JUDGMENT MALIK MUHAMMAD QAYYUM, J. - This judgment shall dispose of C.M. Nos. 1/97, 2/97, 1/98 in W.P. No. 11711/95, C.M. No. 7/96, in W.P. No. 2212/96, C.M. No. 1/92 in W.P. No. 7494/90, C.M. No. 2/97 in W.P. No. 3892/97, C.M. No. 2/96 in W.P. No. 5766/95, C.M. No. 2/96 in W.P. No. 5767/95, C.Ms. 1/96, 2/97 and 4/97 in W.P. No. 5768/95, C.M. No. 2/95, 4/95 and 1/96 in W.P. No. 5769/95, C.M. Nos. 2, 3 and 4/95 in W.P. No. 5770/95, C.M. No. 1/96, 2, 3 and 4/95 in W.P. No. 5771/95. C.M. Nos. 1, 2, 3 and 4/96 in W.P. No. 5772/95, C.M. No. 1/96. 2, 3, 4/95 in W.P. No. 5773/95, C.M. No. 2948/96 in W.P. No. 4215/96.
C.M. No. 1/96, 1/98 in W.P. No. 12232/93, C.M. 2/96 in W.P. No. ,6030/96. C.M. 1/96 and main W.P.
17767/96, C.M. No. 1/96 in W.P. 17819/96, C.M. No. 3827/95 in W.P. No. 17394/93, C.M. No. 1384/98 in W.P.
No. 6948/95, W.P. No. 15292/95, W.P. No. 10350/98, W.P. No. 10581/1998 and W.P. No. 17767/96. In all of which common questions of law which arise are regarding the validity and interpretation of sub- Articles 4-A and 4-B of Article 199, Constitution of Islamic Republic of Pakistan, 1973.
2. For the present purpose, it is not necessary to dilate upon the facts of each case; suffice it to say that the petitioners had challenged the demand of the respondents for the payment of various taxes including customs duty, central excise duty and sales tax. In these constitutional petitions, interim relief was granted to the petitioners in the form of stay of recovery of the dues. According to Article 199 (4A), these interim orders were to remain in force for a period of six months from the day next after the date on which those orders were issued. On the expiry of the aforesaid period, the respondents wanted to enforce their demand. Three of the petitioners namely M/s. Kohinoor Spinning Mills Ltd.. M/s. Zahur Textile Mills Ltd. And M/s. Gojra Samundari Sugar Milsi Ltd. Have filed separate Constitutional petitions Nos. 10350/98, 10581/98 and 17767/96 while the other petitioners have moved civil miscellaneous applications in the petitions already pending for grant of interim relief for further period.
3. Mr. Imtiaz Rashid Siddiqui, the learned counsel appearing on behalf of some of the petitioners submitted that sub-article 4-A of Article 199 of the Constitution does not apply to all cases covered by sub-article 4- of Article 199 but is limited in its application to cases which involve the assessm ent and collection of public revenue which according to learned counsel means that a definite and quantified sum of money must have been found due and payable by the petitioners who had obtained an injunction in respect thereof. Mr. Siddiqui divided the cases into following four categories :-
(a) Where the vires of law have been challenged on the ground of legislative incompetence. Law according to. Learned counsel includes statutes, rules and Notifications as held by the Supreme Court in Multiline Associates V, Ardeshir and 2 others (PLD 1995 SC 423). In the submission of learned counsel, sub-article (4A) of the Constitution has no applicability to this category of cases.
(b) The cases in which the question is of excess or want of jurisdiction and the order has been challenged as being wholly void. In this behalf learned counsel submitted that so far as want of jurisdiction is concerned, these cases would not be covered by sub-article (4A) of Article 199 of the Constitution though in cases of excess of jurisdiction some Courts have taken the view that cases shall be covered by sub-article (4A) of Article 199 of the Constitution.
(c) Cases where the dispute is regarding penalty, fines, additional taxes. Learned counsel has submitted that penalties, fines and additional taxes do not form part of public revenue and therefore, sub-article (4A) would have no applicability. Reliance is placed on Punjab Cables Vs. Government of Pakistan (PLD 1989 Lahore 121).
(d) Cases where no assessm ent has at all taken place.
4. It goes to the credit of the learned counsel that he has cited almost all the law on the subject and has brought to our notice following cases:-
(i) Federation of Pakistan V. United Sugar Mills (PLD 1977 SC 397).
(ii) Dewan Textile Mills V. Pakistan (PLD 1976 Kar. 1368).
(i.e) M/s. Siddiq Trust V. Income Tax Officer (1987 CLC 2366).
(iv) Punjab Cables Vs. Government of Pakistan (PLD 1989 Lahore 121).
(v) M/s. Noori Trading Vs. Federation of Pakistan (PLD 1997 Kar. 663).
(vi) Allah Wassaya etc. Vs. Federal Land Commission etc. (PLD 1979 SC 44).
(vii) Hassan Mahmood and others Vs. Federal Land Commission (1985 CLC 2665).
(viii) Bibi Zuhra Vs. Member, Federal Land Commission etc. (1988 CLC 129).
4-A. Syed Mansoor Ali Shah, the learned counsel appearing for some of the petitioners that by the impugned amendment the judicial power vesting in this Court to grant interim relief has beep taken away. He pointed out that there was difference between jurisdiction and judicial power anu while in roads can be made into the jurisdiction by the legislature it has no authority to interfere with the judicial power.
4-B. The learned counsel further referred to Article 199 (2) of the Constitution to emphasize that the enforcement of Fundamental Rights cannot be taken away by any legislation.
5. It was next argued that sub-article (4A) of Article 199 militates against the independence of judiciary which is cornerstone of the Constitution and cannot be allowed to be interfered with. In this behalf, the learned counsel has relied upon Federation of Pakistan etc. Vs. United Sugar Mills Ltd. Karachi (PLD 1977, SC 397). Syed Mansoor Ali Shall submitted that in the alternative the impugned provision may be read down so as to bring it in consonance with Fundamental Right and independence of judiciary.
6. Mr. Salman Akram Raja, the learned counsel appearing for some of the petitioners submitted that sub-article 199 of the Constitution only applies where the challenge has been made to the assessm ent or collection of public revenue and not where the charge itself is in dispute inasmuch as the woru "levy" is conspicuous by its absence in Article 199 (4A) of the Constitution. The learned counsel went on the argue that when sub-article (4A) is read with sub-article (4B) of Constitution, it becomes obvious that it is the right of a litigant to have his case decided within a period of six months except for sufficient cause which according to the learned counsel means a cause attribution to the conduct of the petitioner.
7. Mr. Shahzad Jehangir adopted the arguments of the learned counsel who preceded him and also submitted that under sub-article (4B) of the Constitution if a case is not decided within a period of six months, reason in each case must be given and the petitioner cannot be penalized.
8. Mr. Ali Zafar, the learned counsel appearing for some of the petitioners submitted that the word "case" in sub-article (4A) does not mean the whole case but the interim order also. He pointed out that similar words also appear in Section 115 of CPC and have been interpreted to mean even the interim orders. According to the learned counsel, requirement of subarticle (4A) of Article 199 is that the question of grant of interim relief should be decided within six months.
9. The last counsel who addressed on behalf, of the petitioners was Mr. Umar Ata Bandiai. He argued that Article 199 (4A) of the Constitution applies only to those cases where collection or assessm ent of the revenue is under challenge and not where the levy itself is questioned. He maintained that three categories of cases namely those where impugned orders are without jurisdiction, coram non judice and mala fide are not covered by the aforesaid provision.
10. Sh. Izhar-ul-Haq, the learned counsel for the respondents has pointed out that the word "public revenue" appearing in Article 199 (4A) is of much wider connotation than the word "tax". According to the learned counsel, public revenue means the entire income of the Government from whatever source. Referring to the judgment of this Court in Zuhra Bibi's case supra it was submitted that the observations regarding i.e and penalty being not public revenue were in the nature of obiter dicta inasmuch as the dispute in that case was as to whether the confiscated goods were State property or not. It was elaborated that having come to the conclusion that the goods in question were State property, it was not necessary for the learned Single Judge to have decided that question. The learned counsel went on to argue that additional taxes, penalties and tines which flow from the administration of any taxing statute are part of public revenues and are, ancillary, akin and dependent upon\taxes. The. Learned counsel maintained that the word "purport" appearing in Article 199 (4A) of the Constitution should be read not only with its earlier part but also with the later part dealing with the public revenues, and as such even where the dispute is with respect to the jurisdiction dr levy itself, Article 199 (4A) would apply.
11. Before proceeding to examine the contentions of the learned counsel for the parties, it appears appropriate to make reference to the history of relevant provisions. The Constitution of Islamic Republic of Pakistan, 1973, as originally enacted did not contain any provision like subarticle (4A) or (4B) of the Constitution with the result that any interim order passed under sub-article (4) of Article 199 was to remain in field till it was recalled by the Court or the cause was itself decided. It is however, to be noted that in Article 199 (4) it was specifically provided that where an interim order was likely to be impeded the assessme nt of the public revenue the Court shall not pass any order unless prescribed law officer had been given a notice and had been heard and further that the Court was satisfied that the interim order would not have the effect of impeding the revenue or have the effect of suspending an order or proceeding which in the face of the record was without jurisdiction.
12. It is a matter of common knowledge that due to shortage of Judges and work load with the Courts numerous cases where recovery of the public revenue is stayed keep lingering on indefinitely. To remedy the situation, first change which was brought about in the Constitution was by Fourth Constitutional Amendment, 1975 which added clause (4A) in the following terms:- "(4A). An interim order made by a High Court on an application made to it to question the validity or legal effect of any order made, proceeding taken or act done by any authority or person, which has been made, taken or done or purports to v have been made, taken or done under any law which is specified in part 1 of the First Schedule or relates to, or is connected with, (State Property or) assessm ent or collection of public revenue shall cease to have effect on the expiration of a period of (six months) following the day on which it is made, unless 1 the case is finally decided, or the interim order is withdrawn, by the Court earlier."
The Constitution was further amended by the Presidential Order No. 14 of 1985 by virtue of which clause (4B) was introduced and clause (4A) was amended so as to replace words "sixty days" with "six months". Sub-article (4B) is in the following terms:- "(4B). Every case in which, on an application under clause (1), the High Court has made an interim order shall be disposed of by the High Court on merits within six months from the day on which it is made unless the High Court is prevented from doing so for sufficient cause to be recorded."
13. It is a fundamental principle of interpretation of all statutes, more so of a Constitutional document that its various provisions must be read together in order to find the true intent of the Constitution maker. Applying. This principle to the present case, if sub-articles 4, (4A) and (4B) are construed conjunctively, the anxiety of the Constitution maker that the recovery of the public revenue should not indefinitely be impeded or interfered with becomes manifest and obvious. In the first place under subarticle (4) no interim order which has the effect of impeding recovery and collection of public revenue can be made unless two conditions are satisfied namely (a) that the prescribed law officer has been given notice and has been heard and (b) that the Court must ensure that the interim order does not in any manner affect the recovery of the public revenue and if it does, the only ground on which the interim relief can be granted is that the impugned action or the order, as the case may be, is without jurisdiction. In the second place, an outer limit as to the life of interim order issued by the High Court has been provided in sub-article (4B) of the Constitution which provides that an order passed under sub-article (4) shall remain in field for maximum period of six months unless the case is decided earlier. Subarticle (4B) of the Constitution requires the High Court to dispose of all cases here an interim order has been made within a period of 60 days, from the day on which it is made unless the High Court is prevented from doing so far sufficient cause to be recorded.
14. So far as sub-article (4B) is concerned, it may be noticed that generally speaking all prescriptions of time within which public duty is to be performed is considered, as directory and not mandatory. It, therefore, follows that if a case is not decided within a period of six months, no breach of Constitutional provision takes place. Furthermore, it is to be stated that sub-article (4B) itself envisages a situation where the Court is prevented from deciding a case within a period of six months for sufficient cause. The only requirement is that sufficient cause must be recorded. In that behalf, workload in different High Courts of the country and shortage of Judges is too well-known to make any comment.
15. So far as sub-article (4A) is concerned, it clearly provides that if a case where an interim order is passed is not decided within a period of 6 months on the expiry of the aforesaid period the interim order issued shall cease to have any force. It was so held by the Supreme Court of Pakistan in Federation of Pakistan V. United Sugar Mills (PLD 1977 SC 397). In that case effect of sub-article (4A) of the Constitution was examined in detail and it was held that on the expiry of 60 days (as sub- article (4A) then stood) interim relief granted by the High Court would cease to operate and that the High Court was prevented from repeating the same order after expiry of 6 months.
16. The learned counsel for the petitioner has however, submitted that the judgment in United Sugar Mill's case supra was delivered at a time when sub-article (4B) was not in existence and therefore that judgment should not be followed. We are unable to agree with the learned counsel firstly for the season that the law declared by the Supreme Court unless it is reviewed by that Court itself remains binding on this Court and secondly that the addition of sub-article (4B) does not in any manner affect the interpretation of sub-article (4A) of the Constitution. This argument in any case stands negated by the judgment of Sindh High Court in M/s. Siddique Trust Vs. Income Tax Officer and another (1987 CLC 2366) where the Division Bench of the Sindh High Court on thorough discussion on the subject and if we may say so with respect considering all the aspects of the case including the import of sub-article (4B) (as per Amal Mian, J. As his Lordship then was) was pleased to hold:- "Admittedly, the above quoted Clause (4B) does not empower the Court to extend the period of a stay order beyond six months as provided in Clause (4A) of the same Article 199. If two constructions of the above clause would have been possible, one which would have empowered the Court to extend the period of a stay order beyond six months and the other which would not have empowered the Court to extend the period of a stay order, the Court would have preferred the former. But the language of the above clause is clear and free from any ambiguity and does not warrant the former construction."
"We are inclined to hold the above principle can be invoiced so long as there is no express prohibition. In the present case as pointed out Clause (4A) expressly provides that the stay shall not operate for more than six months and therefore, the above principle cannot be pressed into service."
"We are of the view that notwithstanding the fact that Clause (4B) of the Constitution provides that the High Court shall dispose of the case on merits within six months from the date on which an order or an application under clause (1) of Article 199, of the Constitution has been passed, the period of six months provided tor in Clause (4A) of the above Article cannot be extended even if the case could not be disposed of within a period of six months in terms of above Clause (4B). It may be observed that the above petition could not be disposed of on account of heavy work load and shortage of Judges.
In our view, it will be proper that either in Clause (4A) the period of six months be extended to a reasonable period or the Court may be empowered under Clause (4B) to extend the period of stay in cases where a petitioner is not at fault."
The aforesaid judgment is conclusive of the controversy which we respectfully follow and adopt.
Reference to other cases on the subject may be made namely Chaudhry Textile Mills Ltd. Lahore Vs. Central Board of Revenue etc. (PLD 1976 Lahore 1392). Dewan Textile Mills Vs. Pakistan (PLD 1976 Karachi 1368) and M/s. Noori Trading Vs. Federation of Pakistan etc. (PLD 1997 Kar. 663)
17. The learned counsel for the petitioners has argued that subarticle (4A) of Article 199 is limited in its operation and applies only to those cases where the assessment and collection of public revenue has been challenged, It is true that in sub-article (4A) the words used are collection and assessm ent of public revenue. It is also correct that the word "levy" is missing but this argument fails to take notice of the fact that in sub-article (4A) the words assessment and collection of public revenue are preceded by the words "relates to or connected with". These two expressions are of were connotations and any dispute which is about public revenue would clearly be covered.
18. One of the meanings given to the word "connected with" in Stroud's Judicial Dictionary 4th Edition Volume 1 at page 553 is "having to do with". Two cases from Indian jurisdiction may also be cited in order to explain the expression "relating to or connected with", first of which is AIR 1965 (83)
Assam and Nagaland in which it was observed that the words relating to or connected with are of were import. Similarly in State Wakf Board Madras V. Abdul Azeem Sahib & others (AIR 1968 Madras 79), in which it was observed that there is ample judicial authority tor the view that such words as relating to or in relation to are words of comprehensiveness which might have a direct significance as well as indirect significance depending upon the context. They are not words of restricted context and ought to be construed.
19. While interpreting any statute more so ai Constitution each and every word appearing in the provision must be given effect to. Consequently, words relates to or connected with cannot be ignored. That being so, in a case where the challenge is to the validity of the law or jurisdiction of the assessing authority, it cannot be said that the dispute is not connected with or does not relate to collection and assessm ent of the public revenue.
20. So far as the question as to whether order without jurisdiction would be covered by the provisions is concerned, we with great humility are unable to agree to the view taken by the Division Bench of the. Sindh High Court. The reasons for our saying so is that if sub-article (4A) of the Constitution is read with sub-article (4) it would be seen that under sub article (4) if the matter relates to public revenue, the condition for grant of interim relief is that the order passed by the High Court would have the effect of suspending an order or proceedings which are on the fact of the record are without jurisdiction. It is thus obvious that in only those cases where the order impugned in the Constitutional petition relating to the collection and assessment is without jurisdiction that the Court can grant temporary injunction. If it is held that sub-article (4A) does not apply to cases where the order has been challenged as being without jurisdiction then this provision would itself be rendered futile and nugatory in as much as temporary injunction as already indicated is issued is only when the order is without jurisdiction and not otherwise. The other reason for coming to this conclusion is that the question as to whether the order impugned is without jurisdiction or not can only be decided at the trial of the petition and not at the interim stage. If we were to hold that sub-article (4A) does not apply to orders passed without jurisdiction then on the expiry of every six months in each case an examination of the facts and law will have to be undertaken and the Court has to decide as to whether or not the order was without jurisdiction.
If that exercise is undertaken at that stage, nothing would remain pending for the decision in the main case itself.
21. The other argument that tine and penalty are not to be levied is again misconceived. As has rightly been pointed out by Sh. Izhar-ul-Haq, public revenue is of wider import and encompasses in itself all the moneys and incomes due to the Government. If while administering taxing statutes like Sales Tax Act, Income Tax Ordinance and Customs Act, certain additional taxes are charged or fines are levied, they shall form part of the revenue of the Government and cannot be held to be otherwise.
22. !t is to be seen that under Article 199 (4A) uses the word public revenue and not tax. Public revenue is a word of much wider connotation than a tax and would include in itself all monies payable to the State. In Black's Law Dictionary Sixth Edition, "revenue" has been defined as the gross receipts of a business, individual. Government or other reporting entity and as applied to the income of a Government a broad and general term, including all public monies which the State collects and receives from whatever, source and in whatever manner. In the same Book, public revenue has been defined as meaning the income which a Government collects and receives into its treasury and is appropriated for the payment of its expenses. According to Ballentine's Law Dictionary Third Edition, revenue means the income of Government State or national arising from taxation, duty, i.e and the like. In Words and Phrases Legally Defined Volume IV II Edition at page 339, the following definition of public revenue appears:- "Public revenue except where the context otherwise requires includes public revenue to any Government whatsoever, and the 'revenue of public authority or institution in any country outside."
23. With due deference, for the aforesaid reasons we are unable to agree with the contention that the i.e or penalties levied under a law do not form part of public revenue. There is also merit in the contention of Mr. Izhar-ul-Haq that the observations to the contrary made by a learned Single Judge in Punjab Cables' case supra are obiter in nature inasmuch as having once come to the conclusion that after confiscation of the goods, the same become the property of the State it was not necessary tor the learned Single Judge to decide whether fines and penalties from part of, public1 revenue.
24. The argument that sub-article (4A) of Article 199 in a way abridges judicial powers and affects the independence of judiciary is totally misconceived. Admittedly, even after the expiry of 6 months the Court retains the power to decide the main lis pending before it on its on merits and further more even the power to make an interim order has not been taken away but only its life and Operation has been limited by the amendment in the Constitution. The difference between the jurisdiction and judicial power is too well-known to need any discussion on the subject. In the words of Hamood-ur-Rehman's, J. In the State Vs. Zia-ur-Rehman's (PLD 1973 SC 49):- "It may well be asked at this stage as to what is meant by "jurisdiction"? How does it differ from "judicial power"? Apart from setting up the organs the Constitution may well provide for a great many other things, such as, the subjects in report of which that power may be exercised and the manner of the exercise of what power. Thus it may provide that the Courts set up will exercise revisional or appellate powers or only act as a Court of a cessation or only decide Constitutional issues. It may function and over which its Writs shall run. It may specify the persons in respect of whom the judicial power to hear and determine will be exercisable. These are all matters which are commonly comprised in that is called the jurisdiction of the Court. It expresses the concept of the particulars or subject- matter over which the judicial power is to be exercised and the manner of its exercise. Jurisdiction 'is, therefore, a right to adjudicate concerning a particular subject matter in a given case, as also the authority to exercise in a particular manner the judicial power vested in the Court."
25. It is necessary to dilate upon these aspects of the matter, for validity of sub-article (4A) of Article 199 was examined by the Supreme Court in Federation of Pakistan etc. Vs. United Sugar Mills Ltd. Karachi (PLD 1977 SC 397) and was repelled in the following words by the Hon'ble Supreme Court at page 411 of the report: "The argument however, is that the two amendments have made serious in road in the judicial power of the High Courts and therefore, the principle of separation of powers has received a jolt. It is, however, not disputed that power of making final decision remains with the High Court and not transferred to the Executive. Even the power to afford interim relief has not been entirely taken away; its operation has been curtailed to sixty days or until the final decision whichever be earlier.
No precedent case has been cited from local or any foreign jurisdiction in which in similar circumstances a law much less a Constitutional amendment has been struck down. On the other had, it is common knowledge that laws relating to the recovery of public revenues are generally very stringent. In many cases right of appeal against assessment is conditioned on prior payment of the assessed tax."
26. Similarly in the case of Chaudhry Textile Mills Ltd. Vs. Central Board of Revenue and another (PLD 1976 Lahore 1392), a Division Bench of this Court was pleased to observe that clause (4A) of Article 199 of the Constitution does not place any limitation on the High Courts' power to make an interim order but merely limits the operation of the order passed by them. Again in Dewan Textile Mills Ltd.
Vs. Pakistan & others (PLD 1976 Karachi 1368), it was held that the embargo placed by sub-article (4A) of Article 199 is on the time period for which interim order in respect of the categories of the cases specified therein is to remain in force. Clause (4A) does not place a total or complete ban. It is left open to the High Court to finally dispose of the controversies brought before it on an application under Article 199 in cases covered by clause (4A) within a period of 60 days, tor, the power to make the final order has not been touched at all.
27. We are not impressed by the contention that by placing an outer limit on the period during which an interim order has to remain force, the independence of judiciary has been affected. As already observed the judicial power as also jurisdiction still vests in the High Court to decide main case and also pass an interim order which can however only remain in field tor a period of six months. Consequently, the concept of independence of judiciary enshrined in the Constitution is in no manner militated against. The judgment in Mahmood Khan Achakzai Vs. Federation of Pakistan and others (PLD 1997 SC 426) has therefor, nu applicability. Similarly there is no force in the argument raised by Mr. Salman Akram Raja that sub-article (4A) of Article 199 in any manner takes away or affects the Fundamental Rights vesting in any individual. Although to have right to access to justice may be considered as a Fundamental Right yet that right does not extend to obtaining temporary injunction from a Court nor does it mean that an order issued must remain in field for all times to come.
28. Now coming to this contention of Mr. Umar Ata Bandial that sub-article (4A) applies to ad- interim orders and not interim orders which have been passed after hearing the prescribed law officer, to say the least, this argument does not deserve any serious consideration. Under sub- article (4) of Article 199 interim orders cannot be issued without hearing the prescribed officer and all orders described in sub-article (4A) must be necessity be the orders passed after hearing the prescribed law officer and such orders are fully covered by sub-article (4A). This aspect of the matter was examined by the Sindh High Court in Dewan Textile's case supra (PLD 1976 Karachi 1368) and repelled.
29. In consequence of the above, the inevitable conclusion in that all interim orders passed by this Court which relate to or affect public revenue stand vacated and there is no further power vested in this Court either to extend the life of an interim order already passed or to issue another order of the same nature.
30. Before parting with this case, we cannot help observing that though prescription of time in Article 199 (4B) has been held to be directory yet it manifests the wish of the Constitution maker that all cases covered by the said provision should be decided within six months. We would therefore, urge the Hon'ble Chief Justice to consider the desirability of having all such cases decided within six months by passing special orders and if necessary, by creating special Benches.
31. In view of what has been stated above, all these writ petitions and Civil Miscellaneous applications are dismissed with no order as to costs.