PROVINCE OF BALOCHISTAN through Secretary Excise & Taxation Department, Quetta VS MURREE BREWERY COMPANY LTD. through Secretary, 2007 PTD-SUPREME-COURT 1195 (2006)

(On appeal from the judgment, dated 7-4-2003 passed by the High Court of Balochistan at Quetta in Civil Petition No.471 of 2000).

(a) Constitution of Pakistan (1973)---

----Art. 199(1)---Constitutional jurisdiction of High Court, invoking of---Principles---Held, it is sine qua non for invoking jurisdiction of High Court through Constitutional petition that petitioner must be an aggrieved person and he must have a locus standi for availing such jurisdiction.

(b) Constitution of Pakistan (1973)---

----Art. 199 (1)(a)---"Aggrieved party"---Defined.

Messrs Associated Cement Companies Ltd. v. Pakistan through the Commissioner of Income Tax, Lahore Range, Lahore and 7 others PLD 1978 SC 151; Nisar Ahmed and 2 others v. Additional Secretary, Food and Agriculture, Government of Pakistan and 3 others 1979 SCMR 299; Anjuman Araian Bhera v. Abdul Rashid and others 1982 PSC 888; Mst. Noor Jehan Begum v. Dr. Abdus Samad and others 1987 SCMR 1577; Mian Muhammad Nawaz Sharif v. Federation of Pakistan through Secretary, Ministry of Defence, Government of Pakistan, Islamabad and 8 others 1994 CLC 2318 and Dalmia Cement Ltd v. District Local Board, Karachi and 2 others PLD 1958 (W.P.) Karachi 211 rel.

(c) Balochistan Excise Regulations (I of 1915)---

---S.62---British Balochistan Foreign Liquor and Country Spirit Rules, 1947, R.4 (4) [as amended by Notification No. SO (E&T) 234-Tax/99/769-78, dated 20-8-1999]---Supreme Court Rules, 1980, O.XXVIII, R.3---Constitution of Pakistan (1973), Art. 199 (1)---Constitutional petition before High Court---Maintainability---Locus standi---Imposing special costs---Provincial Government imposed import fee on all supplies of liquor to Balochistan from other Provinces---Respondent-company based in an other Province was aggrieved of the notification on the ground that Notification No. SO (E&T) 234-Tax/99/769-78, dated 20-8-1999, issued by Balochistan Government had placed the respondent at disadvantageous position as compared to companies situated in Balochistan---High Court, in exercise of Constitutional jurisdiction allowed the petition filed by respondent and declared the notification as without lawful authority---Plea raised by authorities was that respondent was not an aggrieved person under Art. 199 (1) of the Constitution hence had no locus standi to file the petition---Validity---Respondent failed to show that it was an aggrieved party as no fee had been imposed on it and it had never paid the same---Respondent-company's case was not that any of the licensees had ever complained of depreciation of sale of its products in market because of imposition and consequential increase in prices or any of them had ever refused to take supply of its products---Respondent could not be allowed to plead case of third party (the licensee) which was liable to pay duty/fee and which party was not before the Court--Only contention of respondent that its products would not be competitive with local products was a far-fetched idea to consider it as an aggrieved party, on such a speculative and imaginary consideration---Respondent-company dragged the authorities unneces sarily into frivolous and vexatious litigation and such stand was still asserted on behalf of respondent even before Supreme Court---By defending such baseless proceedings, respondent-company had wasted precious time of courts meant for grant of relief to genuine litigants and public---Respondent was liable to pay special costs for such frivolous litigation as either had been awarded by Supreme Court under its inherent powers while exercising Constitutional jurisdiction and also under O. XXVIII, R. 3 of Supreme Court Rules, 1980, or had approved it (special costs) awarded by High Court under similar inherent powers, while exercising Constitutional jurisdiction---Supreme Court set aside the judgment passed by High Court with special costs in a sum of Rs. 500,000 awarded to respondent---Appeal was allowed.

Muhammad Rafiq v. Ataullah and others 1985 SCMR 1226; Inayatullah v. Sh. Muhammad Yousaf and 19 others 1997 SCMR 1020; The Postmaster General, Northern Punjab and (AJ &K), Rawalpindi v. Muhammad Bashir and 2 others 1998 SCMR 2386; Muhammad Naseer v. Mir Azhar Ali Talpur 2001 SCMR 4; Khurshid Ahmad Naz Faridi v. Bashir Ahmed 1993 SCMR 639; Arwinder Singh Bagga v. State of U.P. and others AIR 1995 SC 117; Rudul Shah v. State of Bihar AIR 1983 SC 1086; Bhim Singh Mila v. State of Jammu and Kashmir AIR 1986 SC 494; M.C. Mehta v. Union of India AIR 1987 SC 1086 and Akhtar Iqbal v. Muhammad Ali Bilal and others 2006 SCMR 1834 rel.

Salahuddin Mengal A.G. and Mehmood Raza, Addl. A.G. for Appellants.

Shahid Hamid, Sr. Advocate Supreme Court for Respondent.

Date of hearing: 15th December, 2006.

JUDGMENT

MIAN SHAKIRULLAH JAN, J.--This appeal, with leave of the Court, is directed against the judgment of the Balochistan High Court whereby while accepting writ petition filed by the respondent, the impugned notification, dated 20-8-1999 issued by the Provincial Government and subsequent memorandum, dated 23-8-1999 issued by the Excise Department i.e. respondents Nos. 2 and 3 were declared as without lawful authority and of no legal effect with a further direction that the respondents/writ petitioners "be entitled to the recovery of tax, collected from him on the basis of said Notification."

2. The background of the case, briefly, is that the Province of Balochistan, like other Provinces, to improve its revenue and to strengthen the relevant Department and to further expand it and to mobilize its domestic resources, has to impose new duties/fees etc. and has to enhance their existing rates and for this purpose the competent authority issued various notifications from time to time. In their these efforts, notification for the enhancement of the permit fee on import of the liquors was issued on 20th August, 1999 which is reproduced hereinbelow:

"No. SO(E&T)234-Tax/99/769-78/. In exercise of the powers conferred by section 62 of the Balochistan Excise Regulation, 1915 (I of 1915), the Government of Balochistan is pleased to make the following amendments in the British Balochistan Foreign Liquor and Country Spirit Rules, 1947, namely:

For sub-rule (4) of rule 4 of the following shall be substituted namely:--

"(4) The permit fee on the import of Pak Made Foreign Liquor and Pak Made Beer shall be at the rates specified below:

It is this notification and subsequent memorandum issued in pursuance of the notification which were challenged by the respondent before the High Court in its Constitutional Jurisdiction.

3. According to the respondent, the Murree Brewery Company Ltd., Rawalpindi (the petitioner in the writ petition before the High Court) is a public limited company and is conducting various kinds of business including manufacture and sale of Pakistan Made Foreign Liquor (PMFL) and Beer for over a period of century. It was licensed to manufacture and sell its products in the Punjab under the provisions of the Punjab Excise Act, 1914, now under the provisions of the Prohibition (Enforcement of Hadd) Order, 1979 and the rules framed thereunder. The respondent also sells its products to licensee in Balochistan. The petitioner, being aggrieved of the aforesaid notification and the memorandum issued thereunder by imposing an import licence fee on all supplies to Balochistan from other provinces, has challenged the same before the Balochistan High Court at Quetta, inter alia, on the grounds that the respondent-company . as been placed at a disadvantage on account of import duty levied by the petitioner as the respondent has to pay more on account of import duty levied on the PMFL from other provinces while the same duty is not levied on products of Quetta distillery that is situated in the Province of Balochistan; and the import duty by the respondent being a clog and fetter on the petitioner's right to trade and business is violative of various provisions of the Constitution i.e., Article 18, 151(2) and 25 being discriminatory one as the sharp increase in the cost of respondent's products has the effect of rendering its product's prices uncompetitive.

4. The learned High Court after hearing the parties accepted the writ petition and while declaring the notification and the memorandum, referred to above, as without lawful authority and of no legal effects, also held the respondent shall be entitled to the recovery of tax collected from him on the ground that "any Notification of executive order, which invades the authority of Article 151, in prohibiting the export of goods of any class, from one Province to another, and is deterrent to free trade, commerce and intercourse throughout the country, cannot be saved."

5. The learned Advocate-General, after giving a short backgroundof the facts of the case, at the very outset has vehemently contended that the respondent was not an aggrieved person as contemplated under Article 199 of the Constitution under which the respondent has agitated the matter before the High Court and was having no locus standi, as the permit fee imposed on the import of the liquor, mentioned therein, was not imposed on the respondent and it has never been recovered from him and the High Court has travelled even beyond prayer, made in the writ petition and granted a relief i.e., refund of tax so collected on the basis of the said notification whereof it (the respondent) was not entitled at all to such relief as no tax/fee/duty has been paid by it.

6. In view of the contentions so made by the learned Advocate-General, we consider it proper to first decide the objection over the maintainability of the Writ Petition before the High Court on the ground as to whether the respondent was an aggrieved party as envisaged under Article 199 of the Constitution or not and could competently make a recourse to the High Court under its Constitutional jurisdiction. We have heard both the learned counsel for the appellants as well as for the respondent. The learned counsel for the respondent has attempted to meet the objections so raised.

7. Article 199(1) of the Constitution of Islamic Republic of Pakistan, 1973, which reads,

A High Court may if it is satisfied that no other adequate remedy is provided by law:--

(a) On the application of any aggrieved party make an order.

(i) directing...

(ii) declaring...

lays emphasis (i) on the satisfaction of the Court about the absence of any adequate remedy available under the law to the person/party invoking the jurisdiction of the High Court under the said provisions of the Constitution and (ii) that the party is to be an aggrieved one which conditions have not been prescribed under sub-clause (b) of clause (1) of Article 199 of the Constitution. It is sine qua non for invoking the Jurisdiction of the High Court through a Writ Petition, under the clauses referred to above and under which the instant writ comes, that the Petitioner must be an aggrieved person and he must have a locus standi for availing such a jurisdiction. The word aggrieved or aggrieved party had not been defined in the Constitution, however, from time to time it has been interpreted by the superior Courts in the given circumstances of the case.

8. In the case of Messrs Associated Cement Companies Ltd. v.

Pakistan, through the Commissioner of Income Tax, Lahore Range, Lahore and 7 others (PLD 1978 SC 151) it was observed that Writ Petition can be maintained by a person provided he be an "aggrieved person" and in order to be an aggrieved person imperative for him to show any of his proprietary or personal right, as recognized by law, to be invaded or denied. Person unable to show any of his rights as recognized by law to be invaded or denied has no cause of action to seek any relief. In the case of Nisar Ahmed and 2 others v. Additional Secretary, Food and Agriculture, Government of Pakistan and 3 others (1979 SCMR 299) (also reported in 1979 SCMR 389) it was held that the petitioner in order to avail such jurisdiction must establish direct or indirect injury to himself and substantial interest in the subject-matter of proceeding. The case of Nisar Ahmed (supra) was followed in the case of Anjuman Araian Bhera v. Abdul Rashid and others (1982 PSC 888) wherein it was endorsed that a party must show some interest in property to which some legal sanctity was attached in order to bring itself within the ambit of the definition of "aggrieved party". In the case of Mst. Noor Jehan Begum v. Dr. Abdus Samad and others (1987 SCMR 1577) it was held that mere possibility that a person can obtain property by making highest bid if a property is disposed of by public auction does not give such a potential bidder a vested right in property. Such person is not an aggrieved person and has no right to maintain a constitutional petition. In the case of Mian Muhammad Nawaz Sharif v. Federation of Pakistan through Secretary, Ministry of Defence, Government of Pakistan, Islamabad and 8 others (1994 CLC 2318) it was observed that a person could not be held to be an aggrieved person unless he had a right in the performance of statutory functions by a person performing functions in connection with the affairs of the Federation or Province in respect of any right which he may have in relation to the performance of the said functions and if he did not have any right directly in the matter had no locus standi to maintain constitutional petition. Relief sought must be in relation to grievance of said aggrieved person and not the grievance of any third person. In the case of Dalmia Cement Ltd. v. District Local Board, Karachi and 2 others (PLD 1958 (W.P.) Karachi 211) the High Court of West Pakistan at Karachi, after making reference to a number of judgments i.e. (i) the judgment of Supreme Court of India in case of Charanjit Lal v. Union of India, wherein it was held that:--

"It has been held in a number of cases in the United States of America that no one except those whose rights are directly affected by a law can raise the question of the constitutionality of that law. This principle has been very clearly stated by Huges J. In McCabe v. Atchison (1914) 235 U.S. 151 in these words:--

It is an elementary principle that in order to justify the granting of extraordinary relief, the complainant's need of it and the absence of an adequate remedy at law must clearly appear. The complainant cannot succeed because someone else may be hurt. Nor does it make any difference that other persons who may be injured are persons of the same race or occupation. It is the fact clearly---established of injury to the complainant---not to others---which justifies judicial interference."

In a case (ii) (Indian Sugar Mills Association v. Secretary to Government, Uttar Pradesh Labour Department and others) the Full Bench of Allahabad High Court in Indian held that:--

"We do not want to express any opinion whether those orders were right or wrong but other writs, directions or orders, cannot be placed on the same footings as a writ of habeas corpus and every one of the several mission persons of this State cannot be given the right to come up and agitate and reagitate against an Act or order like the one in question when he cannot show that his rights were directly affected by that order.

In a case (iii) (Surrendara Transport and Engineering Co. Ltd., Kalka and others v. State of Punjab) a Division Bench of the Punjab High Court held that:

"This' petition can be dismissed on the short ground that the petitioners have no locus standi to challenge the validity of the Act, for it has been held repeatedly that a statute may be assailed only by one relying on an alleged invasion of his own constitutional rights. The invasion must affect his interests adversely and this interest must be a genuine proprietary interest and not merely a remote interest vide Article 13 of Willoughby on the Constitution of the United States, Volume I. The tax in the present case is to be paid not by the petitioners who are plying their vehicles on hire but by the passengers who are carried or by the owners of the goods which are transported and it seems to me, therefore, that the present petition is incompetent.",

Finally it concluded that:

"It is unnecessary to quote, from more authorities because the position appears to be fairly clear that the petitioner which does not pay Toll Tax cannot come to the Court for relief on the ground that the contractors whose trucks are employed by the petitioners pay the tax and are expected in the ordinary course to include that tax in their charges and thus to indirectly recover them from the petitioners has not even attempted to meet this objection of Mr. Abbasi and has cited no authority to the contrary. I therefore, hold that the petitioners have no locus standi to file the writ petition and that it is not maintainable."

9. Learned counsel for the respondents could not advance any convincing reasons to hold it as an aggrieved party as no fee has been imposed on it and it has never paid the same and it is also not the case of the respondent that any of the licensees has ever complained of the depreciation of sale of its products in the market because of the imposition and consequential increase in the prices or any of them has ever refused to take the supply of its products and it cannot be allowed to plead the case of third party (the licensee) which is liable to pay the impugned duty/fee and which party is not before the Court. The only contention of the learned counsel for the appellants that its products would not be competitive with the local products is a far-fetched idea to consider it as an aggrieved party on such a speculative and an imaginary consideration. Even the learned counsel for the respondent has very frankly conceded that the respondent would not be claiming the return of any amount as directed by the High Court and the said stand was taken very rightly as it is not the said respondent which had ever paid any fee on the import of its products.

10. As we held above, the respondent was not an aggrieved party and was having no locus sandi to agitate the matter before the High Court in its Constitutional Jurisdiction challenging the enhancement/ imposition of the permit fee on import of the liquor and the initiation of such proceedings by the respondent is a futile exercise and it dragged the appellants unnecessarily into frivolous and vexatious litigation and which stand was still asserted on behalf of the respondent even before this Court by defending such baseless proceedings and has wasted precious time of the Courts meant for the grant of relief to the genuine litigants and public and the respondent is liable to the payment of special costs for this frivolous litigation as either has been awarded by this Court under its inherent powers while exercising Constitutional Jurisdiction and also under Order XXVIII, Rule 3 of the Supreme Court Rules, 1980 or has approved it (Special Costs) awarded by the High Court under similar inherent powers while exercising Constitutional Jurisdiction as reported in the cases of Muhammad Rafiq v. Ataullah and others (1985 SCMR 1226), Inayatullah v. Sh. Muhammad Yousaf and 19 others (1997 SCMR 1020), The Postmaster-General, Northern Punjab and (AJ &K), Rawalpindi v. Muhammad Bashir and 2 others (1998 SCMR 2386), Muhammad Naseer v. Mir Azhar Ali Talpur (2001 SCMR 4) wherein reliance was also placed on the cases of Khurshid Ahmed Naz Faridi v. Bashir Ahmed (1993 SCMR 639), Arwinder Singh Bagga v. State of U.P. and others (AIR 1995 SC 117) Rudul Shah v. State of Bihar (AIR 1983 SC 1086), Bhim Singh Mila v. State of Jammu and Kashmir (AIR 1986 SC 494), M.C. Mchta v. Union of India (2006 SCMR 1836), and Akhtar Iqbal v. Muhammad Ali Bilal and others (AIR 1987 SC 1086). Thus we deem it proper to direct the respondent to pay Rs.5,00,000 as Special Costs to be deposited with appellant No.1 against valid receipt within two months, with intimation to the Registrar of this Court. Consequently, appeal is allowed with special costs.

M.H./P-5/SCAppeal allowed.