MALIK MUHAMMAD QAYYUM, J.---This judgment shall dispose of I.C.As. Nos.758 of 1999, 759 of 1999 and 760 of 1999 which are directed against the common judgment of the learned single Judge of this Court dated 7-7-1999 by virtue of which the Constitutional petitions filed by the respondents were allowed.
2. The dispute between the parties relates to the allocation of export textile quota for the year 1994 which is regulated under section 3 of the Import and Exports (Control) Act, 1950. On 7-3-1992 a Notification bearing No.S.R.O. 166(1)/92 was issued by the Federal Government whereby it was decided that the quota allocation would be worked out 50% on the value of the goods exported and 50% on the basis of quantity. However, by a subsequent Notification dated 8-3-1994 this rule was changed and instead it was provided that 100% quota allocation would be made on the basis of quantity exported. The respondent felt aggrieved by this change and assailed the Notification in question by filing Constitutional petition which was allowed by a learned single Judge of this Court on 7-7-1999.
3. Mr. Sher Zaman Khan, the learned Deputy Attorney-General for Pakistan has argued with vehemence that the learned single Judge was not justified in allowing the Constitutional petitions inasmuch as he has failed to consider that the earlier Notification dated 7-3-1992 was provisional in nature and it was so provided in the Notification itself that it was liable to be changed at any time.
4. The next contention raised by him was that the Notification dated 7-3-1992 had expired on 31-12- 1996 due to lapse of the period provided therein and the learned single Judge could not have in the year 1999 based his decision on the aforesaid Notification.
5. Learned Deputy Attorney-General went on to argue that the learned Single Judge has erred in applying the theory of vested rights which could be taken away by the Government by issuing a subsequent Notification. In this regard reliance was placed on Government of Pakistan v. Facto Belarus Tractors Limited (2000 SCM R 112). It was next argued that the learned single Judge has failed to take notice of earlier decision from this Court and two other decisions from Sindh High Court: He submitted that in any case the litigation between the parties is academic in nature inasmuch as no quota was available for allocation.
6. The appeals have been defended by Syed Mansoor A.I, Advocate who has supported the judgment of the learned single Judge and has controverted the contentions raised by the learned Deputy Attorney-General in this behalf.
7. It is common ground between the parties that the export out of Pakistan is regulated by the provisions of Import and Export (Control) Act, 1950 pursuant to which the policy in the form of various Notifications is published. By Notification No.S.R.O. 166(1)/92, dated 7-3-1992 it was provided that the basis of allocation of textile quota would be theperformance of the holder in the last preceding year based on quantity and value in the ratio of 50 to 50. According to the learned counsel for the respondents acting on the basis of aforesaid Notification the respondents had made substantial investment with a view to modernize its plant and machinery., The quota for the year 1994 was worked out by the Export Promotion Bureau which was authenticated in the pass book held by the respondents on 31-3-1994. Earlier on 8-3-1994 the Notification dated 7-3-1992 was superseded and a new formula for calculating the entitlement of the exporter namely the quantity exported by him was provided. The Notification dated 8-3-1994, however, provided that for the year 1994 the entitlement would be determined either en the basis of the provisions contained in the earlier Notification dated 7-3-1992 or on the basis of quantity exported by the performance holders in 1993 if the association concerned with the category so opted. It may be mentioned here that the dispute in these cases is with respect to the allocation of quota for the year 1994.
8. From the record it is apparent that so far as the respondents are concerned the quota for the year 1994 was allocated to them on 31-3-1993 before the association opted to be governed by the new dispensation. This allocation was in consonance of para. 2 of the Notification dated 8-3-1994 which itself provided that so far as the entitlement for the year 1994 was concerned it would be determined either on the basis of the Notification dated 7-3-1992 or on the basis of ~ quantity exported by the performance holders in 1993 if the association concerned with the category so opted. Before the option could be exercised by the Association the quota for the year 1994 allocated by the Export Promotion Bureau and necessary endorsement was made in the pass book maintained for that purpose.
9. It cannot be denied that the quota for export is a valuable right and has been considered to be a property in Husein Industries Limited v. Textile Quota Management Directorate, and others (1997 M LD 737). That being so the valuable rights stood vested in the respondents by allocation of the quota on 31-3-1994 in the category pass book of the respondents of which they could not be denuded both on the theory of vested rights and principal of promissory estopple. These rights could only be taken away by the legislature through an enactment and not by executive by issuing a Notification superseding the .Previous one. The vested rights clearly survive the executive action taken in this behalf. There is a long time of authorities in support of the view which we take.
Reference may, however, be made to Messrs M.Y. Electronic Industries (Pvt.) Ltd. v.. Government of Pakistan and others (1998 SCM R 1404), Messrs Gadoon Textile Mills and others v. WAPDA and others (1997 SCM R 641), Messrs Army Welfare Sugar Mills v. Federation of Pakistan (1992 SCM R 1652) and Pakistan through Secretary Ministry of Commerce v. Salahuddin (PLD 1991 SC 541).
10. In the end, it may be stated that we have, for the reasons aforesaid, been unable to agree with the reasoning of a learned Single Judge of this Court delivered in Writ Petition No.11008 of 1994 on 27- 11-1994 whereby the said petition was dismissed. As regards the judgments from the Sindh High Court the cases are distinguishable on facts inasmuch as in none of those cases had the quota for the year 1994 been actually allocated before the association had on 26-4-1994 decided to be governed by the new system. In the present case as already submitted before the association took the decision the allocation of quota to the respondents had been made and confirmed. ,
11. The learned Deputy Attorney-General has argued that there, is no quota available which could be allocated to the respondents. On the other hand learned counsel for the respondents has submitted that there is sufficient quota with the appellants which is lying unutilized and the appellants have resorted to auctioning the same which clearly shows that the quota is available with the appellants.
12. It remains now to take notice of the contention raised by the learned Deputy Attorney-General that though the dispute is relatable to the quota for the, year 1994 the Constitutional petitions were filed on 31-12-1996 and as such badly suffers from laches, acquiescence and waiver. On the other hand it has rightly been pointed out by 'Syed Mansoor A.I Shah, Advocate that the respondents were vigilant in asserting their rights by filing Constitutional petitions immediately which, however, were subsequently disposed of by this Court without any decision on merits and the respondents were allowed to re--agitate the issue by filing fresh petitions.