AKHTAR ZAMAN MALGHANI, J.--- The following reliefs have been claimed in the instant Constitutional petition:-- "(a) It is therefore, prayed that in the interest of justice and for the appropriate protection of property rights of petitioner that the impugned order conveyed by respondent No,4 on behalf of respondent No, 1 vide Letter No, 15(12)2002/SIZ, dated 14-10-2002 may kindly be declared unlawful, un-Constitutional and void ab inito with costs throughout forthwith.
(b) It is therefore prayed in the interest of justice that the respondents may graciously be permanently restrained from withdrawing the SIZ Scheme until they provide all the infrastructure as guaranteed in the said Scheme.
(c) It is therefore, most respectfully prayed that the respondent No,1, alongwith all respondents and with all other relevant agencies may graciously be directed to do the needful for the complete implementation of the SIZ Scheme and must honour their commitment by 31-12-2002 made through Statutory Regularity Order (S.R.O.) 65(1)/95 and S.R.O. 66(1)95, both dated 18th January, 1995, and also S.R.O.70(I)/95, .S.R.0.71(1)/95, S.R.O.76(I)/95, S.R.O.77(I)/95, all dated 19th January, 1995 and S.R.0.(I)2001, dated 10th December, 2001 or in the alternate to extend the SIZ Scheme alongwith all exemptions for at least another three years or till the complete availability of on the spot infrastructure.
(d) It is therefore, prayed in the interest of justice and for the appropriate protection of property rights of petitioner that the respondents may graciously be permanently restrained from unlawful and un-Constitutional withdrawal of SIZ Scheme guaranteed by the respondent No, 1.
(e) It is therefore prayed in the interest of justice that the respondents may graciously be directed and a writ of mandamus may kindly be issued against respondents to comply with the SIZ Scheme and provide complete on the spot infrastructure at the petitioner's project site at Windher Balochistan before 31st December, 2002.
(f) It is further prayed that in the interest of justice subsequent to respondents providing all the promised infrastructure at the petitioner's project site at Windher, Balochistan, the petitioner may be given sufficient time to bring its project into commercial production. That this Hon'ble Court as an ad interim relief during the pendency of this Constitutional petition may be pleased to:-- "(i) Direct the respondents to act according to law.
(ii) Suspend the operation and effect of impugned order issued by respondent No, 4, ...Vide Letter No, 15(12)2002/SIZ dated 14-10-2002.
(iii) Restrain the respondents for withdrawing the SIZ Scheme until they provide all the infrastructure as guaranteed in the said Scheme.
(iv) Direct respondent No,1, alongwith all respondents and with all other relevant agencies to do the needful for the complete implementation of the SIZ Scheme.
(v) Restrain the respondents from unlawful and un-Constitutional withdrawal of SIZ Scheme guaranteed by the respondent No,1 .
(vi) Direct the respondents to comply with the SIZ Scheme and provide complete on the spot infrastructure at the petitioner's project site at Windher, Balochistan before 31st December, 2002.
The petitioner prays for any other relief, as this Hon'ble Court deems fit and appropriate to grant in the interest of justice, equity for the protection of fundamental rights in the facts, applicable law, Constitution and circumstances of the case."
2. Precise facts for disposal of instant Constitutional petition are that the Federal Government, in order to promote Industrial activities in the country and to remove regional disparities in development, and bringing the less industrialized areas at par with the developed parts of Pakistan, approved a special package of incentives for Special Industrial zones (hereinafter referred to as SIZs) located at different places of Pakistan vide S.R.O. No,1198(I)/95 dated 11-12-1995.
Windher, District Lasbella was one of such places. The parameters for setting up such units were notified vide S.R.O. No,71(I)/95 dated 19-1-1995 and S.R.O.No,70(I)/95, dated 19-1-1995. All such industries were required to commence commercial operation from 30th June, 1999, which was later on extended to 31-12-2002. However, this extension was not granted to the industrial units whose cases were subjudice before any Court of law. It is the case of the petitioner that lured by the incentives and facilities promised for SIZs, the petitioner's company intended for setting up an acrylic fibre industrial unit in SIZs Windher. The petitioner opened letter of credits (LCs) for import of machineries etc. By 31-6-1996 but could not commence commercial production by 30-6-1999, which according to the petitioner was due to lack of provision of infrastructure at the site as promised by the Government of Pakistan at the time of floating the scheme. According to the petitioner the Government of Pakistan promised to provide infrastructure such as Links Road, Water, Electricity, Telecommunication and Gas.
According to the petitioner the petitioner's Company made numerous representations to the Government of Pakistan and to various other relevant agencies demanding to provide infrastructure and fulfil the commitments made at the time of floating the scheme, and in this regard lastly a representation was made on 4th September, 2002 to the respondents calling upon them to provide infrastructure at the project site at Windher without delay, whereupon; respondent No,4 on behalf of Government of Pakistan vide Letter No, 15(12)2002/SIZ, dated 14-10-2002 communicated to the petitioner that "all additional facilities offered in SIZs Scheme were wound up and are no more available, as such; no further extension to avail the facility would be possible". It is further case of the petitioner that the act of respondent No,4 and the impugned letter is contrary to the rights guaranteed by the Constitution of Islamic Republic of Pakistan, void ab initio and detrimental to the Constitutional fundamental rights of the petitioner's Company.
3. In response to the notice respondents No,3 and 4 filed parawise comments to the petition, wherein it was contended that the petitioner failed to commence commercial production of the project by target date i,e, 30-6-1999, as such; was not entitled to avail the package of incentives/concessions under SIZs Scheme. It was also strongly denied that the Government has failed to provide infrastructure in SIZ Windher. According to the respondents all other facilities except natural gas have been provided for the industrial units set up or to be set up in Windher SIZ.
It was further stated that the dead line of the commercial production was extended from 30-6- 1999 to 31-12-2002 at the request of Messrs Chemi Visco Fibre (Pvt.) Ltd; Karachi at SIZ Nawabshah, however, the said extension was not possible in case of the petitioner as Messrs Dewan Salman Fibre (Pvt.) Ltd. Had filed a Constitution petition in Lahore High Court, Rawalpindi Bench to the effect that the extension in the date of commercial production of projects in. SIZ beyond 30-6-1999 would badly hit their Acrylic Fibre Unit at Hattar Industrial Estate on which the High Court gave the following verdict on 16-11-1999:-- "The respondent (GOP) while considering the extension in the above said exemption (to be available by M/s CICL) must not place the petitioner (Dewan Salman Fibre) in disadvantageous position and following the principle of equal treatment should decide the matter of exemption".
4. It was further stated that non-provision of natural gas has not materially altered the position in the case of petitioner; therefore, their plea for extending the date for commencement of commercial production was not justified.
5.. We have heard the learned counsel for the petitioner as well as learned D.A.-G. Appearing on behalf of respondents. It is mainly contended by the learned counsel for the petitioner that the impugned order dated 14-10-2002 has been passed by respondents in violation of the principles of natural justice as well as the same seriously violates the doctrine of promissory estoppel as under S.R.Os certain incentives were given to the investors for establishing industries in the SIZs including the specified zone of Windher. Pursuant to which, the investment was made by the petitioner- Company including investment made by the foreign Multi National Companies as well bulk of very costly machinery and equipments have been imported which were lying at Karachi Port but due to non-availability of infrastructure at the site as promised by the Government at the time of floating SIZs Scheme, the project could not be set, up and brought into commercial production, as such; the respondents were bound under the law to have extended the time for setting up the project till the time the infrastructure was provided at the site and should not have withdrawn the concessions/incentives in respect of the petitioner. He further contended that the withdrawal of such incentives/concessions by the Government was against the doctrine of promissory estoppel because it was detrimental to the vested right created in favour of the petitioner who acted upon the promise of Government and invested huge amount of billion of rupees including foreign exchange by impdrting machinery as well as by making constructions on the site. He placed reliance on the judgments reported in 1986 SCMR page 916, PLD 1991 SC page 46, 1992 SCMR page 1652, 1999 SCMR page 1112, 2002 SCMR page 510 and AIR 1983 SC page 4848.
6. Conversely; the learned D.A.-G. Contended that according to the scheme of SIZs the investors including the petitioner who wanted to avail the benefit of concessions/incentives of the scheme were required to fulfil two conditions i,e, open letter of credit by 31-6-1996 and to come into commercial production by 30-6-1999. It is further contended by the learned D.A.-G. That the industrial units which had fulfilled the above two conditions are getting benefit of concessions/incentives offered by the Government at the time of setting up special industrial zones and no S.R.O. Issued in this regard was withdrawn. However, the industrial units which had not fulfilled either of the two conditions are not entitled to the incentives/concessions granted at the time of setting up of Special Industrial Zones nor the same can be termed violation of doctrine of promissory estoppel. The learned D.A.-G. Maintained that in case of the petitioner, it had failed to fulfil the 2nd condition i,e, coming into commercial production by 30-6-1999, as such; is not entitled to the incentives/concessions promised by the Government nor any extension in the time can be granted to the petitioner on the excuse of non-availability of infrastructure at the site which has already been provided as promised except Gas which was not a necessary ingredient for setting up acrylic fibre industry.
7. It is pertinent to mention here that during arguments as a serious controversy arose regarding provision of infrastructure in the SIZ Windher, we; directed the learned DAG to satisfy us that pursuant to the investment scheme relating to SIZs necessary infrastructure Were-provided as contended by him, whereupon the learned DAG placed on record documents certified by Lasbella Industrial Estate Development Authority showing provision of infrastructure at the site, copy whereof was handed over to the learned counsel for the petitioner who sought time for consulting the petitioner. On the adjourned date the learned counsel argued the matter and made the following submissions:-
(i) The petitioner was in requirement of 6.5 Megawatt electricity minimum but the respondent failed to arrange the same, as such; they were forced to purchase their own generator at a cost of Rs,115.00 million to run the project.
(ii) Gas was not provided and the petitioner was offered the provision of same by bearing 50% expenses which was against the commitment made by BOI.
(iii) The petitioner required water around six lacs Gallons per day, but same was not provided, as such; petitioner was forced to erect their own submersible pumps and procure water treatment RO plant to meet their requirement which cost them additional rupees 20 millions to run the plant.
(iv) Although sewerage system was provided, but same could not be used as due to sand dunes same was filled and the petitioner was forced to make their own arrangements costing million of rupees.
(v) R.0 road which links the SIZ Windher is not all weather road, therefore the petitioner could not take risk by carrying big trucks and trailers to take the material from port to site at Windher and vice versa. Instead the petitioner was forced to use small trucks which increased cost and petitioner spent around 25 millions per annum on this count.
8. We have anxiously considered the contention put forth by the learned counsel for the parties and also perused the documents placed on record in support of their respective claims.
9. Blacks Law Dictionary defines doctrine of promissory estoppel as follows:-- "That which arises when there is a promise which promisor should reasonably expect to induce action or forbearance of a definite and substantial character on part of promisee, and which does induce such action or forbearance, and such promise is binding if injustice can be avoided only be enforcement of promise. Elements of a "promissory estoppel" are a promise clear and unambiguous in its terms, reliance by the party to whom the promise is made, with that reliance being both. Reasonable and foreseeable, and injury to the party asserting the estoppel, as a result of his reliance." The above definition envisaged the following ingredients of promissory estoppel:-- "(a) There is a clear and unequivocal promise by one party, through representation to the other party.
(b) The promisor expects, that the representation should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee.
(c) The promise is intended to create a legal relationship to arise in the future.
(d) 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." In Pakistan the doctrine of promissory estoppel owes its originality from the case of Collector Central Excise v. Aziz-ud-Din PLD 1970 SC page 439 which was further expounded in case of AlSamrez Enterprises v. Federation of Pakistan 1986 SCMR 1916. However; the same was comprehensively discussed in the judgment reported in PLD 1991 SC 546 (Pakistan v. Salah-ud-Din) and the Hon'ble apex Court held that the doctrine of promissory estoppel is subject to the following limitation:- "(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."
' Likewise in case M/s. Army Welfare Sugar Mills Ltd v. Federation of Pakistan 1992 SCMR 1652, the Hon'ble apex Court held that the authority competent to make an order for exemption is powered to undo it. However, the order cannot be withdrawn or rescinded once it has taken legal effect and certain rights are created in favour of any individual. In all such cases principle of locus poenitentiae would be available.
10. In a recent judgment reported in PLD 2002 SC Page 208 Pakistan v. Facto Belarus Tractors Ltd., while discussing the doctrine of promissory estoppel the Hon'ble apex Courr observed as under:-- "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 'neo 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 allows 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."
11. It is evident from the above referred judgments that a promise made by a party would be binding on it and it would not be entitled to go back upon it, if it would be inequitable to allow to do so, having regard to the dealings which have taken place between the parties. At the same time if promise is subject to certain qualifications, then before pressing the doctrine of promissory estoppel, the promisee is required to show that the obligations which were required to be fulfilled by him, have been in fact fulfilled, as such; the promisor is bound by his promise and cannot be allowed to retract or to act which may be detrimental to the vested rights of promisee.
12. It may be noted that at the time of floating SIZ Scheme the Government of Pakistan offered the following incentives and facilities to the investors who wanted to set-up Industrial Project in the special Industrial zones:- "(a) Income Tax Holiday for a period of ten (10) years from the date of commencement of commercial production, provided the plant commences commercial operations up to 30th June, 1999.
(b) Complete exemption from Duty and Sales. Tax on imported plant and machinery, provided L/Cs are opened up to 30th June 1996.
(c) The capital structure of project in SIZs will be entitled to the debt: equity ratio of 70.30.
(d) The project which commences commercial operations up to 30th June, 1999, and whose Letter of Credits are opened up to 30th June, 1996, shall enjoy 25% exemption from the Custom Duty on the import of such raw materials which are not produced locally, provided the project cost is more than US$ 10 million and employs minimum 100 persons in the factory.
(e) The project which commences commercial operations up to 30th June, 1999, and whose Letter of Credits shall be opened up to 30th June, 1996, shall enjoy 25% exemption from the Central Excise Duty on production, for a period of 8 years, provided the project cost is more than US$ 10 million and employs minimum 100 persons in the factory.
(f) The incidence of duties and taxes leviable on production in SIZs would be less than the incidence of duties and taxes, if the same product is imported.
(g) All such industries which are not already existing till the date of this notification in the country and are set up in SIZs shall enjoy complete exemption from duties on plant, equipment and such raw materials which are not produced locally for a period of ten years and from Sales Tax and Central Excise Duty on end products for a limited period of eight years, provided the Letter of Credits for the plant and machinery are opened up to 30th June, 1996, and commercial operations are commenced before 30th June, 1999.
(ii) Capital gains would be exempted from taxation for a period of five years from the date of commercial production.
(iii) Any Octroi or Export Tax leviable by the local Government on the import and export of goods to and/or from SIZs may be exempted for a period of ten years.
(iv) Parts and components up to 50% of the initial C&F value of the imported plant and machinery shall be exempted from Import Duties and Sales Tax, if imported together with the plant."
Similarly the Government also undertook to provide infrastructure and utility services in the following words:- "The Government will be responsible for provision of necessary infrastructure such as electricity, telecommunication services, gas, water, sewerage, road links in the Special Industrial Zones.
However, the internal distribution of power, gas and water beyond the off-take point will be the responsibility of the industrial unit concerned. The management authorities will be responsible for distribution of power from grid station to the off-take point. Provisions of residential accommodation, if required would be responsibility of the unit concerned."
Coming to the facts of the present case it may be observed that the scheme floated by the Government was subject to certain qualifications and before claiming exemptions under the respective notifications the petitioner was required to fulfil the following two conditions:--
(i) Letter of Credits (LCs) was required to be opened up to 30th June, 1996.
(ii) The project has to commence commercial operations by 30th June 1999. So far opening of letter of credits is concerned, it is an admitted position that the petitioner opened the same before the target date, however; it could not commence operation of the project on or before the cut-off date i,e, 30-6-1999. It is the case of the petitioner that under the incentive 'scheme the Government was required to provide necessary infrastructure such as electricity, telecommunication service, gas, water, sewerage and road links in the Special Industrial Zone, which were not provided by the Government as promised, as such; it could not fulfil second obligation under which the petitioner was required to bring his project into operation before the cut-off date. On the other hand, the learned D.A.-G placed on record the documents certified by.
Lasbella Industrial Estates Development Authority, according to which infrastructure such as roads, electricity,, water supply and sewerage system were provided in the Windher SIZ. However, it is an admitted position that gas was not supplied to Windher SIZ as promised by the Government at the time of floating of the scheme. According to learned D.A.-G. The supply of the gas was not essential for setting up acrylic fibre industry. Thus the moot question before us is whether the petitioner is entitled to the exemptions provided by the incentive scheme, though it has failed to fulfil the obligations on its part i,e, bring the project into commercial production before the target date.
According to the stand of the petitioner as already stated, it could not commence the operation of the project due to lack of the infrastructure as promised by the Government. It is evident from the documents placed on record that almosi all the facilities promised by the Government were made available in the S.I.Z Windher except gas which, according to the learned Deputy Attorney General was not essential for setting up 'acrylic industry' and has not been seriously controverted by the learned counsel for the petitioner nor any document has been placed on record which could show that the gas was essentially required for setting up the required industry. However; after placing on record, the documents by the D.A.-G the learned counsel for the petitioner argued that the Government was required to provide all weather road from Karachi because it was not possible for the petitioner to shift the huge and heavy machinery from Karachi Port, where it is lying, to the site without availability of such road and which was one of the main cause for not setting up the industry and bringing it into commercial production. It may be seen that according to brochure of incentive scheme roads were required to be provided in the Special Industrial Zones, which have been accordingly provided. So far as the road from Karachi to Windher SIZ is concerned, the documents placed on record and not controverted by the petitioner show that the Windher SIZ is situated at the R.C.D Highway and adjacent to Windher Industrial Estate, which has been suitably linked with the R.C.D Highway, as such; we find no substance in the argument of the learned counsel that the Government has failed to provide all weather road. Similarly the contention of the learned counsel regarding non-supply of sufficient electric supply has no force in view of the fact that the petitioner itself applied for connection of 30 K.V. Load which was accordingly energized but later on disconnected on 21-12-1998 due to non-payment of bills. Had the petitioner been in need of electricity more than 30 K.V. Load, it should have asked the concerned authorities for the provisions of same but no such document has been placed on record which could show that the petitioner was in fact in need of more electricity which the Government failed to provide, thereby making it not possible for the petitioner to set up the industry before the target date. Likewise the petitioner had not applied for water connection to the concerned authorities rather drilled their own boring in order to meet their requirement with permission of the concerned authorities, as such; the petitioner cannot agitate that the Government failed to supply the sufficient quantity of water necessary for setting up the industry. It may ,be noted that besides the petitioner, three other parties i,e, M/s. Sadiq Sons, Japan Pakistan Industry and M/s. Chemical Synergies also set up their respective projects in the SIZ Windher and came into commercial production by the target dated of 30-6-1999, enabling them to avail the package of incentives/concessions of the SIZ Scheme.
Similarly the Government has not withdrawn the package of SIZs incentives/ concessions in respect of those investors who has opened their letter of credits (LCs) for import of Plant and Machinery till 30-6-1996 and commenced commercial production by 30-6-1999 but same were denied to the petitioner as it had not fulfilled one of the two obligations i,e, coming into commercial production till 30-6-1999 and refused to extend the time for the same vide impugned order issued by the respondent No,4 vide Letter No,15(12)2002/SIZ dated 14-10-2002. As the petitioner admits availability of requisite facilities, though; claims to have acquired through its own source, the principle of approbate and reprobate will be applicable in the present case as the petitioner elected to avail the above said facility of infrastructure through its own sources by abandoning its right to what the respondents promised to provide, as such; the petitioner cannot choose to return to the former claim and sue for it.
13. Furthermore, in order to press into service the doctrine of promissory estoppel, the petitioner was required to fulfil the obligations on his part which it failed to fulfil and the excuse for not fulfilling the said obligation are not well-founded in the light of above discussion, therefore, the doctrine of promissory estoppel is not attracted in the case of the petitioner. Similarly the principle of locus poenitentiae is also not available to the petitioner because the Government has not withdrawn package of incentives/concessions granted by it at the time of floating the SIZs Scheme but has refused to extend the time of setting up industry beyond the target date in order to avail the exemptions which cannot be termed as recession detriment to the petitioner as urged by the learned counsel. The dictum laid down in the judgments relied upon by the learned counsel in the given facts and circumstances of the present case is not attracted nor is of any help to the petitioner. Upshot of the above discussion is that we, find no merits in the instant petition and same is dismissed accordingly. However the parties are left to bear their own costs.