RECKITT BENCKISER PAKISTAN LTD. VS FEDERATION OF PAKISTAN through Secretary, Ministry of Finance Federal Secretariat Islamabad, 2009 PTD-KARACHI-HIGH-COURT-SINDH 642 (2009)

Sales Tax Act (VII of 1990)---

----Ss. 45-A, 47-A & 72---General Clauses Act (X of 1897), S.21---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Notice issued by Board of Revenue to re-examine its order passed under S.47-A of Sales Tax Act, 1990 on recommendations of Alternate Dispute Resolution Committee---Validity---Aggrieved person in S.47(4-A) of the Sales Tax Act, 1990 referred only to taxpayers and not to departmental officials for being bound by directions of Board by virtue of S.72 thereof---Board has not issued impugned notice on application from department or taxpayer---Board had power either to accept or reject recommendations of such Committee---Order passed by Board under S.47-A of Sales Tax Act 1990 was in nature of quasi judicial order and not an administrative order or an agreement between parties, thus, same would not fall within purview of S.21 of General Clauses Act, 1897---Both words "decision" and "order" used in S.45-A of Sales Tax Act, 1990 referred to decision and order of officer of Sales Tax and word "or" used between such words was not disjunctive---Board had no power to review its own order either under S.45-A or any other provision of Sales Tax Act, 1990---Department had not objected to such order of Board before Appellate Tribunal while deciding case on its basis---Board having become functus officio in respect of its such order, it had no jurisdiction to issue impugned notice for its re-examination---High Court quashed impugned notice in circumstances.

Nagar Mahapalika v. Ant Ram AIR 1966 All. 32 (V 33 C 8); Bachchu Lal case and anther's case AIR (38) 1951 836; Venkatesh Yeshwant Deshpande v. Emperor AIR 1938 Nagpur 513; Abdul Haque Indhar and others v. Province of Sindh 2000 SCMR 907; Muhammad Sadiq v. Punjab Service Tribunal, Lahore 2007 SCMR 318; Roche Pakistan Ltd. v. Deputy Commissioner of Income Tax and others 2001 PTD 3090; Messrs Oil and Gas Development Company Ltd. v. Collector Customs, Sales Tax and Central Excise (Adjudication) Rawalpindi and 2 others 2003 PTD 1586; Aluminium Processing Industries International (Pvt.) Ltd. v. Federation of Pakistan 2003 PTD 1411; The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331; S. Sharif Ahmed Hashmi v. Chairman, Screening Committee, Lahore 1978 SCMR 367; Sheikh Liaquat Hussain v. The State 1997 PCr.LJ 61; Mir Ghulam Abid Khan v. Pakistan through Secretary and another 2000 CLC 443 and Rehan Hasan Naqvi v. Pakistan Defence Officers' Housing Authority 2000 CLC 1535 ref.

Ms. Danish Zuberi for Pet,joner.

Aqeel Ahmed Abbasi and Raja Muhammad Iqbal for Respondents.

Dates of hearing: 19th January, 3rd and 11th February, 2009.

JUDGMENT

MUHAMMAD ATHAR SAEED, J.---This constitutional petition has been filed by the petitioner impugning the notice No.C-No. 1 (76)STJ/2002, dated 18th January, 2007 issued by the respondent No.2 Purportedly in exercise of the powers conferred under section 45-A of the Sales Tax Act, 1990 read with section 21 of General Clauses Act, 1897, intimating to the petitioner that the Chairman of respondent No.2 has been pleased to re-examine the Board's Order No.42 of 2006, dated 6-7-2006, passed under section 47-A of the Sales Tax Act, 1990, and asking them to appear either in person or through their accredited representative/duly briefed lawyer to represent the case and file written defence regarding the grounds indicating in the notice. This petition has been filed seeking the following reliefs:--

(i) declare that the impugned hearing notice, dated 18-1-2007 issued by the respondent No.2 purportedly under section 45-A of the Sales Tax Act, 1990, read with section 21 of the General Clauses Act, 1897, is without lawful authority and of no legal effect and consequence;

(ii) restrain and prohibit the respondent No.2 directly and indirectly and through their officers, subordinates and assignees from proceeding any further on the basis of the impugned hearing notice;

(iii) direct the respondents Nos.2 and 3 to forthwith refund the amount of Rs.16,556,000 to the petitioner in terms of the order, dated 23-9-2007 passed by the Hon'ble Customs, Sales Tax and Central Excise Appellate Tribunal.

(iv) Any other relief which this Hon'ble Court deems just and proper in the circumstances of the case.

(v) Costs.

2. The brief facts of the case are that the petitioner is a listed public limited company engaged in the manufacture and sale of pharmaceutical and household products. For the period from 1-7-1981 to 16-10-1989, the petitioner had received a show-cause notice that the Dettol being disinfectant did not fall within the scope of the relevant S.R.O. and therefore, they were asked to show cause as to why payment of leviable sales tax amounting to Rs.26.792 million may not be recovered from them and Order-in-Original No. 7 of 1992, dated 26-1-1992 was passed by the then Assistant Collector directing the applicant for the payment of the above demanded sales tax and also a penalty of Rs.100,000 was levied.

3. Aggrieved by this order the petitioner/applicant filed an appeal before the Collector (Appeals), who remanded the case to the adjudicating authority for de novo consideration. However, the adjudicating officer upheld the previous decision and the petitioner's appeal before the collector (Appeals) was dismissed.

4. The petitioner then filed an appeal before the Customs Federal Excise and Sales Tax Appellate Tribunal and at the same time approached the respondent No.2 for appointment of ADR committee to resolve the dispute in accordance with the provisions of section 47-A of the Sales Tax Act.

5. The ADR committee vide its order, dated 20-4-2006 made the following recommendations:--

(i) "the applicant rightly cleared the product Dettol without charging sales tax during the period of 3-5-1982 to 29-9-1987 and therefore, the demand of sales tax amounting to Rs.16.556 million covering the period 3-5-1982 to 29-9-1987 should be waived.

(ii) The demand of sales tax Rs.0.500 million and Rs. 9.189 million levied on the clearance of the Dettol made during the period February, 1982 to April, 1982 and 30-9-1987 to 16-10-1989 respectively stands recoverable from the applicant."

and the Central Board of Revenue respondent No.2 vide its order No.42 of 2006, dated 6th July, 2006, issued under section 47-A of the Sales Tax Act, 1990, accepted the recommendations of the committee.

6. After passing of the order by the Central Board of Revenue, the appeal filed by the petitioner before the Tribunal came up for hearing and the Tribunal vide its order, dated 23-9-2006 in Sales Tax Appeal No.K-573 of 1998/14581, disposed of the appeal in terms of the recommendations made by the Alternate Dispute Resolution Committee and approved by the Central Board of Revenue.

7. Now the impugned notice has been issued for re-examining the order of respondent No.2, hence, this constitutional petition has been filed. However, against the order of the Tribunal the Special Customs Reference Application No.46 of 2007 has been filed by the department in this Court.

8. We have heard Ms. Danish Zuberi learned counsel for the petitioner, Mr. Aqeel Ahmed Abbasi learned counsel for respondents Nos. 1 and 2 and Mr. Raja Muhammad Iqbal learned counsel for respondent No.3.

9. The main contention of the learned counsel for the petitioner is that the impugned notice purportedly issued under section 45-A of the Sales Tax Act and section 21 Of the General Clauses Act is without proper jurisdiction and authority as under section 45-A of the Sales Tax Act, powers have been given to the F.B.R. and the Collector of Customs to call for and examine the records of any departmental proceedings under the Sales Tax Act or the rules made thereon for the purpose of their satisfaction as to the legality or the propriety of any decision of the order passed therein by an officer of Sales Tax and they have the powers to pass any order as they may think fit.

10. She read out the provisions of section 45-A and pointed out that these powers are not exercisable either by the C.B.R. or the Collector in respect of the orders passed themselves and since the earlier order, which is intended to be re-examined has been passed by the Central Board of Revenue itself and therefore, that order does not fall within the ambit of section 45-A.

11. She also read out the provisions of section 21 of the General Clauses Act and argued that the orders mentioned in this section for which powers have been conferred on the authority issuing such orders to add, amend, vary the orders so issued refers only to the administrative orders and not to judicial and quasi judicial orders and she submitted that the order passed by the Central Board of Revenue under the provisions of section 47-A of the Sales Tax Act is quasi judicial in nature.

12. In this connection she relied on the following judgments from the Indian jurisdiction:-

(1) Nagar Mahapalika v. Ant Ram reported in AIR 1966 Allahabad 32 (V 33 C 8).

(2) Bachchu Lal and another's case reported in AIR (38) 1951 836.

(3) Venkatesh Yeshwant Deshpande v. Emperor reported in AIR 1938 Nagpur 513.

13. She, therefore, submitted that the order, which is sought to be examined, does not fall either under section 45-A of the Sales Tax Act, 1990 or under the provisions of section 21 of the General Clauses Act and therefore, impugned notice is patently without proper jurisdiction and authority and since there is no other provision in the Sales Tax Act, which permits respondent No.2 to reopen and amend its own orders or review them, therefore, the respondent No.2 is coram non judice for the purposes of issuing the impugned notice.

14. She also pointed out that the order of Central Board of Revenue under section 47-A was also considered by the Tribunal and appeal filed by her was disposed of by the Tribunal on the basis of this order. She therefore, relied on the merger theory that the order of the Central Board of Revenue had merged with the order of the Tribunal and the C.B.R. did not have any power to reopen the order of the Tribunal. She, therefore, prayed that the impugned notice may be quashed.

15. Mr. Aqeel Ahmed Abbasi learned counsel has read the provisions of 45-A and submitted that the word "or" used between the word "decision" and the order of the officer of Sales Tax is disjunctive and on this basis submitted that perhaps on this interpretation C.B.R. can reopen its own order under section 45-A.

16. Mr. Aqeel Ahmed Abbasi then read out the provision of section 47-A of the Sales Tax for the consideration of the Court. He specially referred to subsection 5 to point out that the order passed under subsection 4 is basically not a quasi judicial order but more in form of an agreement between the Federal Board of Revenue and the taxpayers after such taxpayer makes payment of sales tax and other duties and taxes as determined by the Board in its order and such agreement is submitted before any of the forum i.e. Tribunal or the Court, before, which the matter is sub judice, for consideration of the order as deemed appropriate. He also referred to subsection 4-A introduced in the Ordinance vide Finance Act, 2008 to point out that the Chairman has the powers to pass such order as he may deem, just and equitable on an application moved by the aggrieved person pointing out any error in the order or the decision. The learned counsel submitted that exercise of such power encompasses both the legal and factual errors.

17. In support of his first contention the learned counsel also referred to sections 17, 18 and 20 of the Contract Act to point out that agreements, which are made on the basis of fraud, misrepresentation or where both the parties to an agreement are under a mistake as to the matter of fact essential to the agreement, the agreement is void.

18. In support of his second contention the learned counsel submitted that the departmental officers were aggrieved by the order passed by the Board under section 47-A and had pointed out to the Board that such order treating Dettol as an exempt item was inconsistent with the judgment of the High Court and other decisions not only of the C.B.R. but the Tribunal in which it had been held that Dettol did not fall within the definition of the medicinal preparation and therefore, was not entitled to exemption. The learned counsel then read out the provisions of section 21 of the General Clauses Act, specially referring to the principle of locus poenitentiae, which according to the learned counsel means the power of repenting and going back on a decision and this is only available to an authority up to the time, such order has not come into effect. The learned counsel submitted that this principle does not apply to void, voidable or illegal orders as such orders do not create any right in favour of a person.

19. In this connection he relied on the following judgments of the Hon'ble Supreme Court:

(1) Abdul Haque Indhar and others v. Province of Sindh reported in 2000 SCMR 907.

(2) Muhammad Sadiq v. Punjab Service Tribunal, Lahore reported in 2007 SCMR 318.

20. He also argued that even if effect has been given to the order passed then also it is a settled law that if the basic order is illegal then the entire structure based on such order collapses. The learned counsel, therefore, after stressing once again that the order passed by the C.B.R. under the provisions of section 47-A being a voidable order and since perpetual right cannot be granted on the basis of such order, therefore, locus poenitentiae is not attracted to such case. The learned counsel also prayed that the petition was filed prematurely as the petitioner had come to this Court immediately on the issue of notice after filing a reply thereof and without waiting for further action from respondent No.2. On this point he relied on the following two judgments:--

(1) Roche Pakistan Ltd. v. Deputy Commissioner of Income Tax and others reported in 2001 PTD 3090.

(2) Messrs Oil and Gas Development Company Ltd. v. Collector Customs Sales Tax and Central Excise (Adjudication) Rawalpindi and two others reported in 2003 PTD 1586.

21. Mr. Raja Muhammad Iqbal learned counsel for the respondent No.3 repeated the same arguments, which were made by the learned counsel for the respondents Nos. 1 and 2 and relied on the same judgments. He further argued that it is a settled law that an authority which can pass an order can vary, modify and amend the same and therefore, the impugned notice can be corrected in accordance with principles of section 21 of the General Clauses Act.

22. The learned counsel further submitted that the recommendations of the ADRC and the order passed by the respondent No.2 on such recommendations of the ADRC, is illegal because in this case it was held that the Dettol had been exempted from the payment of the Sales Tax and such decision is illegal because even the High Court in the case of the present petitioner Reckitt and Colman of Pakistan Ltd. v. Pakistan reported in 2005 PTD 257, had held that Dettol was not exempt from the levy of Sales Tax as it did not fall within the goods specified in the annexure to S.R.O. No.349(I)/85, dated 15-4-1985. He also referred to the recommendations of A.D.R. Committee in another representation made by the same petitioner, wherein vide their order No.73 of 2006 issued under section 47-A of the Sales Tax Act, the respondent No.2 did not accept the recommendations of the ADRC and held that since the product Dettol was not a medicinal preparation it did not qualify for exemption merely by virtue of its registration as Drugs under the Drug Act, 1976.

23. The learned counsel also relied on the judgment of a learned single Judge of this Court in the case of Aluminium Processing Industries International (Pvt.) Ltd. v. Federation of Pakistan reported in 2003 PTD' 1411 to point out that this Court had held that section 45-A also applies even if the Collector (Appeals) had decided the issue in favour of the taxpayers and no appeal had been filed by the department against the order of the Collector (Appeals) or Additional Collector (Adjudication). He further submitted that since this order also dealt with the exemption of a product Dettol manufactured by the petitioner, therefore, it was covered by the judgments of this Court and the other orders relied on by him and any order passed which is inconsistent with the above judgments is illegal and voidable and therefore, the principle of locus poenitentiae shall not apply as held by the Hon'ble Supreme Court in the judgments relied on by him. He, therefore, prayed that this constitutional petition may be dismissed.

24. At this stage we had also requested Mr. Rasheed A. Rizvi, senior counsel, who was sitting in the Court to assist the Court on this point. Mr. Rasheed A. Rizvi relied on the two judgments of the Hon'ble Supreme Court (1) in the cases of The Chief Settlement Commissioner, Lahore v. Raja Mohammad Fazil Khan and others reported in PLD 1975 Supreme Court 331 and 2), S. Sharif Ahmed Hashmi v. Chairman, Screening Committee, Lahore reported in 1978 SCMR 367 to point out what a void or a voidable order stands for and what is the procedure for the cancellation of such orders. He argued that review only lies when alleged error is the evident error which can be established without elaborate arguments. He also submitted on the basis of these judgments that the Courts have held that the writs against the void order can be dismissed if the petitioner is stopped by his conduct from challenging it.

25. Exercising her right of reply Ms. Danish Zuberi drew our attention to the recommendations of the ADRC, who had made following recommendations:--

(C) Thus, in view of the foregoing paragraphs the Committee recommends that,

(i) the applicant rightly cleared the product Dettol without charging sales tax during the period 3-5-1982 to 29-9-1987 and therefore the demand of sales tax amounting to Rs.16.556 million covering the period of 3-5-1982 to 299-9-1987 should be waived.

(ii) The demand of sales tax Rs.0.500 million and Rs.9.189 million levied on the clearance of the Dettol made during the period of February, 1982 to April, 1982 and 30-9-1987 to 19-10-1989 respectively stands recoverable from the applicant.

26. She stated that the first recommendation was not made on the consideration, whether on merits Dettol was exempt from sales tax or not but since the Dettol was cleared without payment of sales tax on the basis of ruling given about the classification of the product Dettol vide letter C. No. 11(2) Sales Tax/82, dated 3-5-1982, issued by the then Collectorate of Central Excise and Land Customs, Karachi, which clarified the product as exempt from sales tax in terms of S.R.O. 666(I)/81, dated 25-6-1981, which ruling was not even challenged by the office, who instituted the case after lapse of eight years. The committee was of the opinion that the present petitioner had rightly claimed exemption as per advice of the then Collectorate and on this basis the recommendation No.1 was given.

27. We have examined the case in the light of the arguments of the learned counsel and have carefully perused the recommendations of the ADRC, the order passed by the respondent No.2 under section 47-A, the impugned notice and the judgments relied on by the learned counsel.

28. From a perusal of the impugned notice it is clear that respondent No.2 purportedly has issued the notice under its alleged powers under section 45-A read with section 21 of the General Clauses Act and no mention has been made that any application has been received by it under subsection 4-A of section 47-A from the department as argued by the learned counsel for respondent No.2. Even otherwise subsection 4-A was incorporated in subsection 47-A vide Finance Ordinance, 2008, whereas, the impugned notice was issued in 2006 and therefore, it can only be said that the argument advanced by the learned counsel is an afterthought and could not have been in the minds of the respondent No.2 when the notice was issued.

29. Even otherwise we are of the opinion that aggrieved person in subsection 4-A refers only to the taxpayers and not to the departmental officials because under the provisions of section 72 of the Sales Tax Act, 1990, the directions of Central Board of Revenue are binding on the officials of the Sales Tax, who are bound under this section to follow the orders, instructions and directions of the Board and there is no provision provided in the Sales Tax Act by which they can be considered to be aggrieved person in respect of such orders, instructions or directions or challenge such orders, instructions and directions in any manner. So this contention of the learned counsel for the respondent, has to fail.

30. The learned counsel has also argued that the order passed by the Central Board of Revenue under section 47-A is not a judicial order of quasi judicial order but more in the nature of an administrative order or an agreement between the parties.

31. We cannot subscribe to this argument because in our opinion the Central Board of Revenue has got the powers either to accept or reject the recommendations of the ADRC and any order passed by the Central Board of Revenue under the provisions of section 47 is in nature of a quasi judicial order and an administrative order or an agreement and therefore, it is covered not only by the judgments of the Indian Courts relied on by the learned counsel for the petitioner but also by a judgment of the learned single Judge of this Court in the case of Sheikh Liaquat Hussain v. The State reported in 1997 PCr.LJ 61, wherein the learned single Judge agreeing with the Indian judgment relied on in this case of Venkatesh Desh Pande quoted supra held that under the esjudem generis rules applies and the order mentioned in section 21 of the General Clauses Act refers to a legislative and a statutory order and not a judicial order, therefore, this contention of the learned counsel must also fail.

32. The learned counsel for the respondent has also argued that the word "or" used between the word "decision and order" in section 45-A, is disjunctive and therefore, the order may refer to an order of the officer of Sales Tax, where a decision may included any decision of the C.B.R. itself, which can be examined and the C.B.R. may pass any such order as it may think fit.

33. We have once again examined section 45-A and read each word carefully and we regret we cannot agree with this argument of the learned counsel for the respondent as both the words "decision" and "order" refer to a decision and order of the officer of Sales Tax and even if we hold that the word "or" used in between these two words is disjunctive then also we cannot interpretate it to mean a decision of the Board itself. Even otherwise from a review of the order passed under section 47-A, we are clear in our mind that it is an order and not a decision. This argument of the learned counsel for the respondent can also not be sustained.

34. After perusing section 45-A and the other provisions of the Sales Tax Act, 1990, we are of the opinion that the Central Board of Revenue does not enjoy any power either under section 45-A of the Sales Tax Act or under any other provision of Act to review its own order and i.e. perhaps the reason why section 21 of the General Clauses Act has been mentioned along with section 45-A of the Ordinance in the impugned notice.

35. Both the learned counsel of the respondent Nos. 2 and 3 have argued that the order passed under section 47-A is illegal and void and therefore, under this order no rights have perpetuated in favour of the petitioner and therefore, under the provisions of section 21 of the General Clauses Act, this order can be revoked in accordance with the judgments of the Hon'ble Supreme Court relied on by them.

36. In support of their contention that the order is void and illegal they have pointed out that the product Dettol has been held to be taxable by this Court and by other orders of the respondents and therefore, granting exemption to this product by the order under section 47-A is illegal and render the order void and therefore, the doctrine of locus poenitentiae cannot be applied and such order can be revoked.

37. We would first of all like to observe that the recommendations, which have been accepted by the respondent No.2 in its order under section 47-A of the Sales Tax Act, have been made not by considering that Dettol was exempt from tax but only on the basis of the factual position that the goods were cleared without payment of sales tax due to a ruling issued by the departmental official that the product fell within the ambit of exempting S.R.O. and therefore, was binding on the department for the period such ruling remained in force and for the period when such ruling ceased to remain in force, the recommendation of the Committee was to levy tax on the product, which was accepted by the petitioner and this is clear from the plain reading of the recommendations of the committee, which have been reproduced above.

38. We are, therefore, of the opinion that this recommendation and the subsequent order passed by the C.B.R. do not fall within the ambit of the judgments relied on by the learned counsel for the respondent as it has been made on completely different proposal of law, which may be debatable but cannot be permitted to be reviewed by the respondent No.2 when no power of review is provided to them under the Sales Tax Act.

39. We are also of the opinion that the order does not fall within the purview of section 21 of the General Clauses Act. In this connection we would like to observe that the order has been communicated to the respondent, who acquired a vested right not to be subjected to sales tax on such product for period specified in the order and the matter has become a past and closed transaction, which cannot be opened at this stage.

40. We would also like to point out that against the order-in-appeal the petitioner had filed an appeal before the Customs Excise and Sales Tax Appellate Tribunal and this appeal has been disposed of by the Tribunal vide its order, dated 23-9-2006 in Sales Tax Appeal No.K-573/1998/14581. This case will, therefore, be covered by the judgments of this Court in the case of Mir Ghulam Abid Khan v. Pakistan through Secretary and another reported in 2000 CLC 443 and in the case of Rehan Hasan Naqvi v. Pakistan Defence Officers' Housing Authority reported in 2000 CLC 1535, wherein this Court has held as under:--

2000 CLC 443:

(b) General Clauses Act (X of 1897)---

----S. 21---Locus poenitentiae, principle of---Limitations on the power exercised by Competent Authority---Scope---Provisions of section 21 General Clauses Act, 1897, postulate that an Authority which passes an order is competent to vary, rescind or rescind or cancel the order passed by that Authority but such power is not absolute as the same is subject to certain limitations---Where the order sought to be varied, rescinded or cancellation is communicated to other party and subsequent to that communication that party acts upon such order, a very, a valuable right accrues to that party---Authority passing such order becomes functus officio to vary, rescind or cancel its earlier order as the law does not allow "volte face" to the Authority in circumstances.

2000 CLC 1535

----Art. 199---Constitutional petition---Maintainability---Cancellation of plot---Question of fact---Validity---Where material on record was sufficient to decide the issue in dispute or no controversial and intricate questions of fact were involved which could only be decided after evidence of parties was recorded, constitutional petition was maintainable.

41. We have also reviewed to the judgment of the Hon'ble Supreme Court in 2000 SCMR 907 and 2001 SCMR 318 quoted supra and are of the opinion that these judgments do not apply to the present case because in this case the order was neither acquired through fraud, misrepresentation or on the basis of mistaken fact but was passed after considering all aspects of the case and the same has been put in to effect after passing of the order by the Tribunal on 23-9-2006 in Sales Tax Appeal No. X-573/98/14581 on the basis of the decision of the C.B.R. the fact that before the Tribunal also no objection was taken by the department who in fact have given no objection to the passing of the order by the Tribunal leads to the conclusion that the order has now been given legal effect and is fully covered by the decisions of this Court quoted supra.

42. We have also perused the judgments of the learned single Judge of this Court in the case Aluminum Processing Industries International (Pvt.) Ltd. quoted supra relied on by the learned counsel for the respondent and have seen that the learned Judge has specifically held that the powers under section 45-A cannot be exercised to examine the legality or the propriety of an order passed either by the Appellate Tribunal under section 46 or by this Court and now that the Tribunal has passed the order referred above, all the orders of the authorities below have merged in the order of the Tribunal and as held by the learned single Judge no power exists under section 45-A to examine the order of the Tribunal.

43. On the basis of the above discussion we are of the considered opinion that the impugned notice has been issued without props: jurisdiction and authority and respondent No.2 had become functus officio in respect of the above order and is, therefore, coram non judice for the purpose of issuance of the impugned notice.

44. We would therefore, allow this constitutional petition and quash1m the impugned notice.

45. This constitutional petition is disposed of in the above manner.

S.A.K./R-4/KPetition dismissed.