption was filed which was written by defendant No,2 namely Collector of Customs Appraisement, Karachi for correction. It is alleged in the plaint that the subordinates of defendant No,2 delayed release of consignment on one or the other pretext; that on 29-8-1995 goods were examined by the Examination Officer without issuing notice to the plaintiff and in his absence; that the imported consignment was declared to be auto parts of aluminium waste and serviceable auto parts; that as a result of such examination report, defendant No,2 imposed cent percent fine on the total consignment; that the assessment by the defendant No,2 to treat the imported consignment as serviceable auto parts instead of iron scrap led the plaintiff to file the instant suit with the following prayers:-
(i) That the plaintiff is entitled to a declaration that the plaintiff has imported aluminium waste and scrap as per invoice and bill of entry for consumption bearing I.G.M. No,1251 dated 15-8-1995.
(ii) Further that the plaintiffs are only liable to pay custom duty under Head 7602-0000 as aluminium waste and scrap.
(iii) That the defendants are further liable to be directed to release the goods covered by the said bill of Entry No,7602-0000 on the payment of custom duty on the unit price of US $ 150 per metric ton for the entire consignment of 20 metric ton.
(iv) That the defendant No,3 be directed not to charge demurrage as the goods have been withheld by the Customs Authorities for no fault of plaintiff.
(v) Restrain the defendants from treating the consignment of Plaintiff being aluminium waste and scrap under any other classification except 7602-0000.
3. The first objection raised by Mr. S. Tariq Ali for defendants Nos.1 and 2 is that the suit is barred by virtue of section 217(2) of the Customs Act, 1969 (hereinafter referred to as the Act, 1969). Secondly, the suit was challenged on the grounds that the Plaintiff has an alternate remedy which is provided under Chapter XIX of the Customs Act, 1969. Mr. Zaheeruddin Khan challenged the maintainability of the suit for non-compliance of section 87 of the Karachi Port Trust Act, 1886 (hereinafter referred to as the K.P.T. Act). In order to appreciate the contentions of the parties, it would be advantageous if the provisions of section 217 of the Act, 1969, section 87 of the K.P.T. Act and section 9, C.P.C. Are reproduced; respectively:- ' CUSTOMS ACT. 1969 "217. (1) No suit, prosecution or other legal proceedings shall lie against the Federal Government or any public servant for anything which is done or intended to be done in good faith in pursuance of this Act or the rules.
(2) No suit shall be brought in any civil Court to set aside or modify any order passed, any assessm ent made, any tax levied, any penalty imposed or collection of any tax made under this Act.."
' K.P.T.ACT. 1886 "87 No suit shall be commenced against any person for anything done or purporting to have been done; in pursuance of this Act, without giving to such person one month's previous notice in writing of the intended suit and of the cause thereof, nor after six months from the accrual of the cause of such suit.
' And, in the case of a suit for damages, if tender of sufficient amends shall have been made before the suit was brought, the plaintiff shall not recover more than the amount so tendered and shall pay all costs incurred by the defendant after such tender."
C.P.C.. 1908 "9. Courts to try all civil suits unless barred.--The Courts shall (subject to the provisions herein contained), have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
' Explanation: A suit in which the right to property or to an office is contested is a suit of a civil nature, not with standing that such right may depend entirely on the decision of questions as to religious rites or ceremonies."
4. I have heard Mrs. Navin Merchant, Advocate for plaintiff, Mr. S. Tariq Ali, standing counsel for the defendants Nos.1 and 2 and Mr. M. Zaheeruddin Khan, Advocate for defendant No.3. It was argued by Mr. S. Tariq Ali that the plaintiff is challenging assessment made by the Customs officials for which a suit is not maintainable in view of bar contained in subsection (2) to section 217 of the Act, 1969. It was contended that the proceedings for assessment before custom officials starts by delivering to the appropriate officer, a bill of entry as provided under section 79 of the Act, 1969 and that thereafter assessm ent is made under section 80. In chapter XIX of the Act, 1969 remedies of appeal and revision are provided. Section 193 provides that any person aggrieved by any decision or order passed by an officer of customs under the Act, 1969 may, within a period of 30 days from the date of receipt of such decision or order, appeal to the Board or in other cases Federal Government where order is passed by a Custom official not below the rank of Deputy Collector of Customs. Section 194 provides that where an appeal is to be filed, the amount of any duty, demanded in respect of goods shall be deposited with the appropriate officer or if so permitted by the appellate authority at any later stage but before the consideration of appeal. This section further deals with the manner as to how this amount is to he refunded. Section 195 deals with the powers of Board or Collector of Customs to examine record while section 196 deals with the power of the Federal Government to deal with the cases of revision. It was strenuously argued by Mr. S. Tariq Ali that where specific method is prescribed for determination a dispute by a statute, resort to the ordinary jurisdiction of civil Court would amount to frustrating the provisions of such law. He has placed reliance on the following cases in support of his submissions that the plaint is liable to be rejected:--
(i) Inamut Rehman v. Federation of Pakistan and 3 others (PLD 1997 Karachi 524);
(ii) Pakistan International Airlines and another v. F.M. Shamsi (PLD 1990 SC 943);
(iii) Al Ahram Builders (Pvt) Ltd. v. Income Tax appellate Tribunal (1993 SCMR 29);
(iv) Big Mak Foods Ltd. v. Deputy Collector of Customs and others (1994 SCMR 537);
(v) Chief Administrator of Auqaf v. Muhammad Ramzan and others (PLD 1991 SC 102); and
(vi) Neimat Ali Goraya and 7 others v. Jaffar Abbas Inspector/Sargeant Traffic through S.P., Traffic, Lahore and others (1996 SCMR 826).
5. Mrs. Navin Merchant in reply to the above objections contended, inter alia, that where a Government functionary has exercised its discretion illegally, unauthorisedly or with mala fide or has transgressed its authority, then in such circumstances a suit is maintainable under section 9 of the C.P.C. She has further argued that in view of the law laid down by two division benches of this Court in the cases Khyber Traders Proprietorship v. Central Board of revenue Islamabad and 3 others (1994 MLD 1473) and M/s. Al-Rukiya Traders v. Central Board of Revenue, Government of Pakis tan Islamabad and 2 others (1995 CLC 1456) the defendants Nos.1 and 2 and their subordinates were required to act in accordance with the said law. She has also referred to the cases Usman Panjwani and others v. Government of Sindh and another (1996 CLC 311) and the case of M/s K.G. Traders and another v. Deputy Collector of Customs and 4 others (PLD 1997 Karachi 541). She has also referred to section 25 of the Act, 1969 and contended that if an assessm ent is made in violation of the same, then it is not protected by law and that such acts of the custom authorities can be subjected in a suit.
6. Before proceeding further, I would like to deal with the objection of Mr. Zaheeruddin Khan that this suit is not maintainable for want of notice as provided under section 87 of the K.P.T. Act. It was argued' that no notice was served on the defendant No.3 namely Karachi Port Trust (hereinafter referred to as K.P.T.) prior to filing of the suit. He has relied upon the case M/s. Eastern Insurance Co.
Ltd. v. Trustees of the Port of Karachi (PLD 19'75 Karachi 425) and M/s General Carriers Ltd. Karachi and 2 others v. Karachi Port Trust (PLD 1978 Karachi 1041). On the other hand, Mrs. Navin Merchant has referred to the case Abdul Rahim Khan v. Trustees of Port of Karachi (1.988 CLC 2119). Section 87 of the K.P.T. Act prohibits filing of suit against any person for anything done or purporting to have been done, in pursuance of the K.P.T. Act without first giving one month's notice.In writing to such person. It further prohibits that no suit shall be filed after six months from the accrual of the cause of such suit. It further provides that in a suit for damages the plaintiff shall not recover more than the amount so tendered and shall be liable for the cost incurred by the defendant after such tender. In the case of Eastern Insurance Co., this Court, while dealing with a civil revision application, dismissed the same which was filed against dismissal of suit by the Judge Small Cau ses Court Karachi on the ground, inter alia, that no notice as provided under section 87 of the K.P.T.
Act was issued by that plaintiff prior to filing of the suit. That revision.Was dismissed while following the case of Messrs Karim Commercial Co. Ltd. v. The United Steamship Co. And 2 others (PLD 1970 Karachi 427) where it was held that the K.P.T. Was fully entitled to the protection afforded by section
87. In general Carriers Ltd., again it was held by this Court that the notice under section 87 of the K.P.T. Act was necessary as the word "Person" used in the said section by virtue of section 3 of the General Clauses Act covers K.P.T. However, this Court did not reject the plaintiff but the application of the plaintiff under Order XXXIX, Rules 1 and 2, C.P.C. Was dismissed as no prima facie case was made out. In Abdul Rahim Khan, the last mentioned case General Carriers was noted where again identical plea was raised on behalf of K.P.'T. The revision filed against the dismissal of suit and appeal of the plaintiff/applicant was dismissed by the High Court on the grounds that the mandatory requirement of section 87 would constitute a bar against the maintainability of a cause against the K.P.T. But it was held by learned single Judge of this Court that the language of section 87 clearly suggests the notice is required to be given for anything done or purporting to have been done in pursuance of the provisions of the K.P.T. Act. However, it was held that the acts intended to be done in future by the K.P.T. Was not covered. Reference was made to the case of Chairman, Town Committee, Baramulla v. Ghulam Mustafa shah and others (AIR 1964 J & K 50) and state of Bihar v. Rachunandan Singh and another (AIR 1960 Patna 530). In the present suit, the K.P.T. Is not the only party impleaded as defendant. No declaration as to the past acts of the K.P.T. Is being sought by the plaintiff. The only relief sought by the plaintiff against defendant No.3 is a direction to the K.P.T. Not to charge demurrage as the goods have been withheld by customs authority for no fault of plaintiff. It is not denied that if negligence of a party in lifting any consignment from the area of K.P.T. Is proved then K.P.T. Is entitled to demurrage for such period till the date of its lifting. In the instant case, the defendant K.P.T. Will continue charging demurrage until the suit is decided finally. It is not likely that they may waive or surrender its claim. Thus, not only the acts of K.P.T. In past but their present as well as future acts are under challenge in this suit for which, as held in the case of Abul Rahini Khan (supra) the notice under section 87 of the K.P.T. Act was not a mandatory requirement. I may add here that in absence of a notice under section 87 of the K.P.T. Act if a suit is decreed then such plaintiff would not be entitled to cost against K.P.T.
7. Adverting to the cases cited by Mr. S. Tariq Ali, there is no cavil to the proposition that where the legislature has enacted a special law for determination of a dispute through any Tribunal then in such circumstances the intention of legislature cannot be defeated by invoking provisions of section 9, C.P.C. In the case of F.M. Shamsi (PLD 1990 SC 943), the effect of Article 212(2) of the Constitution was considered and it was held that after establishment of Services Tribunal, no other Court had jurisdiction in the service matters of civil servants. In Al-Ahram Builders (1993 SCMR 29 at P/38), it was held by a full bench of Hon'ble Supreme Court that the tendency to bypass a remedy provided under the relevant statutes and to press into service Constitutional jurisdiction of High Court is to be discouraged. It was further held that in certain cases invoking of Constitutional jurisdiction of the High Court instead of availing of remedy provided for under the relevant statute may be justified when impugned order/action is without jurisdiction or mala fide. It was further held that to force an aggrieved person in such a case to approach the forum provided under the relevant statute may not be just and proper. In the case of Bigmak Foods Ltd. (1994 SCMR 537), it was held that it is primarily for the custom department to determine the head of entry in the tarrif schedule under which any particular commodity falls and unless the assessment is perverse the Court would not be competent to interfere. It was made clear in that case that case that where there are two constructions which an entry can reasonably bear and it one of them for good reasons is adopted by the Customs, the Court would have no jurisdiction to interfere merely because another entry more favourable to the subject appears to the Court as equally applicable.
In the case of Neimat Ali Goraya (1996 SCMR 826) where the question involved was the interpretation of Police Rules, 1935, it was held that it was well-settled principle of interpretation that where general law as well as special law is applied to a particular case then to the extent of application of special law in that case, the provisions of general law stand displaced.
8. Learned counsel for the plaintiff argued that the above noted cases are not attracted and heavily relied upon the case of Usman Pajwani (1996 CLC 311) where the bar of jurisdiction of civil Courts in terms of section 36, Colonization of Government Lands Act, 1912 was considered. It was held that it will not operate where an order passed by Revenue Authority was bad in law, without lawful authority, mala fide or in violation of principles of natural justice. Reliance was placed on the case Secretary of State v. Mask & Co. (AIR 1940 PC 105), M/s Chalna Fibre Company Ltd. Khulna v.
Abdul Jabbar and 9 others (PLD 1968 SC 381), Anjuman Talim-ul-Islam (Regd), Sheikhupura v.
Province of West Pakistan Punjab Province and 2 others (P1D 1983 Lahore 294) and Muhammad Muzaffar Khan v. Muhammad Yousuf Khan (PLD 1959 SC 9). This rule was re-iterated by another Single Judge of this Court, Sabihuddin Ahmed, J. In the case of K.G. Traders and another v. Deputy Collector Customs and 4 others (PLD 1997 Karachi 541) where section 217 of the Act, 1969 was unde interpretation. In that case, a civil suit was filed on the original side of this Court where licences issued to two different clearing agents were cancelled by the customs authorities. A learned Single Judge after considering the cases noted in the case of Usman Panjwani held as follows:-- "13-A. The distinction sought to be drawn by Mr. S. Tariq Ali between the provisions of subsection (1) and subsection (2) of section 217 of the Customs Act for the purpose of contending that the latter provision was inserted to place an absolute bar on the jurisdiction of a Civil Court is equally unfounded. In my view. The obvious distinction is that while clause (1) purports to confer a personal indemnity to custom officials against being used for their actions taken in good faith, clause (2) seeks to bar the jurisdiction of Courts to entertain suits questioning orders passed under the Act or the Rules. However, it has been consistently held that a mala fide order or one without jurisdiction is a fraud on the law and can never be assumed to have been passed under a particular statute.
Therefore, a plea as to bar of jurisdiction could only be sustained if it could be shown that the impugned order was passed in the bona fide exercise of powers conferred by the Customs Act or Rules and not otherwise.
14. Coming to the merits of the case I do not think it is necessary for the purpose of the present application to go into the factual controversy, lest it might prejudice the Course of adjudication before Customs Authority or final outcome of this suit. This application can in my humble opinion be decided on the short question whether the impugned action was taken in the exercise of lawful powers and in accordance with the principles of natural justice, which, needless to say, are to be read as part of every statute."
9. The controversy as disclosed in the pleadings of plaintiff and defendants Nos.1 and 2 is that whether the consignment imported falls within the classification Harmonized Code No.7602.0000.
According to the defendant No.2, it does not fall. Reliance was placed on the meaning of words "waste and scrap" as defined under the Harmonized Commodity Description and Coding System's Explanatory Notes, while plaintiff has relied upon the definition of "scrap" as defined by this Court in the cases referred by Mrs. Navin Merchant. It would be pertinent if the term "scrape" is looked into from the point of view of Judicial Pronouncement. In the case Messrs Waseem Traders v.
Government of Pakistan and others (1985 CLC 2796), the question involved was whether the consignment imported under classification "Iron steel scrap" was really scrap or serviceable auto parts as claimed by the custom authorities. The decision of custom authority was challenged in Constitutional jurisdiction of this Court where a learned division bench of this court comprising Abdul Hayee Kureshi,C.J. And Abdul Razzak A. Thahim, J. (as they then were) held that the spare parts which are usable can still be called a scrap. Again, the same question came up for consideration in reference to PCT Headings 73.06 to 73.40 in the case of M/s. Yaseen Sons v. The Collector of Customs (1990 CLC 1797) where another learned division bench of this Court comprising Saleem Akhtar and Wajihuddin Ahmed, JJ. (as their lordships then were), held, inter alia, that" the discretion of the Customs in the matter of classification of a particular good or commodity is very limited and that they must be guided by well-established principle duly documented in Brussels Nomenclature of CCCN, etc. As the case may be." It is not asserted by the present defendant No.2 that the assessment made was strictly in accordance with the aforesaid Nomenclature. However, the cases Waseem Traders and Yaseen sons were considered by another Division Bench of this Court comprising Mamoon Kazi and Nazim Hussain Siddiqui, J.J. (as they then were) in M/s. Khyber Trader Proprietorship v. Central Board of Revenue and 3 others (1994 MLD 1473), where the controversy was again in reference to the waste and scrap of iron and steel. In that cases it was contended by the petitioners that the goods imported consisted of brokenand damaged automobile parts and fall under PCT heading 7204. The two Constitutional petitions were allowed and the matter was remanded to the custom authorities for disposal in the light of following observations:- "7. As would appear from the various dictionary meanings assigned to the word 'scrap' the said word refers to waste material or used articles. The different meanings referred to above further indicate that only such material which no longer can be used in the same form cane be called scrap. Such material would also include metal from worn out machines, vehicles or automobiles.
The only value left in such material must be for reprocessing purposes or for being used as an ingredient in the making of steel. While judged from this angle, classification of auto-parts as scrap can some times pose a problem because, on the one hand such parts are recovered from automobiles which cannot be used again in their original form but on the other hand the parts recovered may retain some serviceability in them.... ....The consensus, however, appears to be that only such articles which cannot be used for purpose other than waste and scrap can be classifiable as such. However, if such articles can be used for any other purpose the same, in our opinion, cannot be called scrap. In case of auto parts, any element of serviceability still retained by them, in such circumstances, would be of no consequence unless they are found to be capable of use other than that as scrap. However, this is a pure question of fact which has to be determined by the Customs Authorities themselves. As the goods have already been examined, as pointed out earlier, further action by the Customs would depend upon their decision in the light of this judgment"
10. Yet in another case M/s Al-Rukiya Traders v. Central Board of Revenue and 2 others (1995 CLC 1456) an identical question was re-agitated before a Division Bench of this Court where the cases Khyber Traders and Waseem Traders (supra) were referred. In that case the consignment was imported under Heading PCT No.7204 as waste and scrap which was examined by Customs Authorities and were found to consist of "serviceable auto parts". Consequently, it was confiscated.
The petitioner requested for re-examination and also pleaded for a show cause notice prior to confiscation. The petition filed under Article 199 of the Constitution, was allowed by this Court and the case was remanded to the Custom Authorities to decide the same within two months after obtaining expert's opinion in regard to serviceability, of the scrap auto parts. Following is the relevant observation in the case of Al-Rukiya Traders:-- "In the present case the customs authorities decided the case merely on the criteria that the broken parts of damaged automobiles, though cannot be used in their original form but the parts of the same when separated and recovered, still retain their servicing capability in them. It is a question of fact which the respondents should have referred to experts to satisfy the claim of the petitioner."
11. In the present suit, the issues which could come up for trial may include question of acting of defendants in a mala fide manner and or acting in violation of the rules and regulations framed by the customs authorities. It is possible that interpretation of different S.R.Os. And relevant provisions of the Act, 1969 and K.P.T. Act may also come under consideration in reference to the facts of the case. At present, I am of the tentative view that the officials of respondent No.2 were required to act in compliance of the law laid down by the Division Bench of this Court in the case of Khyber Traders and Al-Rukiya Traders. The plaintiff has succeeded, prima facie, in establishing that the defendants have not acted in furtherance of the said law which negligence supports maintainability of this suit.
However, it would be open to the defendants at the time of trial to justify their act to the extent that it was not in deviation of the law including the law laid down by this Court. Be that as it may, for the time being, in view of special and peculiar circumstances of this case, I am inclined to hold that the plaint is not liable to be rejected on the grounds urged by the defendants as it is premature stage and that the alleged dispute and controversies suggested by the parties appears to be a matter of evidence.
12. For the aforesaid reasons, I overrule the objections of the defendants and direct the office to fix all the interlocutory applications for hearing in due course of time and as per roster.