Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Constitutional Petition No. D‑50 of 1977, decided on 8th August 1977.
‑‑ Absence of standards or guidelines in a statute‑Does not necessarily make a statute ultra vires when policy for which it is made is discoverable from provisions thereof‑Imports and Exports (Control) Act (XXXIX of 1950).
Mehreen Zaibun Nisa v. Land Commissioner, Multan and others P L D 1975 S C 397 ; United States of America Interstate commerce Commission v. Atchison, T. & S. F. R. Co. 234 U S 476 ; Arizona v. California 373 U S 546 ; Fahey v. Mallonee 332 U S 245 ; McKinley v. U S. 249 U S 35 7 ; East & West Steamship Co Ltd. v. Pakistan P L D 1953 S C (Pak.) 41; Sheikh Muhammad Ismail & Co. Ltd. v. The Chief Cotton Inspector, Multan Division, Multan and others P L D 1966 S C 388 ; Province of East Pakistan v. Sirajul Haq Patwari P L D 1966 S C 854 ; Cinicinnati V. & Z. R. v. Clinton (1852) 1 Ohio St. 77 ; Western India Theatres Ltd. v. Municipal corporation, Poona A I R 1959 S C 586 ; Corporation of Calcutta v. Liberty Cinema A I R 1965 S C 1107 1 Messrs Bhatnagars & Co. Ltd. and another v. The Union of India and others A I R 1957 S C 473 and Minnesota Ex. Rel. Railroad d: Warfhouse Commission v. Chicaco, Milwaukee & St. Paul Railway Co. 38 Minn. 28 ref.
Read with Review, Appeal and Revision Order. 1957‑Review Application for‑Held, would not lie against an order of refusal to adjust or refund licence fee already paid.‑[Review].
An application for review, in view of the meaning assigned to the expression 'review' in Review, Appeal and Revision Order, 1957, would lie for consideration of an order passed by a licensing authority in the case of an application for imports or exports licence or permit or revalidation of an import licence or permit or enhancement of categories or change of item or category but not against an order of refusal to adjust or refund the licence fee already paid.
Naseem A. Farooqui for Petitioner.
Shah Jamil Alam, Deputy Attorney‑General for Respondents.
Date of hearing : 25th May 1977.
‑The petitioners who are manufacturers of soap were granted an import Licence No. 540502 dated 16‑1‑1975 for the tied list for the import of inedible Tallow for industrial consumption for R9. 97,20,000 and they paid import licence fee of Rs. 1,94,400.
2. The aforesaid licence was followed by sub‑authorisation under I. C. A Procurement Authorisation No 391‑X‑157 for import of the aforesaid commodity and for the aforesaid amount. Under the import licence the petitioners were required to open a letter of credit by 28‑2‑1975. The sub‑authorisation also required the petitioners to enter into the contract for import of the aforesaid commodity between the date of the licence and 28‑2‑1975, although the goods could be delivered by 15‑7‑75.
3. The petitioners, as claimed by them, being unable to establish the letter of credit before the due date due to restrictions allegedly laid down by banks by their letter dated 25‑2‑1975, requested the Controller of Imports fit Exports. Government of Pakistan, Karachi respondent 3 to extend the date for establishing the letter of credit upto 31-7‑1975. The respondents however, denied the receipt of this letter. The petitioners also claimed that a general request was also made by the Pakistan Soap Manufacturers' Association for general extension of the period for opening the letters of credit under the U. S. Aid Loan No. 391‑X‑157. The receipt of this letter is also not admitted by respondent 1. However, it appears that the Government subsequently extended generally the time by which the letters of credit were to he opened up to 31‑3‑1975, vide general orders issued by the Controller of Imports & Exports on 6‑3‑1975. The petitioners claim to have written two more letters in this connection one on 17‑3‑1975, and the other on 20‑5‑1975. Respondent 2 however, denied having received the letter dated 17‑3‑1975. However. respondent 3 while acknowledging the receipt of letter dated 20.5‑1975 informed the petitioners that it was not possible to accede to their request to extend the period of opening the letter of credit for import of goods under R. M. O. 93980 dated 16‑1‑1975. After the receipts of this letter the petitioners wrote another letter dated 7‑6‑1975, to respondent 3, which is reproduced below to extenso :
"This is to state on 24‑5‑1975, we applied for issue of a fresh licence for Rs. One crone for import of Tallow ucder U. S. Aid Loan 157. Against our request, a sub‑authorisation No. R. M. 094024 for part of the amount for Re. 50 lace was issued to us. We request you to please confirm that the sub‑authorisation for the balance amount of Re. 50 lace will be, issued to us, so that the licence form for Re. 50 lace with licence fee challan may be submitted for authentication."
4. In reply to the above‑mentioned letter the petitioners were informed by respondent 3 that it was not possible to alter the condition already communi cated to them by the letter dated 29-5‑1975, and they were further informed that the sub‑authorisation in question already stood expired for all purposes.
5. Therefore, against this order the petitioners filed a review application under clause 3 (1) (i) of the Review, Appeal and Revision Order, 1957 (herein after called the Order) which was rejected by the order dated 9‑8‑1975, which is one of the orders impugned in this petition.
6. It appears that in the review application for the first time, the petitioners claimed for refund or adjustment of the amount of the licence fee of Rs. 1,94,400.
7. Aggrieved by the order of the rejection of the review application, the petitioners preferred an appeal under clause 3 (I) (it) of the Order before the Chief Controller of Imports & Exports respondent 2 which also was rejected by the Order dated 30‑3‑1976. The petitioners then filed a revision application under clause 3 (1) (iii) of the Order with the Government of Pakistan respondent 1 which also met with the same fate as the review appli cation and the appeal.
8. The petitioners have therefore, impugned all the three aforesaid orders passed on the review application, the appeal and the revision appli cation in this constitution petition under Article 199 of the Constitution and have claimed the following reliefs :
(a) Declaration that the impugned orders passed by the respondents are nullity and having been passed without lawful authority are to no legal effect.
(b) It be declared that Gazette Public Notice dated 5th June 1972 No. 21 (72)/Import‑R is invalid and void and the petitioners are entitled to the refund‑adjustment of the licence fee of Re. 1,94,400.
(c) A direction he issued to the respondent to forthwith effect refund and/or adjust the cited amount.
9. We have heard Mr. Nasim A. Farooqui, Advocate for the petitioners and Mr. Shah Jamil Alam, Deputy Attorney‑General for the respondents.
10. Mr. Nasim A. Farooqui Advocate has raised two‑fold contentions before us. The first contention is that the respondents have passed the impugned orders without giving the petitioners any opportunity of hearing and as such the same is without jurisdiction having been passed 9n violation of the provisions of clause 3 of the order or in violation of the principle of natural justice. The second contention is that the Licences and Permits Fees Order, 1958 (hereinafter called 'the Fees Order') suffers from impermissible delegation of legislative powers and enactment under which it is made does not provide any guidelines as to the determination of the categories of quantum of fees depending upon the category of the licence.
11. So far as the first contention is concerned, in order to matte it convenient to appreciate the contention, it may be useful to reproduce the provisions of clause 5 of the Order, which are as follows :
"No order in review, (appeal or revision) shall be passed without giving the party a hearing If the party has made such a request in the application for review (appeal, or revision), unless, for reasons to be recorded in writing, the reviewing (appellate or revisional authority), as the case may be, considers such hearing unnecessary."
It is plain from the provisions quoted above that it is permissible to pass an order in review, appeal or revision without giving the party a hearing if the party has not made such a request in the application for review, appeal or revision. We gave an opportunity to Mr. Nasim A. Farooqui learned counsel for the petitioners to produce before us a copy of the review application or the memorandum of appeal or the revision and show that any such request was made therein. However, he failed to satisfy us that the petitioners had made any such request. Indeed the order passed in review clearly states that no personal hearing was sought by the petitioner. Further it is the case of the respondents that they had given the petitioners full oppor tunity of hearing In appeal and, were heard at length. They have produced and we have on our record a letter dated 1‑4‑1916, addressed by the petitioners to respondent, wherein they have thanked respondent 2 for giving patient hearing in their appeal.
Moreover, the review application was misconceived not maintainable as an application for review, in view of the meaning assigned to the expression
'review' in Review, Ap,Real and Revision Order, 1957 would lie for considers' tion of an order passed by a licensing authority in the case of an application for imports or exports licence o. permit or revalidation of an import lioenc or permit or enhancement of categories or change of item or category but not against an order of refusal to adjust or refund the licence fee already paid.
There is therefore, no substance in this contention and accordingly, it is overruled.
12. In order to appreciate the second contention it will be useful to reproduce the provisions of section 3 (1) of the Imports & Exports Act, 1950 (hereinafter called 'the Act') and also to relevant provisions of clause (3) of the 'Fees Order' section 3 (1) of the Act reads as follows :
3. Powers to prohibit and restrict imports and exports.‑(1) The Central Government may, by order published in the official Gazette and subject to such conditions and exceptions as may be made by or under the order, Frohibit, restrict or otherwise control the
import or export of goods of any specified description, or regulate generally all practices (including trade practices) and procedure connected with the import or export of such goods (and such order may provide for application for licenses under this Act, the evidence to be attached to such applications, the grant, use, transfer, Bale or cancellation of such licenses, and the form and manner in which and the periods within which appeals and applications for review or revision may be preferred and disposed of, and the charging of fees in respect of any such matter as may be provided in such order)."
Clause 3 (1) of the Fees Order reads 1
3.‑(1) Every person in whose favour an import licence, import permit or clearance permit is granted or who applies for opening of a letter of credit for the import of any goods for which a specific import licence, import permit or clearance permit is not required, shall pay fee ip
accordance with the Schedule to this order."
The Schedule is as follows t
1. For letters of credit, licences or No fees.
permits upto Re. 500.
2. For letters of credit, licences or No fees on the first
permits over Re. 500 to Re' .1,00,000. Ra. 500 and fees at
_ 1 % ad ralorem on the
balance.
3. For letters of credit licences or No fees on the first
permits over Rs. 1,C0,000. Re. 500 and fees at
I a ad valorem on the balance up to 1,00,000 and 2 / ad valorem on the remainder.
From the above quoted provisions of section 3 (1) of the Act it will be seen that subsection (1) of section 3 authorises the Government inter alla to control the imports and exports by order published in the official Gazette and such order may provide for applications for licences and the charging of fees in respect of issuance of licences and also for other matters mentioned therein. The vires of the provisions of section 3 is not challenged by the
learned counsel for the petitioners on the ground that the power delegated by the Legislature to tie Federal Government was incapable of being constitutionally delegated. The validity of the order is also not attacked before us on the ground that the fees provided by 'the Fees Order' are arbitrary, or discriminately or unreasonable. The Tires of section 3 (1) is attacked on the ground that it doer not provide any guidline as to the determination of the categories of quantum of fees depending upon the category of the licence. However, the absence of standards or guidlines in a statute doss not necessarily make it ultra vires, when the policy for which
it i9 made is discoverable from the statute, or from that provision itself which B has to be implemented by the person against whom the charge of un authorised legislation is made, which, in the present case, Inter alla is to control the imports or experts. It is not questioned that 'the Fees Order' does not relate to the object mentioned in section 3 (1) of the Act and in the preamble which. as stated above, show that the policy and object of the statute is inter alla to control the imports and exp3rts. We have already noticed that the quantum of fees made payable on licences and permits grant= ed under the Fees Order are not claimed to be arbitrary or discriminatory or unreasonable.
We may here at once refer to the latest reported pronouncement of the Supreme Court, in Mehreen Zalbun Nisa v. Land Commissioner, Multan and others (1), wherein his Lordship Mr. Justice Anwarul Haq at page 444 of the report observed as follows :
"When the Court is called upon to determine the Tires of delegated legislation, enacted in implementation of the dictates of the Constitu tion, it should be guided more by the consideration to ensure that the intention of the Legislature is not frustrated. The absence of standards or guidlines in a statute would not ne:essarily render the statute unconstitutional, while the conferment of uncontrolled and arbitrary power on the delegate would render the statute void .... It is generally accepted that no provision of law can fall within the rule against delegated legislation if it is based on a policy, discoverable from that proNision Itself, which has to be implemented by the person against whom the cha ge of unauthorised legislation is made. "
The above‑cited case answers the contention raised by the learned counsel for the petitioners as the policy for the delegation of power to provide for fees by the Order is discernible from the Act which is to "prohibit, restrict or otherwise control the imports into or exports from Pakistan".
United States' Supreme Court in a large number of cases has upheld the delegation of powers even in cases where the Legislature failed to prescribe any intelligible principles of legislation. Some of them are United Stares of America Interstate Commerce Commission v. Alchison, T. do S. F. R. Co. (2), Arizona v. California (3), Fahey v. Mpllonee (4) and McKinley v. U. S. (5).
14. Moreover, in East and West Steamship Co. Ltd. v. Pakistan (6),
(1) P L D 1975 S C 397 (2) 234 U S 476
(3) 373 U S 546 (4) 332 U S 245
(5) 249 U S 397 (6) P L D 1958 S C (Pak.) 41
Muhammad Munir, C. J. (as his Lordship then was), at page 52 of the report observed :
"If a statute declares a definite policy, there is a sufficiently definite standard for the rule against the delegation of legislative power, and also for equality of the standard is reasonable. If no standard is set up to avoid the violation of equality, those exercising the power must act as though they were administering a valid standard. For this reason there is a need for a judicial review to see whether or not power delegated has been exercised arbitrarily.
The conferment of vast powers or discretion on an officer who administers an Act may be wise or unwise legislation, but the question before the Courts where the validity of conferment of such powers is questioned always is whether the provision granting such power is contrary to any direction of the Constitution. In the United States of America such grant is sometimes invalidated on the ground that if offends against the due‑process provision of the Constitution or that it delegates excessive legislative powers or that it denies equal protection of the law to the citizens but as pointed out in Jibendra Kishore's case nowhere in our Constitution Is the concept of due process of law to be found in the sense in which it has been understood in American Jurisprudence."
We may also refer to Sheikh Muhammad Ismail & Co. Ltd. v. The Chief Cotton Inspector, Multan Division, Multan and others (PLD1966SC388). In this case an attack was made on rule 26 (11) framed by the Provisional Government under section 30 of the West Punjab Cotton Ginning (Control) Act, 1949 which provision authorised the Provincial Government to frame rules to carry out the purposes of the Act. Rule 26 (1) provided for imposition of fees by the Government on the occupiers of factories, the managers of the companies and cotton dealers to cover the costs of the staff appointed under the Act, or for improvement of agriculture relating to the cotton crop grown in West Punjab. In exercise of this power, the Provincial Government issued notifications from time to time imposing a fee on unginned cotton received in factories for ginning. It was contended that section 30 of the Act amounted to excessive and unconstitutional delegation of powers to the executive in so far as it left unguided discretion to the Government to pick and choose, out of certain categories of the persons mentioned in this section, for imposition of the fee, there being no guideline laid down by the Legislature in this respect. S. A. Rahman, J. (as his Lordship then was) at page 406 of the report observed as follows :
"In the modern administrative complex, some amount of delegation of power is found to be unavoidable considering the very large field of regulation and control that Governments are now‑a‑days required to cover in the course of implementing their economic and fiscal policies. I do not see that the delegation in the present instance is of such a character as could be assailed as objectionable. The field of choice has been limited by the Legislature itself which has provided the framework within which the executive authority is to function. The delegation is not of an unprecedented kind. For analogy, the provisions of the Sales Tax Act may be referred to, under which Government can exempt certain commodities from the tax.
The choice of the commodities to be subjected to the tax is thus left with the executive. I find the following in Willoughby's Constitutional Law of the United States :
Generally speaking, it may be said that when a power is not peculiarly and distinctly legislative, executive or judicial, it liar within the authority of the Legislature to determine where its exercise shall be vested.
It is only the essential legislative power that ii incapable of being constitutionally delegated. Within the framework laid down by the legislating authority, power can be delegated to a subordinate agency to carry into effect the purposes of the enactment by making detailed rules in conformity with the policy thus laid down. I do not think these legal bounds have been exceeded in the present case.
The rate of fee has also been left to be determined by the executive authority on whom is conferred the rule‑making power in this behalf."
We may also refer here the observations of Muhammad Yaqub Ali, J. (as his Lordship then was and now the Chief Justice of Pakistan) in the Province of East Pakistan v. Sirajul Haq Patwari (P L D 1966 S C 854). His Lordship at page 963 of the report referred to a classical statement on the subject of excessive delegation made in Cincinnati V. & Z. R. v. Clinton ((1852) 1 Ohio St. 77).
"The true distinction is between the delegation of power to make the law which necessarily involves a discretion as to what it shall be and conferring authority or discretion as to its execution to be exercised under and in pursuance of law:"
And to this Lordship added
"To this it may be added that if the law promulgated on a subject is known to have a certain policy and the outside body to which its execution Is entrusted has framed regulations which provide uniformity and ensure against arbitrariness then the law will not be struck down for excessive delegation."
His Lordship further observed at page 969 of the report as under :
"There are further comments to the effect that the difference between absence of definite standards and conferment of uncontrolled and arbitrary power is that the former may not render a statute unconsti tutional, but the latter would. Court's opinion should be formed not on mere absence of standards, but on factual lack of procedural safeguards, the grant of substantial power to petty political officials, absence of statutory rights and importance of subject‑matter to the parties affected.
In the same context it is observed that Courts are influenced by relatively empty talk about standards than by a concern for protecting against arbitrary or discriminatory action."
16. We may also refer to some cases from the Indian jurisdiction. In Western India Theatres Ltd. v. Municipal Corporation. Poona (A I R 1959 S C 586) in which section 59 (1) (xi) of the Bombay District Municipalities Act (III of 1901), which gave taxing powers to the Municipalities, was challenged on the ground of excessive delegation of legislative functions. The Court, however, upheld the validity of this provision on the ground that the legislative policy, for the purposes of imposition of taxes by the Municipalities, was ascertainable from the expression "for the purpose of this Act", which expression, according to the Court, pointed out the objects for which taxes could be levied by the Municipalities.
In the Corporation of Calcutta v. Liberty Cinema (A I R 1965 S C 1107) section 548 (2) of the Calcutta Municipal Act (33 of 1951) enabled the Calcutta Municipal Corporation to impose license fee on Cinema Houses. Dealing with the question whether conferment of such power constitutes excessive delegation, the majority of the Court, led by A, k. Sarkar, J , held that (i) there was no illegal delegation of the legislative functions to the Corporation merely on the ground that the impugned section of the Calcutta Municipal Act left it entirely to the Corporation to fix the amount of the tax and provided no guidance for that purpose : (ii) fixation of the rates of tax is not of the essence of legislative power of taxation, which function could legitimately be left by a statute to a non‑legislative authority ; (iii) there is no distinction in principle between delegation of power to fix rates of tax to be charged on different classes of goods and power to fix rates simpliciter, and if power to fix rates in some cases can be delegated then equally the power to fix rates generally can be delegated, The majority of the Court agreed that the Legislature must provide guidance for fixation of taxes, but at the same time took the view that the validity of the guiding principles cannot be tested by a rigid uniform rule and must depend on the object of the Act giving power to fix the rate. They also held that specification of the maximum rate does not supply any guidance as to how the amount of tax should be fixed, because any provision to this effect only seta out a limit of the rate to be imposed and a limit is only a limit and not a guidance. It was further held that the guidance furnished must be held to be good if it leads to the achievement of the statute which delegates the power of taxation and that a guiding principle may be implied from the statute itself.
We may also refer to another case from Indian Jurisdiction, namely Messrs Bhatnagars & Co. Ltd. and another v. The Union of India and others (A I R 1957 S C 478) wherein the vires of section 3 (1) (a) of the Imports & Exports (Control) Act, 1947 which inter alia gave powers to the Government to control imports and exports of various commodities ; were challenged on the ground of excessive delegation of legislative powers although for a reason different from the one wherefor it is challenged before us. While repelling contention and referring to an earlier decision given by the Court, Gejendragadkar, J. at page 486 of the report observed :
"This decision shows flat if we can find a reasonably clear statement of policy underlying the provisions of the Act either in the provisions of the Act or in the preamble, then any pact of the Act cannot be attacked on the ground of delegated legislation by suggesting that questions of policy have been left to the delegatee. Turning to the impugned section of the present Act, it is necessary to remember that the present Act purports to continue for a limited period powers to prohibit or control imports and exports which had already been enacted by the Defence of India Act and the Rules framed there under. In other word, this Act does not purport to enact the material provisions for the first time but it purports to continue the previously existing provisions in that . behalf and so it would be legitimate to consider the preamble of the Predecessor Act and relevant provisions in it to find out whether the Legislature has laid down clearly the policy underlying that Act and has enunciated principles for the guidance of those to whom authority to implement the Act bas been delegated. The preamble to the present Act says that it was expedient to continue for a limited period powers to prohibit, restrict or otherwise control imports and exports,"
17. It will be of some interest to refer to a case from American jurisdiction on the question of delegation of legislative power to impale rates and taxes. This is a decision of the Supreme Court of Minnestos in Minnesota Ex. Rel. Roil Road & Warfhouse Commission v. Chicago, Milwaukee & St. Paul Railway Co. (38 Minn. 28). The Court laid down the principle as under :
"The power of taxation is legislative, but this does not require the Legislature itself to assess the value of each man's property, or determine bas share of the tax. The exercise of the police power in requiring persons who follow certain occupations to obtain a licence is legislative ; but nothing is more common than to delegate to certain officers or boards the power to ascertain and to determine whether persons have the proper qualifications as to learning, skill, or moral character, and to grant or refuse a licence according se they find the facts to be. The difference between the power to say what the law shall be, and the power to adopt rules and regulations, or to investigate and determine the facts, in order to carry into effect a law already passed, is apparent. The true distinction is between the g delegation of power to .make the law, which necessarily involves a discretion as to what it shall be, and the conferring of an authority or discretion to be exercised under and in pursuance of the law."
Further on, the Court observed :
"For a popular Legislature that meets only once in two years, and then only for 60 days to attempt to fix rates, would result only in the most ill‑advised and haphazard action, productive of the greatest inconveniences and injustice alike to the railways and the public. If such a power is to be exercised at all, it can only be satisfactorily done by a board or commission, constantly in session, whose time is exclusively given to the subject, and who, after investigation of the facts, can fix. rates with reference to the peculiar circumstances of each road, and each particular kind of business, and who can change or modify these rates to suit the every‑varying conditions of traffic."
18. Besides, the petitioner is precluded from raising the objection to the validity of the statute on the ground of excessive or impermissible delegation in view of the doctrine of acquiescence and estoppel, as the petitioner not only did not object or challenge the demand of licence fee, before its payment to the respondents but also subsequently obtained fresh licence of one crore rupees and paid licence fee on issuance of sub‑authorisation of Rs, 30 lacs under the aforesaid licence, as is evident from the letter dated 7‑6-1975, and by requesting adjustment of the licence fee already paid in his letter of 1st April, 1976, addressed to the respondents.
19. In the result we dismiss this petition. However, in the circumstances of the case, we leave the parties, to bear their own costs.
S. Q. Petition dismissed.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer