Messrs ABDUL QAYYUM KAKAR through Proprietor VS SECRETARY, GOVERNMENT OF PAKISTAN, MINISTRY OF COMMERCE, ISLAMABAD, 2006 PTD-QUETTA-HIGH-COURT-BALOCHISTAN 1182 (2005)

Imports and Exports (Control) Act (XXXIX of 1950)---

----S. 3(i)---Export Policy Order, 2004---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Export of Urea and DAP fertilizer to Afghanistan---Ban imposed on such export after granting of export licence to petitioner---Validity---Vires of Notification imposing such ban had not' been challenged---Petitioner could not claim any vested right for all times to come to export such goods after imposition of ban by Government---Powers of Government to impose ban could not be curtailed on the ground that petitioner had entered into agreement for export, when there was no ban on export---Government had got ample powers to make appropriate decision for export of goods in accordance with local, domestic and national need of the country and thus it could change its policy according to local requirements---No mala fide in framing of policy had been proved on record---Petitioner could not claim legal right under such licence---High Court dismissed constitutional petition in circumstances.

Amanullah Khan and Brothers v. Secretary, Ministry of Commerce and 4 others C.P. No. 210 of 2005 and Zamir Ahmed Khan v. Government of Pakistan and another 1978 SCMR 327 rel.

Malik Inayatullah Khan Kasi for Petitioner (in Constitution Petition No. 301 of 2005).

Ch. Mumtaz Yousaf, Standing Counsel for Respondent (in Constitution Petition No. 301 of 2005).

Baz Muhammad Kakar for Petitioner (in Constitution Petition No.727 of 2005).

Ch. Mumtaz Yousaf, Standing Counsel for Respondent (in Constitution Petition No. 727 of 2005).

Syed Ayaz Zahoor for Petitioners (in Constitution Petition No.577 of 2005).

Ch. Mumtaz Yousaf Standing, Counsel for Respondent (in Constitution Petition No. 577 of 2005).

Date of hearing: 12th December, 2005.

ORDER

MEHTA KAILASH NATH KOHLI, J.---Common questions of law are involved in these Constitutional Petitions bearing Nos.301, 577 and 727 of 2005 and are decided accordingly.

Facts of the case in Constitutional Petition No.301 of 2005 are that petitioner-Traders was granted N.O.C. on 25th October, 2004 for export of 1,50,000 metric ton, of DAP fertilizer to Afghanistan, under the Export Policy Order, 2004 (EPO, 2004). It was also asserted that on the basis of same principle, N.O.C. for export of meat/beef to Afghanistan was also issued on 27th October, 2004 to be exported through authorized land route. It was alleged that petitioners-Traders made efforts for quality export meat, and thus; permission was granted by the Veterinary authorities to export the same through Takhtani Slaughter House. It was also stated that all efforts were made and initiative was given to Customs Department and other authorities for export of other articles. It was stated that on 12th January, 2005, ban was imposed and petitioners was stopped from export of DAP and fertilizer. Prayer made in the petitioner, is as under:

"(A) This Hon'ble Court may kindly be pleased 4o declare that the action of respondent No.2 the Board of Revenue imposing the ban on export of D.A.P., Fertilizer subsequent to the permission granted to the petitioner by Ministry of Commerce resultantly stopping of the export is ' without lawful authority and jurisdiction as well as in excess and mis-exercise of authority vested in respondent No.2, Board of Revenue and respondent No.3 Customs Assistant Collector (Export) Excise Land Customs Quetta;

(B) Declaring further that Letter No.C.5-20(03) Export PT111 2004-05/1172, dated 12-1-2005 and Letter No. 5(25)EP/02, dated 22-12-2004 issued by respondent No.3 and respondent No.2 is not applicable in the petitioner's case and the rights granted to the petitioners cannot be taken away on the basis of issuance of such letter:

(C) Directing the respondents to allow the petitioner the export of D.A.P. fertilizer and Beef (meat) to Afghanistan in view of the N.O.C. granted by the Government Pakistan Ministry of Commerce Islamabad;

(D) Any other relief which this Hon'ble Court deems fit and proper is also solicited."

In Constitutional Petition No.577 of 2005, it has been stated that the petitioners-Traders was authorized to purchase 50,000 metric ton of Urea and 25,000 metric ton of D.A.P. vide letter, dated '5th October, 2003 issued by Ministry of Agriculture and Livestock. It was further stated that Government of Pakistan Revenue Division (C.B.R.) addressed a letter on 8th October, 2003 to the Collector of Customs, Quetta, wherein request was made that they should ensure that no further delay occurs in the processing of documents for export of the consignment. Record shows that petitioners were allowed to export surplus urea to Government of Afghanistan as per aforementioned letter, dated 5th October, 2003. Record further shows that Government of Pakistan vide letter, dated 8th October, 2003 through Export Promotion Bureau issued four permits i.e. (i) First permit was issued for 50,000 metric tons of urea, which was to expire on 3rd November, 2004, the validity of said permit was extended up to 9th November, 2004; (ii) second licence was issued on 24th December, 2003 relating to quantity of 20,000 metric ton, which was to expire on 3rd June, 2004; (iii) third permit was issued on 12th January, 2004 for the quantity of 5,500 metric ton and was to expire on 15th May, 2004, it was extended by Export Promotion Bureau up-till 9th November, 2004, and; (iv) fourth permit was issued on 12th January, 2004, wherein, 5,000 metric ton of Urea was to be exported, the said permit was extended by Ministry of Commerce till 9th November, 2004: It is further stated that the above mentioned extensions were made at the request of Ministry of Commerce as special cases. It was also stated that the Export Promotion Bureau was directed to extend the period of expiry by four months and some letters have been placed on record. It was stated that there was obstruction in the supply of urea by the Fertilizer Company, but on account of extensions, made in the period, the said obstruction was also removed. It was the case of petitioners-Traders that petitioners had received $1,57,470 for exporting urea, which was not sent to Afghanistan on account of non-supply by Fertilizer Companies; the last consignment has statedly been sent on 9th August, 2004 loaded in four trucks containing in total 2,200 bags, which were statedly stopped by the Customs Dry Port, Chaman on the ground that the Government of Pakistan has imposed ban on export of Urea fertilizers. It was also averred that when petitioners had come to know the said fact, they approached the Government of Pakistan Ministry of Commerce, as the said urea was stopped and; consequently, Constitutional Petition No.387 of 2004 was filed in this Court. The same was allowed by means of order, dated 1st September, 2004 and the petitioners, in consequence of orders, made by this Court exported the urea to Afghanistan. It was also claimed that during the period of time provided, however, once again, the Frontier Corps authorities did not allow the petitioners, consequently Civil Miscellaneous Application No.1934 of 2004 was filed before this Court, which was allowed, despite orders made by this Court, the said consignment was delayed on one pretext or the other and; ultimately, civil miscellaneous application, was filed before this Court and time of forty eight days was allowed vide order, dated 3rd January, 2005. It was also claimed that petitioners has purchased the urea from open market and the period has already been expired. It was also claimed that the Government has put the ban and are not renewing the licence, although; 16,715.5 metric ton of urea are yet to be exported and they had already received the costs of same in dollars. Prayer has been made in the following terms:--

"It is, therefore, humbly prayed that the petition may kindly be accepted the following terms:--

(A) Declaring that the act of the official respondents in not renewing/extending the period of licences of petitioner is totally illegal, unjust, in excess of 'authority vested in them.

(B) Also, declaring that non-export of entire quantity of urea, was on account of the conduct of official respondents, for which the petitioner cannot be penalized.

(C) Also declaring that the ban imposed through Notification, dated 11-1-2005, by respondents, cannot be applied in the case of petitioner, as already he had exported 1/3rd DAP of the contract quantity.

(D) Further declaring that the act of the official respondents in stopping the consignment of petitioner for exporting the remaining quantity of DAP i.e. 16715.5 Metric tones in totally illegal, improper, without lawful authority and jurisdiction vested in them.

(E) On having declared so, the respondents be directed to renew/ extend the period of the licences of petitioner and to allow the petitioner to export the remaining quantity of urea to the Foreign Buyer in Afghanistan.

(F) Also directing the respondents to allow the petitioner to export complete quantity of DAP Fertilizer to the Foreign Buyer.

(G) Any other relief deemed fit and proper in the circumstances of the case may also be awarded, along with the cost of the petitioner, in the interest of justice."

Facts in Constitutional Petition No. 727 of 2005, are that petitioners-Traders are dealing in business of export. On 1st August, 2004, petitioners entered into agreement with one Afghani firm i.e. Messrs Razmir Limited for supply of 20,000 metric tons of locally manufactured fertilizers to be supplied within a period of two years; a written request was made for the grant of permission to supply, 20,000 metric tons of DAP Fertilizers, which permission was granted vide order, dated 11th August, 2004. In fact, Government of Pakistan had imposed ban and there is restriction on the export of DAP, as per export policy. It is stated that after having entered into agreement, they had started exporting DAP fertilizers through Customs House, Chaman. It was stated that suddenly export of DAP was banned and as a result of which, petitioners have sustained losses. It was stated that petitioners are under legal obligation to supply quantity of DAP fertilizer, which has been permitted by the Government. It is worthwhile to point out that Government has granted permission to export DAP fertilizer, however, it was informed that there is no ban of DAP, as per Export Policy. It was averred that this question has been decided. in Constitutional Petition No.247 of 2005, titled Messrs Muhammad Hashim v. Government of Pakistan through Secretary, Ministry of Commerce Islamabad and others, as such, prayer was made in the following terms:

"It is therefore, respectfully prayed that the Notification, dated 11-1-2005 issued by Respondent No.1 be declared:--

(a) to be ineffective, in case of the present petitioner;

(b) to further grant permission to the petitioner to export DAP/fertilizer way back on 11th August, 2004;

(c) to further declare that the act of the respondents Nos. 2 and 3 for stopping the consignments of the petitioner for exporting the remaining quantity of 16720 metric tons of the DAP/fertilizer to foreign buyers in Afghanistan on the basis of Notification, dated 11-1-2005 is totally illegal, unjust and without any lawful authority as well as in excess and misexercising to authority vested in them;

(d) the respondents be directed to allow the petitioner to export complete quantity of DAP/fertilizer mentioned above, as also, any other relief which this Hon'ble Court may deem fit and proper in the circumstances of the case, in the interest of justice.

We have heard Messrs Syed Ayaz Zahoor and Malik Inayatullah Kasi Advocates appearing in Constitutional Petitions Nos.301 and 577 of 2005, as well as, Mr. Baz Muhammad Kakar, Advocate appearing in Constitutional Petition No.727 of 2005, while Chaudhry Mumtaz Yousaf, learned Standing counsel appeared on behalf of official respondents.

It has been contended that the above ban imposed by the Government is not applicable to them. It was further stated that the petitioners had been granted permission by the Government and now, they again turned around of the same. It was further contended that the petitioners have already entered into agreements, and; learned counsel had referred to judgments passed by the Hon'ble Superior Courts relating to different cause of actions, accrued to them.

On the other hand, learned Standing Counsel has urged that in the circumstances of the case, the Government was in need of the fertilizers and DAP for the requirement in country, and thus; ban was imposed to export on the local manufactured DAP and urea, which was not sufficient to cater the national need of the growers. It was also contended that the Government had already imported more than two million tons of urea. It was further canvassed that it is the Policy decision, which cannot be impugned before this Court.

We have heard the arguments advanced by the parties counsel and perused the record. It is in admitted features of the case that there was no bar, imposed by the Government on the export of DAP; however, the urea was exportable subject to permission by the Government of Pakistan, holding valid export licence. The Government vide Notification, dated 22nd December, 2003, has imposed ban on the export of DAP also. The said letter was duly notified in the Gazette, and thus; a Policy decision has taken place and a clear restriction has been imposed on the export of DAP to Afghanistan. The prayer made in all the petitioners show that none of the petitioners have challenged the vires of said Notification (published on 30th January, 2005), whereby; the ban has imposed on the export of urea. A Division Bench of this Court, in the case of Amanullah Khan and Brothers v. Secretary Ministry of Commerce and 4 others (C.P. No.210 of 2005) had come to the conclusion while dealing with the ban notwithstanding the fact that the export of urea and DAP was permitted. Their lordships came to the conclusion in the following terms:--

"In view of above-discussion, under section 31-A of the Customs Act, 1969 the petitioner is liable to pay regulatory duty on the consignments of wheat flour shipped on or after the date when notification was issued, notwithstanding conclusion of the contract or agreement for export of wheat flour prior to the date of notification. Likewise; he cannot claim any vested right for all the times to come to export fertilizer after ban imposed by the Government nor the powers of government in this regard could be curtailed on the ground that the petitioner entered into agreement for export when there was no ban on export of fertilizer (D. A.P.). (Underline is ours)

The above judgment of this Court was assailed in C.P.L.A. No.99-Q of 2004. Their lordships of the Hon'ble Supreme Court were pleased to concur with the judgment of this Court in the following terms: --

"(4) Learned Standing Counsel for the Federal Government appeared on Court notice and opposed the petition. He stated that both the cases referred to by learned counsel for the petitioners are distinguishable; that there is a shortage of urea in the country and is not even possible to meet the domestic requirements, on account of which Federal Government has decided to import the urea.

(5) Having heard learned counsel for the parties, we are of the view that petitioners conduct does not entitle them to relief sought and the petitions have rightly been dismissed by the High Court through the impugned judgment. Admittedly petitioners applied for extension of time after lapse of 17 months and no justificable reason for this delay is spelt out either in the grounds of petition or in the oral arguments. That being so, the impugned judgment is unexceptionable and does not call for interference. Petition having no force is dismissed accordingly."

(underline is ours)

Following the above dictum, it is quite clear that the Government has got ample powers to make appropriate decision for export of goods in accordance with the local, domestic and national need of the country, and; can change the policy according to local requirements. The petitioners cannot claim the legal right under the licence, as has been held by the Hon'ble Supreme Court in the case of Zamir Ahmed Khan v. Government of Pakistan and another (1978 SCMR 327). Relevant observations of their lordships are reproduced hereinbelow: --

"?????..It was further held that in such cases the emphasis is on policy, and any discretion vesting in the authorities is directed towards attaining the policy's objectives. Under section 3(i) of the Exports Control Act, 1950, the Central Government enjoyed power of the widest amplitude to prohibit, restrict or otherwise control the import of goods. The decisions taken fall within the realm of policy making, and in all such cases orders made must conform to the policy decisions of the Government. Accordingly, the amendment made on 9-8-1972 in Item No.49 signified a change in policy and the petitioner was informed that he was being refused the licence because of the change in policy and not because of any other reason. On these facts it was not possible to subscribe to the proposition that a writ of mandamus would lie against the licensing authority so as to have the effect of defeating the policy competently made by the Federal Government."

(underline is ours)

No mala fides in framing of Policy have been proved on record, no vires of said notification have not been challenged. The notification shall apply from the date when it was published, even to holders of permits.

Above are the reasons of our short order made in Court on even date i.e. 12th December, 2005 for dismissal of the petition.

S.A.K./14/Q??????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.