' SABIHUDDIN AHMED, J.---The petitioner who claims to be engaged in the business of exporting fresh fruits pears to be aggrieved by a letter from the Government of Pakistan Ministry of Commerce addressed to the respondent No,2 with copies addressed to several concerned agencies. The relevant contents whereof read as follows:--
(2) "The case has been examined in the Ministry and it has been decided as under:---
(a) EPB order issued vide ifs letter. No,EPB. 7(4)/2001- 2002/ SM-I dated '24-4-2002 cannot be issued under the law. Such powers for regulating export trade are only derived from the Export Policy and Procedures Order and vest in the Ministry of Commerce. EPB is accordingly advised to rescind its instructions issued to the Customs for restricting export of Kinnows in wooden crates.
(b) It has also been decided, by the competent authority that in order to encourage export of Kinnows and other fresh fruits and vegetables in cardboard cartons EPB may devise an incentivization scheme and provide training and facilitation to the exporters particularly focusing on Kinnow growing area like Sargodha so that the exporters voluntarily shift their packing from wooden crates to cardbdard cartons. A comprehensive policy package may be prepared in this regard under intimation to the Ministry.
(3) EPB is requested to take further necessary action accordingly under intimation to this Ministry.
2. By way of necessary background, it may be stated that on 24-10-2002 the Export Promotion Bureau (respondent No,2) had addressed letter to Member Customs (Exports), Central Board of Revenue directing inter alia that "export of Kinnows shall not be allowed in wooden crates from next season". Pursuant thereto the C.B.R. Directed different Custom houses vide letter dated 24-4-2002 (hereinafter mentioned as the impugned letter) communicating the decision of the respondent No,2 directing them to implement the decision of the respondent No,2 and ensure that Kinnows are not allowed to be operated in wooden crates. Subsequently however, when the matter came up to be examined by the Ministry of Commerce, it was felt that such kind of directions could not be issued by the respondent No,2 as the power to regulate export trade could only be exercised by the Ministry itself and not the respondent No,2. Accordingly the impugned letter was issued which has been called in question before this Court.
3. It is not disputed that the power to regulate the export of goods has to be exercised by the Federal Government under section 3 of the Imports and Exports (Control) Act, 1950, though the Rules of Business specifying the Ministry or Division responsible for exercise of such powers have not been placed before us, it can be safely presumed that they are exerciseable by the Ministry of Commerce as has been stated in the impugned order and has also been urged by Mr. Talib H. Rizvi learned counsel for the petitioner. Mr. Rizvi nevertheless, proceeded to argue that Export Promotion is also a department of the Ministry of Commerce and as such an order passed by the Bureau must also be construed to be one passed under section 3 of the Imports and Exports (Control) Act and the objection contained in the impugned letter is untenable.
4. In support of his contention Mr. Rizvi brought to our notice the provisions of sections 5-A and 5-B of the Imports and Exports (Control) Act,. 1950, which relate to establishment of Commercial Courts and trial of offences by such Courts. With profound respects, we are unable to see how these provisions lend any support to the argument that the powers of the Federal Government can also be exercised by officers of Export Promotion Bureau. Section 5-A (1) enables the Federal Government to constitute Commercial Courts and under subsection (2), such Courts headed by Judicial Member would comprise of one officer of the Federal Government to be nominated by the Ministry of Commerce and another from amongst businessmen or executives out of a selected panel in consultation with the Federation of Pakistan Chamber of Commerce and Industry. Section 5-B(1) provides that the contravention of an order under section 3 relating to export trade shall be tried exclusively by a Commercial Court and subsection (2) stipulates that such Court will take cognizance of an offence upon a complaint in writing made by the Chairman or Vice-Chairman of the Export Promotion Bureau or an officer authorized by them. It is evident from a plain reading of section 5-B(2) that tl e Legislature has treated the Export Promotion Bureau as a separate and distinct organization (if not a strict legal person from the Federal Government or the Ministry of Commerce). The contention that the pourers of the Government could be exercised by the Bureau is therefore, in our humble view, plainly misconceived.
5. In any event, even if it be assumed that the Bureau is merely a Department of the Ministry of Commerce of the Federal Government, it does not necessarily 'follow that all powers of the Government could be exercised by the Bureau or its officers or for that matter even by all officers in the Ministry unless it can be shown that the Rules of Business prepared under the Constitutional mandate enabled the discharge of such functions by a Department or Officer. The Rules were not placed before us for reasons best known to the petitioner and his learned counsel though the burden to show that the impugned order was illegal rested upon him. We are therefore, not persuaded to assume that the legal position stated in the impugned letter was not correct.
6. Learned counsel argued that by prohibiting exports in wooden boxes certain rights had come to be vested in the petitioner who was exporting Kinnows in cardboard cartons and therefore, the Government was not left with any locus poenitentiae to recall the aforesaid decision. Indeed we are conscious of several decisions of our superior Courts to the effect that once a decision vesting certain rights upon a party has been taken and acted upon, it cannot be recalled. Nevertheless, we fail to see how the petitioner could claim to have acquired any vested rights through an order which only purported to deny his competitors in exporting goods the right to use the packing material of their own choice. Indeed as a consequence of the impugned letter the petitioner is still at liberty to export goods either in wooden boxes or in cardboard cartons. The only effect of the order appears to be that other exporters have also been allowed to exercise such a choice in accordance with their fundamental rights guaranteed by Article 18 of the Constitution.
7. It is clear that through the impugned order the right of other exporters to use wooden boxes has been restored in terms of Article 18 upon the ground that the person imposing the restrictions was not competent in law to do so. It may be added that the doctrine of locus poenitentiae will not apply when the original decision that was rescinded was made by a person not authorized to do so. For these reasons we found no substance in the petition and dismissed it in limine vide our short order dated 3-1-2003.