' IFTIKHAR MUHAMMAD CHAUDHRY, J.---Civil Appeals Nos.44 to 46 of 2001 have been instituted by leave granting order dated 18th January, 2001 against the judgment of Lahore High Court whereby I.C.As. Nos.758 to 760 of 1999 filed by appellants were dismissed maintaining common judgment of a learned Single Judge of the High Court dated 7th July, 1999 passed in writ petitions instituted by respondents. Whereas Civil Appeal No,1205 of 1999 is directed against judgment dated 17th December, 1996 passed by High Court of Sindh, Karachi whereby C.P. No,D-1384 of 1994 of appellant Rajwani Apparel (Pvt.) Limited has been dismissed.
2. Facts of the- case are that respondents instituted Writ Petition No,7692 of 1999 against the appellant and others in the Lahore High Court, Lahore seeking declaration that Notification S.R.O.
No,228(I)/94 dated 8th March, 1994 is void ab initio and of no legal effect and the respondents (appellants) be directed to act strictly in accordance with Notification S.R.O. No,166(I)/92, dated 7th March, 1992 for the entire term of the said Notification which expired on 31-12-1996. It was further prayed that without prejudice to the above prayers quoted hereinabove the said Notification be declared to be without lawful effect in respect of the export authorization already allocated to the petitioner for the rear 1994.
' As per the terms of Notification dated 7th March, 1992 allocation of Export Quota to performance holders was to be made in the ratio of 50:50 on the, basis of quantity and value. Initially this Notification was issued for implementation of bilateral Textile Agreement from 1-1-1992 to 31-12- 1996. The detailed procedure and Rules were provided thereunder including the Authority of the Federal Government to review the Policy of Textile and Export Authorisation and make suitable changes therein as may be necessary. Later on exercise of such Authority the Federal Government in exercise of power conferred upon it by subsection (1) of section 33 of Imports and Exports (Control) Act, 1950 (hereinafter referred to as the "Act") and in suppression of earlier S.R.G.
No,166(I)/92 changed the procedure (basis) of entitlement and allocation of Textile Quota vide impugned Notification S.R.O. No,228(I)/94 in the following terms:--
2. Basis of entitlement and allocation.---(1) The performance holders will receive allocation of Quotas on the basis of performance holder's quantity exported under each category during the preceding year to specific Quota country: ' Provided that the entitlements for the year 1994 will be determined either on the basis of provisions contained in S.R.O. 166(I)/92, dated 7th March,1992 or on the basis of quantity exported by the performance holders in 1993 if the association concerned with a category so opt: ' Provided further that where non-Quota Textile product(s) is brought under restraint, the entire ceiling will be allocated to the performance holders on the basis of the quantities (with no premium for value) exported by them in the twelve months preceding the date of issuance of the consultation 'call: ' Provided further that in respect of the categories the performance of which is much less than the Quota ceiling, necessary amount of Quota may be allocated through auction.
(2) to (8')
3. The respondents Messrs Ammar Textile Mills (Pvt.) Limited challenged latter S.R.O. In Writ Petition No,8251 of 1994. This petition remained pending up to 2nd April, 1999 when it was declared to have become infructuous by lapse of time. However, in the order an observation was made that the petitioner can file a fresh petition in case any action is taken. It appears that subsequent thereto Civil Miscellaneous No,1 of 1999 was filed in the Lahore High Court which was disposed of by means of following order:- ' "The Notification in question has since long expired and as such this petition has become infructuous. Learned counsel for the petitioner, however, says that the petitioner has acquired certain rights under the lapsed Notification which are enforceable even now. That aspect of the petitioner files a fresh petition for which it has already been granted permission. Disposed of accordingly."
' It seems that petition bearing No,7692 of 1999 was filed on 28th April, 1999 wherein following explanation was offered for instituting fresh petition:-- "11. That the impugned Notification was challenged in Writ Petition No,8252 of 1994 which came up for hearing on 18-7-1994 when status quo was granted to the petitioner. This was later on confirmed on 25-7-1994 (orders were passed in Writ Petition No,8251 of 1994 in which the orders were passed). That without notice to the undersigned counsel the earlier petition came up for hearing when the titled case was disposed of as having become infructuous. This Hon'ble Court. It is submitted with respect, was not properly assisted on the said date of hearing. The entitlement of the petitioner for the years 1994 to 1996 was under challenge in the titled petition. Lapse of the impugned Notification did not affect the entitlement of the petitioner for the years 1994 to 1996. Had the petition been allowed the increase in Quota would accrue to the petitioner and would become a part of its entitlement for years to come. Therefore, the grievance of the petitioner is still alive, hence the titled petition in the light of the orders dated 2-4-1g99 and 19-4-1999 passed in earlier writ petition."
4. Learned High Court allowed the Writ Petition alongwith similar petitions which has given rise to Civil Appeals Nos.45 and 46 of 2001 vide order dated 7th July, 1999. Being dissatisfied from this order appellant preferred ICA on 31st August, 1999 which has been dismissed vide impugned order dated 22nd October, 2000.
5. At this juncture it is to, be noted that on identical issue C.P. No,D-1384 of 1994 was instituted, before High Court of Sindh on behalf of Rajwani (Pvt.) Limited v. Government of Pakistan and others which was also dismissed on 16th December, 1996. This order has been challenged in Civil Appeal No,1205 of 1997, which is being disposed of by means of instant judgment as well because identical questions of facts and law are involved in all these cases.
6. Mr. Khalid Anwar, learned Senior Advocate Supreme Court appeared on behalf of appellants in Civil Appeals Nos.44 to 46 of 2001 whereas Sheikh Abdul Manan, Advocate Supreme Court and Mr. Mehr Khan Malik represented respondents. Mr. Haider Ali Pirzada learned Advocate Supreme Court appeared for appellant in C.A. No,1205 of 1997 and Ch. Akhtar Ali, Advocate-on-Record and Mr. Muhammad Nawaz Bhatti, D.A.-G. Represented respondents.
7. Learned counsel for appellants contended that no vested right had accrued to respondents to claim Export Quota for the year 1994 under S.R.O. 166(1)/92 dated 7th March, 1992 because the Government of Pakistan by issuing SRO No,228(I)/94 dated 8th March, 1994 had only modified the procedure for allocating Export Quota in exercise of the powers conferred upon it under para.13 of SRO dated 7th March, 1992. He further submitted that Export Quota was to be allocated on the basis of criteria laid down in clause 2(1) of. S.R.O. Dated 8th March, 1994, through association concerned.
Therefore, individual exporters had no authority to adopt a different mode (procedure) for allocation of Export Quota other than what was provided in this para. ' According to him respondents with the connivance of subordinate staff of Director Textile Quota Management Directorate arranged entry dated 31st March, 1994 in the Pass Books on the basis of 50:50 of value of the goods on the basis of quantity fully knowing that Notification/ S.R.O. 166(1)/92 has been superseded by S.R.O. No,228(I)/94 with effect from 8th March, 1994. He further stated that by getting such entries made in Pass Book the respondents did not acquire any vested legal right to derive any benefit from such entries because such allocation has been shown as of provisional nature therein. He further argued that in terms of para.No,13 of S.R.O. 166(1)/92 the Federal Government had the authority to make suitable changes in Policy of Export Quota as such the principle of Promissory Estoppel will also not be applicable in the instant cases.
8. On the other hand Sh. Abdul Manan, learned Advocate Supreme Court contended that according to first proviso to para.2(1) of S.R.O. 228(1)/94 dated 8th March, 1994 the exporters individually had a choice to exercise option for getting Textile Quota for the year 1994 either under S.R.O. 166(1)/92 dated 7-3-1992 or to wait till the decision of the Association concerned to opt for allocation of Textile Quota collectively on behalf of the members of the Association in view of the new dispensation under S.R.O. 228(I)/94 dated 8th March, 1994. To elaborate his arguments he contended that respondents exercised their right for the allocation of Textile Quota on 31st March, 1994 whereas resolution was passed by the Association on 2nd April, 1994, as such even if viewed from this angle the respondents had opted for allocation of Quota prior to passing of the resolution by the Association for the year of 1994 under Notification dated 7th-March, 1992 and this fact has not been denied by appellant No,2 in the counter-affidavit tiled before the High Court wherein in unequivocal terms department maintained that export authorization on the basis of 50:50 quantity and value as laid down in S.R.O. 166(1)/92 dated 7th March, 1992 was provisionally allowed to all the performance holders including the petitioners (respondents) subject to any change in the light of Policy and necessary endorsement made in this behalf in all Quota Pass Books was acknowledged, therefore appellant department is estopped by its conduct to argue that allocation of Textile Quota to the respondents for the year 1994 was subject to exercise of option by the Association collectively either to avail such Quota under S.R.O. Of 1992 or S.R.O. Of 1994. Learned counsel emphasized that as respondents ha' shown remarkable performance in the export in 1993, therefore, they were entitled for authorization of Textile Export Quota on the basis of formula provided in S.R.O. Dated 7th March, 1992 because it has created a vested right in their favour.
According to him even otherwise respondents are doing the business independently and their rights and obligations cannot be subject to the approval of the Association and they cannot be deprived from the benefits for which they are otherwise entitled.
9. Learned counsel Mr. Haider Ali Pirzada subscribed to the viewpoint advanced by Sh. Abdul Manan learned Advocate Supreme Court and further added that earlier S.R.O. No,166(I)/92 dated 7th March, 1992 was a time-bound Notification as it has to remain in field from 1st January, 1992 to 31st January, 1996 and appellant had acquired a vested right to claim allocation of Textile Quota on the basis of 50:50 of quality and value for the year 1993 under this Notification and Notification S.R.O.
228(I)/94 dated 8th March, 1994 which impinges legal rights of the parties cannot operate retrospectively. However, competent authority should have applied it after the expiry of year 1994.
In this behalf in 1993 appellant made remarkable progress in the export for 1993 resultantly as per final attestation in the Pass Book (issued by Pakistan Readymade Garments Manufacturers and Exporters Association) appellant was finally held entitled for 14262 units of export on 12-4-1994 but on account of issuance of subsequent Notification S.R.O. No,228(I)/94 dated 8th March, 1994 Quota of the appellant was reduced to 11282 units on account of which appellant had sustained serious setback in the business because it has made adequate arrangement to show increased production for the year of 1994, as such Notification dated 8th March, 1994 may be declared inapplicable to the extent of Textile Export Quota for the year 1994. He further stated that the General Body of the Association passed resolution on 26th April, 1994 contrary to section 159 read with section 160 of the Companies Ordinance, 1984 which lays down procedure for holding special meetings of the members etc.
10. We have heard parties' counsel at length and have considered their arguments and examined implication of para.No,13 of S.R.O. No,166(I)/92, dated 7th March, 1992 as well as relevant parts of S.R.O. 228(1)/94 dated 8th March, 1994. It may be noted that impugned Notification has introduced procedure for management and allocation of Textile Quota in suppression of the former S.R.O.
No,166(1)/94 dated 7th March, 1992. Thus it would mean that on issuance of latter Notification earlier Notification stands repealed. Now question is as to whether the Federal Government was empowered to do so or otherwise. In this behalf Reference to para.No,13 of the Notification dated 7th March, 1992 would reveal that the Federal Government had retained the authority to review the Policy of Textile and clothing export authorization and make suitable changes therein as may be necessary. Perhaps respondents in Appeals Nos. 44 to 46 of 2001 were fully aware about this provision in the Notification and due to this reason before learned Single Bench and I.C.A. Bench of the High Court they did not object on the implementation of the Notification S.R.O. 228(1)/94 dated 8th March, 1994 and accepted without any reservations following findings of learned ICA Bench of Lahore High Court: ' "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 was allocated by the Export Promotion Bureau and necessary endorsement was made in the Pass Book maintained for the purpose."
11. Learned counsel for appellants urged that respondents are estopped in view of above' observations of learned ICA Bench to set up altogether a new case on the strength of the arguments which have been raised on their behalf namely that their entitlement for Export Quota will be determined on the basis of 50:50 quality and value as per Notification dated 7th March, 1992 for the year 1994 and as far as Association is concerned it has no say to control the individual desires of the members of the Association by exercising option that entitlement of Textile Export for the year 1994 onwards be determined in view of performance of Exporters for 1993 as per Notification dated 8th March, 1994. It may be noted that Sh. Abdul Manan learned counsel appearing for the respondents in these appeals could not counter this argument effectively and he kept on impressing his arguments noted hereinabove. Such situation brings us to concentrate on first proviso to sub-para.(1) of para.2 of S.R.O. No,166(I)/92 dated 7th March, 1992. Its careful reading persuades us to hold that there is no difficulty to interpret or understand it. First of all it may be seen that notification dated 8th March, 1994 was issued in suppression of the earlier Notification dated 7th March 1992, therefore, in very clear terms it can be said that for determining entitlement for allocation of Textile Export Quota for the year 1994 Notification dated 7th March, 1992 was not in existence w.e.f. 8-3-1994. Thus procedure for the allocation of the Quota for 1994 has to be followed as per latter Notification. In view of such situation task of interpreting first proviso to sub-para. (1) of para.No,2 has become easier following the principle of interpretation of statutes that each word employed therein has to be read and understood in the ordinary meaning without assigning special 13 meanings to any part thereof to avoid inconsistency in its different parts and also to ensure harmony therein. As per procedure laid down in proviso 1, sub-para.(1) of para.2 of the Notification dated 8th March, 1994 entitlement for Textile Export Quota has to be determined either on formula of 50:50 quality and value as per Notification dated 7th March, 1992 or on the performance of 1993 however subject to exercise of option by the Association collectively on behalf of its members and not by individuals themselves independently. Because by reading this proviso in ordinary manner it can be inferred that competent authority had bestowed the powers of making selection to adopt a procedure for determination of Export Quota to the Association alone and for making such selection between two modes the word used 'or' is not to be read disjunctively but conjunctively qua the Authority of Association in making selection of any of the two methods noted therein. Therefore, after promulgation of latter Notification the authorities of Export Promotion Bureau have no jurisdiction to make entries in the Pass Books of the Textile Exporters regarding their entitlement after 8th March, 1994 in view of the earlier Notification because it was no more holding the field. In this behalf it was incumbent upon them to have waited for collective decision of the Association. Thus it is held that any entry made in the Pass Books of the Textile Exporters after the promulgation of latter Notification dated 8th March, 1994 was without lawful authority and on basis whereof no right is conferred upon those exporters who have managed favourable entries in this behalf. It is also to be noted that in the case of Aamar Textile Mills provisional entry was made in its Pass Book but even if it had been finally entered therein it would have not changed the position in its favour for its reasons assigned hereinabove that after 8th March, 1994 the former Notification dated 7th March, 1992 was not holding the field.
12. Now adverting to most important aspect of the case namely whether in terms of clauses 13 and 14 of S.R.O. Dated 7th March, 1992 the Federal Government has rightly changed the procedure for allocating Quota by issuing S.R.O. 228(1)194 dated 8th March, or on account of the Principle of Promissory Estoppel it was debarred to review the earlier Policy because allegedly vested right had created in favour of respondents to claim entitlement on formula of 50:50 quality and value. In respect of this proposition both the parties have advanced pro and contra arguments. However, reliance on the precedents dealing with the subject was common. As it has been observed in para. Supra that under clause 13 of the Notification dated 7th March, 1992 the Federal Government was competent to review the Policy of Textile and clothing export authorization and make suitable changes, therefore, it is to be seen that due to availability of such powers Federal Government was estopped to make procedural changes in the earlier Policy in view of doctrine of Promissory Estoppel. This Court in the case of Pakistan through Secretary, Ministry of Commerce and 2 others v.
Salahuddin and 3 others PLD 1991 SC 546 has laid down following limitations for invoking doctrine of Promissory Estoppel:-- "(1) The doctrine of Promissory. Estoppel cannot be invoked against the Legislature or the laws framed by it because the Legislature cannot make a representation.
(2) Promissory Estoppel cannot be invoked for directing the doing of the thing which was against law when the representation was made or the promise held out.
(3) No agency or authority can be held bound by a promise or representation not lawfully extended or given.
(4) The doctrine of Promissory Estoppel will not apply where no steps have been taken consequent to the representation or inducement so as to irrevocably commit the property or the reputation of the party invoking it; and
(5) The party which has indulged in fraud or collusion for obtaining some benefits under the representation cannot be rewarded by the enforcement of the promise."
' Above-noted limitations were reiterated by this Court in the cases of Messrs Army Welfare Sugar Mills Limited and others v. Federation of Pakistan 1992 SCM R 1652; Messrs Gadoon Textile Mills Limited and 814 others v. WAPDA and others 1997 SCM R 641; Messrs M.Y. Electronics Industries (Pvt.)
Limited through Manager v. Government of Pakistan through Secretary Finance and 2 others 1998 SCM R 1404; Collector of Customs and others v. Ravi Shipping Limited and others 1999 SCM R 412; Government of Pakistan through Ministry of Finance and Economic Affairs and another v. Fecto Belarus Tractors Limited 2000 SCM R 112. Against this judgment a review petition was filed which has been decided and judgment is reported in 2001 PTD 1829. It may be noted that in the case of M.Y.
Electronics (ibid) besides reiterating limitations before applying doctrine of Promissory Estoppel in the case of Federation of Pakistan through Ministry of Commerce etc it was further observed that "the doctrine of Promissory Estoppel is founded on equity. It arises when a person acting on the representation by the Government or a person competent to represent on behalf of the Government, changes his position to his detriment, takes a decisive step, enters into a binding contract or incurs a liability. In such case, the Government will not be allowed to withdraw from its promise or representation. However, a general promise without any time limitation cannot bind the Government for all times to come". In view of such principle learned counsel for the respondents Sh.
Abdul Manan, Advocate Supreme Court impressed upon the application of doctrine of Promissory Estoppel against the Government on the strength of arguments that Notification dated 7th March, 1992 was a time-bound instrument and on account of the promises held out by it to grant Textile Export Quota to the respondents on the basis of 50:50 quality and value made huge investment to achieve the object but due to all of sudden change in its Policy vide Notification dated 8th March, 1994 respondents have not only suffered huge financial losses but have exposed themselves before the parties outside the country with whom promises were made to supply them Textile in the year 1994 on large scale comparing to 1993.
12. Before attending to his arguments we consider it appropriate to note down following observations from the reviewed judgment of this Court in the case of Fecto Belarus Tractor Limited: ' "It will be necessary to touch the true concept of the doctrine of Promissory Estoppel. Before proceeding further this doctrine has been variously called 'Promissory Estoppel', 'requisite estoppel', 'quasi-estoppel', and 'new estoppel'. It is a principle evolved by equity to avoid injustice and though commonly named 'Promissory Estoppel', it is neither in the realm of contract nor in the realm of estoppel. The true principle of Promissory Estoppel seems to be that where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or effect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties and this would be so irrespective of whether there is any pre-existing relationship between the parties or not. The doctrine of Promissory Estoppel need not be inhibited by the same limitation as estoppel in the strict sense of the term. It is an equitable principle evolved by the Courts for doing justice and there is no reason why it should be given only a limited application by way of defence. There is no reason in logic or principle why Promissory Estoppel should also not be available as a cause of action."
13. In the above para. The observation "that doctrine of Promissory Estoppel need not be inhibited by the same limitation as estoppel in the strict sense of the term. It is an equitable principle evolved by the Courts for doing justice and there is no reason why it should be given only a limited application by way of defence" persuades us to hold that even if it is presumed for sake of arguments that Notification dated 7th March, 1992 was a time bound Notification but still it would not mean that after issuing it the hands of the Government were tied and it had no authority to change mode of allocating Textile Export Policy keeping in view the developed facts and circumstances and also with a view to enforce it with more effective and greater result oriented manner. There is no doubt that in time bound Notification at times it becomes difficult for the competent authority to rescind it before the expiry of such period particularly when claim of vested right is pleaded. But the Government can overcome to such hurdle by exercising authority of review of the Policy if the same has been retained by it in the same Notification simultaneously caring for the rights of the beneficiaries. It may be noted that respondents were fully aware about clause 13 under which the Policy of Textile and clothing export authorization can be reviewed for the purpose of making suitable changes therein as it may be necessary. It is to be observed that learned counsel for appellants at the time of leave granting stage alleged that on account of over- invoicing and unfair practices on the part of some of the exporters adversely affected the image of the Federation of Pakistan which necessitated for the revision of the Policy by issuing S.R.O.
No,228(I)/94. Such allegations have not been converted by the respondents during arguments of instant appeals. Perhaps we would have agreed with the learned counsel for respondents that due to change in the time bound Policy the respondents have failed to fulfil their promises which they have made with the importers outside the country if they have placed documentary evidence on record including L.Cs. Etc. But in absence of such documents it is not possible for us to subscribe to his view point. Therefore we are of the opinion that in changing the procedure mode for allocating Textile Quota Federal Government exercised jurisdiction under section 13 of the Notification dated 7-3-1992, as such action cannot be annulled by invoking doctrine of Primissory Estoppel because respondents failed to cross-limitation No,2 as has been laid down in the case of Pakistan through Ministry of Commerce (supra). Besides its change in the procedure for allocating Textile Quota cannot be questioned by individuals because they have no right to direct the Government to adopt a procedure which suits to them.
14. It is also contended that Government is legally estopped to change the Policy because by showing remarkable performance for the year 1993 respondents have acquired a vested right to claim Quota of Textile Export on the basis of 50:50 formula i.e, quality and value and such right has become their property as such they cannot legally be deprived from the same by issuing S.R.O.
228(1)/94 dated 8th March, 1994 unless a legislation is issued because they enjoy guarantees provided under sections 3, 6, 8 and 10 of Protection of Economic Reforms Act, 1992. Reliance in this behalf was laid on PLD 1965 (W.P.) Peshawar 47; PLD 1970 SC 439; 1992 SCM R 1652; 1997 SCM R 641; 1998 SCM R 1404.
15. On the other hand learned counsel for appellants was of the view that Federal Government has not deprived respondents from their any vested right which they have acquired on basis of the formula envisaged in Notification dated 7th March, 1992 for the year 1994 but it only changed the mode (procedure) of its allocation to achieve better results in International Market in the trade of Textile.
' The respondents have accepted the entitlement of allocation of Textile Quota for the year 1994 on the basis of the Notification dated 8th March, 1994 as it is indicated from para.8 of the impugned judgment but the only difference is that interpretation being placed by them on first proviso of sub-para. (1) of para.2 being unreasonable is not acceptable otherwise the respondents have no grievance on promulgation of the Notification as well as on its operation retrospectively.
16. There is no doubt that on the basis of better performance for the year 1993 respondents have acquired a right to claim their proportionate share in Export Textile Quota for the year 1994. No such right has been denied to them except changing procedure of allocation of Quota of Export Textile through respective Associations thereby debarring individual exporters to select the mode of allocation of Quota for the year 1994 in terms of first proviso to sub-para.(1) of para.2 of Notification dated 8th March, 1994. The majority of members of Association have accepted the decision of the Association for allocation of Textile Quota to them for the year 1994 on the 'basis of performance of 1993 without pleading that their vested rights have been denied to them. It is the case of the.
Exporters i.e, respondents and appellant Rajwani Apparel (Pvt.) Limited that because they have acquired a vested right on basis of Notification dated 8th March, 1994, therefore, by suppressing Notification dated 7th March, 1992 they cannot be deprived of their valuable rights. In this behalf it may be noted that exporters have not challenged the vires of last-mentioned Notification in writ petitions except agitating that they were entitled for allocation of Textile Quota for 1994 on the basis of formula 50:50 quantity and value and not on basis of performance in the year 1993 as it is evident from the trend of their arguments particularly in the case of Messrs Ammar Textile Mills Relevant para. From the judgment reproduced hereinabove can be referred in this behalf. The case of the exporters particularly as it has been argued by. Mr. Haider Ali Pirzada that Notification dated 8th March, cannot be applied retrospectively because then it would tantamount to denying their vested right. In this context it may be noted that in the judgment relied upon on their behalf in the case of Messrs Mardan Industries Limited, Sakhakot, Malakand Agency and another v. Government of Pakistan and another PLD 1965 (W.P.) Peshawar 47 it was held that the subordinate delegated Legislature by way of Notification is under Constitutional disability to make Notification which is retrospective in operation so as to take away or impair vested rights. In the case of Collector of Central Excise and Land Customs and 3 others v. Azizuddin Industries Limited, Chittagong PLD 1970 SC 439 the principle laid down by learned Peshawar High Court was confirmed by holding that if a person had acquired a vested right of exemption from the levy of excise duty on all the goods produced or manufactured by it for a period of four years under Notification S.R.O. 35(R)/61 of the Central Government that vested right could not therefore, be taken away by an executive action. In case of Messrs Army Welfare Sugar Mills Limited and others v. Federation of Pakistan 1992 SCM R 1652, Messrs Gadoon Textile Mills Limited and 814 others v. WAPDA and others 1997 SCM R 641, Messrs M.Y. Electronics Industries (Pvt.) Limited through Manager v. Government of Pakistan through Secretary Finance and 2 others 1998 SCM R 1404 this principle was reiterated and confirmed. But it is to be seen that in all these cases mostly proposition came under consideration with reference to exemption of Central Excise Duty or the Customs Duty etc. As the claimants were of the view that on fulfilling certain conditions they have acquired a right of exemption of any of those duties, therefore, by issuing a subsequent Notification such exemption cannot be withdrawn because. In that case in terms of money they have to suffer losses whereas in the instant cases no financial burden has been increased upon the Textile Exporters except changing the mode (procedure) of allocation of Quota as it has already been observed hereinabove coupled with, the fact that they themselves have not challenged the vires of the Notification dated 8th March, 1994 except praying that as per first proviso to sub-para.(1) of para.2 of the Notification they be given choice in individual capacity to seek allocation of Textile Quota on the basis of 50:50 formula envisaged in the Notification dated 7th March, 1992. Therefore, in view of their such stand the arguments, which are now being advanced on their behalf that Notification dated 8th March, 1994, shall not take effect retrospectively has no substance because a Notification altering procedure of doing certain thing can operate retrospectively. To strengthen this argument reliance can be placed on Malik Gul Hassan Khan v. Allied Bank of Pakistan 1996 SCM R 237. It is also to be observed that the exporters could have put up their cases in a more better manner if the Federal Government while issuing Notification dated 8th March, 1994 in exercise of its jurisdiction under subsection (1) of section 3 of the Imports and Exports (Control) Act, 1950 had withdrawn the allocation of Textile Quota from private sector and have deprived the exporters individually and collectively from their respective proportionate share in export of the Textile. But in the instant cases except changing the mode of allocation of Textile Quota no right of the exporters has been denied. So far as the authority of Government to amend, vary or rescind etc. a Notification is concerned that cannot be denied in view of section 21 of the General Clauses Act.
17. Thus for the above reasons we are of the considered opinion that there was no bar upon the Federal Government in issuing Notification No,228(I)/94, dated 8th March, 1994 because it has been issued in exercise of powers conferred upon it under para.13 of earlier Notification No,166(I)/92, dated 7th March, 1992 and the respondents/appellants (exporters) have not been deprived from their vested right because by issuing Notification dated 8th March, 1994 only the mode of allocation of the Quota to the Textile Exporters has been changed by allowing the Association-either to opt for such entitlement for the year 1994 on the basis of formula contained in Notification S.R.O.
No,166(I)/92 dated 7th March, 1992 or on the basis of the quantity of exporters by the performance holders in 1993 and as the Associations being representative bodies in their meetings have held for allocation of Textile Quota on basis of performance of 1993, therefore, on behalf of some of the exporters (respondents) and appellants in Civil Appeal No,1205 of 1997 the Policy of the Government contained in Notification dated 8th March, 1994 for the export of Textile cannot be declared illegal or without lawful authority nor individual exporters can attach legitimate expectancy that Textile Quota for the year 1994 must be allocated to them in view of the formula envisaged in Notification dated 7th March, 1992. For an added reason that subsequent Notification dated 8th March, 1994 has been issued in supersession of earlier Notification and respondents have not challenged the vires of the subsequent Notification.
18. There is yet another important aspect which has engaged our serious consideration namely that Writ Petition No,7692 of 1999 covered by Civil Appeal No,44 of 2001 was filed on 28th April, 1999.
Prior to it Writ Petition No,8251 of 1994 was filed but the same was disposed of alongwith two other Writ Petitions having become infructuous by lapse of time. However, petitioner was allowed to file fresh petition in case any action is taken: Later on the respondent in Writ Petition No,8251 of 1994 filed C.M. No,1 of 1999. This application was disposed of with the observations that permission has already been granted to file fresh petition. In pursuance of these orders respondents Messrs Ammar Textile Mills and others filed fresh petitions knowing well that no permission was accorded to file fresh petitions. However, in the writ petition which has given rise to instant proceedings only reason assigned was that proper assistance was not provided to the Court at the time when the writ petition was disposed of as having become infructuous. Although learned I.C.A., Bench has not attended to this aspect of the case in the impugned order but leave has been granted to examine this aspect of the case as well.
' Learned counsel for appellants contended that Notification S.R.0.288(1)/94 dated 8th March, 1994 remained in field up to 7-3-1994 therefore, any cause of action if at all accrued to the respondents it had extinguished on the expiry of the Notification, therefore, the Writ petitions which have given rise to instant proceedings have been filed without cause of action. As such it is liable to be dismissed on this score as well in view of the principle of res judicata as envisaged under section 11, C.P.C.
' Learned counsel Sheikh Abdul Manan on the other hand contended that objection raised in this behalf may not be entertained because no such argument was raised before I.C.A. Bench.
However, according to him cause of action is available to the respondent because even now their grievance can be redressed on the basis of the Notification dated 7th March, 1992 by allocating them Quota on the Policy contained therein. He further stated that as the cases were not decided on merits, therefore, petitions would not be barred by principle of res judicata.
' In our opinion as leave to appeal has been granted to examine this aspect of the case as well, therefore, appellant can argue this question as well. But instead of determining the maintainability of the petitions under section 11, C.P.C. We are of the opinion that because petitions filed by the respondents were dismissed as having become infructuous and permission was accorded to file fresh petitions subject to the condition that if any action is taken against them and as there is no indication that any action was taken against , them, therefore, petition was not competent. Besides it no permission was accorded to file fresh petitions on the same cause of action but surprisingly the order dated 2nd April, 1999 was got modified by the respondent by moving Civil Miscellaneous Application No,1 of 1999 wherein it was observed that permission to file fresh petition has already been granted whereas factually no such permission was ever granted. As such in our opinion these observations have been made by learned Judge in chambers of Lahore High Court on account of non-providing of proper assistance. Be that as it may, even if the order, dated 2nd April, 1999 is construed in favour of respondents to hold that permission was accorded to file fresh petition still the explanation offered in the petition is not sufficient to maintain this petition on the cause of action which in fact has extinguished for the reason that Notification dated 8th March. 1994 in which only the mode of allocation of Textile Quota has been changed has itself expired on 3-7- 1994, therefore, for want of cause of action fresh petition after about 5 years was not maintainable in law.
19. Now turning towards the argument of Mr. Haider Ali Pirzada learned Advocate Supreme Court that Association had not convened special meeting to discuss new Textile Policy contained in Notification, dated 8th March, 1994 according to section 160(1)(b), of the Companies Ordinance it is suffice to observe that this argument needs no discussion for the reason that there is no denial of the fact that notice, dated 16th April, 1994 for convening special meeting to discuss the details of the New Textile Quota Management Policy and two other items was duly received by them.
Accordingly meeting so held was attended by appellant and other members and through balloting Association opted for allocation of Textile Quota on the basis of performance of 1993. As such objection being without substance is accordingly repelled.
' Thus for the foregoing reasons Civil Appeals Nos.44 to 46 of 2001 are allowed consequently impugned order dated 2-10-2000 is set aside. Whereas Civil Appeal No,1205 of 1997 is dismissed.
Parties are left to bear their own costs.