This judgment shall deal with and decide Writ Petition No,19484 of 2001 and Writ Petition No,19485 of 2001 involving identical questions of law and facts. These Writ Petitions by consent of the parties are being disposed of as admitted/pacca cases.
Petitioners in both the above petitions are public limited companies incorporated under the Companies Ordinance, 1984 with registered office at 35-A, Empress Road, Lahore. Respondent No,1 i,e, Enquiry Officer, appointed under the War Risks Insurance Ordinance, 1971, held their assets/goods liable to payment of War Risk Insurance premium, surcharge and interest. This amount was assessed to Rs,464,849.45 in the case of Messrs Burewala Textile Mills Ltd. (petitioner in Writ Petition No,19484 of 2001) and to Rs,381,187.44 in the case of Messrs Lawrencepur Textile Mills Limited (petitioner in Writ Petition No,19485 of 2001). Appeal there against was dismissed by respondent No,2. Aggrieved therefrom petitioners filed Writ Petition No,3348 of 1981 before this Court. By judgment, dated 19-12-2000, the impugned orders were declared to be without lawful authority for failing to provide an opportunity of hearing to the petitioners. The matter was thus remanded to the appellate authority (respondent No,2 for decision afresh in accordance with law).
Respondent No,2 even after hearing the petitioners rejected their appeals vide order, dated 30-4- 2001 but directed the respondent No,1 i,e, Enquiry Officer to review the War Risks dues and re-assess the same.
2. By re-assessm ent order, dated 30-4-2001. Respondent No,1, issued demand notice of even date.
The following amounts were demanded: From Messrs Lawrencepur Textile Mills Limited (petitioner in Writ Petition No,19485 of 2001):-- Evaded Premium Less: Paid vide letterRs,225.306.45 dated 23-4-1978 Rs, 50,000.00 Premium payable Rs,175.306.45 Surcharge @ 20% (section 13)Rs,35,061.29 Interest Rs,676,007.39 Amount payable Rs,886,375.13 and from Messrs Burewala Textile Mills Limited (petitioner in Writ Petition No,19484 of 2001):--- Evaded Premium Rs,285,403.79 Surcharge @ 20% (section 13)Rs,57,080.76 Interest Rs,856,832.28 Total amount payable Rs, 1,199,316.83
3. At the end of notice of demand served by respondent No,1 upon the petitioners. Statement in following words was added:-- "Please also see this, office letter of even number, dated 30-4-2001 attached herewith, regarding waiving of Surcharge and Interest."
4. Office letter, dated 30-4-2001 as referred above and addressed to the petitioner from respondent No,1 reads as under: No,G/SR-491/76 Lahore the 30th April. 2001 Messrs Lawrencepur Textile Mills Limited 35-Empress Road.
Lahore Sub: PAYMENT OF WAR RISKS INSURANCE DUES. Dear Sirs, I am directed to refer to the Notice of Demand/Assessment Order No, G/SR-491/76, dated 30-4- 2001 in which you were required to pay the following amounts due from you as evaded War Risks Insurance dues: Amount of evaded War Risks Insurance PremiumRs,225,306.45 Less: Amount paid vide letter dated 23-4-1978Rs,50.000.00 Premium payable Rs,175,306.45 Surcharge Rs,35,061.29 Interest Rs,676,007.39 As an act of grace and goodwill, the Government has decided to consider waiving of Surcharge and Interest if you pay the assessed amount premium as soon as possible but not later than 30- 10-2001.
I am, therefore. To advise you to please make payment of the outstanding War Risks Insurance Premium Immediately to avail of the concession of waiver of Surcharge and Interest. If payment of premium is not made by the prescribed date, the entire amount including Surcharge and up to date interest will be recovered from you as arrears of land revenue.
Yours faithfully (Saleem A. Razzak), Enquiry Officer.
5. Similar letter was written to. Messrs Burewala Textile Mills Limited. To avail the above offer of waiver/concession of surcharge and interest, the petitioners made payment of the demanded premium of Rs,175,306 and Rs,285,403.75 respectively through pay orders, dated 21-9-2001. On 24- 9-2001 petitioners addressed the following letter to respondent No,1:-- The Enquiry Officer, War Risks Insurance, 3rd Floor Al-Jannat Building, Bank Square, Lahore.
Subject: PAYMENT OF WAR RISKS INSURANCE DUES.
Dear Sir, We refer to your Letter No,G/SR-491/76, dated 30th April, 2001. As envisaged in the subject letter, in order to avail the concession of waiver of surcharge and interest, we are enclosing herewith a crossed pay order No,OAO/N-0338189. Dated 21st September, 2001 for Rs,175,306 issued in favour of "Messrs State of Pakistan (War Risks Insurance) A/C LWTM" towards the full and final settlement of premium against the War Risks Insurance.
We, therefore, request you to kindly acknowledge the receipt and issue a "Clearance Certificate" to the effect.
6. By reply corrigendum, dated 17-10-2001, respondent No,1 acknowledged receipt of War Risks Insurance premium by the petitioner within time but demanded balance amount of Surcharge and interest as conveyed through notice of demand stating that "it has been decided to withdraw" the waiver of Surcharge amounting to Rs,35,061.29 and interest amounting to Rs,676,007.39 in case of Messrs Lawrencepur Woollen Mills Limited and Surcharge of Rs,57.080.76 and interest amounting to Rs,856.832.28 in the case of Burewala Textile Mills Limited. The petitioners thus filed the present Writ Petition to challenge corrigendum, dated 17-10-2001 conveying decision to withdraw "the waiver of Surcharge and interest. At pre-admission stage respondent No,1, filed his parawise comments on behalf of respondents Nos.1 and 2 state that office orders/letters etc. Conveying waiver of Surcharge and interest were an oversight of respondent No,1 and that waiver/concession had been allowed by Government under its Policy Letter No,10(2)80 Ins. I, dated 17-7-1984 but only up till the extended date of 31-12-1995, and not thereafter. And that upon realization of this oversight, the decision to withdraw the same was conveyed to the petitioners alongwith parawise comments, Government policy letter, dated 17-7-1984 as well as that of Chairman, Pakistan Insurance Corporation, dated 26-7-1984 was annexed by the respondents.
7. The learned counsel for the petitioners contended that payment was made to the respondent on the clear promise, representation and undertaking of waiver of Surcharge and interest according to policy of the Government. Where for after payment of the premium, respondent cannot withdraw the waiver of Surcharge and interest levied on the petitioners. Contrarily Mr. Sher Zaman, Advocate, the learned Deputy Attorney-General, contended that Government only offered to consider the withdrawal of Surcharge and waiver upon payment of Evaded Premium as was conveyed to the petitioners by the Enquiry Officer through his letter, dated 30-4-2001 but this did not amount to promise or undertaking and principles of promissory estoppel as defined and laid down by the Honourable Supreme Court of Pakistan in case of Messrs Gadoon Textile Mills Limited and 814 v. WAPDA and others (1997 SCM R 641) were not applicable in the present case. It was further contended that Government Policy stood withdrawn in 1995 and same was not extendable in 2001 and offer of waiver was made by the Enquiry Officer/respondent No,1 through an oversight and the Government therefore had locus poenitentiae to withdraw the said offer because it was not issued by the appropriate person i,e, Enquiry Officer.
8. I have attended to the submissions of learned counsel for the parties and have also considered the record produced by parties alongwith these writ petitions. It has not been denied by the respondents and the learned Deputy Attorney-General that the Federal Government had by a decision made on 6-6-1984 allowed waiver of interest and surcharge in terms which were reproduced in Letter No,10(2)/80-Ins. I, dated 17-7-1984 written on behalf of Government of Pakistan to Chairman Pakistan Insurance Corporation (Annex. "A" with para wise comments of the respondents). On the basis of said letter, instructions were issued by Chairman, Pakistan Insurance Corporation to relevant Enquiry Officers for "strict compliance of above directives of the Government". The resolution of entire controversy in the case hinges upon the nature of terms of Government's said decision, their status, duration and effect qua the offer made to the petitioners in the present case by the Inquiry Officer (respondent No,1). It is, therefore, necessary to reproduce Letter No,10(2)/80-Ins. I (Annex. "A") which reads ad under:--- 10(2)/80-Ins.I 17-7-1984 To Mr. S.H.A. Ashraf, Chairman, Pakistan Insurance Corporation, Karachi.
Dear Sir, I am directed to refer to your D.O. Letter No,12-PA (c)/WRI/84, dated 25-6-1984 regarding surcharge and penal interest on dues under the War Risks Insurance Ordinance, 1971 and to say that it would not be appropriate to issue a Press Note on the subject because the matter is not of general public interest and concerns only those who have evaded the payment of WRI premium. As the decision to waive interest and surcharge has been taken by the Government purely as an act of grace and goodwill, action on the following lines may be taken:--
(i) Assessm ents should continue to be made by the Enquiry Officers strictly in accordance with the WRI Ordinance, 1971 and the Rules etc. Made thereunder. This would mean that evaded premium would be assessed and surcharge and interest would continue to be worked out and shown as payable in the assessm ent order.
(ii) After the assessm ent order has been issued, a separate letter (specimen enclosed) should be written by the Enquiry Officer to the assessee intimating to him that as an act of grace and goodwill the Government has decided to consider waiving of interest and surcharge in cases where the assessee pays up the assessed war risks insurance premium by a specified date. This date would be worked out in accordance with the decision already taken i,e, within six months of the date of assessm ent order or appellate order as the case may be or the date of the decision whichever is later. This letter should be issued immediately after issue of the assessment order without waiting for the assessee to file an appeal. Similar letters may also be sent to all those assessees whose cases have been decided but who have not yet paid up their dues.
2. Instructions may be issued to the Enquiry Officers accordingly. This Ministry may be kept informed of the progress made. Yours faithfully, (Sd.)
(Saiyid Zafar Ali Naqvi), Deputy Secretary to the Government of Pakistan.
Note: Underlining for emphasis is mine.
9. The terms that emerge clearly from the above letter are that:
(a) Government of Pakistan had by a policy decision offered to waive interest and surcharge levied under the provisions of War Risks Insurance Ordinance, 1971, but it was called as "purely an act of grace and goodwill."
(b) Inquiry Officers were directed to intimate an assessee by a separate letter after assessment order, of Government's decision "to consider waiver of interest and surcharge" as "an act of grace and goodwill".
(c) Such letter was to be issued immediately after the issuance of assessment order without waiting for the assessee to file an appeal.
(d) The offer so made was available only to those assessees, who pay up the assessed War Risks Insurance Premium by a specified date.
(e) The period during which such offer or concession was to remain valid, was fixed to be 6 months of the date of assessm ent order or appellate order as the case may be, or the date of Government's decision whichever was later.
(f) The letters of this offer were also to be sent to all those, assessees whose cases had been decided but who had not paid their dues.
(g) Government did not wish to publicise this decision through a Press Note on the plea that it only concerned those who had evaded the payment of War Risks Insurance Premium and was not a matter of general public interest.
10. The examination of above decision of the Government and its terms show that it was meant for each and every assessee of the War Risks Insurance Premium who had till then not paid or had defaulted in payment of assessed dues. This offer/concession by the Government was applicable to each such assessee without any differentiation. Each such assessee could avail of this concessionary offer of waiver of interest and surcharge, if; --
(i) assessm ent of dues had been made by the Inquiry Officer or the Appellate Authority by an order:
(ii) payment of the War Risks Insurance Premium, as assessed above, was made within six months of the date of assessm ent or the date of Government's decision, whichever was later.
Although the offer so made by the Inquiry Officer on behalf of the Government was to be nomenclatured as "purely an act of grace and goodwill of the Government to consider waiving of interest and surcharge", yet the terms of decision of concession were made extendable and available to each and every assessee of the above specific class without distinction and discrimination. The Government's offer was thus meant for all and each falling in the specified class upon payment of premium within the prescribed time. This decision did not at all prescribe the conditions, factors, parameters, principles, or premise to be "considered" by the Government for refusing such waiver of interest or surcharge to an assessee who had met the conditions of policy by making payment of premium within the prescribed time. In absence of prescribing any conditions, parameters, principles, premise and factors for refusal of such waiver to complying assessees retention of such discretion by the Government "to consider the waiver" looses all relevance and becomes meaningless. Under the well-settled principles of Constitutional and legal guarantees, Government cannot retain any discretion to become selective, discriminatory and distinctive in applying its decisions at its own preference to persons within one class and where conditions for extending benefits of such decisions are the same for all in that particular class of persons. Upon fulfilment of the prescribed conditions, the benefit of Government's decision cannot be denied to some and allowed to others. As such if by implying words that "Government has decided to consider waiver of interest and surcharge", some kind of discretion to be selective and discriminatory was intended to be retained, such act cannot be approved and is held to be ultra vires the law and Constitution of Islamic Republic of Pakistan.
11. Read in the above given perspective, Government's above reproduced decision to waive interest and surcharge was obviously a policy decision to be applied to all concerned fairly. Equally, without prejudice, bias and discrimination. This is the inalienable and guaranteed right of each and every citizen or class of citizens. The Government, therefore, is obligated to respect the inalienable rights and guarantees of a citizen or class of citizens. It cannot act contrarily. It is against "the grace and goodwill of the Government" to act otherwise than in accordance with law and the Constitution. As such Government's decision to waive interest and surcharge purely "as an act of grace and goodwill" can only be interpreted to mean that decision so taken shall be applied equally and fairly to all concerned gracefully and efficiently respecting inviolable right of a citizen to dignity and honour. Government's "act of grace and goodwill" can in no way mean to be an act of indignity, unfairness, coloured, motivated, inequality and disgraceful towards a citizen or non-citizen. In my opinion terms "to consider" and "purely as an act of grace and goodwill" was used in the policy decision without application of proper mind. The decision was to be applied to all assessees whose cases for payment of premium had been assessed by an assessment order and who were under a liability to pay the premium, surcharge and interest so determined but were yet to pay the same.
The employment of these superfluous words by the Government in the policy decision are, therefore, to be ignored and disregarded.
12. Upon the question of duration and period of applicability of the said policy decision, the learned Deputy Attorney-General argued that the date of decision was extended to 31-12-1995. No document, decision, policy or instruction has, however, been placed on record to prove that period to avail the waiver of interest and surcharge under the said decision had expired. It has only been orally stated that the prescribed date was from time to time extended till the final date of 31-12- 1995. It is intriguing that the Government and its functionaries initially did not wish a policy decision to be circulated in the press for the benefit of general public or even for those who were concerned.
There seems to be a special effort at keeping the offer of waiver secret with obvious objective to apply the same wherever it suited the relevant Government functionaries. Similarly, the final date, if any, does not seem to have been notified as no document was placed on record. The decision as well as the duration of its validity should have obviously been well publicized to be transparently applied to all. Be that as it may, the period of applicability as reproduced above, was specified to be "within six months of the date of assessment order or appellate order as the case may be" OR "the date of decision whichever is later". If the date of decision was finally specified by the Government to be 31-12-1995, the period of availing the waiver or concession was, thus, obviously be uptil 30-6-1996, or six months of the date of assessment. Order, whichever was later. In the present case, the date of appellate decision and the assessment order was 30-4-2001. The petitioners were, thus, validly made an offer by the Inquiry Officer to avail the waiver of surcharge and interest by making payment of the War Risks Insurance premium by 30-10-2001. There seems to be no oversight on the part of the Inquiry Officer at all. The argument of learned Deputy Attorney-General is that upon discovery of expiry date of above decision to be 31-12-1995, offer of the Inquiry Officer to petitioners was considered to have been made through an oversight and was, thus, withdrawn through impugned corrigendum and that the Inquiry Officer was incompetent to make such an offer, where for, the Government retained locus poenitentiae to withdraw from the said offer. I am afraid this contention also does not reinforce respondents' case. In above interpreted duration term of the policy decision "to be uptil 6 months of the date of assessment order", the contention of the learned Deputy Attorney-General looses all force. The impugned corrigendum dated 17-10-2001 written in reply to petitioners' letter dated 24-9-2001 seeking clearance certificate, states the reason of withdrawal of waiver offer as under:-- "Keeping in view the instructions of the appellate authority conveyed vide its Letter No,8(1)-2001 dated 30-4-2001 it has been decided to withdraw the waiver of surcharge amounting to Rs,35,061.29 and interest amounting to Rs,676,007.39."
13. Since this corrigendum is sought to be defended by both the respondents. Therefore, it cannot be said that this was not a corrigendum issued on behalf of the respondent No,2 i,e, the Government of Pakistan. Had expiry of the validity period of the policy decision or the oversight or incompetence of the Inquiry Officer been the reason to withdraw the waiver of surcharge and interest, the same would have been clearly specified by the respondents in the impugned corrigendum. The reasons advanced in the parawise comments or at the bar for issuing the said corrigendum were not the reasons conveyed to the petitioners.
The petitioners were made clear and categorical offer of waiver of interest and surcharge through notice of demand and Letter No,G/SR.491/76 dated 30-4-2001 alongwith the revised assessment order dated 30-4-2001 demanding payment of War Risks Premium uptil 30-10-2001 to avail of the waiver. This offer read with terms of Government's policy decision discussed above, clearly amounted to a definite representation and at the minimum: a promise attracting principles of promissory estoppel. It has not been shown by the learned Deputy Attorney-General that the offer so made or the terms of Government's decision were unreasonable or illegal. Neither was such a case advanced by the respondents. The promise held out through the representation in the policy decision was obviously reasonable and lawful. As a consequence of the representation or inducement offered to the petitioners, they irrevocably and irreverseably committed themselves and changed their position upon the faith of such representation or inducement by the Government. They upon receipt of letters/orders/demand dated 30-4-2001 admittedly made payment of War Risks Insurance Premium as assessed by the Inquiry Officer through pay orders dated 21-9-2001 in full and final settlement of premium account. Further the petitioners upon such payment committed themselves irrevocably by accepting the assessment order. They made the payment and thus also gave up their right to file further proceedings against the assessment orders. Neither the respondents nor the learned Deputy Attorney-General raised a case of collusion or fraud against the petitioners to obtain benefits under the offer or representation made to them regarding waiver of surcharge and interest. As a consequence thereof, principles of non- availability of promissory estoppel as defined in the case of Messrs Gadoon Textile Mills and 814 others v. WAPDA and others (1997 SCM R 641) do not apply to the present case and it is further held that respondents had no locus poenitentiae to withdraw from or recall the waiver of interest and surcharge after payment of the premium by the petitioners.
14. In view of what has been discussed above, these petitions are accepted and impugned corrigendums dated 17-10-2001 withdrawing the waiver of surcharge and interest are held to be without lawful authority and of no legal effect. The parties are left to bear their own costs.