' AJMAL MIAN, C.J.---This is a Constitution petition under Article 184 (3) of the Constitution of Islamic Republic of Pakistan (hereinafter referred to as the Constitution), filed by Pakistan Tobacco Company Limited (hereinafter referred to as P.T.C.) and one Ghulam Jilani son of Late M.G. Kadir, petitioner No,1 and petitioner No,2, respectively.
2. P.T.C. Is the largest cigarette manufacturing company of Pakistan and is, therefore, one of the biggest purchasers of tobacco for use in the cigarette manufacturing process. It is also one of the largest contributors of revenue to the country. It has been claimed in the petition that the entire textile spinning industry (which is the biggest industrial sector of the country) paid a sum of approximately Rs,400 crore as Central Excise duty and Sales Tax in 1992, whereas P.T.C. Alone contributed to the revenue Rs,653 crore. In other words, P.T.C. Contributed about Rs,250 crore (or 63.25%) more than what all the textile spinning units put together contributed towards the revenue.
3. It appears that under section 8 of the Pakistan Tobacco Board Ordinance, 1968 (Ordinance 1 of 1968), (hereinafter referred to as the Ordinance), the Central Government had been authorised, by notification in the official Gazette, to fix the minimum prices below which, and the maximum prices above which tobacco of various grades shall not be bought or sold for consumption within Pakistan or for export. It also provided that different prices of tobacco be fixed in respect of different areas. It seems that pursuant to the above provision the Central Government had fixed the minimum prices in the relevant years but not the maximum prices.
4. It may also be stated that Martial Law Order No,487 (hereinafter referred to as the M.L.O. Was issued on 16-4-1985 by the Martial Law Administrator Zone 'B' , which was applicable to the whole of above Zone i.e,, North-West Frontier Province. It may be pertinent to reproduce paragraph 2, Paragraph 2-I (1 to 4) and sub-para. (3) of paragraph 2-111, which read as follows.:-- "2. Notwithstanding anything to the contrary contained in any law for the time being in force, or any decree or order passed by any Court, or any agreement or contract entered into or made before the coming into force of this Martial Law Order, the marketing of tobacco between tobacco growers and every person, including a company, engaged in the purchase of tobacco in Zone 'B' shall be regulated in the manner hereinafter specified."
I. Flue-Cured Virginia Tobacco.
(1) Every Tobacco Company, for the purposes of purchase of its targeted requirements of flue- cured Virginia tobacco, will execute agreements with the growers of tobacco by the 31st December in respect of the ensuing crop of tobacco. A copy of each such agreement will be supplied to the growers concerned and a list of all such agreements will be furnished to the Pakistan Tobacco Board as soon as may be possible. After the execution of the agreements.
(2) Every Tobacco Company and other purchasers of flue-cured virginia tobacco shall strictly follow the grade classification of tobacco as laid down by the Pakistan Tobacco Board vide its Notification No,S.R.O. 522(1)/81 dated the 3rd June, 1981.
(3) Every Tobacco Company and other purchasers of flue-cured virginia tobacco shall prominently display at the purchase Depots the leaf sample of each grade and its minimum price notified by the Federal Government.
(4) The weighted average price of tobacco for the crop of any year to be paid by a Tobacco Company to the tobacco growers shall not be lower than the weighted average price paid to them for the crop of the immediately preceding year."
"2.III(3) It shall be binding upon the Tobacco Companies to purchase tobacco in accordance with their indicated purchase targets."
5. It may be stated that in exercise of the powers conferred by paragraph 4 of the M.L.O., the Government of the N.-W.F.P. Framed the Tobacco Marketing Control Rules, 1985 (hereinafter referred to as the Rules) through Notification dated 2-5-1985 (gazetted in the N.W.-F.P. Gazette on 2-5-1985). It may be advantageous to reproduce Rules 3 to 6 of the Rules which read as follows:-- "3. Intimation regarding purchase targets.--The Board shall publicise the requirements of Tobacco Companies for various types of tobacco, in appropriate manner, before the commencement of planting season.
4. Agreements. --The Tobacco Companies shall enter into agreements with the growers the form prescribed by Board and the execution of such agreements shall be completed by December 31, each year for the ensuing crop.
5. Scrutiny of Agreements.- -The Board shall constitute Committees of grower; for scrutiny of the agreements executed by each Tobacco Company in order to verify its genuineness.
6. Commencement of purchase season.-- The Board, shall constitute committee comprising of its own official, representative of Provincial Agriculture Department, Tobacco Companies and tobacco growers to fix a date or dates for the commencement of purchase season after surveying the condition of standing crop in different areas."
6. P.T.C. Through the above Constitution petition has assailed subparagraph (4) of paragraph 2-1, and sub-paragraph (3) of paragraph 2-II of the M.L.O. Besides claiming other relief.
7. The learned counsel M/s. Tanvir Bashir Ansari, Deputy Attorney-General, Talat Qayyum Qureshi, Additional Advocate-General, N.-W.F.P.,' Noor Muhammad, Adovate-on-Record and Ahmad Raza Khan, Advocate Supreme Court appearing for resopndents 1 to 4, respectively, have raised a preliminary objection as to the maintainability of the above Constitution petition. Their contention was that under clause (3) of Article 184 of the Constitution a direct Constitution petition is competent in this Court only if a question of public importance with reference to enforcement of any of .The Fundamental Rights conferred by Chapter 1 of Part II of the Constitution is involved.
According to them, petitioner No,1 P.T.C., as a commercial company, has individual grievance as regards the payment of purchase price in view of sub-paragraph (4) of paragraph 2.1 of the M.L.O., and therefore, the same cannot be treated as a case involving a question of public importance.
They further submitted that as none of the Fundamental Rights is breached, the second requirement of the above clause (3) of Article 184 of the Constitution is also lacking in the instant case.
8. On the other hand, Mr. S.M. Zafar, learned senior counsel appearing for P.T.C., has urged that a question of public importance with reference to the enforcement of any of the Fundamental Rights is to be determined with reference to the controversy involved, and not on the basis of as to who has filed the petition. According to him, an individual or a company can file a Constitution petition under the above provision of the Constitution directly in this Court, if it can be demonstrated that the case involves a question of public importance with reference to the enforcement of any of the Fundamental Rights. He pointed out that though the above Constitution petition has been filed inter alia by P.T.C,. But the present case involves a question of public importance affecting all the growers of tobacco in the entire N.-W.F.P. Namely, whether by virtue of subparagraph (4) of paragraph 2.1 of the M.L.O. The P.T.C. Is bound to pay not less than weighted average price paid to the growers for the crop of the immediately preceding year. His further submission was that P.T.C., has to pay more price as compared to the other tobacco companies engaged in manufacturing of cigarettes, and therefore, the same is discriminatory and violative of Article 25 of the Constitution, as the classification envisaged by the above provision of the M.L.O. Is not founded on an intelligible differentia. According to him, it also violates Article 18 of the Constitution which, inter alia, guarantees freedom of trade or business.
9. To reinforce the above submission, Mr. S.M. Zafar has referred to the following cases:--
(i) I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCM R 1041).
' In the above case it has been held that the Supreme Court can take cognizance of any matter under Article 184 (3) of the Constitution, if it involves a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II of the Constitution, at the behest of an individual person or a group, of persons represented through an association or a political party.
(ii) Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others (PLD 1996 SC 632).
' Reliance has been placed by M. S.M. Zafar on the minority view rendered by Saiduzzaman Siddiqui, J. In which it has been held that Supreme Court while construing the provisions of Article 184 (3) of the Constitution did not follow the conventional interpretative approach based on technicalities and ceremonious observance of rule or usage of interpretation. Keeping in view the avowed spirit of the provision, Supreme Court preferred the interpretative approach which received inspiration from the triad of provisions which saturated and invigorated the entire Constitution, namely, the Objectives Resolution (Article 2A) of the Constitution, the Fundamental Rights and Directive Principles of State Policy so as to achieve democracy, tolerance, equality and social justice according to Islam. This liberal interpretative approach opened the door of 'access to justice to all'.
(iii) Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahab-ul-Khairi and others v.
Federation of Pakistan and others (PLD 1996 SC 324).
' In the above case, inter alia, it was held that under Article 184 (3) of the Constitution, the. Supreme Court is entitled to take cognizance of any matter which involves a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I, Part II of the Constitution, even suo motu without having any formal petition.
10. We are inclined to hold that the question whether a particular Constitution petition filed under Article 184(3) of the Constitution directly in this Court is maintainable is to be examined not on the basis as to who has filed the same, but the above question is to be determined with reference to the controversy raised in the Constitution petition, and if the controversy involves a question of public importance with reference to the enforcement of any of the Fundamental Rights the same will be sustainable. In the instant case the above Constitution Petition was admitted for regular hearing in the year 1994. We are, therefore, not inclined to examine the above contentions in detail, for the reason that we are of the view that it is a fit case where an authoritative enunciation of legal position as to the vires of sub-paragraph (4) of paragraph 2 should be rendered which will curtail unnecessary litigation, and will be beneficial to all the parties including the manufacturers of cigarettes and the growers.
11. We may now revert to the submission of Mr. S.M. Zafar, learned counsel that above sub- paragraph (4) of paragraph 2.I of the M.L.O. Is discriminatory as it is not founded on a reasonable classification, namely, on an intelligble differentia having rational nexus to the object sought to be achieved by such classification, and that it is also violative of the principle of equal protection of law inasmuch as, all file cigarette manufacturing companies are not placed or treated alike, both in privileges conferred and liabilities imposed. Besides relying upon the case of I.A. Sharwani v.
Government of Pakistan. (supra), on the question of maintainability of the above petition, he relied upon sub-paras. (vi) and (vii) of para. 26 of the judgment, which reads as follows:- "26. (vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;
(vii) that in order to make a classification reasonable, it should be based--
(a) on an intelligible differentia which persons or things that are grouped together from those who have been left out;
(b) that the differentia must have rational nexus to the object sought to be achieved by such classification."
(ii) Central Board of Revenue and 3 others v. Seven-Up Bottling Company. (Pvt) Ltd. (1996 SCM R 700).
' In the above case leave to appeal was granted as authoritative pronouncement on the vires of the Excise Duty on Production Capacity (Aerated Water) Rules, 1990, which was issued under sections 3(4) and 37 of the Central Excises and Salt Act, 1944, was called for. In the above case interpretation of rules 6 and 7 of the above Rules was involved. It may be observed that under Rule '6 of the Rules the factories manufacturing aerated water were categorised and the rate of duty per filling valve or spout per financial year was provided. Whereas Rule 7 of the Rules provided as under:-- "7. All the filling valves or spouts installed in all the filling machines in a factory shall be taken into account for the purposes of this notification regardless of whether or not all or any of the filling machines or valves or spouts thereof are in working condition and the duty shall be levied on all such filling valves or spouts: ' Provided, that in the case of manufacturers who have paid a higher amount of excise duty and sales tax on the aerated waters during the financial year 1989-90 than that working out under rule 6, such higher amount shall be levied."
' The respondent Seven-Up Bottling Company Limited successfully assailed proviso to the above- quoted, Rule 7 of the Rules before the High Court on the ground that after having fixed the liability of Excise Duty on the basis of capacity it was not legal to make the manufacturer liable to pay any additional amount of Excise Duty on the basis of the proviso. The Central Board of Revenue filed an appeal with the leave of this Court, which was dismissed. Saiduzzaman Siddiqui, J. Spoke on behalf of the Court. He while dismissing the appeal, held that the creation of sub-class out of a well defined and intelligible classification of manufacturers of foreign brand of aerated water, on the basis of payment of excise duty by them on actual production of goods in the preceding year and determining their tax liability on that basis, bears no nexus to the object of classification envisaged by section 3 (4) of the Central Excise and Salt Act and thus amounted to discrimination within a well defined category of manufacturers.
(iii) Karachi Building Control Authority and another v. Saleem Akhtar Rajput and 2 others (1993 SCM R 1451).
' The above report contains a leave granting order against the judgment of the High Court of Sindh passed in a Constitution petition in which the construction of certain multi-storeyed buildings was assailed. In the above order it was inter alia observed that the application of Article 25 of the Constitution was not on the basis of any mathematical calculation or scientific exaction. It depends upon the facts and circumstances of the case inasmuch as an intelligible differentia is permissible provided it has nexus with the main object of such action,
(iv) Motor General Traders and another v. State of Andhra Pradesh and others (AIR 1984 SC 121).
' In this case the Indian Supreme Court declared section 32 (b) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, which exempted all buildings constructed on or after 26-8-1957 from the operation of the Act, as violative of Article 14 of the Indian Constitution as it found that the above classification was without any rational basis as the incentive to build, which provided a nexus for reasonable classification of such class of landlords no longer existed by lapse of time in the case of majority of such landlords. It was further held that what was once a non- discriminatory piece of legislation may in the course of time become discriminatory and be exposed to a successful challenge on the ground that it violated Article 14 of the Indian Constitution.
(v) Annapurna Match Industries, Cuddapah v. The Union of India and another (AIR 1971 Andhra Pradesh 69)
' In the above case a Division Bench of Andhra Pradesh High Court declared clause (7) of Notification No 75 levying Excise Duty by providing that the manufacturers who have not cleared any goods during the financial year for which they had licence have to pay at the rate of Rs, 4.40 per gross as violative of Article 14 of the Indian Constitution. As it found that the above levy had no reasonable nexus to the objects sought to be achieved by the Act and was, in fact, unrelated to the scheme of levy of Excise Duty based on the output of a particular factory.
(v) M/s. Satna Stone and Lime Co. Ltd. And others v. State of Madhya Pradesh and others (AIR 1988 Madhya Pradesh 286).
' In this case a Division Bench of the Madhya Pradesh High Court held that Rule 3 of the Madhya Pradesh Land under Mining Leases, Quarry Leases Assessment Rules, 1987, which provided for assessm ent of such land was violative of Article 14 of the Indian Constitution, as it was a deviation of the procedure and principle of fixation of assessment rates mentioned in sections 76 to 81 of the M.P. Land Lease Code, 1959, as the impugned classification had no reference to the nature of mineral or soil, nor it had a reference to the financial status of a lease holder, according to the total area leased out for any particular mine or quarry was violative of sections 76 to 81 of the M.P. Land Revenue Code, 1959, which enable assessment of revenue record.
12. In our view the above reports have no application to the case in hand. The point at issue before us is as to, whether the Government can by subparagraph (3) of paragraph 2.1 of the M.L.O. Provide that the weighted average price of tobacco for the crop of any year to be paid by a tobacco company to the tobacco grower, should not be lower than the weighted average price paid to them for the crop of the immediately preceding year.
13. Mr. S.M. Zafar candidly conceded that in view of clause (3) of Article 270-A of the Constitution, the M.L.O. Is an existing law till the time it is altered, repealed or amended by the competent Legislature. His endeavour was to show that the same was violative of Articles 18 and 25 of the Constitution, as according to him, if P.T.C. Pays higher prices for a particular grade of tobacco in a particular year on account of shortage of that grade of tobacco or because of increase in the need on account of more demand of a particular brand of cigarette in which the above grade of tobacco is used. P.T.C. Will be bound to pay in the next year the price paid in the above preceding year, though the other manufacturer may pay less price for the same grade of tobacco which may be not less than minimum price fixed by the Provincial Government under section 6 of the Ordinance. To reinforce the above submission he has invited our attention to the table at page 42 of the paper-book containing company-wise purchases of F.C.V. Tobacco in order to demonstrate that some other tobacco companies paid less price as compared to P.T.C. He has also referred to paras 7, 14 and 15 of the memo. Of petition in support of the above contention.
14. In our view, no exception can be taken to sub-paragaph (4) of paragraph 2.1 of the MLO, as it is founded on reasonable classification based on an intelligible differentia having rational nexus to the object sought to be achieved by such classification. The object of the above provision of law is to ensure that' the growers, get minimum price of a particular grade of tobacco which should not be less than what a tobacco company had paid in the preceding year for the same grade of tobacco by its own volition. It may be pointed out that there is no compulsion on the part of a tobacco company to pay more than what has been fixed as the minimum price for a particular grade of tobacco by the Provincial Government under section 8 of the Ordinance. However, if a tobacco company opts to pay more than the minimum price so fixed for a particular grade of tobacco, it is required to pay at least the same price for the same next year by virtue of the above provision of the M.L.O. The above provision if founded on the well known factum that with the passage of time on account of inflation the cost of production increases. The object of the lawmakers seems to be to safeguard the interest of the tobacco growers who belong to a down trodden/economically oppressed class as pointed out hereinabove. It is a commendable piece of legislation in our view the Fundamental Rights are to be construed in a manner which should advance social justice/economic justice and not to throttle the same on technicalities. It may be observed that a tobacco company will not pay a particular price for a particular grade of tobacco in a particular year unless it is able to earn some profit on cigarettes, which it manufactures by using the same. If it can make profit in spite of payment of a higher price for a particular grade of tobacco in the preceding year, it is not understandable as to why it should not be willing to pay at least the same price for the same in the following year.
15. The legal propositions propounded in the above reports seem to be in consonance with law.
There cannot be any cavil to the proposition that once the Excise Duty is levied in terms of section 3(4) of the Central Excises and Salt Act on the basis of actual production a manufacturer cannot be made to pay additional amount of Excise Duty on the basis of a statutory rule, which may be in conflict with the above provision of the Act. Nor, there can be any controversy as to correctness of the legal proposition that a law when enacted might not be discriminatory, but with the passage of time on account of changed circumstances, the same might become discriminatory. Similarly, if a manufacturer is made to pay higher rate of Excise Duty than what the other manufacturers are liable to pay on account of the factum that it had not cleared any goods during the financial year for which he had licence, it will be unrelated to the scheme of levy of Excise Duty based on the output of a particular factory and would actually amount to the levy of a penalty for non- production of the goods involved and therefore will be violative not only of the provision of the Act but of the Constitution also. It may further be observed that there cannot be two opinions about the factum that the rate of levy of the Excise Duty should have nexus with the value of the goods which are produced or manufactured, and that the same cannot be fixed arbitrarily.
16. It may be mentioned that the learned counsel for the respondents have also urged that the above provision of M.L.O. Is operative since 1985, and which had since been acted upon inter alia by P.T.C. And therefore, it is not open to it to challenge the same after lapse of about a decade on account of estoppel and laches. Whereas Mr. S.M. Zafar has urged that P.T.C. Has recurring cause- of-action and therefore the above principles of law cannot be pressed into service. In our view if a cause-of-action is recurring a Constitution petition cannot be defeated on the ground of estoppel or laches, if otherwise the petitioner demonstrates that the impugned action or order is violative of Fundamental Rights and that what he is challenging is not a past and closed transaction but a transaction which has given fresh cause of action.
17. The upshot of the above discussion is that this Constitution petition is dismissed, with no order as to costs.