' SABIHUDDIN AHMED, J.---After having heard learned counsel, we had announced a short order in Court allowing the petition to the extent that the respondent No,2 was directed to issue the requisite quota which was deducted on the ground of the allegations of having shipped goods against five forged visas during the calendar year 2003. However, before detailed reasons could be recorded an application for review was submitted on behalf of the respondents wherein it was pointed out that while passing the aforesaid order we had omitted to consider the conclusions recorded by the Honourable Supreme Court in its subsequent order dated 5-5-1996 on C.M.A s. 107-K of 1995 and 165-K of 1995 in Civil Appeals Nos,242 and 243 of 1992 to the following effect:- "We would direct respondents to restore Qaisar Shafiullah's above entitlement for 61470 dozens after adjusting 3543 dozens without any further delay."
2. Mr. Afsar Abidi learned counsel for respondents argued that the short order apparently stemmed from the hypothesis that the quota allocated to/and by an exporter constituted a right in property and could not be reduced on the basis of any alleged forgery committed by the exporter unless such forgery was established in a trial before a commercial Court though certain observations of the Honourable Supreme Court in the main judgment delivered on 12-1-1994 (1994 SCM R 859);could possibly support this view but we omitted to notice the subsequent clarification made in the order dated 5-5-1996 wherein a specific direction was made requiring the respondents to adjust the quantity exported though five forged visas from the quota entitlement of the petitioner. It was urged that the latter order was equally binding precedent and failure to consider the same was a good ground for review.
3. When this application came up before us on 27-11-2002 learned counsel for the petitioner was also present who waived notice and accordingly we admitted the review application for regular hearing on 29-11-2002. Both learned counsel argued the matter in some detail and we adjourned the hearing to 3-12-2002 requiring them to file their respective statements indicating the availability of quota and extent of shipment made by the petitioner. A statement was duly presented in Court on behalf of the respondents but learned counsel for petitioner did not appear despite repeated calls and despite the fact that the date of hearing was duly notified to him.
Therefore, we decided to recall our short order dated 13-11-2002 and proceeded to dispose of the entire petition on merits.
4. By way of factual background it be stated that the petitioner is engaged in the business of export of textiles. The import of such goods by some countries is subject to certain limitations as to quantity and therefore, the respondent No,1 has laid down certain quota restrictions upon exporters pursuant to an order under section 3(1) of the Imports and Exports (Control) Act, 1950 (hereinafter referred to as the scheme) which is managed by the respondents Nos,2 to 4. Without .Going into details it may be sufficient at this stage to state that every exporter is required to effect exports up to the maximum extent of the quota allocated to him. Basically such quota is allocated on the basis of the performance of an exporter in the previous year though it can also be purchased through public auction conducted by the respondent No,2 (in respect of unavailed quota) by the allottees or through private purchase of unutilized quota by other exporteRs,
5. Admittedly pursuant to some orders received from buyers in U.S.A., the petitioner exported certain quantity of textile goods after purchasing the requisite quota from the market.
Nevertheless, upon a complaint received to the effect that goods exceeding the prescribed maximum quantity had been shipped to U.S.A. The respondent No,2 came to the conclusion' that certain exports were made by the petitioner through forged export visas. A show-cause notice was issued and thereafter the quota allocated to the petitioner was also cancelled by the respondent No,2. The petitioner challenged such action before this Court through C.P.D. No,1073 of 1991, which allowed the petition holding inter alia the findings recorded were not premised on sufficient evidence. The above judgment was called in question by the respondent No,2 before the Honourable Supreme Court which, after granting leave to appeal decided the appeals by judgment dated 12th January, 1994 (1994 SCM R 859). Their Lordships did not subscribe to the view taken by this Court as to sufficiency of evidence for the purposes of impugning the order of the respondent No,2. Nevertheless, they proceeded to hold that though the petitioner could be tried for the offence of forgery before an ordinary criminal Court or even before a commercial Court under sections 5(A) and 5(B) of the Imports and Exports (Control) Act, he could not be deprived of the quota duly earned or lawfully purchased which amounted to property, unless authorized by law.
6. At this stage it may be pertinent to reproduce para.13 of the scheme as reliance upon clause (3) thereof was placed on behalf of the respondent No,2 before the Honourable Supreme Court:-- "13 (1) No allocation shall be valid unless it is in accordance with the provisions of this order.
(2) Any exports made in contravention of the provisions of this Order shall not count towards the performance of the exporters and shall be treated as irregular and void.
(3) Cases of shipments in contravention of this Order and other malpractices such as excess shipment over the allocated quantity misdeclaration of weight and category, shall lead to cancellation of quota and or the penalty provided for in the Imports and Exports (Control) Act, 1950 (XXXIX of 1950).
14. If an exporter has made shipment in excess of his entitlement such excess shipment shall be adjusted against his entitlement of next year on such terms and conditions as the Export Promotion Bureau may determine."
7. Their Lordships however, proceeded to hold that trial of an offence under the Imports and Exports (Control) Act, 1950 was altogether different from cancellation of quota under the aforesaid clause and the concerned authority in the respondent No,2 was required to determine whether it would be appropriate to cancel the entire lawfully earned or required quota on the basis of a contravention relating to an insignificant amount. Accordingly the matter was remanded to the ViceChairman of the respondent No,2 for a decision according to law.
8. However, the judgment of the Honourable Supreme Court was not fully implemented whereupon the petitioner approached this Court seeking action for contempt. The application remained pending for nearly two years when it came up for hearing on 5-5-1996. It was contended on behalf of the respondents that apart from the five forged visas it had been discovered that the petitioner had carried out exports through other 29 unauthorized visas. Their Lordships held that the alleged 29 unauthorized visas were not the subject-matter of the appeals disposed of and declined to make any emanate in respect thereof. Nevertheless, their Lordships held that the respondent No,1 was entitled to adjust the exports made through the five unauthorized visas amounting to 3543 dozens of garments against the petitioner's quota of 61470 dozens and the respondents were directed to restore the petitioner's quota accordingly. The petitioners were informed vide letter dated 9-5-1996 that in view of the clarification made by the Honourable Supreme Court their export quota after adjusting against the five visas was restored and the question of 29 other visas was being detached.
9. On 30-5-1996 another show-cause notice was served upon the petitioner informing them that despite an order having been passed after hearing him with respect to 29 visas he was being granted a further opportunity of hearing pursuant to the order of the Supreme Court. Apparently the petitioner made certain submissions in writing but declined to make any oral submissions.
Thereafter the respondent No,3, who was by that time authorized to deal with such matters, passed a detailed order dated 3-8-1996 holding that the petitioner had effected illegal and unauthorized shipments of textiles against 29 visas which were forged and in contravention of the provisions of the scheme. Noticing that the petitioner's case was referred to F.I.A. For criminal prosecution and was under process for being referred to the appropriate Commercial Court. He directed that the quantity relating to the 29 unauthorized visas be adjusted against his quota as had been done by the Honourable Supreme Court in case of 5 visas.
10. The petitioner once again moved this Court on 10-10-1996 by way of C.P.D. No,1829 of 1996 which was disposed of through a consent order dated 31-10-1996. Nevertheless, surprisingly and contrary to our impression the petitioner did not question the order of the respondent No,1 dated 3-8-1996 and primarily complained that he was being victimized on account of failure on the part to permit the transfer of his restored quota to other registered exporters in accordance with the scheme, which we found upon calling for the file of the said petition. This petition, however, came to be disposed of by consent order dated 31-10-1996, whereby the petitioner was allowed to effect exports to the extent of the restored quota during the calendar year 1997. It appears that the petitioner also effected some exports during 1997 in anticipation of grant of export visas according to his restored quota, but according to him he was not allowed to do so as alleged by the petitioner. On the other hand Mr. Afsar Abidi learned counsel for the respondents argued that the respondents were entitled to deduct/adjust the quantity found to have been exported through forged visas in terms of the findings of the respondent No, 3 dated 5-8-1996 which was consistent with the directions of the Honourable Supreme Court dated 9-5-1996 and which had not been challenged before any forum. The contention appears to be correct inasmuch as once the Honourable Supreme Court had found that the respondents were entitled to deduct the quantity of exports made against five fake visas from the quota entitlement of the petitioner no error of law could be found in order requiring such deduction on account of subsequent finding of fact to the effect that exports were made against another set of 29 forged visas.
11. Mr. Shoukat Hayat learned counsel for the petitioner however, vehemently argued that the finding of fact as to the petitioner's having exported goods through forged visas recorded by the respondent No,3 are of no consequence in view of the fact that pursuant to his directions the petitioner was prosecuted for offences under sections 420/468/471, P.P.C., before a competent criminal Court which acquitted him from the alleged offences on the ground that no evidence as to the alleged forged and forgery was brought forth by the prosecution. We have carefully gone through the judgment and have noticed that the petitioner's acquittal took place largely on account of absence of material evidence as it has been recorded in the judgment itself that fire was caught in the offices of the respondent No,2 resulting in mass destruction of record.
12. Moreover, Mr. Abidi in response to the above contention argued that the proceedings relating to cancellation of quota under the scheme were essentially of a civil nature and could be pursued entirely independently of criminal trials. Indeed the principle is well-settled and has been dilated upon by the Honourable Supreme Court even in the earlier litigation between the parties (1994 SCM R 859) in the following words:- "The Commercial Court has exclusive jurisdiction to try a case under the above provisions of the Act. However, the above criminal proceedings cannot be equated with a proceeding which the Vice-Chairman of the Bureau may initiate by virtue of the fact that under the scheme the Bureau has been made responsible for the management of textile quotas. The power to manage contained in above-quoted clause (2) of the scheme read with above-quoted paras.13 and 14 empowers the Vice-Chairman of the Bureau to take action contemplated by the above two latter clauses, namely, clauses (13) and (14). This power is different from the power of a Commercial Court to try a case under the Act."
13. Having found no merit in the above contention and being satisfied that the quantity found to have been exported on forged visas could be adjusted from the petitioner's quota entitlement. We proceeded to consider what relief, if any, could be granted in the circumstances. We had therefore, requested both parties to file their respective statements regarding availability of quota to the petitioner on 29-11-2002 and adjourned the case to 3-12-2002. While a detailed statement was filed on behalf of the respondents by Mr. Afsar Abidi. Unfortunately no such statement came from the petitioner's side nor did their learned counsel appear despite our waiting for him for considered long time. In the circumstances, we had no option but to accept the statement filed on behalf of the respondents Nos,1 to 3. Without going into unnecessary details Mr. Abidi pointed out that the total quota entitlement of the petitioner in different categories was 47968 and not 61470 dozens as recorded in the judgment of the Honourable Supreme Court and this fact has been acknowledged by the petitioner (contending that there was calculation mistake) and confirmed by the respondent No,4. It was pointed out that after adjustment of the quota pursuant to the order of the Honourable Supreme Court dated 9-5-1996 and the finding of the respondent No,3 dated 5-8- 1996, the petitioner's entitlement in Category 338 came to 40319 dozens and he made shipments to the extent of only 9691 dozens and an unutilized quota of 4628 dozens remained in the balance for the year 1998, entitlement was determined both on the basis of quantity and value and the petitioner was held entitled to 7838 dozens. He made shipment to the extent of 2244 dozens and transferred to other exporters and a quantity of 4307 dozens remained unutilized. Therefore, the petitioner's entitlement for the year 1999 based on performance in the preceding year was 2244 dozens but this time the respondent No,3 showed grace and released the unutilized quotas of 4628 dozens for 1997 and 4327 dozens for 1998 making a total of 11199. The petitioner did not make any exports during this year and transferred this entire quota of 11199 dozens to other exporteRs, Consequently for the year 2000 the petitioner was not entitled to any quota on the basis of past performance nor was same acquired through transfer.
14. Mr. Afsar Abidi argued that under the scheme an exporter was allocated quota on past performance basis depending upon the quantity of exports made in the immediately preceding year and the scheme did not contemplate that quota once earned could be utilized in any subsequent year. Indeed he appears to be correct to the above extent.
15. However, we were disturbed by one aspect of the matter in response 'to which Mr. Abidi could not furnish any satisfactory reply. Assuming that the quota to which an exporter is entitled on the basis of past performance during a particular year is not made available to him unlawfully or for malicious motives and thereby he is unable to effect any exports during such year. Would the respondents be justified in declaring any quota in the forthcoming year on the ground that he had effected no exports during the previous year even if such withholding or denial is found to be unlawful by a Court. In other words supposing an exporter is entitled to a particular quantity of quota for 1996 on the basis of his performance A in 1995 but the same is not made available to him in the said year unlawfully and he challenges such denial in a Court. The petition is decided in 1997 whereby the denial is found to be unlawful. Could the respondents maintain that the exporter would not be entitled to any quota in 1997 in view of his nil performance in 1996 though the disability to export arose from a wrongful act of the respondents and the delay in the disposal of his petition. It is well-settled that a person is not entitled to any premium over his wrongful acts.
Public powers have to be exercised fairly and honestly and an act of the Court should prejudice no one. We would therefore, hold that in such cases, an exporter would be entitled to the quantum of D quota unlawfully denied in addition to the quantum of quota earned on the basis of past performance. At the same time, the quota unlawfully denied need not be granted immediately upon declaration of the denial invalid but needs to be staggered over a reasonable period of time so as to facilitate the respondents in making adjustments due to the over all limitation of fi the available quota as well as to enable the petitioner to procure the goods within a reasonable time.
At the same time, when it is not possible to compensate the exporter for the damage caused to his business for proceedings like the present one, he may be free to move an appropriate Civil Court.
16. Accordingly we would dispose of this petition by directing the respondents to determine the petitioner's entitlement, if any in accordance with the principles laid down hereinabove. The petition stands disposed of in the above terms.