QAZI GULFRAZ VS PRESIDENT OF PAKISTAN, PRESIDENT, SECRETARIAT, ISLAMABAD, 2008 PTD-KARACHI-HIGH-COURT-SINDH 812 (2008)

(a) Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000)---

----Ss.9 & 10---Complaint---Delay of one year and nine months, condonation of---Ombudsman entertained complaint without considering point of delay---Neither complainant explained such delay while making submissions before Ombudsman nor did Ombudsman give any observation thereon in his order---Effect---Such delay could not be assumed to have been condoned.

(b) Limitation---

----Proceedings initiated by party at the time of his own choice without considering the time prescribed therefore by legislature---Validity---Law would favour the vigilant and not the idles.

2006 PTD 1396 ref.

Sardar Muhammad Younus for Appellant.

Sofia Saeed Shah and Raja Muhammad Iqbal for Respondents.

ORDER

MRS. YASMIN ABBASEY, J.---Being aggrieved by the order of the President of Pakistan, setting aside recommendations made by F.T.O. on 24-8-2005 in Complaint No. 996-K of 2004, directing to investigate the circumstances under which petitioner was not allowed to participate in the auction proceeding in spite of deposit of amount by him to the extent of Rs.4,79,000 in three auction proceedings of Lots # (i) E-99/January, 1999 (ii) E-107/August, 1997 and (iii)K-23/ December, 2001 has filed this petition.

Case of the petitioner is that he participated in the auction proceedings of the above lots and being successful bidder had deposited an amount of Rs.29,000 Rs.1,50,000 and Rs.3,00,000 respectively for above lots. It is alleged that by a note, dated 17-5-2002 Assistant Collector of Customs (Auction) Rizwan Basharat had restricted the entry of the petitioner in the auction premises and that is why he could not deposit the balance amount within 7 days. Subsequent thereto respondent Nos.4 and 5 without showing any reasonable cause had also declined to deliver the goods. According to petitioner when he was not allowed to deposit the balance amount so also no process for delivery of goods was made by the Customs Authorities, he moved an application on 10-2-2003 for refund of amount. When no order was passed thereon, on 24-11-2004 he moved a complaint before Federal Tax Ombudsman. On receipt of complaint both parties were put to notice and after considering the case of both sides it was recommended by Federal Tax Ombudsman that C.B.R. will make thorough investigation into the matter:---

(i) To identify the circumstances under which the verbal statements of UDCs assumed the command of customs administration;

(ii) Mr. Rizwan Basharat, Assistant Collector, initiated a note making (irresponsible) proposal but seemingly did not obtain the decision of the appropriate officer and provided the tool to the staff to misuse his note;

(iii) Appropriate action be taken against the Assistant Collector (for misconduct).

(iv) Set aside the orders for forfeiture of the (three amounts) of earnest money and direct the Collector of Customs to refund the amount of Rs.4,79,000 if there is no other legally valid objection;

(v) Action at (i) to (iv) be completed within forty-five days; and

(vi) Compliance be reported to this office within two months.

By recommendation No.4 orders of forfeiture, of earnest money deposited by the petitioner, dated 9-5-2005 and 12-5-2005 were set aside and the Collector of Customs was directed to refund the amount of Rs.4,79,000 to the petitioner.

Being dissatisfied with the order of Federal Tax Ombudsman, C.B.R. went before President of Pakistan. Following order was passed by President of Pakistan:---

"It appears to be an accepted position that the complainant did not deposit the balance amount within the prescribed time. He contends that he was debarred to enter the customs office. He approached the F.T.O. after 2 years. There are no indications that the complainant approached the higher office of the customs to explain that the Deputy Collector (Auctions) was not receiving the balance amount from him. So far as the complainant's demand to receive written order of forfeiture etc. was concerned it was that any formal order was passed. If the auction-purchaser fails to deposit the balance amount the forfeiture is automatic. Hearing him and passing of written order are not the requirements of law.

He approached the F.T.O. at belated stage. The F.T.O. has not indicated how he found it proper to investigate the complaint not made within six months from date on which the complainant was allegedly refused to deposit the balance amount. Also, the complainant had legal remedy against the orders by which his request for refund was rejected by written order. He did not avail that remedy."

This order of the President of Pakistan, dated' 17-8-2006 has been challenged in this 'Constitutional Petition with the prayer that the order of Federal Tax Ombudsman, dated 24-8-2005 be implemented.

Heard Mr. Sardar Muhammad Younus learned counsel for petitioner and Ms. Sofia Saeed Shah and Mr. Raja Muhammad Iqbal, Advocates for the respondents.

Admitted fact is that petitioner participated in the auction proceedings under lots # (i) E-99/January, 1999, (ii) E-107/August, 1997 and (iii) K-23/December, 2001, and had deposited certain amount mentioned above. He was required to deposit balance amount within a period of 7 days as stipulated in section 7 of Customs Rules but in none of the three lots balance amount was deposited therefore, by order, dated 9-5-2005 and 12-5-2005 earnest money deposited was forfeited.

Grievance of the petitioner is that after deposit of earnest money he could not pay the balance amount as by the order of Assistant Collector (Auction) he was restrained to enter in the premises therefore, when he was debarred to step further for the discharge of goods by depositing the balance amount he moved an application for refund of earnest money. While looking to the grievance of petitioner the act to be done diligent for agitating his right has also to be examined. According to petitioner he was restrained to enter in customs office on 17-5-2002 but he waited for about one year to move application for refund of amount on 10-2-2003. According to learned counsel for petitioner again after moving of his application on 10-2-2003 no order was passed thereon and because of that he was compelled to approach to Federal Tax Ombudsman but here again the complaint moved by him to Federal Tax Ombudsman is belated by one year and nine months with no reasonable cause of this delay. Record is also silent to the fact that in spite of period provided in section 10 of Federal Tax Ombudsman Ordinance, 2000 for filing a complaint before Federal Tax Ombudsman not later than six months from the date on which person aggrieved first had notice of the matter alleged in the complaint, complaint moved by the petitioner, without considering the point of delay in moving complaint, it was entertained by the Federal Tax Ombudsman. Therefore, it can be assumed that delay was condoned otherwise neither any ground of this delay is appearing in the submissions made by the petitioner before Federal Tax Ombudsman nor any observations on the point are appearing in the order, dated 24-8-2005.

It is contended by learned counsel that the mala fides of the customs departments emerge from the very fact that during the pendency of complaint before Federal Tax Ombudsman order for forfeiture of earnest amount was passed by them on 9-5-2005 and 12-5-2005 and they have no notice of these orders passed by the Customs Authorities. Perusal of both these orders, dated 9-5-2005 and 12-5-2005 show that notice was issued to the petitioner, he appeared before Deputy Collector of Customs in cases E-99/January, 1999, E-107/August, 1997 and in K-23/December, 2001 through his counsel but in none of the case filed before Deputy Collector of Customs and Assistant Collector of Customs he ever raised ground that because he was debarred to enter in the auction premises therefore, he could not pay the balance amount, which concludes that this plea taken by him in the complaint moved before Federal Tax Ombudsman was afterthought. Continuous act of the petitioner of agitating his right at a belated stage shows his disinterest in proceedings with the matter. As on query by this Court that apart from the laches appearing in the early proceeding, even thus petition was presented in January, 2007 by him after about four months of the impugned order, dated 17-8-2006 he was unable to explain any reasonable cause of this delay in moving the petition. Conversely learned petitioner's counsel has also raised a legal issue that by virtue of section 32 of Establishment of the Office of Federal Tax Ombudsman Ordinance, 2000 any person aggrieved by recommendation of the Federal Tax Ombudsman may, within thirty days of the recommendations, make a representation to the President whereas according to him presentation was moved on 29-9-2005 was barred by 7 days. To support his arguments he has referred 2006 PTD 1396. Prima facie the ground urged appeal to reason. Although there is delay of only seven days but as the date of apply, date of payment of cost and preparation of copy with date of delivery of impugned judgment is not appearing on record; therefore, no definite conclusion as to limitation cannot taken to deem the presentation moved to President of Pakistan as time-barred.

In view of above, we are of the view that from the beginning till filing of this petition, petitioner was negligent in pursuing his case and after passing sufficient time in between he approached to Court of law for his grievance, at the time of his own choice without considering the time prescribed by the legislature for initiating any proceedings it is settled principle of law that law favours top the vigilant and not to the idles.

With these reasoning, we do not find any substance in the petition and the same is hereby dismissed.

S.A.K./Q-15/KPetition dismissed.