1. ' Mlik KRUM BAUCHI MARA j-The Petitioners through the titutional Petitions Nos. 1289/14, 329/75, 330/75, 1295/74, 1399/74, 394/75, 487/75, 850/75, 851/75, 325/75, 1101/75, 553/75, 1580/74, 655/75, 1123/75, 1173/75, 1247/75 and 1259/75 filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 seek to challenge assessment orders of different dates passed by respondent No, 2, the Enquiry Officer, War Risks Insurance, Government of Pakistan, and in these cases where appeals have been filed the appellate orders of respondent No, 1 Government of Pakistan through its Secretary, Ministry of Commerce, Islamabad. The impugned orders in all the petitions have been passed under the same law, that is, War Risks Insurance Ordinance, 1971 (hereinafter called 'the Ordinance') Rules, Schemes and instructions issued thereunder. Except for slight variation of facts and grounds in some petitions the main grounds of challenge of the impugned orders are the same, so are the respondents. I, therefore, propose to decide all the petitions by this single judgment.
2. Before proceeding to discuss the contentions raised on behalf of the petitioners and the law involved it is necessary to give very briefly the facts of each case as under :- ' In Petition No, 1289 of 1974, the petitioners, Messrs Pakistan Chrome Mines Ltd , are engaged in the business of Exploiting and Mining Chrome Ore at a place called "Hindu Bigh" now "Muslim Bagh" in Province of Baluchistan where they employed different machineries such as compressors, water pumps and generating sets above the ground. After coming into operation of the War Risks Insurance Ordinance and Rules on 5th December, 1971 all factory owners were required under sections 8, 9 and 10 to compulsorily take out the insurance policies against War Risks with regard to their goods, factories and buildings. The sections being relevant for our purposes are given as under s - "Section 8. Compulsory Insurance of goods.-(1) On or after such date as the Central Government may, by notification in the official Gazette specify, every owner of any goods or goods in transit insurable under this Ordinance shall take out a policy of insurance against war risks issued in accordance with the Scheme relating to such goods or goods in transit.
(2) The provisions of subsection (1) shall not apply-
(i) to goods insurable under this Ordinance, other than goods in transit referred to in subclause (11) of clause (h) of section. 2, if and so long as the value of such goods does not exceed such amount as the Central Government, by notification in the official Gazette, specify in this behalf ; or
(11) to goods of any description which the Central Government may, by notification in the official Gazette, specify in this behalf. Section 9. Compulsory Insurance of factories.-(1) Every owner of a factory or a factory under construction exceeding in value such amount as the Central Government, by notification in the official Gazette, specify in this behalf, except a factory belonging to the Central Government or of Provincial Government or a factory exempted under subsection (2), shall by such date as the Central Government may, by a like notification, specify in this behalf, take out a policy of insurance against War Risks issued in accordance with the Scheme whereby he is insured in respect of all property which appertains to the factory for a sum not less than the insurable value of such Property Provided that, where the owner of the factory is not himself the occupies of the factory, the occupier of the factory shall unless the owner has already taken out a policy of insurance as required by this subsection, himself take out a policy and in such a case the occupier shall be deemed to act as the agent of the owner and shall be entitled to receive from the owner all sums paid as premiums on the policy.
(2) The Central Government may, by notification in the official Gazette, exempt from the operation of subsection (1) any factory, or any description of factories, belonging to or managed by a corporation established by or under any law for the time being in force. Section 10. Compulsory insurance of buildhsgs.-Every company which owns a building, or a building under construction exceeding in value such amount as the Central Government may, by notification in the official Gazette, specify in this behalf, shall, by such date as the Central Government may, by a like notification, specify in this behalf, take out a policy of insurance against War Risks issued in accordance with the Scheme whereby the owner is insured in respect of all property insurable under this Ordinance which appertains to the building for a sum not less than the insurable value of such property."
2. ' The petitioners took insurance policy under the Ordinance for plants and machineries for Rs, 15 laes for period from 5th December, 1971 to 16th December, 1971 and paid a premium of Rs, 3,266.13.
3. Having failed to take out a compulsory policy beyond 16th December, 1971 he was served with a notice under section 18 of the Ordinance by the Enquiry Officer, respondent No, 2, to furnish necessary information. Ho issued a show-cause notice as provided by rule 10, War Risks Insurance Rules, 1971 following the detailed procedure provided under IIIrd Schedule made under Rule No, 10.
4. Petitioners' counsel and the Secretary of the company appeared before the Enquiry Officer and after hearing them the Enquiry Officer having no other alternative and basis for accurate assessm ent of the insurable value except the information supplied by the petitioners themselves fixed unpaid premuim plus interest and surcharge to Rs, 46,027, giving at the same time the benefit paid premium of Rs, 2,266.13. A time. Barred appeal was filed by the petitioner which was dismissed by respondent No, 1 by his order dated 17-9-1974.
5. ' Apart from the main common grounds in all the petitions which will be discussed later on it was contended that Notification No, S. R. O. 582(1)/71, dated 5th December, 1971 issued by the Central Government although extended the provisions of the Ordinance to machinery above the ground floor appertaining to Mines as defined in Mines Aot, 1923, yet it does not apply to the machinery and equipment of the mines above the ground as it is not deemed to be a factory and in the alternative it was submitted that the petitioners' machinery and equipment located on different mine cannot be treated as factory because the value of the equipment at each mine was much less than Re. 3 lace each, if so, they were not liable to be insured under the Ordinance in terms of S. R.
0. 577 (1)/71, dated 5-12-1971.
6. ' Petitions Nos. 329 of 1975 and 330 of 1975 by the same petitioners "Central Food Industries Ltd.", relate to non-insurance of goods and the factories under the Ordinance. After following the usual procedure under section 18 of the Ordinance and Rule 10, stated above, and hearing the representative of the petitioners the Enquiry Officer accepted General Fire Insurance Policies taken out by the petitioners as the basis and fixed the insurable value of the stock, after giving benefit of premium already paid, to Rs, 11,226.39 as unpaid premium which included interest and surcharge.
7. An appeal was filed which was, however, dismissed by respondent No, 1 by his order dated 5-10- 1974.
8. ' The facts of Petition No, 330/75 by the same petitions "Central Food Industries Ltd.," are not at variance with the above petition in the sense that they failed to insure their factory under the Ordinance although they had taken a Fire Insurance Policy for. Re. 21,80,000 during the month of December 1971 but failed to pay a premium of the subsequent months. After Issuing usual notice and hearing the representative of the petitioners the Enquiry Officer in the absence of necessary and detailed information based his assessment order on the Fire Insurance Policy taken out by the petitioners and as such fixed Rs, 56,853.75 as unpaid premium including surcharge and interest. He unsuccessfully challenged the above order in appeal which was dismissed by respondent No, 1 on 5-10-1974.
9. ' Additional ground taken out by the petitioners was enhancement of insurable value of his factory of Rs, 12 lace eighty thousand whereas the petitioners had obtained insurance on their declared value of Rs, 21,80,000.
10. ' Petition No, 1295 of 1974 is by Haji Moula Buz & Sons, a partnership firm dealing in plywood and purchase and sale of Glass sheets. As usual they also have not taken out compulsory Insurance Policy, therefore, necessary notices were issued to them by the Enquiry Officer and after hearing the representative and considering the document a General Fire Insurance Policy taken out by the petitioners the Enquiry Officer assessed unpaid premium to Rs, 8,628.f0 which included interest and surcharge. An appeal was filed but it was rejected by respondent No, 1 on 4-10.1974.
11. ' As an additional ground the petitioners seek protection under chaise III, subsection (2), War Risks (Goods) Insurance Scheme which empowers the Central Government to remit interest and surcharge where it as satisfied that the insurer was unable to take out the policy for the reasons beyond his control and here it was claimed that the Income-tax Authorities have found the petitioners financially incapable to bear extra burden of War Risks Insurance premium due to financial difficulties.
12. ' In Petition No, 1399 of 1974, Messrs Central Cotton Mills Ltd., have not taken out compulsory insurance policy under the Ordinance. They were served with usual notice and giving the chance of hearing the Enquiry Officer found that during the relevant period goods of petitioners were covered under Fire Insurance Policy of Queensland Insurance Company Ltd. For a total sum of Rs, 25 lees.
13. He, therefore, taking the Fire Insurance Policy as a basis passed an assessment order of evaded and unpaid premium to Rt. 64,948.48 followed by usual demand notice. The petitioners instead of filing the appeal as required by section 7 of IIIrd Schedule through the Enquiry Officer approached the appellate authority directly which having been improperly filed was not entertained and returned to the appellant by an order dated 31-12-1973. Thereafter on 12-3-1974 the petitioners filed an appeal but this was rejected by the respondent No, 1 on the ground that it is beyond 30 days limitation period. It may be noted that the demand notice by the Enquiry Officer was issued on 284-1973.
14. ' In Petition No, 324 of 1975, Messrs Gholam Hussain-Hidaatullah Textile Mills Ltd., having failed to compulsorily insure their factory under . The Ordinance was issued usual notice under section 18 for furnishing necessary information which they failed to comply with. This was followed by show- cause notice and, some information having been supplied, petitioner's Advocate and the petitioner's representative having been heard and considering the documents the Enquiry Officer found as a matter of fact that the installation of the factory was completed in the second half of the year 1971. He, therefore, took 30th September, 1971 as the starting point to arrive at the value for various months during the relevant period adding the additions according to the statement filed which was Rs, 1,49,89,329 for the period from May, 1972 to July, 1972 taking into account the devaluation of Pakistani rupees. As to the depreciation, he allowed the sum only from month of March, 1972 because according to Director's report to the shareholders for accounting year ended 30th September, 1972 and the commercial production commenced in that month. He, therefore, on the basis of calculated insurable value assessed evaded premium to Rs, 7,42,562 followed by demand notice, as to the insurable goods it was found by the Enquiry Officer that the petitioners have failed to insure them under the Ordinance. He issued usual notice and heard the petitioner's representative and considered the informations supplied. He found that during the relevant period the petitioner's goods were covered under the risk of fire under various policies detailed in the assessm ent Order. He, therefore, based his assessment order in respect of goods insured against Fire Risks Insurance Policies as to Rs, 99,476 as evaded premium including surcharge and interest.
15. ' Both the above assessm ent orders were challenged by single appeal by the petitioners dated 30- 10-1974 before respondent No 1 but this appeal still remains pending decision. Learned Deputy Attorney-General submitted that this petition should be dismissed on the ground that alternate remedy in shape of appeal has not yet been exhausted.
16. ' As an additional ground it was urged by the counsel for the petitioners that under the Ordinance and the Scheme related to factories and goods the Enquiry Officer could invoke the jurisdiction only when a factory is manufacturing goods and during the ,period when a factory was not in production no premium could be claimed, and that buildings under construction and plant and machinery under installation could not be treated as , factory building within lhe meaning of schemes relating to factories. But this geiseral argument could not detain us as much as because they relate to queation of fact and the proper authority in this regard was the Enquiry Officer and not this Court in its writ jurisdiction.
17. ' In Petition No, 487 of 1975, Messrs Liberty Mills Ltd.; as usual like other petitioners, failed to insure their goods under the Ordinance, it was followed by usual notice and hearing of the representative of the petitioners by the Enquiry Officer, who found that during the relevant period goods were insured against Fire Insurance Policies, detailed therein, with Mesas National Security Insurance Company Ltd. He, therefor on the basis of Fire Insurance policies produced by the petitioners fixed insurable value from 3-12-1971 to 31-1-1972 at Rs, 41,19,000 and from 1-2-1972 to 31-7-1972 at Rs, 40,00,000 and thereafter according to the reasons given therein after considering the Rules and the Scheme applicable, he assessed Rs, 1,11,276 as unpaid evaded premium including surcharge and interest which was followed by demand notice. The petitioner filed appeal before - respondent No 1 which was rejected by him vide an Order dated 24-44975.
18. ' The legal grounds taken in this petition are the same.
19. ' In Petition No, 850/75, Messrs Arag Industries Ltd., having failed to insure their factory under the Ordinance was issued usual notice under section 18 by respondent No, 2 followed by show-cause notice to determine insurable value in pursuance of which representative of petitioners appeared and was heard and the documents considered by the Enquiry Officer, who on the basis of Fire Insurance Policy taken out by the petitioners assessed Rs, 5,11,874.10 as evaded and unpaid premium including surcharge and interest. This was followed by demand notice.
20. ' The petitioners challenged the above assessment Order in appeal which was dismissed by respondent No, 1 by his Order dated 28-7-1975. It may be noted that appellant's repsesentative was heard and, in fact, the petitioner was given the relief for month of May, 1972 with regard to increase in value for month of May, 1972, and the Enquiry Officer was directed to modify The assessment and give benefit to the petitioners of month of May, 1972 which was caused due to devaluation and to assess it from June to July, 1972.
21. ' Additional ground taken in this petition was that the insurable value should have been left to the factory owner to determine the same and the definition of "actual value" as defined in Clause III to Explanation 1 to section 7, was ignored by respondent No, 2 and the adoption of value on the basis of Fire Policy taken out by the petitioner was not legal, and that addition of Rs, 10 lass on account of devaluation is not based under the Ordinance, Rules and Schemes, therefore, the assessment Orders are arbitrary.
22. ' Petition No, 851 of 1975 is by the same petitioners Messrs Arag Industries Ltd. This was with regard to goods which were not insured according to the Ordinance. After usual procedure of issuing notice and hearing the representative and considering the documents the Enquiry Officer assessed Rs, 2,84,351.07 as unpaid and evaded premium, followed by demand notice.
23. ' The petitioners filed an appeal which was, however, dismissed by respondent No, 1 on 28-7-1975 and in this case after hearing the representative of the appellant.
24. ' The grounds in both the petitions are the same.
25. ' In Petition No, 325 of 1975,' Messrs Gul Ahmed Textile Mills Ltd., the petitioner, having failed adequately to insure its goods under the Ordinance and the Schemes, was followed by Notice under section 18 of the Ordinance. After considering the documents and hearing the representative of the petitioner, the respondent No, 2, the Enquiry Officer on the basis of Fire lasurance Policy taken out by the petitioner assessed Rs, 5,82,799 as unpaid and evaded premium including the interest and surcharge. This was followed by demand notice. It may be noted that the basis of assessment, as in other cases, were again documents produced by the petitioner and the Fire Risks Insurance Policies taken out by them. The assessment order was unsuccessfully challenged by an appeal which was dismissed by respondent No, 1 on 1-3-1975.
26. ' As an additional ground, it was submitted that respondent No, 2 has not given exemption of various items such as goods insured under Motor Insurance Policies, and the goods not intended for sale or meant for use as an ingredient in manufacturing of any goods, as provided by Notification No, SRO 107(1)/72, dated 1-2-1972, and it was submitted that the impugned order does not show that the petitioner was given any deduction of the gazetted items according to the above notification and that they were not allowed any depreciation for the Insurance policies relating to motor vehicles.
27. ' In Petition No, 1101 of 1975, Messrs Globe Textile Mills Ltd , having failed to insure their goods under the Ordinance were issued show-cause notice and after hearing the representative and considering their documents produced, the Enquiry Officer assessed Rs, 1,68,670 as unpaid and evaded premium including surcharge and interest followed by demand notice. The petitioners' appeal was dismissed by respondent No, 1 on 25-8-1975.
28. ' As an additional ground it was submitted that the impugned assessment order was bad in lavi and the finding of the Enquiry Officer that the petitioner has evaded to take War Risks Insurance Policy for adequate value because the petitioner obtained the War Risks Insurance Policy of insurable value amounting to Rs, 10 lacs against the goods which figure was competible to the accepted value by Messrs Newaealand Insurance Company under the Fire Insurance Policy.
29. Therefore, there was no question of levying surcharge of 20% on the premium nor there was any liability to pay it. t may be noted that the petitioners obtained War Risks Insurance cover spent of goods insured against Fire Risk end paid premium amounting to RS. 2,177.94 for December, 1971 and on enquiry it was found that the goods were under-insured even during December, 1971 and uninsured during the remaining period, that is, 1-1.1972 to 31-7-1972. The Enquiry Officer giving the benefit of the paid premium to the petitioners assessed Rs, 1,68,670. As to the fresh ground that respondent No, 2 issued show-cause notice dated 4-4-1974, proposed insurable value totalling to.
30. Rs, 53,65,000 while in the impugned assessment order the insurable value has been increased instead of Rs, 1,24,63,020. It may be observed here that even in appeal no such ground was taken before the appellate authority, which was a proper forum. Even otherwise, the assessment is based on the documents furnished by the petitioners themselves and on the basis of Fire Insurance Policies taken out by them.
31. ' In Petition No, 553, Messrs Bawany Industries Ltd. The petitioner like other petitioners failed to insure their goods under the Ordinance, followed by usual notices, hearing their representative and considering their documents, the Enquiry Officer assessed Rs, 5,88,737 including surcharge and interest as unpaid and evaded premium.
32. ' Apart from the above their goods in transit were also not insured under the Ordinance. After usual procedure the Enquiry Officer assessed Rs, 574 as unpaid end evaded premium. The same petitioner was also required under the Ordinance to insure their factory. Having failed to do so, liner following the usual procedure of show-cause notice, heating the petitioners' representative and considering their documents a sum of Rs, 7,87,530 was assessed as unpaid and evaded premium which included surcharge and interest.
33. ' A joint appeal was filed against three assessment orders, that is, with regard to factory, goods and goods in transit against a total assessment of Rs, 13,76,841. All the three appeals, however, were dismissed by respondent No, 1 by his order dated 4-4-1975.
34. ' In addition to the common grounds in all the petitions it was urged that the petitioner has insured their goods, goods in trisalt and factory for the month of October, 1971 under the Ordinance and issued a cheque for Rs, 1,04,504.40 towards the premium but it could not be cashed due to fall of Dacca. Therefore, it cannot be said that the petitioner failed to take out the requisite insurance policies and non-cashing of the cheque, in the circumstances, was beyond the petitioner's control, therefore, the impugned orders are bad in law.
35. ' The ground that the petitioner has taken out Insurance policies under the Ordinance and issued a cheque has no substance because although the petitioner applied to Adamjee Insurance Company Limited, Karachi who was acting as an agent of the Federal Government for taking out War Risks Insurance Policies and gave a cheque of the amount drawn on Habib Bank, Dacca.. This cheque could not be presented for payment or got cashed because of fall of Dacca. Adamjee Insurance Company Limited presumably had issued a War Risk Insurance Policy on the expectation that the cheque of the petitioner would be cashed in due course. But as the cheque was not cashed the War Risks Insurance Policy was cancelled by Admajee Insurance Company Limited, Karachi. Therefore the issue of the War Risks Insurance Policy was obviously conditional on the payment of the amount of premium but this was not done. The declaration of cease-fire came on or about 17th December, 1971 but it did not absolve the petitioner from taking out another War Risk Insurance Policy as it is a statutory obligation. The petitioner most probably knew that the cheque issued by him could not be presented and cashed because of fall of Dacca. Since he had not paid the premium and the policy had been cancelled this ground Is not available to the petitioner.
36. ' In Petition No, 1580/74, Jubilee Spinning & Weaving Mills Ltd. Having not complied with requirements of Ordinance, 1971 was issued usual notice and after hearing the representative and considering the documents', the Enquiry Officer assessed Rs, 4,75,207.83 as unpaid premium with regard to their factory and Rs, 1,33,110.88 with regard to the goods which included surcharge and interest. This was followed by demand notice. The basis of this assessment was again the Fire Insurance Policy taken out by them. A joint appeal against the assessment order was dismissed by the respondent No 1 by his order dated 12-8-1974.
37. ' An additional ground against the impugned order was that the assessment of costs of the factory was arbitrary and in violation of Rule 7 of the Ordinance, according to which the cost of new unit of the factory was to be assessed then depreciation to be allowed according to the Income-tax Act, 1922, but the insurable value should not be less than 25% of the cost, and that the cost of the new unit of the factory can be ascertaineu from P.1.C.I.C., I.D.B.P. And other loan-giving agencies but the respondents have failed to follow the rules besides motor vehicles are not goods under section 2(f) of the Ordinance and not compulsorily insurable. Therefore, demand of premium on motor vehicle is without lawful authority and that ;he petitioner insured the factory and the goods in December 1971 and paid premium of Rs, 40,494.82 and Rs, 35,000 respectively, therefore, the provisions of section 13 of the Ordinance are not attracted and the usual levy of surcharge and the interest and the assessm ent of the cost of the factory on the basis of Fire Insurance Policy as well are illegal. The last ground that the respondent should have ascertained the cost of new unit of the factory from P.I.C.t.C. And I.D.B.P. And other loan-giving agencies, has no force because the petitioner was given full opportunity by the Enquiry Officer and it was for them to satisfy him and the necessary docunients must be in their possession, but they, however, failed to do so.
38. ' In Petition No 655 of 1975, Messrs Nagaria Textile Mills Ltd., the petitioner like other petitioners, failed to insure their goods under the Ordinance. It was followed by notice and hearing their representative and considering documents produced before the Enquiry Officer, who, on the basis of information produced by the petitioners assessed Rs, 1,00,866.50 as unpaid and evaded premium was followed by demand notice dated 31-1-1974.
39. ' It may be noted that the petitioners have failed to utilize the remedy to file an appeal to the Federal Government as provided under Rule 10 and have approached this Court directly and this was seriously objected to by the learned Deputy Attorney-General, who submitted that the appal is liable to be dismissed as the available alternate remedy has not been availed. This submission has force. The main grounds, as taken like other petitioners are the same.
40. ' In Petition No, 1173/75, Messrs Dadabhoy Paper Mills Ltd. The petitioners like other petitioners have failed to take out the War Risks Insurance Policies under the Ordinance, it was followed by usual notices and hearing the representative and considering all the documents produced by the petitioners the Enquiry Officer assessed Rs, 12,274 based on Fire Risks Insurance Policy as evaded and unpaid premium with regard to goods and Rs, 89,046.37 with regard to plant or machinery. It may be noted that the representative of the petitioners raised no objection for the proposed 'assessm ent before the Enquiry Officer nor they have challenged assessment order before the appellate authority. On the other hand it appears that they have accepted the legality of the assessm ent made because they have requested -by their letter dated 7-7-1975 to the Enquiry Officer permitting them to pay the premium imposed by easy instalments, the reasons being financial difficulties. This request was accepted. The Enquiry Officer by his letter dated 3-9-1975 informed the petitioners to pay the assessment demand in six equal monthly instalments payable by 20th of each month starting from 20th September, 1975 and in case of failure of any instalment beyond due date the balance would be recovered in lump sum.
41. ' It appears that the petitioners paid first instalment of Re 3,000 and in spite of that filed this Constitutional Petition which, in the circumstances, does not lie because the petitioners have themselves accepted the assessm ent order against which they filed no appeal ' on the other hand their request for instalment had also been accepted and in part acted upon by them, therefore, the petitioners cannot say that they have any grievance against the impugned order. This petition, therefore, can be dismissed on this very short ground. Although hardship, by itself, is no ground to interfere with the impugned order, the hardship faced by the petitioners was considered by the concerned authorities.
42. ' In Petition No, 1247 of 1975, Sind Fine Textile Mills Ltd., the petitioners have not insured their goods under the Ordinance. Usual show-cause notice was issued and their representative having been heard and the documents considered the Enquiry Officer on the basis of their own documents assessed Rs, 92,581 as unpaid and evaded premium which included the surcharge and interest.
43. This was followed by demand notice dated 24-9-1974.
44. ' It may be observed that the petitioners have not challenged the impugned assessment in appeal and have come directly to this Court in writ jurisdiction which was objected by the Deputy Attorney-General as incompetent as all the remedy available has not been exhausted and submitted that this, by itself, is a sufficient ground to dismiss this petition as premature.
45. ' Additional ground taken in this petition was that the petitioner's factory was requisitioned by the Government of Pakistan on 2-4-1974 and they have suffered heavy losses and they have been issued notice by City Deputy Collector, Kenichi on 8-11,1975 under Land Revenue Act, 1967, for realising the amount but no ground is shown. In any case this submission has no relevancy with the contention raised.
46. ' In Petition No, 1259/75, ACME Mills Ltd., the petitioners, have not insured their goods under the Ordinance, were issued usual notice. After hearing the representative and the documents produced the Enquiry Officer assessed Rs, 10,870 as unpaid and evaded premium with regard to goods. The petitioners also failed to insure their factory under the Ordinance and after following the usual procedure the Enquiry Officer assessed Rs, 63,176.72 as unpaid premium which included surcharge and interest. This was followed by demand notice.
47. ' It may be noted that the petitioners have not challenged the assessment order before respondent No, 1, on the other hand they made representation through a letter dated 18th March, 1972 to the Enquiry Officer stating that the war continued for only 21 days from 5-124971 to 31-12-1971. The risk and liability of the petitioners ceased from 31-12.1971 and that due to financial difficulties and bad business conditions they are not in a position to arrange for the payment and a request was made to examine their case judiciously and sympathelcally. As the petitioners have not availed the alternate remedy of appeal, the petition is, therefore, liable for dismissal on this ground as submitted by Deputy Attorney-General. Even otherwise the petitioners have made representation to the Enquiry Officer to consider their case sympathetically upon which the Enquiry Officer fixed the easy monthly instalments in his favour. Therefore, there is no substance in this petition.
48. ' In Petition No, 1113/75, Habib Sugar Mills Ltd., the petitioner, having not insured their goods under the Ordinance, usual notice was issued, representatives were heard, documents were considered and on the basis of information supplied the Enquiry Officer assessed Rs, 2,94,916 as unpaid and evaded premium by his order dated 29-11-1974, followed by demand notice. The petitioners have also not insured their factory under the Ordinance and after following the prescribed procedure Re.
49. 4,12,996 was assessed as unpaid and evaded premium by the Enquiry Officer by his order dated 10-3-1975, followed by demand notice. Both the above aesessment orders were challenged by joint appeal which was dismissed by respondent No, 1 on 21-7-1975.
50. ' Apart from slight variation with regard to factual position in individual cases discussed above the main grounds urged in all the petitions are of common nature which for the sake of convenience may be formulated as under t-
(1) That the War Risk Insurance Ordinance, 1971 is liable to be struck down, as it was passed by a usurper, it gives and allows excessive delegation of powers to the subordinate law-making body.
(2) That after official declaration of cease-fire on or about 17th December, 1971 no case of loss or damage did or could arise nor was or could the same be contemplated actually or constructively therefore, the right to receive any premium against risk of war stood extinguished together with the duty to pay compensation for any damage not strictly arising from an act of alien enemy carried out in the course of war besides there has been no formal pronouncement of the declaration or ending of war save the cessation of hostilities. Hence there being no witr or state of war or conditions of war after 17th December, 1971 the War Risks Insurance could not be extended beyond that date.
(3) That the Ordinance, Rules and Schemes have been applied not foil purposes of advancing the object of the law but for executing maximum revenue to the Government thus the impugned orders of the respondents are vitiated by mala fides.
(4) That the Goiernment of Pakistan by Notification No, SRO 552 (1)/72 dated 1-8-1972 has rescinded War Risks Insurance Scheme and after the recission of the Scheme the Enquiry Officer respondent No, 2 had no jurisdiction or authority to conduct an enquiry, in fact, the Ordinance, 1971, itself, became ineffective after recission of the scheme.
(5) That the levy of interest and surcharge is excessive, unreasonable and beyond the delegated powers of respondent No, 2.
(6) That the valuation of the factories, buildings, plants, machinery and goods could not be enhanced on account of devaluation of Pakistan currency which enbncement is bad in law and of no legal effect.
(7) That the term 'insurable value" has been defined in the Ordinance as the value of the goods or property as ascertained for the purpose of insurance under the Ordinance. In so far as Explanation 1 to Rule 7 of the War Risk Insurance Rules casts a flexible definition and a judicially determinable term into an inflexible straigth jacket, tU said rule is ultra tires the Ordinance. It has no relevancy whatsoever to the concept of "Insurable Value" visualised by clause (1) of section 2 of the Ordinance nor can actual value necessarily be only that which was declared by the assured for purpose of Fire Insurance Policy. Therefore, the valuation based on fire insurance policies is repugnant to the spirit, meaning and intent of the Ordinance, and the schemes thereunder.
(8) That the impugned orders are bad so far as motor vehicles are concerned which do not come within the definition of the word "goods" and they have been specifically exempted by law but in spite of that no exemption was granted by the respondents.
(9) That War Rik Insirance Fund was not disclosed to show reasonableness of the rates of premium, the interest rate and the extension of the schemes under the Ordinance to 31-7-1975. The Ordinance constituted the fund for losses duo to war and compensation to be paid therefrom. The counting of the fund should be disclosed and any amount over and above the liability for compensation for War losses or damages is illegal recovery and outside the intent and scope of the Ordinance.
(10) The assessm ent orders are based on General Insurance Policies taken out by the petitioners.
51. The intent and meaning of the law in this behalf was that the goods at "actual cost" should be insured and not by the General Insurance policies ; and
(11) Lastly that respondent No, 1 the appellate authority disposed of the appeals without notice to the petitioners and without giving them an opportunity of being heard, such orders, therefore, militate against the principle of natural justice and are liable to be set aside.
52. ' Before proceeding further it is necessary to have a glance on the scheme of the Ordinance which was promulgated by the President of Pakistan on 5th December, 1971 to provide for insurance of goods and certain properties against the War Risk. Having power under section 4 of the Ordinance the Central Government prepared and promulgated an elaborate insurance Scheme pertaining to insurable goods, goods in transit, factories and the Construction, building etc. Under section 8 owners of goods or goods in transit are required to insure their goods compulsorily. Section 9 provides for compulsory insurance of the factories and section 10 relates to insurance of buildings.
53. Section 13 provides for penalty for contravention of sections 8, 9, 10 (which sections have been quoted earlier). Section 13 being important for the present purpose is given as under t - "Section 13.-Whoever contravenes the provisions of section 8, section 9, section 10 or section 11, or, having taken out a policy of insurance, fails to pay any instalment of premium thereon which is subsequently due shall be liable to pay, in addition to the premium due from him, a surcharge equal to twenty per cant. Of the premium so due as also interest at the rate of one per cent. Per annum above bank rate calculated at monthly rates ' Provided that the Central Government may, if satisfied that the contravention of the provisions of section 8, section 9, section 10 or section II of failure to pay any instalment of premium by any person was due to his having become destitute or having been prevented by circumstances beyond his control from complying with the provisions aforesaid or paying the instalment of premium, by order in writing, waive the recovery from such person of the whole or any part of the surcharge and interest payable by him."
54. ' Section 15 relates to establishing of War Risk Insurance Funds by the Central Government wherein all the premiums under the Ordinance and the Schemes received were to be deposited for purposes of discharge by Central Govern-meat of any liability under the Scheme or remuneration and expenses of agent employed under section 17. Section 16 empowers the Central Government to extend the Ordinance to certain undertakings. The section is as under "Section 16.-(1) The Central Government may, by notification in the official Gazette, declare that the provisions of this Ordinance and of any Scheme made thereunder relating to factories shall apply to the insuring against war risks of-
(a) the machinery above ground appertaining to mines, as defined in the Mines Act, 1923 (IV of 1923),
(b) the distribution systems of gas supply undertakings, or
(c) the whole or a specified part of the distribution and transmission systems, sub-stations, switch houses and transformer houses of electric supply undertakings generally or of specified electric supply undertakings as they apply to property insurable under this Ordinance which appertains to a factory.
(2) In interpreting this Ordinance applied by a notification under clause (a),of subsection (1) to mines, references to the owner of a factory shall be read as references to the owner or agent of a mine as defined in the Mines Act, 1923 (IV of 1923) and references to the occupier of a factory shall be read as references to the manager of a mine for the purposes of that Act."
55. ' Section 17 relates to employment of agents by Central Government. Section 18(1) empowers the Central Government or any person authorised in this behalf to furnish the necessary information for purposes of ascertaining whether or not any goods or property insurable under the Ordinance has been so insured and for determining the insurable value of any goods, or property under the Ordinance for the necessary assessment. Section 18(2) and (3) are penal clauses, provide for punishment and sentence for those who were required and failed to take out War Risks Insurance Policies. Section 20 empowers the Central Government to recover the unpaid premiums as arrears of land revenue. Section 21 relates to power of Central Government' to prosecute those who violate the provisions of the Ordinance. Section 22 empowers the Central Government to compound certain offence& Under section 25 the Central Government is authorised to make rules for carrying out the purposes of the Ordinance.
56. ' It may be noted that simultaneously with the promulgation of the Ordinance, War Risks Insurance Rules, 1971 containing three Schedules, instructions and schemes with regard to goods and goods in transit and factories Were promulgated on 5th December, 1971. Rule 3 of the Rules vovidea as to what should be the War Risks. The Rule is as under t- "Rule 3.-(1) The following risks shall be war risks, namely t-The risks of-
(a) damage occurring (whether accidentally or not) as a direct result of action taken by the enemy or action taken in combating the enemy or in repelling an imagined attack by the enemy ;
(b) damage occurring (whether accidentally or not) as a direct result of measures taken under proper authority to avoid the spreading of, or otherwise to mitigate, the consequences of such damage as aforesaid ;
(c) accidental damage occurring as a direct result of-
(I) any precautionary or preparatory measures taken under proper authority with a view to preventing or hindering the carrying out of any attack by the enemy ; or
(it) precautionary or preparatory measures involving the doing of work on land and taken under proper authority in any way in anticipation of enemy action, being in either case, measures involving substantial degree of risk to property ; or (110 explosion or fire which involves any explosives or munitions or other dangerous things required for war purpose and which happens, or is caused by, through or in connection with, manufacture, storage or transportation or any such explosives, munitions or other dangerous things ;
(d) damage occurring (whether accidentally or not) as a direct result of precautionary or preparatory measures under proper authority with a view to denying facilities to the enemy, being measures involving a substantial degree of damage to, or diminishing the value of, property ; loss caused by the capture or seizure by the enemy of any ship, a, sraft or vehicle to Prodded that the measures mentioned in clause (c) do not include the imposing of restrictions on the display of lights or measures taken for.
(2) Such action against the enemy as is referred to in clause (a) of sub-rule (1) shall, in relation to any ship or aircraft taking part in such action, be deemed to continue until the ship or aircraft has returned to its base and include naval, military or air reconnaissance and patrols."
57. ' Rule 4 provides that "every policy of insurance issued under any scheme shall be subject to the conditions sot forth in the first Schedule." Rules 5 and 6 empower the Central Government to exempt or refund the premium to the owners of goods, factories and certain contingencies. Rule 7 laid down principles to ascertain an insurable value of goods or property. The Rule being important is as under "Rule 7.-For the purposes of insurance under the Ordinance, the insurable value of goods or property shall be ascertained in accordance with the following principles :- (a)The insurable value shall be the actual value or, in the case of works in course of construction, the estimated value of the property on the relevant date after giving due allowance for depreciation ; (b)all plants and machinery which is the part of property to be insured under a Scheme shall be valued as part of a going concern and not as scrap ;
(c) in the event of a loss for which the Central Government has decided to give a cash compensation, the insurable value shall be the value on the relevant date adjusted to the extent of the loss." - ' Rules 8 and 9 relate to the claims of the owners of those who took out the insurance policies in certain contingencies. Rule 10 empowers the requisite authority to determine according to the 3rd Schedule the assessm ent of evaded premium as well as appeal. The Rule is as under : - "Rule 10. -(1) Where any person has failed to insure as, or to the full amount, required by the Ordinance, and therety evaded the payment by way of premium of any money which he would have had to pay but for such failure, the amount evaded shall be determined in accordance with the Third Schedule.
(2) Every person against whom a determination has been made in pursuance of sub-rule (I), may, within the period laid down in the Third Schedule, appeal to the Central Government whose decision shall be final."
58. The manner and procedure in which the appeals are to be preferred as given in Third Schedule in rules 5 to 8, which are as under t- "5. Any person against whom a determination is made in Accordance with paragraph 2 or paragraph 3 may appeal to the Central Government in the Ministry of Commerce within thirty days of the date of receipt of the notice of demand.
6. Where a determination is made against more persons than one in respect of the same goods or property, every person preferring an , appeal shall do so separately and in his own name.
7. An appeal under paragraph 5 shall contain all material statements and arguments filed by the appellant and shall be accompanied by a copy of the notice of demand served upon the appellant. It shall be Preferred through the authority against whose order the appeal is preferred.
8. The appellate authority shall consider (a)Whether the facts on which the notice of demand was based have been established, and
(b) Whether the sum determined as payable is excessive, adequate or inadequate, and after such consideration shall pass such order as it thinks proper. But no order enhancing the amount determined as payable by the appellant shall be passed without first communicating him the grounds on which such order is proposed to be passed and giving him an opportunity to show cause against the same."
59. ' All the learned counsel for the parties according to their turn addressed the Court for many days advancing very lengthy arguments against the impunged orders, led by Mr. Mansoor Ahmed Khan, whose arguments on legal points such as vires of Ordinance, certain rules, schemes, unreasonableness of the orders and excessive exercise of the delegated powers by the Enquiry Officer and denial of opportunity of personal hearing by the appellate authority, were adopted by the other counsel.
60. ' As to ground No, 1 that the Ordinance violates Fundamental Rights, it was made by a usurper, and is ultra vires the Constitution, suffice to say that when confronted with legal position that the Ordinance is protected by Article 281 of Interith Constitution of 1972 as a valid existing law and the judgment of Supreme Court State v. Ziaur Rehman (I), all the learned counsel for the petitioners unanimously abandoned the challenge to vires of the Ordinance.
61. ' However much stress was laid and elaborate arguments were advanced in support of ground No, 2 to show that India was not an "alien enemy" at least after 17th December, 1971 the date of cease- fire, therefore neither any enquiry could be hold against the petitioners nor premium could be demanded from them after that date under the Ordinance. Reliance was placed in this regard on Haji Mohiuddin v. K. S. M. Sirajul Alam Choudhury (2), Essabhoy v. Saboor Ahmed (3), In re : Reference No, 1 of 1965 (4), Padfield and ' others v. Minister of Agriculture, Fisheries and Food and others (5) and Maradan Mosque (Board of Trustees) v. Badi-ud-Din Mahmud and others (6). It was submitted that actual hostilities between India and Pakistan came to an end on 17th December, 1971, therefore, this Court is competent to give such a finding, it so, demand of premium after 17-12-1971, is null and void.
62. ' There is hardly any room to discuss the above judgments, as in our opinion reliance by learned counsel for petitioners is misplaced, bemuse ratio decidendi therein are altogether on different points and principles than that before us. On the other hand, we have the direct authority of the Supreme Court reported in M. M. Mansur All v. Arochandu Shakhar Chatterjee and others (7) precisely on the point relied by learned Deputy Attorney-General wherein apart from laying the principle whether it is the Courts of law or the Executive Government who is competent to decide, whether this country is, or was at war with another country the point as to what is an alien enemy, was also considered, and this is what their Lordships say In the present case the question whether the plaintiffs-respondents who are admittedly nationals and residents of Bharat are alien enemies or not depends on the answer to the question whether we are at war with India and whether India is an enemy country. This however is a delicate political question, which, as a matter of State policy lies in the domain of the Executive Government and the Courts need not
(1) PLD 1973 SC 49 (2) PLD 1967 SC 515
(3) PLD 1973 SC 39 (4) PLD 1966 Kar. 100
(5) 1968 A B R 694 (6) 1966 A E R 545
(7) PLD 1969 SC 37 ' answer it. One can take notice of the physical facts bearing on the point which are that soon after the attack by India on Pakistan on the 6th September, 1965, the President of Pakistan declared that we were at War with India and a state of emergency was proclaimed. Thee has since been no revocation of that declaration but there is also the fact that hostilities came to an end by the announcement of the cease-fire declaration in the Security Council and later the warring parties were brought to the conference table at Tashkent by the good offices of the Russian Government where once again a declaration was made acknowledging the end of belligerency between Pakistan and Bharat and an announcement was made that efforts would be made to bring about a peaceful settlement of all outstanding disputes. But whether normalization of relations between the two countries has, in fact, been effected or not, is a matter of which the Government is the best Judge and it alone can say as to how we stand against India in terms of bellingerency i,e, whether we are at war with it conventionally or otherwise. In our view there is a purely political question, of which the answer must be supplied by the Government concerned."
63. ' In Halsbury's Laws of England, Third Edition, Volume 39 under the head "Common Law and Convention", the following passage relevant to this point appears which may be usefully quoted "18. Existence of a state of if ar.-At common law no state of War exists between this country and a foreign State until there has been a formal declaration of war by the Crown or hostilities have been commenced by the authority of the Crown. (a) Similarly a war may be terminated only by the authority of the Crown, and this is usually effected by a treaty of peace and announced to the nation by proclamation or Order in Council. (b) A certificate of the Secretary of State for Foreign Affairs to the effect that the Crown is still at war with a foreign State is conclusive evidence that the state of war is not at an end. (c) During the course of a war with a foreign State all commerce and intercourse between British subjects resident in British territory and the subjects of that state, or with persons residing there, is prohibited except under licence. (d) Judicial notice will be taken of the existence of a state of war between this country and any other, when that is the tact, even after the termination of hostilities.
64. ' The correct procedure therefore, for the Courts to follow, whenever a question of this nature crops up is to obtain the vices of the Government on the question-and to follow them."
65. ' In further support of his contention that the Executive Government holds the opinion that Pakistan was at war with India and that even up to this day, in spite of absence cf active hostilities, relations between the two countries are not on the normal footing, learned Deputy Attorney-General not only referred to the terms of Simla Agreement between India and Pakistan of 2nd July, 1972 of which he filed a cyclosty led copy Exh. 3 but he produced two certificates Exhs. 1 and 2, issued by Executive Government as under "Islamabad, the 17-10-1975 : ' Certified that restrictions on trade between India and Pakistan were removed by the Government of Pakistan on 7th December, 1974 to the extent that such trade shall be conducted only on Government to (Sd.)
66. (Khallid Amin), Deputy Secretary.
67. Government of Pakistan.
68. Islamabad the 18th October, 1975.
69. CERTIFICATE ' Certified that consequent to the outbreak of War with India in 1971 traffic between Pakistan and India was restricted through a notification issued under rule 31 of the Defence of Pakistan Rules.
70. From February, 1973 onwards, a few Pakistani nationals were permitted to go to India on humanitarian grounds. On 14th September 1974 a visa agreement was concluded with India. Traffic between India and Pakistan is now permitted on a restricted basis.
71. (Sd.)
72. (Abdul Wahab), Deputy Secretary."
73. We hold that the opinion of the Executive Government that war-like conditions continued to exist even after 17-12-1971 is conclusive, thereof the liabilities of the petitioners to take out war Risks Insurance Policies have not come to an end on or about 17th December, 1971 but the liabilities only come to an end on or about 1-2-1972 when the scheme under the Ordinance were rescinded by relevant notifications. Over and above, once having come into operation the Ordinance, remains effective until repealed or if it is a temporary statute until it has expired. It is not the case of the petitioners nor it can be that the Ordinance is a temporary one nor that it has been repealed, therefore, the Ordinance is a very much valid and living piece of legislation.
74. ' During course of argument at one stage it was submitted on behalf of the petitioners that the Ordinance may be treated as dead and repealed by implication on the ground that no proper action was taken by respondent No, 2 soon after issuance of the Ordinance against the petitioners and that the schemes have since been rescinded. This argument has no force because mere rescission of certain schemes made under the Ordinance or non-application of the Ordinance for a length of time in no way, would impair its effectiveness and validity. In words of Professor C. K.
75. Allen in his book Law in the Making", p. 478 t-- "Age cannot wither an Act of Parliament, and at no time ; so far as I am aware, has it ever been admitted in our jurisprudence that a statute might become inoperative through obsolescence."
76. ' He further quotes Scrutton I.. J. In R. v. London County Councll(1)
77. "The doctrine that, because a certain number of people do not like an Act and because a good many people disobey It the Act is therefore "Obsolescent" and no one need pay any attention to it, is a very dangerous proposition to hold in any constitutional country. So long as an Act is on the statute book, the way to get rid of it is to repeal or alter it in Parliament, not for subordinate bodies, who are bound to obey the law, to take upon themselves to disobey an Act of Parliament."
(1) (1931) 2 K B 215 ' With regard to ground No, 3 on behalf of the petitioners reliance was placed on CM & Gas Development Corporation v. Lt.-Col. Shufauddin Ahmad (1), Sobhu Gyanchandani v. Crown (2), District Magistrate, Lahore and another v. Syed Raza Kazim (3) and Shaikh Hail Muhammad Ismail & Company Ltd., Lahore v. The Chief Cotton Inspector, Multan Division and others (4) that this Court has power to strike down the Ordinance and Rules and Scheme because they have been promulgated not for purpose of advancing the object of law but for exacting maximum revenue to the Government.
78. ' Reliance on the above judgment again, in our opinion, is misplaced and need to be discussed because we have already held that the Ordinance being a valid and existing piece of legislation cannot be struck down by this Court, particularly on the grounds of policy or unreasonableness.
79. Over and above it is not for this Court to go into the object and intent of the legislation because thilsis clearly within the province cf Legislature. Apart from well-settled principle that no mala fide intention can be imputed to the Legislature B no mala fides generally or specifically have been proved that submission again have no foundation. While discussing policy of statute this is what Prof. C. K. Allen has to say in the same book at page 492 :- "A dilemma of the same kind confronts the Courts in dealing with what Austin calls the end or purpose with which the legislator acts I for this also cannot be ignored. It is repeatedly affirmed that it is not open to the Courts to regard a statute in the light of its social or Parliamentary history.
80. In the Middle Ages, Judges as members of, the K:ng's Council, were generally themselves legislators and not infrequently interpreted an enactment according to their personal knowledge of its occasion and purport. But in modern times it has become an accepted rule of interpretation that the Parliamentary history of a statute is not to be considered by the Court."
81. ' As to the ground No, 4 that the Government of Pakistan by Notification No, SRO 552(1) of 1972, dated 1-8.1972 has rescinded. War Risks Insurance Scheme and after such recisaion the Enquiry Officer has no jurisdiction or authority to conduct the enquiry and that the Ordinance, itself became ineffective after its rescission, learned Deputy Attorney-General submitted that although the scheme was rescinded on 1st August, 1972, but the Ordinance being of a permanent nature remains in operation. It is not an emergency legislation, therefore, no period is fixed about its life and for that very reason no period is provided for its expiration which, therefore still is in force.
82. Hence the rescission of scheme on 1.8-1972 does not affect the jurisdiction of the relevant authority nor the impugned orders which have been validly passed. We see sufficient force in the arguments of the learned Deputy Attorney-General and bold that the mere rescission of the Schemes on 1-8- 1972 in no way affects the powers and the jurisdiction exercised by C the respondents, particularly so when the liabilities of the petitioners under the Ordinance arose and relate to a period much before rescission of the schemes.
83. ' As to the ground No, 5 that the levy of interest and surcharge are excessive and unreasonable beyond the powers of respondent No,
2. This argument in our opinion has no force either because section 13 of the
(1) PLD 1970 Kar. 333 (2) PLD 1952 P C 29
(3) PLD 1961 SC 178 <4) PLD 1966 SC 388 ' Ordinance, itself, provides the liability to pay the surcharge equal to 20% of the premium due and also interest at the rate of 1 per annum above the Bank rate calculated on monthly rate. Admittedly none of the petitioners has complied with the provision of the Ordinance and failed to take War Risks Insurance Policies, therefore, they made themselves liable under the penal provision of section 13 of the Ordinance itself. Once having hold that the Ordinance is valid piece of a legislation no section of it can be struck down on the grounds of hardship and unreasonableness and it has not been shown by the counsel for the petitioners as to how the levy of surcharge and interest are in excess of the powers vested by the Ordinance. However learned Deputy Attorney-General submitted that the petitioners are still at liberty to make application under section 13 of the Ordinance for remission of surcharge and interest and such application will be considered by the Government on merits. It may well be that in their own interest petitioners even now or some of them still may resort to this course.
84. ' As to ground No, 6 that the valuation of the factories, plants and machinery could not be enhanced on account of devaluation of Pakistan Currency, it was submitted by the learned counsel for the petitioners that neither the Ordinance nor the rules make a specific mention about such a contingency, therefore, the enhancement of insurable value on this basis by learned Enquiry Officer is bad in law. Decidedly neither the Ordinance, 1977 nor the rules and the schemes made such a mention, therefore, in the absence of direct provision in the Ordinance, in our opinion, the respondents bad no power to enhance the insurable value on this score. We therefore, decide, this ground in favor of the petitioners because the Ordinance has to be interpreted very strictly, particularly, when this being in a way a kind D of revenue realizing statute must be interpreted liberally in favor of the petitioners.
85. ' With regard to ground No, 7 that valuation bused on Fire Insurance Policies is repugnant to the spirit, intent and meaning of the Ordinance and the Schemes and that the definition of words "insurable value" given in section 2 of the Ordinance is judicially determinable and that as there was no guideline with regard to insurable value in the Ordinance and the rules, therefore, Explanation 1 of rule 7 is ultra-Wes the Ordinance, suffice to say that this submission has no force because the insurable value is defined in section 2 of the Ordinance as under "Insurable value in relation to goods or property means the value of the goods or properties ascertained for purpose of insurance under the Ordinance."
86. ' In rule 7 it is clearly laid down that the insurable value shall be the actual value or in the case of works in course of construction, the estimated value of the property pn the relevant date after giving due allowance for depreciation. Learned Deputy Attorney-General submitted that it is for the Executive Authority to ascertain insurable value in each case that being so it is for the authority and the Rule-making Power to ascertain insurable value which in this case is the Central Government and not the Legislature and in this regard he submitted that rule 7 is very clear which lays down as to how to ascertain the insurable value and in absence of sufficient information supplied by the petitioner it was for the Enquiry Officer to fix the insurable value as he did in each case. It was argued that, therefore, in view of clear provision in the Ordinance and the Rules as to how insurable value is to be ascertained this is not for this Court to go into details of insurable value. That the Ordinance, 1971 override the Insurance Act, therefore insurable value has to be decided by the Ordinance and not otherwise. There is sufficient force in this argument. Besides the provision of the Ordinance, the Rules and Schemes in this regard are reconcilable hence there is no occasion for this Court to embark upon a course of elaborate examination and wider interpretation of the provision of the Rules as suggested by counsel for the petitioners.
87. ' With regard to ground No, 8, where examination with regard to motor-vehicles were not given by the Enquiry Officer in spite of exemption notification referred to earlier, learned Deputy Attorney- General submitted that he has no objection that the direction be given to the Enquiry Officer to scrutinize each case, where he has not given the benefit of exemption as per the Government notification. This point, therefore is decided in favor of the petitioners.
88. As to ground No, 9 that the Central Government has not established nor published War Risks Insurance Funds as provided by section 15, therefore, the petitioners are not liable under the Ordinance to pay the premium, learned Deputy Attorney-General replied that the publication and establishment of fund in no way advances the case of the petitioners as mere non-publication of funds by itself, does not vest the petitioners with any right. He submitted that, in fact, the petitioners themselves have violated the Ordinance and have not paid the requisite premium under the same hence they cannot claim to have any right for a refund or otherwise challenge this provision. He relied in this regard on The Chairman, East Pakistan Railway Board and another v. Abdul Majid Sardar, Ticket Collector, Pakistan Eastern Railway W. There is force in the arguments of the learned Deputy Attorney-General. Under section 15 it is within the province and discretion of the Government to establish and publish the receipt of the premium and mere non-publication of the fund does not vest the petitioner with the right to avoid the liability imposed by the Ordinance. It is not the case of the petitioners that the Central Government, respondent No, 1, has not employed the insurance agents or other persons and have not undergone expenses in this regard to carry out the purpose of the Ordinance for which the funds were to be established. It also has not been shown from the Ordinance and the Rules that in cases where no damages or losses have been caused the petitioner is entitled to refund of the premium if any paid under the Ordinanbe. The purpose of establishment of the War Risks Insurance Fund appears to provide for payment of the losses if any to the insurance and also the remuneration to persons or firm employed by the Government to carry out the purpose of the Ordinance, that being so, the argument does not, in our opinion, advance the case of the petitioners.
89. ' As to ground No, 10 that the assessment orders having been based on General Fire Insurance Policies taken-out by the petitioners, is against the intent and meaning of the law, that the goods at "actual cost" should be insured and not by General Fire Insurance Policies, has earlier been answered, therefore, has no substance because the petitioners as mentioned earlier being defaulters have not complied with the provision of the Ordinance. As they have failed to take compulsory insurance policies, as mentioned earlier, respondent No, 2 has taken action under Third Schedule made under Rule No, 10, under which he duly issued show-cause notices for necessary information and after hearing the representatives and considering the documents
(1) PLD 1966 SC 725 ' produced and information laid before him, has passed the impugned assessment orders. It may be noted that under paragraph 2 of Third Schedule the Enquiry Officer is to take into consideration any information received by him in response to the show-cause notice and where the petitioners have failed to reply the show-cause notice or insufficient information were given the Enquiry Officer under paragraph 3 of the Third Schedule is empowered to make assessment to the best of his judgment. It cannot be said that the Enquiry Officer has not based assessment orders on the documents produced by the petitioners and on the General Fire Insurance Folicies taken out by them, therefore, it cannot be said that he has acted in excess of his powers because under the Ordinance and the Rules he is authorised to make assessments in case of lack of necessary information on the Fire Insurance Policies.
90. ' As to ground No, 11 that the respondent No, 1, the Appellate Authority by not giving the petitioners personal hearing at the time of hearing the appeals the principles of natural justice have been violated. It was submitted in reply by the learned Deputy Attorney-General that the appeals which F were properly filed ware duly heard by the respondent and speaking orders have been passed in each case, therefore, it cannot be said that the appeals of the petitioners were not considered.
91. Personal hearing he submitted was not obligatory under the Third Schedule and the Rules wherein the procedure for filing or determining the appeals have been provided, referred to earlier. It was only where the appellate authority was to enhance the amount than that determined by the Enquiry Officer, that an opportunity to show cause was to be given to an appellant. The Appellate Authority, admittedly, as submitted, has not enhanced any of the impugned assessment orders, therefore, the question of opportunity to show cause does not arise. He also stated that even "opportunity to show cause" as provided by paragraph 8 (b) of Third Schedule does not mean to afford a personal hearing to appellant under the provision. Even on general principles it is not obligatory for an Appellate Authority to hear the appellant in person, however speaking orders have been passed and the petitioners cannot legitimately say that their appeals have not been considered. In support of his arguments he relied on Dr. Mumtaz Hassain v. University of Sind, Hyderabad and others (1), wherein it was held that opportunity of personal hearing is not necessary. He next relied on Mehran Khan v. Tai Muhammad and others (2), the same principle was upheld. In further support of his arguments ha referred to War Risks Insurance Ordinance, 1965 wherein there is specific provision in the Ordinance that the appellant shall have no right to appear in person or by pleader before the Appellate Authority. The Ordinance being in part the intention of Legislature, it was argued, is not difficult. He submitted, therefore, it cannot be said that there was any statutory duty on rasp ondew G No, 1 to give the petitioners personal hearing. There is sufficient force in the arguments.
92. ' During the course of the arguments learned Deputy Attorney-General very candidly conceded that with regard to factories these cases may be remanded to respondent No, 2 where no opportunity of being heard was given to them. As to the point of depreciation he submitted that cases be remanded where depreciation has not been given or not considered, as well as those cases where benefit of exemption with regard to motor-vehicles as provided by notification has been denied to the petitioners.
(1) PLD 1966 Kar. 429 (2) PLD 1961 Quetta 1100 ' For the reasons given above, subject to the following directions, we see no merit in these petitions which are hereby dismissed with no orders as to costs
(1) All cases are remanded to respondent No, 1, the Enquiry Officer, as we have held that petitioners under law were not liable to pay extra premium on account of devaluation of Pakistani Currency, during the relevant period, therefore, fresh assessment orders be passed giving them the above benefit.
(2) He must scrutinize each case with regard to factories and where depreciation is not given as conceded by Deputy Attorney-General, he must pass fresh assessment orders to this extent after hearing the petitioners giving them the benefit of depreciation wherever it is applicable.
(3) He must scrutinise those cases where benefit of exemption of motor vehicle under Government notification has not been given to the petitioners and give them that benefit.
(4) He must reconsider those where assessment orders have been passed from 3rd December, 1971 instead of 5th December, 1971 because that is the date when under the statute the petitioners are liable to take out the Insurance Policies and pay premium, therefore, wherever, it is applicable he must give 2 days benefit to the petitioners.