Malik MUHAMMAD SAEED VS FEDERATION OF PAKISTAN, 2006 PTD-KARACHI-HIGH-COURT-SINDH 2167 (2006)

2006 P T D 2167

[Karachi High Court]

Before Nadeem Azhar Siddiqui, J

Malik MUHAMMAD SAEED

Versus

FEDERATION OF PAKISTAN and others

Suit No. 914 of 1999, decided on 12/06/2006.

(a) Civil Procedure Code (V of 1908)---

----S. 9---Jurisdiction of Civil Court---Scope---Provisions barring jurisdiction of Civil Court ought to be strictly construed---Such provisions would not be attracted to impugned action/order, if same was neither mala fide nor without jurisdiction, but found to be within four corners of statute whereunder same was taken---Principles.

Provisions barring jurisdiction of Civil Courts are only attracted, when the impugned action is found to be within four corners of the statute under which it was taken and does not suffer from mala fide and want of jurisdiction. The Court of general jurisdiction has jurisdiction to resolve all disputes of civil nature, unless barred by any law and the provisions of Special Law purporting to take away its jurisdiction ought to be strictly construed. Mala fide order or one without jurisdiction being fraud on law can never be assumed to have been passed under any particular statute. Plea as to bar of jurisdiction can only be sustained, if it can be shown that impugned order was passed in bona fide exercise of power conferred by the Act or the Rules and not otherwise.

When special law provides hierarchy for redress of grievance, then one cannot normally be allowed to circumvent it by invoking jurisdiction of Civil Court. However, if prima facie plaintiff shows mala fide on the part of authority or any illegality, which is floating on the surface and/or absence of jurisdiction, then jurisdiction of Civil Court can be invoked in the matters.

`

Collector of Central Excise v. Messrs Syed Muzakkar Hussain (sic) fol.

(b) Customs Act (IV of 1969)---

----Ss. 16, 17, 32, 156(9)(14), 169 & 217---Specific Relief Act (I of 1877), Ss. 42 & 54---Customs General Order No. 19/98, dated 7-9-1998---S.R.O. 599(I)/1993, dated 17-3-1993---Suit for declaration and permanent injunction---Import of used vehicle by plaintiff (a Pakistani National) under Transfer of Residence Scheme---Arrival of plaintiff in Pakistan on 17-4-1997----Bill of Entry, dated 15-7-1998 showing shipment of vehicle on 28-6-1998---Order-in-Original passed by Authority imposing fine and penalty together with leviable duty/taxes for shipment of vehicle after 60 days of plaintiff's arrival in Pakistan---Validity---Customs Authorities had power to check whether vehicle had been imported in accordance with S.R.O. 599(1)/93 or not---Such vehicle could be straightaway confiscated in terms of Customs General Order 19/98, dated 7-9-1998---Impugned action taken by Authorities was in accordance with S.17 of Customs Act, 1969 and not mala fide as vehicle had been imported in violation of 5.169 thereof---Remedy of appeal up to High Court was available to plaintiff, where he could agitate the pleas raised by him in present suit---Impugned action was saved under S.217 of Customs Act, 1969, thus, was not open to challenge before Civil Court, which could not set aside or modify same---Suit was not maintainable and dismissed in circumstances.

Hamid Hussain v. Government of West Pakistan 1974 SC 356; Town Committee Under the payment of Wages Act PLD 2002 SC 452; Kamran Industries v. Collector of Customs PLD 1996 Kar. 68; Pervaiz Kashanian v. Collector of Central Excise and Land Customs 2003 PTD 575; Abbasia Cooperative Bank v. Hakeem Hafiz Muhammad Ghaus PLD 1997 SC 3; Punjab Small Industries Corporation v. Ahmed Akhtar Cheema 2000 SCMR 549; S.M. Shafi Ahmed Zaidi v. Mir Hassan Ali Khan 2002 SCMR 338; Messrs K.G. Traders .v.. Deputy Collector of Customs PLD 1997 Kar. 541 and Collector of Central Excise v. Syed Muzakkar Hussain (sic) ref.

Al Ahram Builders (Pvt.) Limited v. Income Tax Appellate Tribunal 1993 SCMR 29 rel.

(c) Customs Act (IV of 1969)---

----S. 17---Use of words "good faith" in S.217(1) of Customs Act, 1969, but its omission in S.217(2) thereof---Effect---Protection to actions mentioned in S.217(1) of Customs Act, 1969 would be available, if same were taken or intended to be done in good faith, otherwise not---Non-use of words "good faith" in S.217(2) of Customs Act, 1969 would make all actions mentioned therein to be protected from challenge before civil Court---Principles.

(d) Constitution of Pakistan (1973)---

----Art. 199---Civil Procedure Code (V of 1908), S.9---Provisions in a statute barring jurisdiction of civil Court---Not applicable to filing of constitutional petition---Reasons.

The subordinate legislation under the Constitution cannot take away the rights granted by the Constitution. The provisions contained in various statutes barring jurisdiction of civil Court are not applicable to the filing of constitutional petition.

Khawaja Shams-ul-Islam for Plaintiff.

Raja Muhammad Iqbal.for Defendants Nos.2 and 3.

JUDGMENT

NADEEM AZHAR SIDDIQUI, J.---The plaintiff has filed this suit for declaration and permanent injunction challenging the detention order, dated 15-7-1999, show-cause notice, dated 2-9-1998 and order-in-?original, dated 3-6-1999. The facts as pleaded in the plaint are that the plaintiff has imported one used Mercedes Motorcar, Model 1993 from Dubai. The Bill of Lading was dated 14-4-1997 issued by Messrs Muhammad Aslam and Partners UAE and import authorization was issued on 5-5-1997. The Bill of Entry was filed on 15-7-1998. It is submitted in the plaint that the defendant No.3 illegally detained the said car and prepared a concocted contravention report and served show cause notice, dated 8-9-1998. The plaintiff submitted written reply on 23-10-1998. It was pleaded that the said car could not be shipped due to accidental damage caused to the said car when it was on transit and the shipping company asked the plaintiff to take back the motorcar for repair. The motorcar was taken back and was repaired, and thereafter, was handed over to one Messrs Wanhai Lines Limited, Dubai on 28-6-1998 for shipment and it was shipped vide IGM, dated 3-7-1998. The Bill of Entry was filed on 15-7-1998 and was completed on 23-7-1998 and the duty of Rs.25,94,718 was assessed.

After service of the notice the defendants have filed their joint written-statement and have pleaded that (1) the suit is not maintainable under sections 217 and 218 of the Customs Act, 1969 (2) the plaintiff has not availed the departmental remedy in accordance with the provisions of section 194-A of the Customs Act, 1969. It has not been denied in the written-statement that the plaintiff has imported one Mercedes Benz Car under Transfer of Residence Scheme as provided under S.R.O. 599(I)1 1992 and according to clauses (b) and (d) of the Proviso 2 of Order No.3(I) of the aforesaid S.R.O., the vehicle was, to be shipped within 60 days of the arrival of Pakistani national in Pakistan. It was further pleaded that the plaintiff was arrived in Pakistan on 17-4-1997 while the vehicle was shipped on 28-6-1998 after the expiry of 14 months from the date of arrival of the passengers. The case was detected on 23-7-1998, therefore, show-cause notice, . dated 8-9-1998 was correctly issued in terms of sections 16 and 32 of the Customs Act, 1969 and for violation of S.R.O. 599(1)/1992. It was further pleaded that the notification is very clear and does not allow import of vehicle after 60 days from the date of arrival of the passengers. It was further pleaded that the customs officers have no authority to condone the delay and that the plaintiff has violated the provisions of S.R.O., as such, show-cause notice was rightly issued and the plaintiff was afforded with opportunity of hearing. It was also pleaded in the written-statement that Bill of Lading found false, therefore, provisions of section 32 of the Customs Act, 1969 was also violated.

After filing of the. suit by order, dated 23-7-1999 the said car was released on payment of duties amounting to Rs. 25,94,718 and on furnishing surety of Rs.17,65,115. The surety was accepted on 19-8-1999.

On 1-11-1999 it was ordered to first hear the arguments on the jurisdiction of the Court and a preliminary issue was framed (whether the suit is maintainable or not?)

Mr. Khawaja Shams-ul-Islam, learned counsel for the plaintiff has contended that the suit is maintainable and is not barred by any provisions of the Customs Act, 1969. He further contended that the issuance of show-cause notice and detention of the plaintiff's car is unlawful and without jurisdiction and that in terms of CGO 7 of 1981 the powers under section 32 read with section 202' of Customs Act can only be exercised by the Controller of Valuation of Customs Department. He further contended that the powers of issuing show-cause notice in terms of section 32 read with section 202 of the Customs Act in respect of post importation scrutiny are the exclusive domain of Director Evaluation, hence notice issued by the defendant No.2 is liable to be declared illegal. He has further submitted that the action of the defendants are unjust, mala fide, arbitrary and illegal. He also contended that the Civil Court has exclusive jurisdiction to decide all civil matters unless specifically barred by law. He submits that in this case since very action of issuance of show-cause notice is without jurisdiction, the order-in-original as well as detention order are also illegal and without lawful authority, and as such, Civil Court can exercise jurisdiction.

In support of his contention, the learned counsel for the plaintiff has relied upon following reported cases:--

(1) Hamid Hussain v. Government of West Pakistan (1974 SCMR 356).

(2) Town Committee Under the Payment of Wages Act (PLD 2002 Supreme Court 452).

(3) Kamran Industries v. Collector of Customs (PLD 1996 Karachi 68).

(4) Pervaiz Kashanian v. Collector of Central Excise and Land Customs (2003 PTD 575) and

(5) Abbasia Cooperative Bank v. Hakeem Hafiz Muhammad Ghaus (PLD 1997 Supreme Court 3).

On the other hand, Mr. Raja Muhammad Iqbal, learned counsel for the defendants has submitted that the suit is not maintainable in view of sections 217 and 218 of the Customs Act, 1969. He submits that the vehicle can only be imported, if shipped within 60 days from the date of arrival of the Pakistani national in Pakistan. He submits that in this case the plaintiff arrived in Pakistan on 17-4-1997 while the vehicle was shipped on 28-6-1998 and the customs officers have no jurisdiction to condone the delay. He submits that since the vehicle was shipped after expiry of 60 days from the date of arrival of plaintiff, the show-cause notice was correctly issued under the provisions of Customs Act and proper opportunity of hearing was provided to the plaintiff at the time of adjudication. He submits that CGO 21 of 1993 is not applicable as it was ruled out that change of practice will not be with prospective effect, but the same will be effective from the date on which the same has been changed. He submits that CGO 7 of 1981 pertains to valuation and the case of the plaintiff is not a case of valuation, but the vehicle was imported on the basis of false Bill of Lading, therefore, provisions of section 32 of the Act were violated and show-cause notice was rightly issued.

The learned counsel for the defendants has relied upon following reported cases:

(1) Punjab Small Industries Corporation v. Ahmed Akhtar Cheema (2000 SCMR 549).

(2) S.M. Shafi Ahmed Zaidi v. Mir Hassan Ali Khan (2002 SCMR 338) and

(3) Messrs K.G. Traders v. Deputy Collector of Customs (PLD 1997 Kar. 541).

I have heard the learned counsel for the parties, perused the records and the judgments cited at the bar.

In this case the plaintiff has not only challenged the show-cause notice, but has also challenged the order-in-original, dated 3-6-1999. It is an admitted position that the Bill of Entry was presented on 15-7-1998, which was not within 60 days from the date of arrival of the plaintiff in Pakistan.

Now it is an established principle of law that the provisions barring jurisdiction of Civil Courts were only attracted when the impugned action was found to be within four corners of statutes under which it was taken and did not suffer from mala fide and want of jurisdiction. The Court of general jurisdiction would have jurisdiction to resolve all disputes of civil nature unless bred by any law and the provisions of special law purporting to take away their jurisdiction ought to be strictly construed. Mala fide order or one without jurisdiction being fraud on law could never be assumed to have been passed under any particular statute. Plea as to bar of jurisdiction could only be sustained if it could be shown that the impugned order was passed in bona fide exercise of power conferred by the Act and the Rules and not otherwise.

Before proceeding further it is beneficial to quote sections 217 and 218 of the Customs Act, 1969, which read as under:

Section 217: (1) No suit, prosecution or other legal proceeding shall lie against the Federal Government or any public servant for anything which is done or intended to be done in good faith in pursuance of this Act or the Rules and notwithstanding anything in any other law for the time being in force no investigation or enquiry shall be undertaken or initiated by any governmental agency against any officer or official for anything done in his official capacity under this Act, rules, instructions or directions made or issued thereunder without the prior approval of the Central Board of Revenue.

(2) No suit shall be brought in any civil Court to set aside or modify any order passed, any assessment made, any tax levied, any penalty imposed or collection of any tax made under this Act.

Section 218: No proceeding in a Court other than a suit shall be commenced against any officer of customs or any other person exercising any powers conferred or discharging any duties imposed by or under this Act for anything purporting to be done in pursuance of the provisions of this Act or the rules without giving to such officer or person a month's previous notice in writing of the intended proceeding and of the cause thereof; or after the expiration of one year from the accrual of such cause:

Provided that this section shall not be deemed to apply in the case of the prosecution of an officer of customs or such other person for an offence punishable under this Act.

I have examined the contents of the plaint on the above touchstone. The show-cause notice, dated 8-9-1998 was issued under sections 16 and 32 of the Customs Act, 1969 read with Notification bearing S.R.O. 599(I)/1993, dated 17-3-1993 punishable under clauses (9) and (14) subsection (1) of section 156 of the Customs Act, 1969. The allegation in the show-cause notice is that a false Bill of Lading for obtaining import authorization has been submitted, which was confirmed by the local agent. This is further substantiated by the fact that plaintiff submitted another Bill of Lading, which shows that the shipment of the vehicle was effected on 28-6-1998. It is further stated in the show-cause notice that the record shows that the plaintiff arrived in Pakistan on 17-4-1997 while the vehicle in this case has been shipped on 28-6-1998.

Admittedly, the vehicle was imported under S.R.O. 599(I)/93. Clauses (b) & (d) of the S.R.O. read as under:--

"Clause (b): he makes a declaration on his arrival in Pakistan that he intends to import the car or vehicle under the Transfer of Residence Scheme; and

Clause (d): this concession shall be availed in case of cars or vehicles which are shipped within fifteen days of the arrival of Pakistani National in Pakistan in case of cargo coming by air and within sixty days of his arrival in case of cargo coming over land route or by sea."

From the perusal of the above clauses, it appears that a Pakistani who intends to import the vehicles under Transfer of Residence Scheme has to make a declaration on his arrival and further that he can avail this concession, if the vehicle was shipped within 60 days of the arrival of the Pakistani National in case of cargo coming over land route or by sea. The plaintiff has not disputed his arrival in Pakistan on 17-4-1997. In the plaint the plaintiff has tried to justify late shipment and arrival of vehicle in Pakistan. The question before the Customs authorities is compliance of the S.R.O. The import of used vehicle is otherwise not permissible except under S.R.O. 599(1)/93. The Customs Authorities are empowered to check whether the vehicle was imported in accordance with the S.R.O. Further to such authority, the Customs Authorities have issued show-cause notice, which is within their authority, and thereafter, an order-in-original has been passed.

Section 217 is divided into two parts, subsection (1) of section 217 provides protection to anything which is done or, intended to be done in good faith in pursuance of Customs Act and Rules, whereas subsection (2) deals with any order passed, any assessment made, any tax levied, any penalty imposed or collection of any tax made under this Act.

From the reading of the above subsection (1) of section 217, it also appears that the exercise of powers by the Customs Authorities is conditional and an exercise which is in good faith or intended to be done in good faith are protected. Whereas, no such condition of good faith in attached to the exercise of jurisdiction by Customs Authorities while exercising their functions under subsection (2), it appears that when it is the intention of legislature to protect official acts done in good faith the legislature makes use of the words "good faith" but in subsection (2) of section 217 there is no condition that the act must be done in good faith to claim protection. Non-using of word "good faith" clearly means that all actions mentioned in subsection (2) of section 217 are protected and cannot be challenged before civil Courts.

In an unreported case of Collectorate of Central Excise v. Messrs Syed Muzakkar Hussain a Division Bench of this Court held as under:

"From a bare perusal of the said section it appears that no suit shall be brought in Civil Court to set aside or to modify any order passed or any assessment, levy or collection of any duty under the Act. It is an admitted position that the respondent has not filed the suit calling in question any order passed under the Act or questioned any assessment or levy or collection of any duty under it. The respondent No.1 has questioned show-cause notice issued by the appellant on the ground that same has been issued malafidely without any jurisdiction/lawful authority. When special law provides hierarchy for redress of grievance, then one cannot normally be allowed to circumvent the same by invoking jurisdiction of Civil Court, however, if prima facie Plaintiff can show mala fide on the part of authority or any illegality, which is floating on the surface and or absence of jurisdiction, then jurisdiction of Civil Court can be invoked in the matter."

In this case the Customs Authorities by way of passing order-in-?original has imposed a fine equal to 100% of the ascertained value together with payment of leviable duties and taxes and personal penalty of Rs.2,00,000 was also imposed. Clause (9) of the subsection (1) of section 156 of the Customs Act, 1969 provides that if any goods, not being goods referred to in Clause (8), are imported into or exported from Pakistan evading payment of leviable customs duties and in violation of any provision or restriction on the importation or exportation of such goods imposed by or under this Act or any other law, such goods shall be liable to confiscation and any person concerned in the offence shall also be liable to a penalty not exceeding two times value of the goods. Clause (14) of the above section provides that if any person commits an offence under section 32 such person shall be liable to a penalty not exceeding Rs.25,000 or three times the value of the goods in respect of which such offence is committed whichever be greater and such goods shall also be liable to confiscation and upon conviction by a Special Judge he shall further be liable to imprisonment for a term not exceeding three years, or to fine, or to both.

From the perusal of the above provisions, it is clear that the vehicle can be straightaway confiscated in terms of CGO 19/98, dated 7-9-1998. However, before issuance of such CGO such cases were subjected to adjudication as per instructions contained in the board letter, dated 27-8-1996 which provides the provisions for the release of the vehicle imported in contravention of applicable rules against redemption fine in lieu of confiscation. The action taken by the Customs Authorities is in accordance with section 17 of Customs Act, 1969 as the car was imported in violation of section 169 of the Customs Act, 1969.

From the above, it is apparent that whatever action has been taken by the Customs Authorities is in accordance with the Customs Act, 1969 and the notification issued thereunder. From the perusal of the proceedings, it cannot be stated that the Customs Authorities have acted malafidely.

In the case reported as Hamid Hussain v. Government of West Pakistan (1974 SCMR 356) it was held that the jurisdiction of civil Courts even if barred and conferred upon Special Tribunals, Civil Courts of ultimate jurisdiction have jurisdiction to examine acts of such forums to see if such acts are in accordance with law, or illegal, or even mala fide.

In another case of Town Committee, Gakhar Mandi v. Authority under the Payment of Wages Act, Gujaranwala (PLD 2002 Supreme Court 452), it was held that a writ of certiorari for instance, could be granted, despite availability of an alternate remedy, where, for example, the impugned order was ex facie without lawful authority or where it was a case of lack or absence of or even excess of jurisdiction.

In the reported case of Kamran Industries v. The Collector of Customs (Exports) (PLD 1996 Karachi 68) it was held that merely because petitioner had failed to avail the revisional remedy under section 1996, Customs Act, 1969 would not bar maintainability of constitutional petition. In the same judgment, it was further held that where the impugned action is completely without jurisdiction and patently illegal it is not essential to avail the alternate remedy available under the law.

In another reported case of Pervaiz Kashanian v. Collector of Central Excise and Land Customs (2003 PTD Lahore 575) it was held that considerable interval between hearing arguments and announcing order was not proper and was in violation of principle of natural justice and fair-play and the order was set aside and remanded back to the Appellate Tribunal for its fresh decision within specified time.

From the perusal of the above-cited cases, it reveals that the same relate to Constitutional or Appellate Jurisdiction of the High Court. The subordinate legislature under Constitution cannot take away the rights granted by the Constitution. The provisions contained in various statutes barring jurisdiction of civil Court is not applicable to filing of Constitutional Petition. The judgments cited by the learned counsel for the plaintiff has not direct barring upon the facts of the present case

In the reported case of Abbasia Cooperative Bank v. Hakeem Hafiz Muhammad Gaus (PLD 1997 Supreme Court 3) it was held that provisions contained in Statute ousting jurisdiction of Courts of general jurisdiction should be construed very strictly and unless case fell within letter and spirit of barring provision, same should not be given effect to.

In another reported case of Punjab Small Industries Corporation v. Ahmed Akhtar Cheerna (2000 SCMR 549) it was held that the constitutional jurisdiction of the High Court would be declined where the petitioner had not exhausted all remedies available to him.

In the reported case of S.M. Shafi Ahmed Zaidi v. Malik Hassan Ali Khan (Moin) (2002 SCMR 338) the Supreme Court has held that besides averments made in the plaint, other material available on record which on its own strength was legally sufficient to completely refute the claim of the plaintiff could also be looked into for the purpose of rejection of the plaint.

In the reported case of Messrs K.G. Traders v. Deputy Collector of Customs (PLD 1997 Karachi 541) a learned Single Judge of this Court while examining section 217 of the Customs Act held that clause (1) of section 217 purports to confer a personal indemnity to customs officials against being sued for their actions taken in good faith, clause (2) seeks to bar the jurisdiction of Courts to entertain suits questioning order passed under the Act or Rules. In the same case, it was further held that bar of jurisdiction could only be sustained if it could be shown that the impugned order was passed in the bona fide exercise of powers conferred by the Customs Act or Rules and not otherwise.

The pleas, which were raised by the plaintiff in the present suit, can be agitated by him while filing appeal against the order-in-original passed by the Customs Authorities. The remedies by way of appeal is available to the plaintiff upto the level of High Court.. In a reported case of Al Ahram Builders (Pvt.) Limited v. Income Tax Appellate Tribunal (1993 SCMR 29) the Honourable Supreme Court of Pakistan had deprecated the tendency to bypass the remedy provided under the relevant statute and to press into service constitutional petition.

In this case, since the action taken by the Customs Authorities is within four corners of Customs Act the same cannot be termed as mala fide and is saved under section 217 of the Customs Act and is not open to challenge before a civil Court and the same cannot be set aside or modified by this Court.

In view of above discussion. I hold that the suit is not maintainable and is dismissed with costs. The Nazir is directed to encash the surety and remit a sum of Rs.17,65,115 to the defendant No.2.

S.A.K./M-82/K?????????????????????????????????????????????????????????????????????????????????? Suit dismissed.