DIRECTOR-GENERAL, INTELLIGENCE AND INVESTIGATION-FBR, through Director, Intelligence and Investigation, FBR, Islamabad VS SHER ANDAZ
2010 P T D 2006
[Supreme Court of Pakistan]
Present: Javed Iqbal, Muhammad Sair Ali and Tariq Pervaiz, JJ
DIRECTOR-GENERAL, INTELLIGENCE AND INVESTIGATION-FBR, through Director, Intelligence and Investigation, FBR, Islamabad---Appellants
Versus
SHER ANDAZ and 20 others---Respondents
Civil Appeals Nos. 768 to 788 of 2009, decided on 15/07/2010.
(On appeal from the judgment, dated 19-3-2009 passed by the Lahore High Court, Rawalpindi Bench in T.R. Nos. 10 to 30 of 2007).
(a) Customs Act (IV of 1969)---
----S.196---Finance Act (IV of 2007), S.8(25)---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider; whether Director-General, Intelligence and Investigation, Federal Bureau of Revenue was covered by expression "aggrieved person" under S.196 of Customs Act, 1969, prior to its amendment vide S.8(25) of Finance Act, 2007 made applicable from 1-7-2007.
(b) Customs Act (IV of 1969)---
----S.196---Finance Act (IV of 2007), S.8(25)---Reference applications before High Court---Scope---Reference applications filed by Director-General Intelligence and Investigation, FBR were dismissed by High Court as incompetently filed---Validity---Reference applications were filed in March/April, 2007, i.e. prior to 1-7-2007, when S.196 of Customs Act, 1969 was amended by Finance Act, 2007 with effect from 1-7-2007, authorizing appellants etc. to file Reference applications before High Court---Prior to the amendment, Director and Directorate-General of Intelligence and Investigation, FBR etc. had no power to institute Reference applications in S.196 of Customs Act, 1969---Supreme Court declined to interfere in the judgment passed by High Court, whereby appeals of appellants were dismissed as incompetent and invalidly filed---Appeal was dismissed.
Director, Directorate-General of Intelligence and Investigation and others v. Messrs Al-Faiz Industries (Pvt.) Limited and others 2006 SCMR 129 and Director, Directorate-General of Intelligence and Investigation, Customs and Excise, Karachi and Messrs Al-Faiz Industries (Pvt.) Ltd. Karachi and others 2004 PTD 2987 ref.
Hafiz S.A. Rehman, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record (in all cases) for Appellants.
Muhammad Naeem Qazi, Advocate Supreme Court and Sajjad Hussain, Advocate Supreme Court for Respondents (in all cases).
Date of hearing: 11th March, 2010.
JUDGMENT
MUHAMMAD SAIR ALI, J.---This judgment will deal with and decide the Civil Appeals Nos.768 to 788 of 2009 involving identical questions of law and facts.
2. In the circumstances detailed in the impugned judgments, Director-General, Intelligence and Investigation through Director (Customs and Excise), Islamabad and Director Intelligence and Investigation (Customs and Excise), Islamabad in March, 2007 filed Reference under section 196 of the Customs Act, 1969 before the Lahore High Court, Rawalpindi Bench against consolidated judgment, dated 14-12-2006 passed by the Customs, Federal Excise and Sales Tax Appellate Tribunal, Islamabad. The Hon'ble Division Bench of the High Court through the impugned judgment dated 19-3-2009, dismissed the Reference applications as incompetently filed by the appellants. On leave petitions, leave to appeal was granted to examine "whether Director-General, Intelligence and Investigation, F.B.R. is covered by the expression "aggrieved person" under section 196 prior to its amendment vide section 8(25) of the Finance Act, 2007 made applicable from 1st July, 2007". Hence these appeals.
3. Hafiz S.A. Rehman, Senior Advocate Supreme Court appearing for the appellants in all the above appeals contended that the High Court overlooked the provisions of section 3A introduced after section 3 of the Customs Act by amendment through Finance Act No. 7 of 2005 w.e.f. 1-7-2005. Also that Notification No. S.R.O. 39(I)/2005 dated 6-1-2005 issued under sections 3 and 4 of the Customs Act by C.B.R., authorized officer of Directorate General, Intelligence and Investigation (Customs and Excise) to exercise powers and discharge duties of the officers of Customs under the provisions stated in the table therein including section 196 of the Customs Act.
4. Contrarily, Messrs Muhammad Naeem Qazi, Advocate Supreme Court and Sajjad Hussain, Advocate Supreme Court for the respondents in all the appeals stated that the propositions herein involved stand decided by this Court in the case of "Director, Directorate-General of Intelligence and Investigation and others v. Messrs Al-Faiz Industries (Pvt.) Limited and others" (2006 SCMR 129) and the petitioner Director-General or. Director etc. were only authorized to file Reference under section 196 of the Customs Act after amendment in the said section through Finance Act of 2007 applicable w.e.f. 1-7-2005. And any reference petitions or appeals filed prior thereto by the appellants were obviously incompetent.
5. We have heard the learned counsel for the parties and have also examined record and the law. It has not been denied that the applications were filed in all the above cases in March/April, 2007 prior to 1-7-2007 when section 196 of the Customs Act was amended by Finance Act of 2007 w.e.f. 1-7-2007 authorizing appellants etc. to file Reference Applications before the High Court. Prior to the above amendment, Director and Directorate-General of Intelligence and Investigation etc. had no power to institute the Reference applications in section 196 ibid. Sections 3 and 3A or the notification of 2005 relied upon by the learned Advocate Supreme Court for the appellants does not re-inforce the case of the appellants. Section 3 relates to the appointments of the "Collector of Customs' which has been defined in clause (0(a) of section 2 ibid meaning as "Collector to Customs appointed under section 3 and includes any other officer equivalent in rank with any designation appointed under this Act to perform specified functions in his own jurisdiction." Section 3A was incorporated in the scheme of the Customs Act (IV of 2007) w.e.f. 1-7-2007 as under:-
"3A, Director-General of Intelligence and Investigation, Federal Board of Revenue.---The Directorate-General of Intelligence and Investigation shall consist of a Director-General and as many Directors, Additional Directors, Deputy Directors, Assistant Directors and such other officers as the Board may, by Notifications in the official Gazette, appoint."
On examination, we do not see how the above provisions can be harnessed in the present case. The appellants i.e. Director-General or the Director does not fall in the definition of the Collector to invoke section 196 ibid as the Collector. Similarly section 3A introduced as of 1-7-2007 describes the constituents of the Directorate-General only and does not relate to the empowerment of the appellants.
6. S.R.O. 39(I)/2001 dated 6-1-2005 as amended from time to time prescribing in its table the purported powers and duties to be exercised by various Officers cannot of course over-rule the express provisions of section 196 of the Customs Act as then prevailing after 2005 amendment only authorized either "the aggrieved person or the Collector" or after an amendment by Act III of 2006 w.e.f. 1-7-2006 "any officer of the Customs not below the rank of Additional Collector, authorized by the Collector" to prefer a Reference application in the High Court. It is not the case of the appellants that applications were filed by the Collector or the Additional Collector with authorization from the Collector. The appellants claim an independent right under section 196 of the Customs Act to prefer Reference applications before the High Court in their designated capacity or as the aggrieved person. Leave was also granted to consider as to whether appellant could fall within the definition of the aggrieved persons or not.
7. The question on which leave was granted and also the questions as argued before us were decided by this Court in identical circumstances in the case of "Director, Directorate-General of Intelligence and Investigation and others v. Messrs Al-Faiz Industries (Pvt.) Limited and others" 2006 SCMR 129, it was held that:-
"10. From Perusal of the judgments of the High Court it transpired that an argument was raised on behalf of the Customs Department that the appeals filed by the Customs Department were competent and maintainable as section 196 of the Act had authorized two persons, namely "aggrieved person" or "Collector" to file appeal in the High Court and the Director-General would be competent to file as he was an aggrieved party by the order/judgment of the Tribunal inasmuch as the investigation relating to under invoicing and misdeclaration of the materials was detected and investigated by its staff. This contention was repelled by the High Court on the ground that if the arguments to the above effect were to be accepted then there was no need for using the word "Collector" in section 196 of the Act. It was further observed that "aggrieved person" was used for a person whose legal right was invaded or whose pecuniary interest was directly affected by a decree or judgment and would mean a private party.
11. Apart from the above it may also be observed that acceptance of the argument of the petitioner would render the word "Collector" used in section 196 of the Act as redundant and nugatory which is not in accordance with the settled principle of interpretation of the statutes, according to which each and every word appearing in a section is to be given effect to and no word is to be rendered as redundant or surplus., So was held by this Court in the cases of (i) In the matter of Reference by the President of Pakistan under Article 162 of the Constitution of Islamic Republic of Pakistan PLD 1957 SC (Pak.) 219 and (ii) Messrs V. N. Lakhani and Company v. M. V. Lakatoi Express and 2 others PLD 1994 SC 894.
12 .It was further submitted that the Director performed various functions and duties of Collector and referred to notification whereby the Director as well as an officer of the Directorate was vested with the power to perform functions and discharge duties of Collector of Customs and as Officer of Customs, respectively. This argument is also without any substance for the purpose of deciding the issue involved in these petitions. Irrespective of the fact whether the Director performs some functions and discharges duties of the Collector, the fact remains that he would not become or would not be deemed to be Collector even if he exercised certain powers of Collector of Customs. Even, otherwise the above grounds are not relevant to the issue of dispute arising in these petitions. It is pertinent to note that section 196 has specifically authorized the Collector to file appeals in the High Court on behalf of the Customs Department. It is well-settled and established principle of law that when the Legislature requires the doing of a thing in a particular manner then it is to be done in that manner and all other manners or modes of doing or performing that thing are barred.
13. The accepted principle in this behalf would be that as a general rule, statutes, which enable person to take legal proceedings under certain specified circumstances, demand that those circumstances must be accurately obeyed notwithstanding the fact that the provisions thereof are expressed in merely affirmative language. Application of the pronouncement made by this Court in the cited case can be extended with advantage to the case in hand by holding that section 196 of the Act specified a particular officer to initiate legal proceedings on behalf of the Customs Department, therefore, the demands of section 196 of the Act are to be accurately and strictly obeyed.
17 .Similarly when section 196 of the Act requires filing of an appeal by the Collector then it can be filed only by the Collector and none-else. The appeals filed by the Director would be deemed to be absolutely illegal, incompetent and not maintainable.
On the above findings all the appeals in the cited case were dismissed by this Court.
8. We would also like to refer to the case of "Director, Directorate General of Intelligence and Investigation, Customs and Excise, Karachi v. Messrs Al-Faiz Industries (Pvt.) Ltd., Karachi and others (2004 PTD2987) wherein same questions were decided by an Hon'ble Division Bench of Singh High Court, Karachi as under;-
"In the instant case, in terms of section 196 as reproduced above, the expressions `aggrieved party' and `the Collector' have been used. If term `aggrieved party' is referable to any Officer of Customs authorized on his behalf then the expression `the Collector' would be redundant. It is golden principle of the interpretation that the redundancy cannot be attributed to the legislation. The right of appeal is not an inherent right but a statutory right. The legislation has conferred the right of appeal on the Collector and has not left the right of filing appeal at the discretion of the Central Board of Revenue. Therefore; to contend that an Officer of the Customs can file an appeal, in our view, is not correct."
AND
"We are of the view that the expression `aggrieved person' and the `Collector' used in section 196 are significant. The expression `aggrieved person' denotes a person who has got a legal grievance i.e. person is wrongfully deprived of anything to which he is legally entitled and not merely a person who suffer some sort of disappointment as in the instant case. The Director, might have been disappointed for the reason that a proceeding initiated on his initiative has failed; but he has not suffered any personal injury.
The interpretation of term `aggrieved party' is in line with the definition of `aggrieved person' given in the Black's Law Dictionary, Sixth Edition which defines it as `one whose legal right is invaded by an act complained of or whose pecuniary interest is directly and adversely affected by a decree or judgment. One whose right of property may be established or divested. The word `aggrieved' refers to a substantial grievances, a denial of some personal, pecuniary or property right, or the imposition upon a party of a burden or obligation. In the light of above definition, the Director-cannot be termed to be an `aggrieved party'."
9. In absence of any distinguishing circumstances, we are not inclined to interfere in the impugned judgment of the Hon'ble Division Bench of the High Court whereby appeals of the petitioners were dismissed as incompetent and invalidly filed.
Appeals Nos.770 to 788 are also barred by time and no ground for grant of condonation of delay is made out.
In view thereof, all the above appeals are dismissed with note order as to the costs.
M.H./D-3/SCAppeals dismissed.