WILSON'S PHARMACEUTICALS VS FEDERATION OF PAKISTAN
2002 P T D 1800
[Lahore High Court]
Before Mansoor Ahmad, J
Messrs WILSON'S PHARMACEUTICALS through Partner
versus
FEDERATION OF PAKISTAN through Secretary, Ministry of Health, Islamabad and 4 others
Writ Petition No.834 of 1995, decided on 30/11/2001.
(a) Sales Tax Act (III of 1951)---
----S.7(1)---Customs Act (IV of 1969), S.19---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Customs duty and sales tax-- Exemption, withdrawal of---Jurisdiction of Government---Exemption granted by the Government had yet not been withdrawn and the petitioner in order to pre-empt the act of, withdrawing the exemption filed the Constitutional petition---Validity---Where the Government had not withdrawn the exemption, Constitutional petition was premature-- Government had a right to withdraw the exemption of the customs duty and sales tax and the petitioner was not vested with any right to tie hands of the Government in making a proper decision on the basis of a policy---Government enjoys the former and the right to decide about a particular drug to be included in the exemption list or withdraw the same---Such decision of the Government is based on the public policy keeping in view the interaction of various economic factors---Including m and withdrawing of a .drug from the exemption list is not merely a question of monopoly and cartels but at the same time the Government also considers the requirements of the local industries so as to reduce the w ; dependency on foreign markets---High Court declined to restrain the Government from considering the deletion of drug "Ceptradine" from the list of exemption---Constitutional petition was dismissed in limine.
Mian Fazal Din v. Lahore Improvement Trust, Lahore and another PLD 1969 SC 223; Messrs Amin Soap Factory v. Government of Pakistan and others PLD 1976 SC 277; Messrs Nizamuddin Faridul Haq v. The Collector of Customs (Appraisement), Karachi and others PLD 1994 Kar. 480; Mannalal Jain v. State of Assam and others AIR 1962 SC 386; Azizuddin Industries Ltd. v. Collector of Central Excise and Land Customs, East Zone, Chittagong and others PLD 1967 Dacca 58; Messrs East and West Steamship Company v. Pakistan and others PLD 1958 SC 41; Federation of Pakistan v. Aftab Ahmad Khan Sherpao and others PLD 1992 SC 723 and Hussain Bakhsh v Settlement Commissioner, Rawalpindi PLD 1970 SC 1 distinguished.
Messrs M.Y. Electronics Industries (Pvt.) Limited v. Government of Pakistan and others 1998 SCIVMR 1404 and Army Welfare Trust v. Federation of Pakistan 1992 SCMR 1652 rel.
(b) Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance (V of 1970)---
----Ss.3 & 11---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Monopolies and cartels, apprehension of---Effect---To control the monopolies and cartels, proceedings under Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970, can be initiated.
(c) Drugs Act (XXXI of 1976)---
----Ss.18, 19 & 27---Constitution of. Pakistan (1973.), Art.199-- Constitutional petition ---Maintainability---Substandard drug, manufacture of---Effect---Such plea was available for initiating proper proceedings under the Drugs Act, 1976.
Fazal Hussain Chaudhry for Petitioner.
Mansoor Sultan, Dy. A.-G.
Farhat Nawaz Lodhi for the Revenue.
ORDER
This writ petition is pending at the motion stage since 1995. Through the present writ petition the petitioner seeks relief in the following terms:---
"It is accordingly prayed that this Hon'ble Court may be pleased to accept the writ petition 'with costs, and declare the proceedings initiated at the behest of the respondent No.5, by respondents Nos. l and 2 for the deletion of life saving 'Cephradine' from SRO 349(1)/85. This Hon'ble Court may be pleased to grant such other reliefs as it may consider appropriate.
It, is further prayed that this Hon'ble Court may be pleased to pass an interim order in restraining respondents Nos.1 and 2from deleting the life saving drug `Cephradine' from SRO 349(1)/85 pending final decision in the writ petition."
2. SRO 349(1)/85, dated 15-4-1985 was issued by the Government of Pakistan under section 19 of the Customs Act, 1969 and section 7(1) of the Sales Tax Act, 1951. According to this SRO the Government exempted the goods specified in the Annexure to the notification imported by a manufacturer, approved by the Director-General, Health, Government of Pakistan under the Drugs Act, 1976 for manufacturing of pharmaceutical products registered as drugs under the Drugs Act, 1976 Annexure-A to the notification carries a long list .of pharmaceutical goods. One of the items is "Cephradine".
3. The case set up in the petition is that the process of deleting Cephradine from the exempted list is at the behest of respondent No.5 (Glaxo Laboratories Pakistan Limited). It is also pleaded that the entire proceedings of deletion are mala fide as these are meant for providing tariff protection to respondent No.5.
4. The learned counsel appearing for the petitioner made the following contentions---
(a) That for the purpose of a writ petition, it is enough for the petitioner to show a personal interest in the performance of a legal duty which is not being performed in the manner required by law. Reliance was placed on case titled Mian Fazal Din v. Lahore Improvement Trust. Lahore and another PLD 1969 SC 223;
(b) The executive authority cannot in exercise of its rule-making power or power to amend, vary or rescind earlier order, take away rights vested in citizens of Pakistan. Reliance was placed on case titled Collector of Central Excise and Land Customs and others v. Azizuddin Industries Ltd., Chittagong PLD 1970 SC 439 and case titled Messrs Amin Soap Factory v. Government of Pakistan and others PLD 1976 SC 277.
(c) Object of granting exemption was to give benefit 'and protection to-small manufacturers as against big manufacturers. Reliance was made to case titled Messrs Amin Soap Factory v. Government of Pakistan and others PLD 1976 SC 277.
(d) The proposed action of the Government is discriminatory and such acts are not done lawfully or protected. Reliance was placed on cafe titled Messrs Nizamuddin Faridul Haq v. The Collector of Customs (Appraisement), Karachi and others PLD 1994 Kar. 480.
(e) Process for deleting Cephradine from the exemption list is meant to provide monopoly to respondent No.5 and such acts are not protected by the Constitution or law. Reliance was placed on case titled Mannalal Jain v. State of Assam and others AIR 1962 SC 386.
(f) That the petitioner has acquired the vested right of exemption and this right could not be taken away through colourable exercise of jurisdiction. Reliance was made to case titled Azizuddin Industries Ltd. v. Collector of Central Excise and Land Customs East Zone, Chittagong and others PLD 196.7 Dacca 58.
(g) If the proceedings are ex facie, discriminatory and mala fide these are liable to be struck down in exercise of its writ jurisdiction by the High Court. Reference was made to case titled Messrs East and West Steamship Company v. Pakistan and. others PLD 1958 SC 41 and case titled Messrs M.Y. Electronics Industries (Pvt.) Umited v. Government of Pakistan and others 1998 SCMR 1404.
(h) Notice to Attorney-General of Pakistan is a must in a case where the Federation is the party and Deputy Attorney-General cannot represent the Attorney-General of Pakistan because Order XXVIIA of C.P.C. does not mention Deputy Attorney -General. Reliance was made to case titled Federation of Pakistan v. Aftab Ahmad Khan Sherpao and others PLD 1992 SC 723 and case titled Hussain Bakhsh v. Settlement Commissioner, Rawalpindi PLD 1970 SC 1.
(i) The sample provided by the Glaxo was of substandard quality and the price quoted for the sale was approximately Rs.13,500 whereas the cost of the same drug on import was Rs.6,820. This reflects design of respondent No.5 to enjoy the monopoly for fleecing a general public of Pakistan. As such the proceedings for deleting the Cephradine from the exemption list was not in the interest of public.
6. On the other hand the learned Deputy Attorney-General of Pakistan appeared on behalf of the Federation stated that the Federal Government has not as yet deleted Cephradine from the exemption list and the petitioner pre-empting the right of Government to withdraw the' exemption if it is considered to be proper keeping in view the various economic factors.
7. After hearing the learned counsel for the parties and going through the case-law cited, I find that the writ petition is premature for the reason that as yet the Government has not withdrawn the exemption of customs duty and sales tax in respect of Cephradine. Secondly I am of the view that the Government has a right to withdraw the exemption of the customs duty and the sales tax and the petitioner is, not vested with any right to tie hand of the Government in making a proper decision on the basis of a policy. The right of the Government to withdraw exemption notification has been approved by the Supreme Court of Pakistan in case titled Army Welfare Trust v. Federation of Pakistan 1992 SCMR 1652 and case titled M.Y. Electronics Industries (Pvt.) Ltd. v. Government of Pakistan 1998 SCMR 1404.
8. So far as fear and apprehension of the petitioner relating to monopoly and cartels are concerned these are also premature. The petitioner would have right to take the proceedings under Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance. 1970 if any such eventuality arises. Similarly the plea of the petitioner that the manufactured stuff of the Glaxo was substandard is also a plea-1 available for initiating the proper proceedings under the Drugs Act, 1976. Likewise the question of the rate could also be agitated before the Tariff Commission and 'the Ministry of Health. For the aforesaid reasons, I find that udder the garb of above pleas, the petitioner cannot seek a restraint order against the Government to withdraw Cephradine from the list of exempted drugs material. The Government enjoys the jurisdiction and the right to decide about a particular drug to be included in the exemption list or withdraw the same. The decision of the Government is based on the public policy keeping in view the inter action of various economic factors. This is not merely a question of monopoly and cartels but at the same time the Government also considers the requirements of the local industries so as to reduce the dependency on the foreign markets.
9. Therefore, on the face of it, I do not find any plausible reason to restrain the' Government from considering the deletion of Cephradine from the list of exemption. Accordingly, I do not find any merit in the pleas advanced by the petitioner and the writ petition is dismissed in limine.
Q.M.H./M.A.K./W-49/L Petition dismissed.