1. ' SAIYED SAEED ASHHAD, C.J.,---In this Constitutional petition, following reliefs have been sought:--
(a) declare that the petitioners' claim for refund of import fee paid by them on import licence dated 21-1-1992 is covered by the provisions of para.7; clauses (c) and (d) of S.R.O. No, 626(1)/79 dated 1-7-1979;
(b) declare that the office memo. Of the respondent No,2 dated 2-10-1993 is without lawful authority and of no consequence in law;
(c) direct the respondents to refund the import licence fee of Rs.2,46,000 paid by them in respect of Import Licence No,B534289 dated 21-1-1992;
(d) grant costs ' The grievance of the petitioner is with regard to the refusalof respondent No,2 to refund the import licence fee amounting to Rs,2,46,000 vide Office Memo. No,EDB761/93 dated 2-10-1993.
2. ' The brief facts of the case are that the petitioner being a registered importer applied on 21-1-1992 for grant of import licence for import of Dried Leguminours Vegetables Shells and the same was granted by the Deputy Controller of Impdrts and Exports, Hyderabad valued at Rs.41,00,000. The licence was issued against payment of fee at the rate of 6% ad valorem of the face value of the import licence which amounted to Rs.2,46,000. This fee was refundable on the conditions/contingencies enumerated in para.7 of S.R.O. 626(1)/79, dated 1-7-1979 (hereinafter referred to as the S.R.O. Dated 1-7-1979) in pursuance whereof import licence was issued. On 22-1- 1992, the petitioners established two Letters of Credit through their bankers Messrs Muslim Commercial Bank Limited, Risala Road, Hyderabad with the Bank of America, Singapore for importing 250 Metric Tons of Green Mung Beams. The dates of shipment and negotiations were extended to 31-3-1992 and 30-4-1992. Subsequently supplier Messrs Chai Trading Private Limited, Singapore, backed out and failed to honour the transaction agreeing to refund the value of negotiations with interest vide their letters dated 13-5-1992 and 23-6-1992 addressed to their bankers Messrs Habib Bank Limited, Singapore. On 10-6-1992, vide S.R.O. 574(1)/92, dated 10-6-1992 (hereinafter referred to as the S.R.O. Dated 10-6-1992) there was a change in the Government policy whereby import fee on pulses was withdrawn as a result of which the petitioners failed to find another supplier, as their rivals being in a position of advantage on account of withdrawal of import fee offered to lift the pulses at the rate of 6% higher than the rate offered by the petitioners.
3. In the circumstances, the petitioners were left with no option but to request for refund of the import licence fee for which a letter dated 6-7-1992 was addressed to the Deputy Controller of Imports and Exports, Hyderabad, who vide his above letter/office memo. Rejected the request of the petitioners for refund of the import licence fee stating that the benefit provided by S.R.O. Dated 10- 6-1992 was effective from the date of issue and did not apply to the import licence fee paid earlier to the promulgation of the S.R.O. Dated 10-6-1992. The petitioners feeling aggrieved and dissatisfied with the said letter filed a review petition before the Controller of Imports and Exports, Government of Pakistan ho did not decide the same. The petitioners submitted that under mistaken advice they approached the Wafaqi Mohtasib for redress of their grievance who referred the matter to respondent No,2 as successor of Chief Controller of Imports and Exports who by his letter dated 2- 10-1992 declared that the petitioner's request did not merit consideration. Therefore, Wafaqi Mohtasib by his order dated 29-6-1994 held the agency not guilty of any maladministration.
4. ' Respondent No,2 filed his parawise comments wherein it was averred that the claim of party was not acceptable because the change in Government policy regarding withdrawal of import licence fee w.e.f. 10-6-1992 did not in any way adversely affect the petitioners vested right in establishing the Letter of Credit in favour of any supplier abroad. It was further submitted that the interest of the petitioners would have been adversely affected if there was a change in the import status of the pulses which would have jeopardized the right of the petitioners to import pulses as then it would of have been possible for them to open a Letter of Credit which was not the case of the petitioner. It was further submitted that the petitioners could not claim the benefit of S.R.O. Dated 10-6-1992 as it was not retrospective. Respondent No,2 further submitted that the request of the petitioners for refund of the import licence fee was not covered by any of the clauses of para.7 of the S.R.O. Dated 1-7-1979. Respondent No,2 prayed that petitioner was without any substance and was liable to be dismissed with costs.
5. ' We have heard the arguments of Mr. Nazar Akber, Advocate for the petitioners and Mr. Sajjad Ali Shah, learned Standing Counsel on behalf of the respondents and have also perused the material on record as well as the relevant provisions of the law applicable to the facts and circumstances of the case.
6. ' It is the case of the petitioner that after withdrawal of the import licence fee by S.R.O. Dated 10-6- 1992, the petitioner was adversely affected as it could not compete with other importers of the commodity for which he had placed the import order However, Mr. Nazar Akber failed to explain as to how the, withdrawal of import licence fee for grant of import licence for importing the commodity in question would have adversely affected the petitioner and how on account of withdrawal of import licence fee he could not compete with other importers of the said commodity.
7. It is to be noted that the petitioners had claimed refund of the import licence fee relying on para.7 of the S.R.O. Dated 1-7-1979. Para.7 and the various conditions contained in clauses (a), (b), (c), (d) and (e) of para.7 on the basis of which refund of the whole or part of the licence fee could be allowed are reproduced as under:--
7. The licensing Authority may, in a case where the fee paid by a party has not already been adjusted against some dues payable by the party, allow refund of the whole or part of the fee paid by the party if he is satisfied that:
(a) the fee was not payable and was paid by mistake;
(b) the amount of fee paid exceeded the amount payable;
(c) the fee was paid but Letter of Credit could not be established within the prescribed period on account of change in the Government Policy provided that, in such cases, the application, for refund of fee shall be submitted to the Licensing Authority within thirty days of the change in the Government Policy failing which the refund shall not be allowed;
(d) the application for refund of licence fee was received within a period of six months from the date of issuance of Import Licence; or
(e) the fee paid in respect of such imported goods as have been consumed in the manufacture of exported products.
8. ' The petitioner for the purpose of refund of the import licence fee has placed reliance on clause (c) of para.7 of the S.R.O. Dated 1-7-1979. From a bare perusal of clause (c), it is to be noted that it was imperative for the petitioner to establish that the Letter of Credit could not be established within the prescribed period on account of change in Government Policy. Further requirement of said clause
(c) is that the application for refund of fee shall be submitted to the Licensing Authority within thirty days of the change in Government Policy. The question which requires determination is whether withdrawal of the import licence fee w.e.f. 10-6-1992 had resulted in change in Government Policy as a result of which it had become impossible for the petitioner to establish the Letter of Credit and import the goods for which the licence was issued. As regards the establishment of Letter of Credit, from the facts on record it is proved beyond any doubt that Letter of Credit was established with the Bank of America, Singapore, dates of shipment and negotiations were also fixed and were subsequently extended and order was placed on supplier Messrs Chai Trading Private Limited, Singapore to supply 250 Metric Tons of Green Mung Beams under each of the two Letters of Credit.
9. The petitioner has not been able to explain as to how the change resulting in withdrawal of import licence fee affected the interest of its supplier Messrs Chai Trading Private Limited, Singapore. From the perusal of the material on record, it is to be noted that the petitioner could have established the Letters of Credit with another supplier of the commodity but it failed to do so. The reason advanced for such failure was that other competitors/parties interested in supplying the same commodity were in a position of advantage on account of withdrawal of import licence fee as they had offered to lift the consignment at the rate 6% higher than the rate offered by the petitioner.
10. Such has been stated by the petitioner in paragraph 6 of the memo. Of petition. In view of this categorical and clear assertion of facts, the responsibility of not finding any supplier for agfeeing to establish Letters of Credit and supply the commodity in question would appear to rest on the petitioners as they failed to offer a competitive price which was offered by other competitors/importers on the same commodity. The very fact that other competitors/importers did manage to establish Letter of Credit and import the commodity in question after the decision to withdraw the import licence fee would completely negate the contention of the petitioners that their inability or failure to find out another supplier for supplying the commodity in question against the two import licences of 250 Metric Tons was on account of change in Government policy but it was on account of their own shortcomings and limitations in failing to offer a competitive/viable price for purchase of the commodity in question. It is to be observed that by S.R.O. Dated 10-6-1992, Government has not banned the import of commodity in question and they could validly be imported. Had the import of the commodity in question been banned or brought on the negative list then perhaps petitioner's contention that he could not import the goods/commodity in question as a result of change in Government Policy would have merited consideration.
11. ' For the foregoing reasons and discussion, we are of the view that the case of the petitioners was not covered by para. 7 of the S.R.O. Dated 1-7-1979. The inability or failure of the petitioner to place an offer on a foreign supplier for supplying the commodity/goods in question for import thereof in Pakistan was on account of its limitation and shortcomings as financially it was not in a position to compete with other competitors/importers of the commodity in question. It is absolutely clear that the petitioner to cover up its own limitations and shortcomings had come up with the contention that the failure to import the consignment and goods against two import licences granted to it was on account of change in Government Policy which contention is without any substance and does not merit any consideration.
12. ' Mr. Sajjad Ali Shah, learned Standing Counsel had vehemently opposed the maintainability of this Constitutional petition on the ground that the petitioner had invoked the jurisdiction of the Federal Ombudsman who had decided the matter in favour of the respondents holding that the said change in Government Policy was not such as would have created any obstacle or hindrance in the way of the petitioner to import the commodity in question and further that withdrawal of the import licence fee had made the import of the commodity in question easier. He further submitted that in view of the above, the petitioner should have filed a representation under Article 32 of the Wafaqi Mohtasib (Ombudsman) Order 1981 to the President of Pakistan, which he did not do as a result of which the order of Wifaqi Mohtasib attained finality and could not be assailed or challenged under they Constitutional jurisdiction of this Court or before any forum.
13. ' In view of the fact that we have already discussed the merits of the case and have come to the conclusion that the petitioner has failed to make out a case on merits, we are of the view that it would of no advantage to take up this issue and make a pronouncement thereon. The contention of Mr. Sajjad Ali Shah, however, is not without any substance in view of the pronouncements made by the Supreme Court in the afore-cited cases.
14. ' Upon the above discussion, we find that this Constitutional petition is without any substance and stands dismissed with no order as to costs.