Thursday, 11 October 2018

Relief not prayed for can be granted

PLJ 2006 Karachi 178 (DB)
Present: Muhammad Mujeebullah Siddiqui and
Syed Zawwar Hussain Jafri, JJ.
Messrs FACTO BELARUS TRACTORS LIMITED KARACHI
and another--Petitioners
versus
FEDERATION OF PAKISTAN through SECRETARY, MINISTRY OF INDUSTRIES, PRODUCTION & SPECIAL INITIATIVES ISLAMABAD and others--Respondents
Constitutional Petitions Nos. D-304 of 2006, D-1347 of 2005, decided on 4.5.2006.
Constitution of Pakistan (1973)--
----Art. 199--Constitutional petition--Relief cannot be granted--Relief can be denied in the cases in which High Court is exercising original jurisdiction in suit or appellate or revisional jurisdiction--Dominant jurisdiction--Even in exercise of such jurisdiction the dominant prevailing view is that the Court can mould the relief and allow the same though it is not prayed for, as the Courts are not merely slaves of technicalities but are the Courts of justice and, therefore, relief can be moulded in a way which serves the purpose of justice.             [P. 193] B
Constitution of Pakistan (1973)--
----Art. 199--Constitutional jurisdiction--Judicial review--Import, object and scope--High Court, in exercise of such jurisdiction is required to see whether public functionaries have acted in accordance with law--Such jurisdiction of High Courts and particularly the superior Courts is in accordance with the concept of checks and balances which is integral part of concept of separation of powers enshrined in the Constitution--Court, in exercise of jurisdiction of judicial review of public action, is required to see whether functionaries of the state in connection with the affairs of federation, province or local authorities have done things in accordance with the law or actions have been taken otherwise than in due course of law--In the realm of public actions every thing should be taken objectively and on basis of criteria already determined and fixed--No room available for subjectivity or actions which smack of arbitrariness, favouritism or discrimination--If yardsticks are not determined prior to the taking of decisions then decisions are bound to be subjective and non-transparent, which are not the hallmark of good governance--In democratic set up the complete transparency and accessibility to the policy decisions in pursuance of right of information are strictly observed.       [Pp. 187, 193, 194] A & C
Constitution of Pakistan, (1973)--
----Art. 199--Jurisdiction of High Court--Maintainability--Principles--Objection raised by the authorities was that as some of the respondents were based at Islamabad, therefore, Sindh High Court did not have jurisdiction to adjudicate the matter--Validity--All the High Courts in Pakistan were exercising jurisdiction under Art. 199 of the Constitution in respect of orders made by the Federation and authorities functioning with the affairs of Federation--Sindh, Balochistan and Peshawar High Courts therefore, had the jurisdiction.             [P. 194] D
Constitution of Pakistan (1973)--
----Art. 199--Administrative decision--Judicial review--One time import at zero tariff--Petitioner was refused but respondents were granted permission by authorities to one time import of tractors at zero tariff--Plea regarding the order of authorities was not transparent and was subjective, arbitrary and in excess of jurisdiction as well as based upon favouritism--Validity--Proceedings initiated with advertisements inviting proposals for import of agriculture tractors were not in accordance with the decision of Economic Coordination Committee--Entire proceedings suffered from lack of transparency and smacked of subjective decision, arbitrariness and excess of jurisdiction as well as favouritism--High Court directed the members of Committee set up by Economic Coordination Committee to devise a detailed scheme containing modalities for proper implementation of the decision taken by Economic Coordination Committee, prescribing criteria as well as measures which were to be adopted for achieving purpose of supply of tractors to farmers at reasonable rates and to evolve the safety-valves to prevent misuse of the scheme--Sindh High Court further directed the authorities that after devising detailed scheme giving parameters, conditions, requirements, time frame and other necessary guidelines, they should re-advertise the scheme and invite proposals and thereafter recommend allocation of import of tractors to companies/investors who were found eligible and most suited--High Court in exercise of constitutional jurisdiction quashed all the proceedings.           [P. 195] E & F
Mr. Munir A. Malik, Advocate for Petitioner (in C.P. No. D-304 of 2006).
Mr. Khalid Jawaid Khan, Advocate for Petitioner (in C.P. No. D-1347 of 2005).
Mr. Aamir Raza Naqvi, Advocate for Respondent No. 8 (in C.P. No. D-304 of 2006).
Shaikh Jawaid Mir, Advocate for Respondent No. 8 (in C.P. No. D-1347 of 2005).
Mr. S. Tariq Ali, Federal Counsel for Respondents Nos. 1, 2, 3 and 9 (in C.P. No. D-304 of 2006).
Mr. Salman Talibuddin, Advocate for Respondent No. 4.
Raja Qasit Nawaz, Advocate for Respondent No. 5.
Mr. Mehmood A. Shaikh, Advocate for Respondent No. 6.
Mr. Nasir Ali Jafri, Advocate for Respondent No. 7.
Date of hearing: 2.5.2006.
Judgment
Muhammad Mujeebullah Siddiqui, J.--Both these petitions arise out of the same set of facts and the parties are also almost same, therefore, with the consent of learned Advocates for the parties, both the petitions have been heard together and are disposed of by this single judgment.
C.P. No. D-304 of 2006 is treated as leading petition and for the sake of convenience the marshalling of facts shall be as on the record of this petition.
The relevant facts giving rise to these petitions are that the Economic Coordination Committee of the Cabinet, made the following decision on 1-7-2005:
"Case No. ECC-89/6/2005   Allowed One Time Import of
Dated 1-7-2005      10,000 Tractors (CBU) at Zero
Tariff.
DECISION
(I)            The Economic Coordination Committee (ECC) of the Cabinet considered the summary dated 28th June, 2005 submitted by the Ministry of Food, Agriculture and Livestock on "Allowing One Time Import of 10,000 Tractors (CBU) at Zero Tariff" and decided to set up a Committee under Secretary, Ministry of Industries, Production- and Special Initiatives to work out the modalities and review the plan of import of 10,000 Tractors at zero tariff. The Committee shall comprise senior level representatives from the Ministries of Finance, Food, Agriculture and Livestock and Board of Investment.
(II)           Import of tractors shall be allowed only to those companies who have their tractor manufacturing units in Pakistan or are in the process of installing these. Bank guarantees may be obtained in order to ensure use of this facility by genuine manufacturers only.
(Ill)          The Committee shall submit its recommendations to the Prime Minister for approval."
The above decision was communicated to various ministries/ divisions by the Joint Secretary (Cabinet Committees) vide covering letter dated 4th July, 2005, with the direction for necessary action to be initiated immediately and for reporting the status of implementation to Cabinet Division within a fortnight.
However, before initiation of any action as directed vide letter dated 4th July, 2005,, the Economic Coordination Committee of the Cabinet modified its decision dated 1-7-2005 on 4-7-2005. Para (ii) of the decision dated 1-7-2005 was substituted as follows:--
"(ii)         Import of tractor shall be allowed only to those companies who want to install their Tractor manufacturing facility in Pakistan. Bank guarantees may be obtained in order to ensure use of this facility by the genuine prospective companies/investors. In case, they are unable to fulfil their commitment the proposed committee will review the matter."
Consequent to the above substitution of decision dated 1-7-2005, the Cabinet Secretariat issued a corrigendum on 12th July, 2005. After substitution the ECC decision read as follows:-
"(I)          The Economic Coordination Committee (ECC) of the Cabinet considered the summary dated 28th June, 2005 submitted by the Ministry of Food, Agriculture and Livestock on 'Allowing One time Import of 10,000 Tractors (CBU) at Zero Tariff and decided to set up a Committee under Secretary, Ministry of Industries, Production and Special Initiatives to work out the modalities and review the plan of import of 10,000 Tractors at zero tariff. The Committee shall comprise senior level representatives from the Ministries of Finance, Food, Agriculture and Livestock and Board of Investment.
(II)           Import of Tractor shall be allowed only to those companies who want to install their Tractor manufacturing facility in Pakistan. Bank guarantees may be obtained in order to ensure use of this facility by the genuine prospective companies/investors. In case, they are unable to fulfil their commitment the proposed committee will review the matter.
(Ill)          The committee shall submit its recommendations to the Prime Minister for approval."
Thereafter the Ministry of Industries, Production and Special Initiatives invited proposals for import of Agricultural tractors through publication of notices in the National Dailies which read as follows:-
GOVERNMENT OF PAKISTAN
MINISTRY OF INDUSTRIES, PRODUCTION AND
SPECIAL INITIATIVES
NOTICE INVITING PROPOSALS FOR
IMPORT OF AGRICULTURAL TRACTORS
Ministry of Industries, Production and Special Initiatives, Government of Pakistan hereby invites proposals for import of 10,000 agricultural tractors in CBU condition at zero tariff rate for supply to farmers, from those registered companies which are in the process of Installing the tractor manufacturing/ assembling units in Pakistan. The said companies shall be required to fulfil the following documents:
(a)           Number of tractors allocated to companies qualifying as per given below criteria shall be subject to a maximum of 2,500 units.
(b)           The tractors shall be imported during the financial year 2005-2006.
(c)           Company(ies) submitting their proposals would be required to submit proof for establishing local tractor manufacturing/ assembly plaint, i.e. land acquisition, technical agreement with the foreign firm for joint venture, planned annual production capacity, application for deletion program duly approved by Engineering Development Board and schedule for setting up of after sale service in the country.
(d)           Verification of proposals received for import of tractors (CBU) on the basis of the above criteria would be conducted by the Engineering Development Board of Ministry of Industries, Production and Special Initiatives if needed. Engineering Development Board would also conduct on spot verification.
(e)           The company(ies) allowed to import tractors would be required to establish irrevocable L.C. within 90 days from date of approval by Ministry of Industries, Production and Special Initiatives.
(f)            The company(ies) approved to import tractors as per above conditions would be required to submit a Bank Guarantee.
(2) The interested manufacturing firms may submit their detailed proposals in light of the above conditions so as to reach this office in sealed cover within 10 days of publication of this Notice. Sealed proposals will be opened on 15th August, 2005 at 11-00 a.m. in the Committee Room, 1st Floor, Block-A, Pak Secretariat, Islamabad in the presence of the applicants or their authorized representatives.
(3) Proposals received after due date would not be entertained. Clarification, if any, can be obtained from the undersigned."
By another notice published in the National Dailies dated 13th August, 2005, the date for receipt of the proposals was extended up to 18th August, 2005. In pursuance of above advertisements eleven companies/investors submitted their proposals to the Ministry of Industries, Production and Special Initiatives. The committee constituted by ECC examined the proposals on the basis of eligibility requirements approved by the Prime Minister and short-listed three companies namely Messrs Dewan Automotive Engineering Co., Universal Tractors Ltd., and Agro Tractors (Pvt.) Ltd., Respondents Nos. 4, 5 and 6 in C.P. No. D-304/2006. A summary was submitted to the Prime Minister for approval who approved the award of import of tractors to these three companies. It is alleged by the petitioner Fecto Belarus Tractors Ltd., that five companies were short-listed which included the petitioner, the Fecto Belarus, Respondent No. 7, Dewan Automotive Engineering Ltd., Respondent No. 5, Universal Tractors, Respondent No. 6 Agro Tractors and Respondent No. 7, Hero Motors. It is alleged that this short-listing was done in presence of the representatives of all these five companies. However, it is denied by the Respondent No. 1, the Ministry of Industries, Production and Special Initiatives, alleging that three companies only were short-listed. According to the Respondent No. 1, in the summary submitted to Prime Minister it was provided that the Respondent No. 7 Hero Motors shall submit additional documents and after examination thereof, the case of Messrs Hero Motors will be finalized. This proposal was also approved by the Prime Minister. Subsequently Messrs Hero Motors supplied the additional documents. In the meanwhile the petitioner Fecto Belarus made a representation to the Prime Minister of Pakistan and the representative of petitioner Fecto Belarus Tractors and respondent Hero Motors were heard who explained their respective positions. The committee formed unanimous view that the petitioner Fecto Belarus Tractors did not qualify under the scheme, as the scheme was for new entrants only and the Fecto Belarus Tractors was an existing unit. The proposal of Hero Motors was found in accordance with the scheme and the Committee recommended Hero Motors for the award of quota. The case of petitioner Shehzad Riaz in C.P. No. D-1347 of 2005 was not considered as he had not submitted his case in time. Finally quota of 2500 units was allotted to each of the Respondents Nos. 4, 5 and 6 while Respondent No. 7 was recommended for allocation of similar quota which is still under consideration.
It is contended by the petitioner Fecto Belarus Tractors that only those companies were eligible under the zero tariff rate who had manufacturing and assembling agreements with foreign firms for the local manufacturing and assembling of these tractors. It is alleged that Respondent No. 7, Hero Motors does not fulfil this condition. It is averred that the petitioner was refused the quota for the reasons that it was an existing manufacturing unit but the Respondents 4 and 5 Messrs Dewan Automotive Engineering Limited and Messrs Universal Tractors Pakistan (Pvt.) Limited in spite of being existing units were allotted the quota. Therefore, the implementation of the scheme was not transparent or fair, but was mala fide and arbitrary. It is alleged that for the first time, the petitioner was provided the corrigendum dated 12th July, 2005 on 13rd February, 2006, whereby the existing units were excluded from the eligibility criteria. It is further alleged that the Respondent No. 4, is already in production of tractors and Respondent No. 5 is also in production but has merely changed its name from G.M. Tractors (Pvt.) Ltd. to Messrs Universal Tractors Pakistan (Pvt.) Ltd. The petitioner has produced copy of certificate issued by Farmtrac North America dated 9th August, 2005, according to which the foreign manufacturer had signed agreement on 16th December, 2003 with G.M. Tractors (Pvt.) Ltd. the name of which has been changed to Universal Tractors (Pvt.) Ltd.
It is further contended in the petition that the implementation of scheme is non-transparent, unfair, unjust and arbitrary.
It is also pleaded that the Respondent No. 9, C.B.R. has issued three special exemption orders Bearing Nos. 10, 11 and 20 of 2006, dated 13th February, 2006 and 24th February, 2006 in favour of Respondent No. 4 Messrs Dewan Automotive Engineering (Pvt.) Ltd., Respondent No. 5, Messrs Universal Tractors Ltd., and Respondent No. 6, Messrs Agro Tractors Ltd., granting exemption from whole of the customs duty leviable on the import of 2500 tractors by each of these respondents in CBU and CKD condition. It is contended that initially the Respondents 4 and 5 were allowed import of tractors in CBU condition but vide letter dated 2nd November, 2005 by modifying their earlier letter dated 26th September, 2005 they have granted exemption for import of the tractors in CKD condition also, which is beyond and contrary to the decision taken by ECC. It is alleged that the exemption notification for import of tractors in CKD condition is non-transparent, illegal and mala fide.
The petitioner in C.P. No. D-304 of 2006 has prayed as under:--
(a)           Declare that the permission granted to the Respondents Nos. 4 to No. 7 to import 2,500 units of tractors each under the zero tariff . import scheme is illegal, mala fide and of no legal effect.
(b)           Declare that the Special Exemption Order No. 10/2006, dated February 13th 2006, Special Exemption Order No. 11/2006, dated February 13, 2006, and Special Exemption Order No. 20 of 2006, dated 27th February, 2006, are without jurisdiction, illegal and of no legal effect.
(c)           Restrain the Respondents Nos. 4 to 6 from importing any tractors (i.e. in CBU or CKD condition) under the zero tariff import scheme.
(d)           Restrain the Respondent No. 7 from importing any tractors, including Belarus Tractors, (i.e. in CBU or CKD condition) under the zero tariff import scheme.
(e)           Grant any other relief deemed appropriate and just in the circumstances of the present case."
Or in the alternative
(a)           Declare that the decision of the Economic Co-ordination Committee of the Cabinet (Corrigendum No. F.1/6/2005, Com. dated 12th July, 2005) is discriminatory and violative of Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973, and of no legal effect.
(b)           Direct the Respondents No. 1 to No. 3 and No. 9 to grant permission to the petitioner to import 2,500 Belarus Tractors under the zero tariff import scheme in terms of the decision of the Co-ordination Committee of the Cabinet (Case No. ECC-89/6/2005, dated 1st July, 2005);
(c)           Declare that the permission granted to the Respondent No. 7 to import 2,500 units of tractors under the zero tariff import scheme is illegal, mala fide and of no legal effect;
(d)           Restrain the Respondent No. 7 from importing any tractors, including Belarus Tractors, (i.e. in CBU or CKD condition) under the zero tariff import scheme;
(e)           Grant any other relief deemed appropriate and just in the circumstances of the present case;"
The petitioner in C.P. No. D-1347 of 2005 has prayed as follows:--
"(a)         Declare that grant of permission by Respondent No. 1 to private Respondents Nos. 5 and 7 and others for import of 7500 tractors in violation of the terms and conditions stipulated in public notice/advertisement dated 13-8-2005 is arbitrary, illegal, mala fide and set aside the same.
(b)           Declare that the Respondent No. 5 having submitted technical manufacturing agreement of one manufacturer cannot import zero tariff tractors from different manufacturer under the Scheme.
(c)           Declare that the Respondents Nos. 4 and 6 are not qualified/eligible in terms of the conditions stipulated in the public notice dated 13-8-2005 to be granted permission under the scheme to import 2500 tractors at zero tariff.
(d)           Direct that in the execution/implementation of Government policy/Scheme of grant of permission to import 10,000 tractors at zero tariff, the Respondent No. 1 must act in order to achieve the objective of promoting interests of farmers by timely supply of tractors to them and to pass on the benefit of zero tariff/reduced price to the farmers and not to provide opportunity to private importers/respondents to unjustly enrich themselves at the expense of farmers and public exchequer.
(e)           Direct the Respondent No. 1 to grant permission to the petitioner to import 2500 Belarus tractors at zero tariff under the Scheme.
(f)            Grant any other relief deemed appropriate in the circumstances of the present case.
(g)           Grant costs of the petition."
The Respondent No. 1 in its parawise comments has taken plea that the advertisement was published in the National Dailies inviting proposals in accordance with the amended ECC decision and it was mentioned in the advertisement that import of tractors shall be allowed only to those companies who, "want to install their tractors manufacturing facility in Pakistan". The attention of learned Federal  Counsel was drawn to the advertisements dated 4-8-2005 and 13-8-2005 and it was pointed out that the assertion in para. 4(a) of the parawise comments is factually incorrect. It, was not mentioned in the advertisement that import of tractors shall be allowed only to those companies, "who want to install their tractors manufacturing facility in Pakistan". The advertisements contain that, "the proposals for import were invited from those registered companies, which are in the process of installing the tractors manufacturing/assembling units in Pakistan". It is further contended in para. 4(b) that the import of tractors was allowed in CBU condition to Messrs Dewan Automotive Engineering Co. Ltd., Universal Tractors Ltd. and Agro Tractors, but import of tractors in CKD condition was also allowed by ECC on the representation of. approved firms. However, no such modified decision of ECC has been brought on record.
It is also averred in para. 4(c) of the parawise comments that the committee worked out modalities strictly within the parameters laid down by the ECC Cabinet. However, copy of the alleged modalities either by Economic Coordination Committee or the Committee of officials has not been brought on record and it appears that no modalities whatsoever, giving the requirements and conditions were worked out within the parameters of the decision of ECC as modified on 4-7-2005. This aspect shall be discussed further at its appropriate place. It is stated in the parawise comments that the petitioner Fecto Belarus Tractors Ltd., was an existing manufacturing unit and therefore, they were not new entrant with the result that they did not meet the criteria prescribed by ECC. Dewan Farooq Automotive, Respondent No. 4 had acquired a sick unit for manufacturing of tractors and were trying to revamp the same and therefore, they fulfil the criteria. Respondent No. 5, Universal Tractors were also having an existing manufacturing unit and they were in the process of establishing second plant. The Committee of officials formed view that since new plant was being established by the company its case was being treated differently as compared to other existing tractor manufacturing units who also applied for import of tractors. The second plant of Messrs Universal Tractors Ltd., was therefore, found to be qualified for import of tractors at zero tariff rate. It is also alleged that some terms were varied after approval of Prime Minister on a summary submitted by Ministry after examination of joint presentation filed by three eligible firms namely Respondents 4, 5 and 6. However, the copy of any such summary or copy of approval order of the Prime Minister has not been produced. It is also alleged that Respondent No. 7, Messrs Hero Motors Ltd., are new entrant and therefore, they qualify the prescribed conditions.
The Respondent No.  4, has raised objection to the jurisdiction of this Court on the ground that no writ can be issued to a person not performing any action in connection with the affairs of federation, province or local authorities and that intricate and complicated questions of fact are involved which cannot be resolved in a petition under Article 199 of the Constitution. They have stated that they acquired a tractor manufacturing plant (sick unit) in April, 2004 and it was in the process of re-vitalizing, revamping and modernizing of the sick unit at relevant time and therefore, it fell in the category of companies eligible to apply for import of tractors at zero tariff rated under the scheme. It is stated that Respondent No.  4 applied in response to the advertisement and was granted permission to import 2500 tractors in accordance with the scheme. It is further stated that the Respondent No.  4 acquired the sick unit alongwith the stock including number of unassembled tractors. These tractors were assembled by them by way of test run of the plant. It is alleged that Respondent No. 4 was not aware of the corrigendum issued on 12th July, 2005 and came to know about it for the first time when the copy of this petition was received.
The Respondent No.  5, Messrs Universal Tractors Pakistan Ltd., has contended that the petition is not maintainable as the petitioner has no cause of action against them. It is stated that they are already engaged in establishment of plant with new technology. It is further alleged that disputed questions of fact have been raised which cannot be decided in the petition.
The Respondent No.  6, Agro Tractors (Pvt.) Limited, has raised objection to the territorial jurisdiction of this Court for the reason that the respondents Nos. 1 to 3 and 9 are located at Islamabad. It is stated that the petitioner Facto Belarus Tractors is not qualified to import the tractors at zero tariff rate because they have a plant at Lahore which is closed for almost 14 years and therefore, no tractor was being manufactured and or assembled by them. It is contended that in fact it is a dispute between petitioner and the Respondent No. 7 and the Respondent No. 6 has been unnecessarily impleaded in this case.
The Respondent No. 7 has mostly taken pleas pertaining to its status and the status of the petitioner. All these pleas pertain to the disputed questions of fact. This respondent has admitted that the original decision of ECC was modified and the scheme was restricted to the companies who want to install their tractor manufacturing facility in Pakistan but has alleged that the scheme was announced by the Government of Pakistan for those companies only which on 15-8-2005 were in the process of installing the Tractor manufacturing/assembling units in Pakistan.
The interest of Respondent No. 8 is not adverse to the interest of petitioner. He is himself petitioner in the connected petition C.P. No. D-1347/2005 and the interest of Respondent No. 8 in the connected petition is also not adverse to the interest of petitioner in the leading petition and therefore, it is not necessary to narrate their pleas.
We have heard Mr. Munir A. Malik, learned counsel for the petitioner in C.P. No. D-304 of 2006. Mr. Khalid Jawaid Khan, learned counsel for the petitioner in C.P. No. D-1347/2005. Mr. Aamir Raza Naqvi, Advocate for Respondent No. 8 in the main petition and Mr. Shaikh Jawaid Mir, Advocate for Respondent No. 8 in C.P. No. D-1347/2005. The later three Advocates have adopted the arguments addressed by Mr. Munir A. Malik, Advocate. We have also heard Syed Tariq Ali, learned Federal Counsel for the Respondents Nos. 1, 2, 3 and 9 in the main petition. Mr. Salman Talibuddin, learned counsel for Respondent No. 4. Mr. Raja Qasit Nawaz, Advocate for Respondent No. 5, Mr. Mehmood A. Shaikh, learned counsel for Respondent No. 6 and Mr. Nasir Ali Jafri, learned counsel for Respondent No. 7.
During the course of arguments the following position has emerged:--
(1)           The ECC took a decision on 1-7-2005 for allowing one time import of 10,000 Tractors (CBU) at zero tariff and decided to set up a committee under Secretary Ministry of Industries, Production and Special Initiatives and comprising senior level representative  from the Ministries of Finance,  Food, Agricultural and Livestock and Board of Investment to work out the. modalities and review the plant of import of 10,000 tractors at zero tariff.
(2)           The import of tractors was to be allowed only to those companies who have their manufacturing units in Pakistan or are in the process of installing these. It was further decided that the bank guarantees may be obtained in order to ensure use of this facility by genuine manufacturers only. It was also decided that the Committee shall submit its recommendations to the Prime Minister for approval.
(3)           This decision was communicated by Joint Secretary (Cabinet Committees) through a secret/immediate letter dated 4th July, 2005. to the Secretaries of various divisions. Immediate implementation of the decision was directed.
(4)           After three days of the first decision, i.e. on 4th July, 2005 when the decision dated 1-7-2005 was communicated, the ECC reconsidered the decision and modified the decision dated 1-7-2005 by substituting para. (ii) thereof. Under the modified decision the import of tractors was to be allowed only to those companies who want to install their tractor manufacturing facility in Pakistan. In the original decision the bank guarantees were to be obtained in order to ensure use of this facility by genuine manufacturers only. Under the modified decision the bank guarantees were to be obtained in order to ensure use of this facility by the genuine prospective companies/investors. It was also added that in case they are unable to fulfil their commitment the proposed Committee will review the matter.
(5)           Under the original decision the existing manufacturing units and those in process of installing these manufacturing units were eligible for the facility and the bank guarantees were also to be obtained from the genuine manufacturers only. Under the modified decision the existing manufacturing units were excluded from the eligibility criteria and the scope of second category was expanded. Under the original decision only such companies who are in the process of installing manufacturing units were eligible and the bank guarantees were to be obtained in order to ensure that the applicants were genuine manufacturers. In the modified decision the eligibility threshold was extended to all those companies who want to install their tractor manufacturing facility in Pakistan. Meaning thereby, that, under the original decision the second category comprised of such companies who were actually engaged in the process of installing manufacturing units in Pakistan while under the modified decision all those companies became eligible for the facility whether in actual process or having mere intention to install their tractor manufacturing facility in future which is indicated from the expression used, "those companies who want to install". This change is further indicated from the fact that under the original decision the bank guarantees were to be obtained to ensure use of facility by genuine manufacturers only while under the modified decision the bank guarantees were to be obtained to ensure that this facility is used by genuine prospective companies/investors. Under the original decision only companies were eligible who were existing manufacturers or in the process of installing manufacturing units while under the modified decision the facility became available to the companies as well as to the investors, whether they were companies, firms or individuals and to all the prospective companies and investors. It was not necessary that they should be in the process of installing manufacturing units or had taken any steps in that behalf. The result is that the modified decision became too wide, uncertain and fluid.
(6)           Although under the original decision also a committee comprising senior officers headed by Secretary Ministry of Industries was set up and was given to work out the modalities for implementation of the scheme and to review the plan but under the new dispensation it became more necessary to work out the modalities before the scheme was initiated in order to bring some certainty to the scheme and avoid further complications, but, it appears that no modalities were worked out prior to the initiation proceedings for implementation of scheme and inviting of proposals through advertisement.
(7)           The decisions of ECC were communicated to the various ministries concerned through a secret letter. This unnecessary secrecy has created complications, which shall be explained presently.
(8)           As already pointed out the Respondent No. 1, in its comments took plea that in the advertisement it was clearly mentioned that import of tractors shall be allowed only to those companies who want to install their tractor manufacturing facility in Pakistan but it is incorrect assertion. It was pointed out to the learned Federal Counsel that both the advertisements dated 4-8-2005 and 13-8-2005 are in terms of as part of the original decision dated 1-7-2005 which was substituted by the decision of ECC dated 4th July, 2005. Under the original decision the second category of the persons eligible were the companies which were in process of installing manufacturing units. It appears that on account of unnecessary secrecy the modified decision was not brought to the notice of relevant officers of the Respondent No. 1, Ministry of Industries, Production and Special Initiatives, with the result that in the advertisements it was stated that the proposals were invited from those registered companies who are in the process of installing the tractor manufacturing/assembling units in Pakistan. Thus, these advertisements are not in accordance with the modified decision and the eligibility criteria as existing on the dates when the advertisements were published.
(9)           The purpose of decision to allow one time import of 10,000 tractors at zero tariff is not contained in the decision of ECC. It appeared for the first time in the advertisements dated 4-8-2005. The purpose was shown as supply to farmers. It is not known as to who incorporated this purpose in the decision.
(10)         As already observed the modalities criteria and the parameters of the scheme are not contained in the decision of the ECC which is confined to the eligibility condition only. No working of the committee of senior officers set up by the ECC has been produced before us. It is not known as to who has taken the decision that 2500 units shall be allocated to each company qualifying under the scheme.
(11)         It is provided in Clause (c) of the advertisement that the company submitting proposals would be required to submit proof for establishing local tractor manufacturing/assembling plant i.e. land acquisition, technical agreement with the foreign firm for joint venture, planned annual production, capacity, application for deletion program duly approved by Engineering Development Board and schedule for setting up after sale service in the country. This condition further indicates that no parameters and  criteria • were appeared prior to the advertisement and in any case it appears to be in continuation of the condition that proposals were to be given by those registered companies which are in the process of installing the tractor manufacturing/assembling units in Pakistan. In fact the criteria ought to have been fixed keeping in view the decision of ECC that the import of tractors shall be allowed only to those companies who want to install their tractor manufacturing facility in Pakistan. As observed earlier on account of unnecessary secrecy in respect of the modified decision of the ECC the advertisement was published containing wrong condition of eligibility and consequently wrong criteria which was in consonance with the condition published in the advertisement and was not in consonance with the decision of ECC as it stood after modification of the decision with effect from 4th July, 2005.
(12)         In view of the modified decision it was imperative for the Committee of the senior officers to devise a detailed scheme giving the criteria and the parameters bringing certainty to the scheme and specifying as to what would be the indicators to establish that a company wants to install its tractor manufacturing facility in Pakistan and that it was genuine prospective company/investor. It was also necessary to specify in the detailed working prepared by the Committee of the officers as to what would be the time limit for import of machinery for the purpose of establishing the tractor manufacturing facility and what would be outer time limit for the installation of the manufacturing unit and in case of non-fulfillment of the commitment what would be the consequences such as forfeiture of the bank guarantees or imposition of penalty etc. The committee also ought to have devised necessary ways and means to ensure that the benefit of this facility is actually availed by the formers and the amount saved on account of import at zero rated tariff  is not' siphoned off by the companies. The Committee was also required to fix the criterion whether this facility shall be available to the new entrants meaning thereby that they had no existing manufacturing units or it shall be available to the companies/investors who were existing manufacturing units and wanted to establish an entirely new manufacturing unit. It was necessary to avoid the taking of subjective decisions by the members of the Committee and to avoid the discriminatory treatment. For this purpose the definition of expression "prospective companies/investors" was required to be given in order to alienate the adoption of varying criterion for determining the eligibility. Without working out the detailed scheme and modalities the scheme was put to implementation giving rise to the complications.
(13)         The ECC in its original and modified decision allowed import at zero tariff to tractors in (CBU) condition but the C.B.R. has issued exemption notification under Section 20 of the Customs Act, extending the benefit to the import in CKD condition also. It is not known as to how, the import in CKD condition was also included in the facility. No decision of the ECC has been produced before us to show that the facility was extended to import of tractors in CKD condition also. Prima facie and in the absence of any decision/order of the ECC the notification of C.B.R. granting exemption to import in CKD condition also at zero tariff appears to be beyond the decision of ECC.
Learned Advocates for the Respondents 4, 5, 6 and 7 are not able to controvert the above position but have vehemently contended that the prayer clauses of the two petitions do not contain any relief which may flow from the consideration of the issues narrated above. All of them have contended that the petitioners have filed the petitions with the purpose to get themselves included in the list of persons who were allowed the facility of importing tractors at zero tariff rate, for which both of them are not entitled and consequently the petitions are liable to be dismissed. Their plea is that the Court should not grant any relief which is not sought by the petitioners.
We are not impressed with the contention for the reason that such plea is normally raised in the cases in which the Court is exercising original jurisdiction in suit or appellate or revisional jurisdiction. Even in exercise of such jurisdiction the dominant prevailing view is that the Court can mould the relief and allow the same though it is not prayed for, as the Courts are not merely slaves of the technicalities but are the Courts of justice and, therefore, the relief can be molded in a way which serves the purpose of justice.
So far, jurisdiction under which the present petitions are being heard, it falls within the category of judicial  review  of administrative/public action. In exercise of such jurisdiction the Court is required to see whether the public functionaries have acted in accordance with the law. This jurisdiction of the Courts and particularly the superior Courts is in accordance with the concept of checks and balances which is integral part of the concept of separation of powers enshrined in the Constitution of Islamic Republic of Pakistan. In exercise of this jurisdiction, of judicial review of administrative/public action, the Court is required to see whether the functionaries of the State in connection with the affairs of federation, province or local authorities have done the things in accordance with the law or  actions  have  been  taken  otherwise  than in due course of law. The basic principles in this behalf are that in the realm of public actions every thing should be done with complete transparency and the decisions should be taken objectively and on the basis of criteria already determined and fixed. There is no room for subjectivity or the actions which smack of arbitrariness, favourtism or discrimination. If the yardsticks are not determined prior to the taking of decisions then the decisions are bound to be subjective and non-transparent, which are not the hallmarks of good governance. In a democratic set up the complete transparency and accessibility to the policy decisions in pursuance of right of information are strictly observed. In the present case, we find that first, the modified decision of the ECC was kept secret to the extent that not only the persons from whom proposals were invited were not aware of the modified decision but the relevant officials of the Ministry of Industries, Production and Special Initiatives were also not aware of the correct position with the result that the advertisements were wrongly published giving the condition of eligibility which was no more existing and omitting the eligibility condition which was holding the field. Secondly, the necessary detailed scheme was not worked out as highlighted above, with the result that the situation was uncertain and fluid which led to the subjective decisions which is reflected from the fact that some of the companies who had already existing manufacturing units were treated to be new entrants. Thirdly, the facility was extended to import of tractors in CKD condition also although in the decision of ECC produced before this Court no such decision was taken by the ECC. Fourthly, the C.B.R. issues exemption notification to import in CKD condition also which is beyond the purview of decision of the ECC. Fifthly, the purpose of the scheme finds place in the advertisement only and no detailed scheme has been devised as to how this benefit shall reach the farmers. No safeguards have been provided in the absence of detailed modalities which were to be worked out by the Committee of the senior officers.
At this stage, we would like to observe that Mr. Mehmood A. Shaikh, Advocate for Respondent No. 6, raised objection to the jurisdiction of this Court on the plea that the Respondents Nos. 1, 2, 3 and 9 are stationed at Islamabad. It was pointed out to the learned counsel that all the High Courts in Pakistan are exercising jurisdiction under Article 199 of the Constitution in respect of the decisions/orders made by the federation and the authorities/officers functioning with the affairs of federation and asked him to show any judgment of the Hon'ble Supreme Court, holding that the Sindh, Balochistan and Peshawar High Courts have no jurisdiction. The learned counsel stated that he is not in possession of any such judgment of the Hon'ble Supreme Court. The objection is therefore, repelled.
Before concluding the judgment we would like to observe that we have not considered any disputed question of fact arid any other fact affecting rights of any of the parties for the reasons that the authority competent in law should take these decisions and the disputed questions of fact are to be considered by the Civil Court.
For the reasons recorded above, both these petitions are disposed of in the terms that the entire proceedings initiated with the advertisements inviting proposals for import of agricultural tractors are not in accordance with the decision of the ECC. The entire proceedings suffer from lack of transparency and smack of subjective decision, arbitrariness and excess of jurisdiction as well as favouritism. All the proceedings are therefore, quashed. The members of the Committee set up by the ECC are directed to devise an detailed scheme containing the modalities for the proper implementation of the decision taken by ECC, prescribing the criteria as discussed above, as well as measures which are to be adopted for achieving the purpose of supply of the tractors to the farmers at the reasonable rates and to evolve the safety-valves to prevent the misuse of the scheme. After devising the detailed scheme giving the parameters, conditions, requirements, time frame and other necessary guidelines, they shall re-advertise the scheme and invite proposals and thereafter recommend the allocation of the import of tractors to the companies/investors found eligible and most suited. The exemption notification issued by the C.B.R. to the extent of import in CKD condition being beyond the purview of ECC decision is also struck down, while the; exemption to import by the approved parties in CBU condition shall remain intact, but fresh notification shall be issued after the new allocations. The existing notifications are not to be acted upon.
At the conclusion of the arguments Mr. Mehmood A. Shaikh, learned counsel for the Respondent No. 6 contended that the Respondent No. 6 has already imported 156 tractors which are not in CBU condition and the Respondent No. 6 shall have to bear heavy demurrage, therefore, it may be allowed to get the tractors released on zero tariff basis. We are not inclined to allow this relief because we have held that the exemption granted by C.B.R. to the imports in CKD condition is beyond the purview of decision by ECC and we have struck down the exemption notification to that extent. However, the Respondent No. 6, shall be at liberty to get the tractors imported by it released, on payment of normal duties and taxes.
Both the petitions stand disposed of accordingly.
 (Fouzia Fazal)       Order accordingly.




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