1. ' On 22-3-2001, when the above C.M.A. Came up for hearing the learned Advocate-General, Sindh who was present in Court stood up and claimed that without notice to the Advocate-General ad- interim stay earlier issued was a nullity in the eyes of law as this violates the provisions of Order 27- A, Rule 1, C.P.C. Which mandates such notice before issuance, of any ad interim orders in the circumstances of the case. Thereafter both the learned counsel and the learned Advocate-General were heard by myself on this issue and orders reserved.
2. ' In support of the proposition that notice was necessary in the circumstances of the case to the Advocate-General under Order 27-A, Rule 1, C.P.C., Mr. Raja Qureshi, learned Advocate-General, Sindh has relied upon Federation of Pakistan v. Aftab Ahmed Khan Sherpao PLD 1992 SC 723, wherein the Honourable Supreme Court has held that the provisions of said Order and Rule are compulsory and its non-compliance renders the proceedings defective and consequently any order issued in violation thereof would be a nullity in the eyes of law. In this regard the learned Advocate-General has Submitted that in the present suit a substantial question as to the interpretation of Constitutional law is in issue as it concerns the rights of the Provincial Government to levy cess upon goods entering or leaving the Province from or outside the country through Air or Sea. Secondly the learned Advocate-General has submitted that the relevant words used in Order 27-A, Rule 1, C.P.C. Are: "... The Court shall not proceed to determine..." which according to him means at any stage of the proceedings i,e, even at the ad-interim stage since the passage of an ad-interim order culminates in a final order. The learned Advocate-General has further submitted that although in the above-cited case of Federation of Pakistan v. Aftab Ahmed Khan Sherpao a dissenting view was expressed by some of the Honourable Judges of the Honourable Supreme Court, however there was no such dissent as far as the mandatory requirement of notice is concerned under Order 27-A, Rule 1, C.P.C. And in this connection has referred to the leading judgment of Mr. Justice Shafiur Rahman (as he then was). He has finally contended that the impugned Ordinance, the effect of which has been stayed by the order of this Court dated, 22-3- 2001 pertains to a very substantial question viz. Cess on import and export as regards the revenue of the Province and consequently the ad-interim orders are having an adverse effect on the rights of the Provincial Government to collect such revenue.
3. ' On the other hand Mr. Makhdoom Ali Khan, learned counsel for the plaintiff has contended that the word "determination" means final determination and consequently the facts of the present case are distinguishable from the case of Federation of Pakistan v. Aftab Ahmed Khan Sherpao (supra) on the basis that there the Honourable Supreme Court was seized with the final determination of the said case which had been decided by the Peshawar High Court and hence that case is not relevant to the one at hand where no final determination has been made by this Court and in fact cannot be made until all the parties are heard. He has further relied on Black's Law Dictionary at page 450 where the word 'determination' has been explained to mean a decision of a Court or Administration Agency which implies an ending or finality of a controversy or suit. So also a determination is a final judgment for purposes of appeal when the trial Court has completed its adjudication of the rights of the parties in the action. Regarding the query raised by this Court in the order dated, 22-3-2001 as to whether, the provisions of Article 199 (4) (b) of the Constitution could be pressed into service in the present matter, learned counsel has submitted that such provision which contemplates notice to the prescribed Law Officer before issuance of any interim order, is not applicable as a suit is entirely independent of a Constitutional petition and is controlled by the provisions of the C.P.C. Viz. Section 9 thereof. Even otherwise as per learned counsel Article 199(4)(b) only contemplates issuance of notice at the interim stage whereas in the present case ad interim orders were prayed for and have been issued and in this connection he has relied upon Khan Abdul Aziz Khan v. Secretary, Government of Punjab and others 1981 SCM R 672 where the Honourable Supreme Court has held that while admitting a writ petition the High Court is competent to pass ad-interim orders and stay application could be decided after notice to the affected parties. In support of this proposition he has further relied upon Mian Arif Iftikhar v. Election Tribunal West Pakistan and another PLD 1968 Lah. 1387 where a Full Bench of the Lahore High Court has interpreted the provisions of Article 98(4)(b) of the 1962 Constitution and held that notice to the prescribed Law Officer was not necessary in the circumstances prescribed therein and orders could straightaway be passed at the interim stage. Learned counsel has submitted that the provisions of Article 98(4)(b) of the 1962 Constitution are similar to the provisions of Article 199 (4)
(b) of the 1973 Constitution, which is in issue before this Court. In this connection learned counsel has further submitted that the Full Bench has laid down specific circumstances wherein ad-interim orders could be passed in terms of Article 98(4)(b) of the 1962 Constitution viz. When it is shown that the impugned order was without jurisdiction, against the principles of natural justice, that the Tribunal which passed it had not performed its duty under the law by which it was created and that a patent illegality or an error is apparent on the face of the record. As per learned counsel the facts of the present matter would show that through the impugned Ordinance the Provincial Government is seeking to collect taxes on Imports and Exports into the Province from or for outside the country through Air or Sea which are the exclusive domain of the Federal Government as per Articles 151 and 142 of the 1973 Constitution read with Entries 27 and 43 of the Federal Legislative List.
4. He has in this regard relied upon Mirpurkhas Sugar Mills Ltd. v. District Council 1991 M LD 715 wherein a Division Bench of this Court had dealt with the Legislature's power to make laws within the specified framework outlined by the Constitution and any law made by the Legislature offending against the provisions of the Constitution would be void. He has also referred to Molasses Trading & Export (Pvt.) Limited v. Federation of Pakistan and others 1993 SCM R 1905 wherein a Full Bench of the Honourable Supreme Court has dilated upon the ways and means where by the Legislature has, -within the ambit of the Constitutional limitations, the power to make a law so as to nuetralise the effect of any decision of any Court and further to give retrospective effect so as to bind even past transactions. Learned counsel has submitted that the facts of the present matter would show that the Legislature has merely substituted the word 'cess' for the word 'fee' and also incorporated certain language as to the objectives for which such cess was being charged/mated viz. For the purposes of special maintenance and development of infrastructure for smooth and safer movement of goods. This per learned counsel could not dilute/set aside the authoritative judgment of a Single Bench of this Court in Suit No,764 of 1999 wherein section 9 of the Sindh Finance Act 1994, as amended by section 5 of the Sindh Finance Act, 1996 regarding collection of said fee .Was held to be ultra vires the provisions of the Constitution.
5. ' In reply the learned Advocate-General has submitted that the word "cess" is neither an import or export tax as it is for the development of infrastructure and hence within the powers of the Provincial Assembly and consequently could not by any stretch of imagination be held to be ultra vires the relevant Constitutional provisions. He has reiterated that the words 'proceed to determine' used in Order 27-A, Rule 1, C.P.C. Mean no steps could be taken by this Court even at the ad-interim stage without notice to the Advocate-General.
6. ' I have heard learned counsel as well as the learned Advocate- 'It would be seen that the relevant words used in Order 27-A, Rule 1, C.P.C. Are "proceed to determine the question" which in my view relate to the final determination of such question by a Court of Law or Tribunal. It therefore cannot be said that at the ad-interim stage where only ad-interim arrangements are made to regulate the rights and liabilities of the parties, any final determination could be made as regards the same. Of course such a determination would be made after hearing the parties both at the interim stage and at the stage of the final decision of the suit. As regards the case of Aftab Ahmed Khan Sherpao (supra) cited by the learned Advocate-General in support of his contentions, in my humble view in this case the Honourable Supreme Court was seized of a final judgment of the Peshawar High Court which is not the case in the present matter. Even otherwise it would be seen that as regards the issue of notice under Order 27-A, Rule 1, C.P.C., in that case the Honourable Judges of the Supreme Court were equally divided. The leading judgment as regards mandatory notice was authored by Mr. Justice Shafiur Rahman (as he then was) which was agreed with by Muhammad Afzal Lone, Saad Saood Jan, Naimuddin and Wali Muhammad Khan, JJ., (as they then were) and no judgment was given by the Honourable Chief Justice Muhammad Afzal Zullah (as he then was). On the other hand Mr. Justice Ajmal Mian (as he then was) alongwith Nasim Hasan Shah, Abdul Shakurul Salam, Abdul Qadeer Chaudhry, Rustam S. Sidhwa and Sajjad Ali Shah, JJ. (as they then were) had held that there were no need of separate notice to the concerned officer in the circumstances of the case.
7. ' As regards the next issue whether this Court would be bound to issue notice at the interim stage to the prescribed Law Officer in terms of Article 199 (4)(b) of the Constitution, it would be seen that firstly suits are regulated in accordance with the Civil Procedure Code more particularly in accordance with section 9 thereof which pertains to the jurisdiction of the Civil Court to try civil suits. While it is settled law that the provisions of the C.P.C. Are applicable to Constitutional petitions see Federation of Pakistan v. Aftab Ahmed Khan Sherpao (supra) the opposite is not always true more particularly in the present case as a specific provision has been made in the C.P.G. Regarding notice to the learned Advocate-General/Attorney-General per Order 27-A, Rule 1, C.P.C. Even otherwise it would be seen that in appropriate cases notice has been dispensed with before issuance of interim orders. (See Mian Arif Iftikhar v. Election Tribunal West Pakistan and Khan Abdul Aziz Khan v. Secretary, Government of Pakistan (supra)).
8. 'It would also be seen that at the interim stage what is to he considered is firstly the urgency of the matter and secondly whether the impugned notice/law is prima facie of such a nature as to come within the well known exceptions viz. It is issued without jurisdiction, is coram non judice, mala fide or against the principles of natural justice then in such circumstances ad interim orders would be in the interest of justice. However, where these ingredients are not present then no ad interim order could be issued without notice to the learned Advocate-General/ Attorney-General under Order 27-A, Rule 1, C.P.C. In the circumstances of the case which was of an urgent nature and where I had formed a tentative opinion as to the ultra vires character of the impugned Ordinance particularly in view of the 'judgment in Suit No, 764 of 1999, no notice was necessary to the learned Advocate- General before passing the order dated, 22-3-2001.
9. ' The above are the reasons for the short order passed on 24-3-2001.