MAPLE LEAF CEMENT FACTORY LIMITED VS FEDERATION OF PAKISTAN
2001 P T D 1188
[Lahore High Court]
Before Muhammad Nawaz Abbasi, J
Messrs MAPLE LEAF CEMENT FACTORY LIMITED through Director and 2 others
Versus
FEDERATION OF PAKISTAN through Secretary of Finance, Government of Pakistan, Islamabad and 4 others
Writ Petition No. 1261 of 2000, decided on 28/08/2000.
(a) Constitution of Pakistan (1973)----
----Art. 199---Constitutional jurisdiction of High Court---Judicial review Scope---Abuse of power and fraud on statute---Where the power conferred on Authority is exercised in bad faith or for any purpose against the concept of law, act of such Authority can be struck down by the High Court which is equipped with power of judicial review under the Constitution---Such power of judicial review is exercised within the Constitutional limits and care is taken not to encroach upon the domain of Constitutional authority of the Government.
(b) Constitution of Pakistan (1973)----
----Art. 199---Constitutional jurisdiction---Judicial review ---Scope-- Restraining public functionaries from discharging of their lawful business/duties---Power of judicial review can be exercised by the superior Courts against --act done, proceedings taken or order passed by a public functionary but the same cannot be exercised in the form of a prohibitory order restraining the Government or its functionaries from discharging their lawful business.
(c) Sales Tax Act (VII of 1990)---
----Sixth Sched.---Notification S.R.O. No. 580(1)/91, dated 27-6-1991-- Constitution of Pakistan (1973), Art. 199---Constitutional petition-- Maintainability---Apprehension of withdrawal of exemptions of sales tax-- Petitioners were running cement plants and apprehended withdrawal of exemptions extended to them under the Notification S.R.O. No. 580(1)/91, dated 27-6-1991, resulting in reduction of profit and private respondents with the expectation of more gain in business pleaded their individual interest---Validity---Gain and loss during the course of business due to act of Government done in public interest in good faith, would not be economic injustice---Constitutional petition having been filed without any substantial cause of action was not maintainable.
Jibendra Kishore Achharyya Chaudhry and 58 others v. The Province of the East Pakistan PLD 1957 SC (Pak.) 9; Waris Meah v. The State PLD 1957 SC (Pak.) 157; Government of Balochistan v. Aziz Ullah Memon PLD 1993 SC 341; Collector of Customs, Excise and 'Sales Tax, Peshawar and 3 others v. Messrs Flying Kraft Paper Mills (Pvt.) Limited 1998 SCMR 1041; Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139; Ahmad Din and others v. Faiz Ali and others PLD 1954 Lah. 414; Messrs Dwarka Prasad Laxmi Narain v. State of Uttar Pradesh and others AIR 1954 SC 224; Fasih Chaudhry v. Director -General, Doordarshan and others AIR 1989 SC 157; Jugal Kishore v. State of Maharashtra and others AIR 1989 SC 159; Richpal Singh and another v. Raj Singh and others AIR 1981 SC 1960 and Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and 6 others PLD 1997 SC 582 ref.
Raja Muhammad Akram and Nauman Akram Raja for Petitioners,
Tanveer Bashir Ansari, Dy. A. G. for Respondents No. 1.
Farhat Nawaz Lodhi for the CBR.
Raja Muhammad Bashir for Respondent No. 4.
Date of hearing: 28th August, 2000.
JUDGMENT
The petitioners namely M/s. Maple Leaf Cement Factory through its Director and two others, in the present petition and Fecto Cement Limited through its Manager and Pioneer Cement Limited through its Manager in the connected Writ Petitions bearing Nos. 1412 and 1413 of 2000 being engaged in the business of manufacturing of cement have filed these petitions against the Federation of Pakistan through Ministry of Finance and C.B.R. as well as private respondents namely M/s Lucky Cement Limited, Bestway Cement Limited and AWT Cement Ltd., seeking the following directions:--
(a) That respondents Nos. 1 and 2 be restrained from withdrawing the exemption from sales tax on the supply of cement in a discriminatory manner while putting the petitioners in a disadvantageous position to that of respondents Nos. 2 to 5 their rivals in the cement business;
(b) That the official respondents be restrained from creating any disparity in the matter of rights and privileges of the manufacturer of cement and monopoly in favour of a limited class of manufacturer;
(c) That all amendment in the Notification S.R.O. No. 580(1)/91, dated 27-6-1991 through the subsequent notification be declared illegal and ineffective to the rights of the petitioners.
2. This petition was presented before me in my Chamber .on 10-6-2000 with the request for its entertainment on the same day and in the' light of the urgency shown by the learned counsel for the petitioner as incorporated in the order, dated 10-6-2000, this petition was accordingly entertained. The order, dated 10-6-2000 was to the following effect:--
"Learned counsel while presenting this Constitution petition in Chamber has requested for its entertainment today with submission that there is imminent threat and danger of the withdrawal of the exemption made available to the petitioner under the Sixth Schedule to the Sales Tax Act, 1990, by the concerned department forthwith through discrimination and if this petition is not entertained today, the same will become infructuous and the petitioner will suffer irreparable loss.
For the reasons given therein and shown by the learned counsel, this petition is entertained for today and the office is directed to register the same accordingly.
The learned counsel for the petitioner has submitted that some officials in the Central Board of Revenue, Islamabad, while proceedings in a discriminatory manner have taken effective steps for the withdrawal of the exemption of sales tax made available to the petitioner at the instance of respondents Nos. 3 to 5 to create monopoly in the business in which they are engaged to the disadvantage of the petitioner. Learned counsel submitted that public functionaries are not supposed to proceed or act in the interest of an individual and are required to treat people equally, fairly and justly in the alike situation. He in support of his submissions has placed reliance on PLD 1957 SC (Pak.) 9, Jibendra Kishore Achharyya Chaudhry and 58 others v. The Province of the East Pakistan; PLD 1957 SC (Pak.) 157, Waris Meah. v. The State PLD 1993 SC 341 Government of Baluchistan v. Aziz Ullah Memon. Reliance has also been placed on 1998 SCMR 1041 Collector of Customs, Excise and Sales Tax, Peshawar and three others v. M/s Flying Kraft Paper Mills (Pvt.) Limited, and unreported judgment of Lahore High Court, Rawalpindi Bench, Rawalpindi, in Writ Petition No. 801 of 1999 in case of Dewan Suleman Fibre (Pvt.) Ltd., v. Pakistan through Secretary, Ministry of Finance and other, delivered on 16-11-1999.
(2) Let a copy of this petition be sent to respondents Nos. 1 and 2 for their report and comments within ten days and the case shall be listed on 22-6-2000.
C. M. for interim relief
Subject to notice for the date in the main petition and without prejudice to the generality of the powers of the respondents, they while following the principle of equality embodied in Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973, will not pass any order or proceed in a manner prejudicial to the interest of the petitioner in the matter of exemptions vis-a-vis respondents Nos. 3 to 5 through a discriminatory treatment meanwhile."
3. The main petition alongwith the miscellaneous application was adjourned to 22nd of June 2000, but due to my engagement at the Principal Seat, the cause list of my Court on the said date was cancelled and the main petition as well as C.M. No. 2487 of 2000 meanwhile moved on behalf of Lucky Cement, respondent in the present petition was listed for 27th June, 2000 on which date, the following order was passed:--
"The comments called from respondents Nos: 1 and 2 have not been submitted. The said respondents are also not represented. Let a reminder be issued to the said- respondents for submission of the report and parawise comments in terms of the order, 'dated 10-6-2000. The Standing Counsel shall also be directed to appear in the case at limine stage on the next date. '
C.M. NO. 2487 of 2000
The Civil Miscellaneous have been moved on behalf of respondent No. 3 namely M/s Lucky Cement Ltd. for recall of the interim order, dated 10-6-2000 passed in C.M. No. 2389 of 2000.
Learned counsel representing the applicant questioning the maintainability of the writ petition requested for recall of the order as the same can adversely affect the business of respondent No. 3. Since no order affecting any right of respondent No. 3 was passed, therefore, without hearing respondents Nos. 1 and 2 against whom grievance has been voiced by the petitioners, the interim order cannot be recalled or modified.
Notice in this C.M. be issued to respondents Nos. 1 and 2 in the main petition as well as to the petitioners for their replies to this C.M. and arguments for an early date.
Meanwhile, the interim relief granted through order, dated 10-6-2000 shall remain continue."
4. M/s. Lucky Cement Limited and Bestway Cement Limited respondents in the present petitions who have sought vacation of interim order through separate miscellaneous application at the same time filed independent Civil Petitions bearing Nos. 948 of 2000 and Civil Petition No. 955 of 2000 against the above said orders, dated 10-6-2000 and 27-6-2000 before the apex Court which were converted into appeals and were disposed of by the apex Court through judgment, dated 5-7-2000 with the following observations:--
"We have heard the learned counsel for the parties at some length. The learned Judge in Chambers of the High Court has issued an ad interim injunction to the effect that respondents Nos. 1 and 2 namely, the Federation of Pakistan and Central Board of Revenue, 'while following the principle of equality as embodied in Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973, will not pass any order or proceed in a manner prejudicial to the interests of the petitioner in the matter of exemptions vis-a-vis respondents Nos. 3 to 5 through a discriminatory treatment meanwhile'. It would be noticed that the case was listed for 22-6-2000 for the report of respondents Nos. 1 and 2 and comments within 10 days. In so far .as interim relief is concerned, no notice was served for a specific date. The phraseology implied by the learned Single Judge in the impugned interim order on the C.M. was 'subject to notice for the date in the main petition...': It is not for the first time that we have come across such an order ignoring to give notice for a specific date to the respondents in general and to the Federal Government/Provincial Government or their functionaries in particular which is prima facie in violation of clause (d) of section 56 of Specific Relief Act (No. 1 of 1877) `prohibiting the grant of an injunction which interferes with the public duties of any Department of the Central Government or the Provincial Government. This Court has been at pains to point out that no ad interim injunction should be issued against the Federal Government or Provincial' Government or any functionary thereof without short notice to them. Reference may be made -to Shahzada Muhammad Umar Beg. v. Sultan Mahmood Khan and another (PLD 1970 SC 139). In this context this Court observed as under:-- .
'The Single Judge in dealing with the bar under section 56(d) of the Specific Relief Act (1 of 1877) has relied on a decision of Kaikaus, J., as he then was, in the case of Ahmad Din and others v. Faiz Ali and others (PLD 1954 Lah. 414), wherein it was held that if the jurisdiction to issue a temporary injunction is referable to inherent power; it cannot be taken away by section 56 of the Specific Relief Act. With all respect, even if it were to be accepted that section 56 does not limit the inherent power of a Court to grant temporary injunction, it cannot be said that in the exercise of those inherent powers it will not be a serious matter for the Court's consideration whether it would be right to issue an injunction to a public department which would obviously disturb its working and it would not do so unless compelling reasons demand that course.'
(4) Notwithstanding this clear enunciation of the law on the subject; it is to note that some Courts throughout Pakistan grant ad interim injunction to the so-called aggrieved party pass an order restraining, the Federal Government/Provincial Government or their functionaries from performing their normal official functions including those of legislating any law which is the instant case, according to the petitioners was 'likely to be passed or issued'. It may be observed that there was nothing on the record to suggest that there was any law in the offing or the order which was to be passed because nothing was placed on record in support thereof. Obviously such interim orders create enormous problems and difficulties particularly in the case of power of legislation of the Government which is competent to do so, but is stopped to function in accordance with law. The learned High Court was, therefore, required to have given a notice for a fixed date for the arguments of the case and for final disposal of the C. M. after hearing the parties.
5. Having served no notice on the official respondents Nos. 1 and 2 as to the application for ad interim injunction for a definite date, we are constrained to convert these two petitions into appeals, allow the same, set aside the impugned order, dated 10-6-2000 and remand the case to the learned High Court for passing a fresh order in accordance with law after giving a notice of the application for interim injunction for an exact date to the respondents including the official respondents Nos. 1 and 2 and on their appearance and filing their replies/comments, decide the application for interim relief afresh within the shortest possible time. This order of the Court shall not, however, prejudice the case of either party set up in the main writ petition pending in the Lahore High Court, Rawalpindi Bench or in any reply filed thereto. The parties are left to bear their own costs."
5. In the light of direction given by, the apex Court, a miscellaneous application bearing C.M. No. 3017 of 2000 was moved on behalf of the petitioner for fixation of case which came up for hearing before me on 20-7-2000 in which notice was issued to the respondents for 27-7-2000 but on the said date, I again being occupied at the Principal Seat was not available at Rawalpindi Bench and the matter was fixed, before my, learned brother Raja Muhammad Sabir, J and his lordship was pleased to pass the following order:
"The hearing of this petition is not possible in the absence of respondent No. 5. Moreover, the matter was previously dealt with by my learned brother Muhammad Nawaz Abbasi, J. It would be appropriate that it be placed before his Lordship for final decision.
(2) Adjourned. To be listed for a date to be fixed by the office before the aforesaid learned Bench with a notice to respondent No. 5 as well as his counsel. Preceding order, dated 20-7-2000 shall be complied with meanwhile."
6. During the period from 24-7-2000 to 5-8-2000, I remained busy at the Principal Seat and thereafter I proceeded for summer vacation and resumed by function on 28-8-2000. Meanwhile the Deputy Attorney-General while representing respondents Nos. 1 and 2 moved a Miscellaneous Application bearing No. 3586 of 2000 for fixation and disposal of the present writ petition and the connected petitions on 24-8-2000 with the following contents.
"Although the main interim order in Writ Petition No. 1261 of 2000 has since been-set aside by the Honourable Supreme Court and no benefit can be lawfully claimed by the writ petitioners in Writ Petition No. 1412 of 2000 and Writ Petition No. 1413 of 2000, yet this Honourable Court may be pleased to pass an order of vacation of stay in the said writ petitions on this ground.
That as well the three writ petitions i.e. Writ Petition No. 1261 of 2000, Writ Petition No. 1412 of 2000 and Writ Petition No. 1413 of 2000 are admittedly based on the same cause of action and are interconnected, it is in the interest of justice that all the abovementioned three writ petitions alongwith the Civil Miscellaneous Applications for the grant of interim order may be fixed together for an early date. In the judgment, dated 5-7-2000 passed by the Supreme Court, it has been observed that the matter may be decided afresh within the shortest possible time. Needless to submit that the observation has been made to avoid any delay in the legitimate functioning of the Federal Government. "
7. Despite recalling of an interim order; dated 10-6-2000 passed in Writ Petition No. 1261 of 2000 on the basis of which an interim relief was also allowed to the petitioner in the connected writ petitions by the apex Court, the abovesaid application was moved for vacation of order, dated 10-6-2000. This application came up for hearing before my learned brother Maulvi Anwarul Haq, J on 24-8-2000 and his Lordship was pleased to pass the following order:--
"Pursuant to C.M. No. 3569 of 2000 in Writ Petition No. 1412 of 2000 and C.M. No. 3570 of 2000 in Writ Petition No. 1413 of 2000, I have passed an order on 23-8-2000 in terms of the said C.Ms. and in term of the said order all these three cases shall be heard on 15-9-2000 in the light of the judgment of the Supreme Court passed in C.P. 948 of 2000 and C.P. 955 of 2000. As prayed for by the learned Law Officer, the case be fixed at No. 1 in the cause list for the said date."
8. Since I resumed my function of Rawalpindi Bench on 28th August, 2000, therefore; the office in the light of the order, dated 27-7-2000 passed by my learned brother Raja Muhammad Sabir, J. and the direction given by the apex Court through an order, dated 5-7-2000 fixed the main petition alongwith the miscellaneous application before me on. 28-8-2000 as motion case.
9. Under the order, dated 10-6-2000 passed by this Court, the Ministry of Finance, Government of Pakistan and Central Board of Revenue, respondents Nos. 1 and 2 herein, were required to submit the report and para wiase comments within ten days i.e. by 22-6-2000, but despite lapse of a period of two, months and eighteen days, the said respondents have neither filed report and para wiase comments to this petition and the connected petitions nor any representative of the said respondents attended this case before 27-7-2000 or took any step for compliance of the, order, dated 10-6-2000 to enable the Court to dispose of these petitions. The learned Deputy Attorney-General while representing the Federation in the present case in the light of the order, dated 24-8-2000 sought an adjournment on the plea that these petitions having already been fixed for 15th September, 2000, by order of the Court should not be heard before that date. The learned counsel representing Bestway Cement Limited, a private respondent in all these petitions submitted that since respondents Nos. 3 and 5 are un-represented today, therefore, the case may be adjourned as requested by the learned Deputy Attorney-General for any other date convenient to this Court. Learned counsel for the petitioners, on the other hand in the light of the direction of the apex Court, insisted that at least miscellaneous application for the grant of interim relief may be disposed of today. The order of the fixation of the main petition was passed by my learned brother Maulvi Anwarul Haq, J, on 24-8-2000 on a miscellaneous application moved by the learned Deputy Attorney-General whereas earlier a specific, order was passed on 27-7-2000 by my learned brother Raja Muhammad Sabir, J that these petitions should be fixed before me and thus, keeping in view the direction of the apex Court, I am not inclined to adjourn these petitions on the request being made by the learned Deputy Attorney-General and the learned counsel appearing on behalf of Bestway. Cement Limited, a private respondent.
10. The petitioners and the respondents Cement Companies having set up Cement Plants are engaged in the manufacturing and supply of cement throughout the country. The whole sale and retail price of the cement is fixed by the Monopoly Control Board set up by the Government of Pakistan. The Notification S.R.O. No. 580(1)/91, dated 27th June, 1991, issued, by the Federal Government under which all Industries which have been set up in North-West Frontier Province between the 1st July, 1991 and the 30th June, 1996, were exempted from the payment of sales tax payable under the Sales 'fax Act, 1990, was not the following effect:--
"Notification No SRO 580(1)/91 dated 27th June, 1991.---In exercise of the powers conferred by subsection (1) of section 13 of the Sales Tax Act, 1990, the Federal Government is pleased to direct that all goods produced or manufactured by such Industries which are set up in the North-West Frontier Province between the 1st July, 1991, and the 30th June, 1996, shall be exempt from the tax payable under the said Act for a period of five years from the date the industry is set up.
Explanation.---For the purpose of this Notification, the expression 'set up' shall mean the date on which the industry goes into production including trial production, which date shall be intimated, in writing, by an intending manufacturer to the Assistant Collector of Sales tax having jurisdiction in the area at least fifteen days before commencing such production. "
11. Subsequent to the issue of above said notification, a number of other Notifications S.R.O. No. 561(1)/94, dated 9-6-1.994, S.R.O. No. 612(I)/94, dated 14-6-1994, S.R.O. No. 1131(1)/94, dated 22-11-1994 and S.R.O. No. 475(1)/96, dated 13-6-1996 have been issued by the Federal Government with some additional benefits to the Industry set up in the backward areas of N.W.F.P.
12. The petitioners apprehending encroachment upon their right of business and trade through open competition have challenged the legality of the above said notifications issued subsequent to Notification S.R.O. No. 580(1)/91, dated 27-6-1991 through these petitions. Precisely the grievance of the petitioners is that before promulgation of. Finance Act, 1997, the Government under a unilateral policy extended, the benefit of exemption from. payment of sales-tax only to the Industry set up in the N.W.F.P. but under Finance Act, 1997, the Government while framing a uniform policy exempted the payment of sales tax on the supply of cement throughout the country and the complaint of the petitioners regarding discriminatory treatment stood redressed. The petitioners now under, the apprehension that the Federal Government intended to withdraw the exemption from the levy of sales tax on the supply of cement, which was available to them under 6th Schedule to the Sales Tax Act, 1990, through the Finance Act, 1997, and in consequence thereto, the position prior to the promulgation of the Finance Act, 1997, would revive and the petitioners would be deprived of their legitimate right of availing the exemption have filed the present petitions raising the grievance that in such situation, their rival manufacturers of cement in the North-West Frontier . Province would create monopoly. The anxiety of the petitioners in the present petitions was that with the equal cost of production, the petitioners would loss equal opportunity of business whereas the private respondents at the same time would enjoy business monopoly in the cement market. In nutshell, the case of the petitioners is that in the same situation, the payment of sales tax by the petitioner and exemption to the private respondents in the present petitions on the supply of cement would defeat their fundamental right of business and equal protection of law as provided under Articles 18 and 25 of the Constitution of Islamic Republic of Pakistan, 1973.
13. On the contrary, the case of the private respondents in the present petitions is that they were enjoying the exemption on the sales tax on the supply of cement before issue of Finance Act, 1997, and their position was not changed on the promulgation of said Act, therefore, the withdrawal of any concession being enjoyed by the petitioners through changed in law would neither be any special favour to the respondents nor discrimination to the petitioners.The case of the Federal Government is that without taking plea of any change in the legal position, the petitioners have no cause of action to file the present petitions.
14. Learned counsel for the petitioners argued that different treatment to the petitioners engaged in the same business in the same circumstances being in conflict to the principle of equality before law and equal protection of law as embodied in Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, is not permissible and the public functionaries must act fairly and equally to all persons in similar circumstances without any favour or disfavour to any person or class of persons. Learned counsel, however, contended that on the basis of principle of "reasonable classification" the Government is always empowered to safeguard the interest of a particular section of the people in the public interest but under the rule of "reasonable classification", the personal interest of individuals cannot be given protection. He argued that the principle of "reasonable classification" must not be applied in departure to .the spirit of Article 25 of the Constitution and the public interest. . According to the learned counsel, the bifurcation of manufacturers of cement into two classes in the matter of exemption in the payment of sales tax on the basis of "reasonable classification" would tantamount to create monopoly in favour of a few persons and to oust the remaining persons engaged in the same business from the market. Precisely, the learned counsel for the petitioners argued that although respondents Nos. 1 and 2 have not yet withdrawn the exemptions available to the petitioners but there being a serious threat of the withdrawal of the same and economic injustice to them, this Court in exercise of its 'Constitutional jurisdiction can issue a writ of prohibition against the respondents Nos. 1 and 2 not to do anything which is not permitted by law. He has placed reliance on Collector of Customs, Excise and Sales Tax, Peshawar and three others v. M/s. Flying Kraft Paper Mills (Pvt.) Ltd. Charsada, District Peshawar (PLJ 1999 SC 795) wherein the apex Court while dealing the question of discrimination and. economic injustice with reference to Articles 2A, 4 acid 25 of the Constitution of Islamic Republic of Pakistan 1973, observed as under:--
"The situation, thus, exhibiting lack of transparency in the process of decision making, the power of judicial revision, under Article 199 of the Constitution, does not extend to see whether or not such had been arrived at by the public functionaries concerned in a manner which did not contravene the fundamental rights or the Constitutional guarantees. Additionally, while there is a power in the legislature and other taxing Authorities to classify persons or properties into categories and to subject them to different rate of taxes, there is none to target incidence of taxation in such a way that similarly placed persons are dealt with not only this similarly but discriminatory. (See Elahi Cotton Mills Limited v. Federation of Pakistan, PLD 1997 SC 582). While it remains true that of taxation measure cannot be struck down lightly and even tests of discrimination are rigorous, the rigorous can be softened where the levying authority is a delegated one, coming to be exercised, not by the legislature but by the executive and, at that, with a degree not only of non-concern but even abandon, throwing up a case of disregard of fundamental rights and Constitutional safeguard. Even so, the Court cannot assume either the legislative or the executive function. For such reason, and correctly, the High Court left the Company to seek exemption or regulation of the Excise duty from the C.B.R/Federal Government, as also the ultimate working out of equivalence and reduction of the levy generally in the following words; with the same appellants."
Learned counsel also placed reliance on Messrs. Dwarka Prasad Laxmi Narian v. State of Uttar Pradesh and others (AIR 1954 SC 224), Fasih Chaudhry v. Director General, Doordarshan and others (AIR 1989 Supreme Court 157), Jugal Kishore v. State of Maharashtra and others (AIR 1989 Supreme Court 159) and Richpal Singh and another v. Raj Singh and others (AIR 1981 Supreme Court 1960).
15. Learned Deputy Attorney-General on the other hand, argued that the petitioners have filed the present petitions without any genuine grievance and cause of action. He submitted that the exemptions of sales tax on the supply of cement were allowed to the manufacturer under 6th Schedule to the Sales Tax Act, 1990, in the Finance Act, 1997, and the same having not been withdrawn were still available to the petitioners. He submitted that no order, circular or notification was issued disentitling the petitioners from getting the exemptions on the sales tax till now. However, it being a legitimate right of the Government to grant and withdraw such concessions in peculiar circumstances in the public interest, the withdrawal of a special concessions given to a person or class of person would not be objectionable. The learned Deputy Attorney-General while summing up his arguments contended that the present petitions being misconceived are not maintainable. 16. Learned counsel representing the C.B.R. while placing reliance on Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary Ministry of Finance, Islamabad and 6 others (PLD 1997 SC 582) argued that no restriction can be placed on the legislative power of the Government to make a law and issue a notification to regulate a matter if the circumstances so demand. He submitted that the Government without encroaching upon the powers of legislative Body recognized in the Constitution can legitimately' make laws in exercise of its power as subordinate legislative authority and thus, no preventive order to the exercise of such authority can be passed by this Court in the jurisdiction of judicial review.
17. Learned counsel representing Bestway Cement Limited, one of the respondents in these petitions argued that the present petitions have been filed as a preventive measure without any Teal grievance, therefore, the same are hound to be dismissed as pre-mature. He has submitted that, although the order, dated 10-6-2000 passed by this Court did not debar the Government from exercising, its legislative power and issuing of a notification of withdrawal of exemption if any, yet the petitioners while misinterpreting the said order created an impression in the relevant quarters that the Government has been restrained from exercising its legislative power. He argued that actually the scope of the interim order was very limited as the same was confined only the extent of administrative acts and would not curtail the legislative authority of the Government and consequently there was no bar for the Federal Government or the C.B.R. to exercise the legislative power under the relevant Statute but unfortunately the functionaries of the respondents Nos.l and 2 took an impression that restrictions have been placed on the legislative power of the, Government. Learned counsel has submitted that the Proprietor of Bestway Cement Limited on the incentive given by the Government has invested a huge foreign exchange for establishing the Cement Plant in the backward area of N.W.F.P. with the understanding of continuation of the incentives in question for a considerable period. He added that since no such incentive was given to the Industry being set up in the Punjab, therefore, the respondents took the risk of investment in the special area, as such, the petitioners cannot justifiably claim the placement of industry established in developed area to that of the industry in backward area. He argued that withdrawal of exemption given under Finance Act, 1997, would not put the petitioners in disadvantageous position vis-a- vis the private respondents who were enjoying such exemptions much before the promulgation of Finance Act, 1997, and thus, the petitioners on the basis of principle of equality before law and equal protection of law cannot claim themselves at par to Cement Industry set up in N.W.F.P. and the respondents, who have established the industry in the backward area of N.W.F.P. taking the rise of loss of investment. The learned counsel finally argued that a writ of prohibition, is issued only in exceptional and extraordinary circumstances without disturbing the normal functions being discharged by the Public functionaries.
18. The main issues canvassed in the present petitions relate to the taxation power of the Government, equality before the law without any discrimination and the principle of "Reasonable classification". The preliminary question for determination would be "whether this Court in exercise of its Constitutional jurisdiction can issue direction in the nature of prohibition to respondents Nos. 1 and 2 not to exercise its legislative power in matter of such public importance. It is true that the authority to tax under law cannot be used in an oppressive manner which may destroy the business or create monopoly in favour of a person or class of persons as against the general concept of economic prosperity. The object of levy of tax, grant of certain exemptions and the withdrawal of the same is always in the public interest to create a balance society and if this power is exercised in an arbitrary manner effecting the lawful earning of a person or a class of persons, the very object of the taxation would be defeated and such legislation of course would be violative of the fundamental rights of fair chance of business and to provide equal opportunities to all as guaranteed by the Constitution. The power of taxation grant of exemption and withdrawal of such exemptions being a necessity of State is essentially and primarily rests on the legislative power of the State, which is either exercised by the legislative Body of the State or by the Government under its delegated power and consequently, this legislative power of the State is always exercised by the Government in the public interest. However, if power confer on an Authority is exercised in bad faith or for any purpose against the concept of law, it is an abuse of power and fraud on the Statute and in such a case, the act of such an authority by issue of an appropriate writ can be struck down by the superior Courts which are equipped with power of judicial review under the Constitution. However, this power of judicial review must be exercised within the Constitutional limits and a care should be "taken not to encroach upon the domain of Constitutional authority of the Government. The Constitution confers right, privilege and liabilities on the citizens and also places restrictions on the exercise of powers by the Government not to act in violation to the rights of the people. However, no prohibition and restriction can be imposed on the legislative power of Government unless it is established that the imposition of a liability by the Government through a law is seemingly oppressive and inequitable. The imposition of limitation upon a person in enjoyment of a right may not be against the public interest but would definitely amount the evasion of such right arbitrarily and would be unreasonable to a civilized society.
19. The petitioners under the apprehension of withdrawal of exemptions of sales tax available to them under law and loss of fair chance of business sought interference of this Court through these petitions whereas the private respondents with the expectations of better prospects of their business strongly opposed these petitions. The learned Deputy Attorney-General informed the Court that no step was taken by the Government for the withdrawal of exemptions or for grant of special concessions to the private respondents. The admitted position is that neither any order has been passed by the Government nor any act was done or proceedings were taken for the withdrawal of exemptions and, therefore, neither the petitioners were the aggrieved persons to invoke the Constitutional jurisdiction of this Court nor the order prohibiting the Government from doing its lawful business can be issued. The power of judicial review can undoubtedly be exercised by the superior Courts against an act done, proceedings taken or order passed by a public functionary, but there is no concept for exercise of such power of B judicial review in the form of a prohibitory order restraining the Government or its functionaries from discharging their lawful business. In Power Project cases decided by me through Writ Petition No. 505 of 1997 and connected writ petitions, I observed that "the judicial interference into the functions of legislation of a representative Body or the Government. as the case may be, ordinarily is not proper but at the same time, legislature is presumed not to legislate a law manifestly causing injustice or abuses of the jurisdiction of legislation, therefore, in such circumstances, the Courts have the exclusive powers to examine the validity of such exercise of jurisdiction".
20. In nutshell the petitioners without any substantial cause invited this academic discussion in the interest of their business prospects in future. As earlier observed, the legislative function of Government being not effected by the interim order, passed by this Court, respondents Nos. 1 and 2 could proceed freely and particularly after recalling of said order by the apex Court on 5-7-2000, the position was entirely changed.
21. It is noticeable that the petitioners without any substantial cause raised controversial questions while creating an impression that the officials of respondents Nos. 1 and 2 at the instance of private respondents have proposed the withdrawal of exemptions of the petitioners whereas the private respondents on the other hand while misdirecting themselves expected extra benefits beyond the scope of law. It is sad that the representative of respondents Nos. l and 2 have not bothered to submit the report and parawise comments to these petitions in compliance of the order, dated 10-6-2000 till today. The learned Deputy Attorney-General while realizing the omission has made a request for further time to enable him to file the report and comments on behalf of the Federal Government but this exercise at this stage would serve no useful purpose except formal compliance of the order of this Court.
22. The petitioners being apprehensive of withdrawal of exemptions on sales tax and in consequence thereto reduction in profit voiced grievance against respondents Nos. 1 and 2 whereas the respondents with the expectation of more gain in the business pleaded their individual interest. The gain and less in profit during the course of business due to an act of Government done in public interest in good faith would not be an economic injustice as contended by the learned counsel for the petitioners, therefore, none of them can be given any relief in the present petitions.
23. The upshot of the above discussion is that this petition as well as the connected petitions having been filed without any substantial grievance and cause of action are not maintainable and consequently while treating the short order, dated 28-8-2000 as part of this judgment, the same are accordingly dismissed.
Q. M. H. /M. A. K./M-405/L Petition dismissed.