1990 PLP 1337 (CLC)

Section 32 of the Act provides for notice for payment of any duty or charge which has not been levied or has been short‑levied or has been erroneously refunded, and the appropriate officer may, within six months from the relevant date, serve notice on the person chargeable with the duty which has B not been levied or which has been short‑levied or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice. Subsection (3) of section 32 speaks of three kinds of inadvertence, error or misconstruction in regard to duty or charge. One is non‑levy, the second is short‑levy and the third is erroneous refund. Levy is linked to assessment. Section 80 of the Act speaks of assessment order. In the process of assessment, two kinds of errors may occur. One is non‑levy and the other is short‑levy. Refund is dealt with in section 33 of the Act. The expression' "erroneously not levied or short levied or refunded" means not levied or short‑levied or refunded by means of an order which is inadvertently or erroneously made or misconstrued. These are three categories of errors or inadvertences or misconstruction of duty or charge. The notice under subsection (3) of section 32 of the Act speaks of demand for money to pay back and the notice is required to be given within six months from .the relevant date. It may be remembered that Section 32 is within Chapter V of the Act which deals with "Levy and exemption from customs duties," that is to say the Charging Section. The Act specifically deals with the subject of duty not levied or short‑levied or refunded erroneously. It lays down certain conditions under which such amounts should become repayable. In doing so, it has laid down a condition precedent, namely, service of notice, and a bar of limitation for serving it. Unless a demand notice is served, a person cannot be treated as liable to pay. It is only when a notice of demand 'is served on the person that the amount or the money covered by the notice becomes payable under the Act. Admittedly no notice of demand had been served upon the petitioners requiring them to pay the amount specified in the notice. Under subsection (4) of section 32, duty can be determined only after service of notice of demand. A notice of demand is issued under subsection (3) of section 32 of the Act for duty payable and shall be issued within six months from the relevant date. Thus it is clear that unless the person is served with the notice of demand, the amount cannot be determined by the appropriate officer and consequently, no demand can be made against him. Merely because the person has the knowledge of the duty or charge payable by him under the provisions of the Act, the service of notice of demand cannot be dispensed with. The learned Standing Counsel submitted that the petitioners had knowledge of the duty payable by them. This submission has no force. This is not enough to render them liable to pay the amount specified in the demand notice. The direction to deposit the amount is, therefore, illegal and cannot be sustained. It was however forcefully urged on behalf of the respondents that even if it is held that the impugned notice of demand is without lawful course and is without jurisdiction, yet such finding by itself would not render the amount of Rs. 80,000 of `regulatory duty' as invalid. The contention of Mr. Hussain Adil Khatri is that this Court cannot exercise its constitutional jurisdiction so as to perpetuate an injustice. In support of his, contention, he placed reliance on the following decisions:‑ (i) P L D 1973 S C 236, (ii) P L D 1974 S C 193, (iii) P L D 1975 S C 331, (iv) 1981SCMR231, (v) P L L 1982 S C 413, (vi) 1985 S C M R 491, (vii) 1986 S C M R 1071, (viii) 1986 S C M R 1561 and (ix) P L D 1988 Karachi 414. In Nawab Syed Raunaq Ali v. Chief Settlement Commissioner and others P L D 1973 S C 236, it‑was held:‑‑ "This is no doubt correct, but it is also now well‑established that where an inferior tribunal or Court has acted‑wholly without jurisdiction or as Robinstein puts it in his book on "Jurisdiction and Illegality" taken any action "beyond the sphere allotted to the tribunal by law and; therefore, outside the area within which the law recognizes a privilege to err", then such action amounts to a "usurpation of power unwarranted by law" and such‑ an act is a nullity: that is to say, "the result of a purported exercise of authority which has no legal effect whatsoever". In such a case, it is well‑established that a superior Court is not bound to give effect to it, particularly where the appeal is to the latter's discretionary jurisdiction. The Courts would refuse to perpetuate, in such circumstances, something which would be patently unjust or unlawful:' It was further observed: "In the same manner, in the instant cases, if the High Court, in its extraordinary jurisdiction under Article 98 of the Constitution of 1962, came to the conclusion, as it has in fact done, that the orders of the Deputy Claims Commissioners verifying the claims of the appellants were illegal and without jurisdiction, it could legitimately refuse to set aside the order of the Officer on Special Duty, even though the latter was clearly without jurisdiction." In the case of Mehr Dad v. Settlement and Rehabilitation Commissioner, Lahore Division, Lahore and another (P L D 1974 S.C. 193), the Hon'ble Supreme Court took the following view:‑ "A bare perusal of the above will show that the learned Settlement and Rehabilitation Commissioner did not go into the question whether the property in dispute is an evacuee property or not or whether the property was constructed by the appellant and whether it was Shamlat Deh or not. His order is based on conjectures and surmises and clearly indicates that he has not applied his mind and has assumed jurisdiction without dealing with the points involved in the matter. In these circumstances, it was open to the High Court to consider the nature of the property in dispute and to find out whether on the facts of the present case the order of the Settlement Commissioner is liable to be set aside." In the case of Chief Settlement Commissioner, Lahore v. Raja Mohammad Fazil Khan and others (P L D 1975 S.C. 331), it was held: "in all these cases it has been observed that the discretionary relief ought not to be granted by the High Court to help retention of ill‑gotten gains by a party even if because of any technical reason an order made by a tribunal is not found justifiable as the writ jurisdiction is not to be invoked in aid of injustice." In Syed Nizam Ali etc. v. Syed Mustafa Ali etc. (1981 S C M R 231) the Hon'ble Supreme Court was pleased to observe: "Therefore, before a person can be permitted to invoke this discretionary power of a Court it must be shown that the order to be set aside had occasioned some injustice If it does not work any injustice to any party, rather it cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked." In Begum Shams‑un‑Nisa v. Said Akbar Abbasi and another P L D 1982 SC 413, the Hon'ble Supreme Court observed as follows:‑‑ "It has been repeatedly held by this Court and also by the High Court that the writ jurisdiction should not be exercised in aid of injustice. See Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others P L D 1973 SC 236; Wali Muhammad and others v. Sakhi Muhammad and others P L D 1974 SC 106; Syed Ahmed Abbas Zaidi and others v. Settlement Commissioner, Rawalpindi and another PLD 1968 Lah. 166; Rahimullah v. District Judge and Settlement Commissioner, Hyderabad and another PLD 1972 Kan 60; Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331; S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore and another 1978 SCMR 367 and Messrs Khyber Tobacco Co. Ltd., Mardan v. Labour Union and another 1976 PLC 98. Thus, if the effect of setting aside the order of the Chief Settlement Commissioner was to restore the unjust order of the Settlement Commissioner, the High Court ought not to have exercised its writ jurisdiction for bringing about such a result." In the case of Gul Muhammad and others v. The Additional Settlement Commissioner and others (1985 S C M R 491), the Hon'ble Supreme Court expressed its views as under:‑‑ "As regards the general principle that the discretionary constitutional jurisdiction cannot be exercised in aid of injustice, one of the earlier decisions on the subject is that of Tufail Muhammad v. Raja Muhammad Zia Ullah Khan and another P L D 1965 SC 269 and a more recent case is that of Begum Shamas‑un‑Nisa v. Said Akbar Abbasi and another P L D 1982 SC 413 wherein it was held that the High Court in exercise of its discretionary jurisdiction is not bound to interfere in all the circumstances and it would have been proper exercise of its discretion if it had not interfered with the order of the Chief Settlement Commissioner in that case, even if it felt that the order of the Chief Settlement Commissioner, whereby he rendered the order of the Settlement Commissioner as null and void was not strictly legal." In Messrs Norwich Union Fire Insurance Society Limited v. Muhammad Javed Iqbal and another (1986 S C M R 1071), the Hon'ble Supreme Court held: "The order of the Tribunal, in these circumstances was pre‑eminently just and as observed by the High Court passed in order "to foster the cause of justice". In this view of the matter, as laid down in Raunaq Ali v. Chief Settlement Commissioner P.L.D. 1973 SC 236, the High Court was within its power to refuse relief in writ jurisdiction, where the impugned order before it had the effect of fostering justice and righting a wrong, even though the authority concerned had acted clearly without jurisdiction:" In Rehmatullah and others v. Mst. Hameeda Begum and others (1986 'S C M R 1561), the Hon'ble Supreme Court held: "Undoubtedly, the constitutional jurisdiction under Article 199 of the Constitution is discretionary. Even when an order impugned before the High Court is found to be lacking in some legal or jurisdictional requirement, the Constitutional provision does not compel the High Court to issue a writ much less that of certiorari or mandamus. The merits of the case have also to be seen in order to examine whether the discretion is to be exercised or not in favour of the party successfully challenging the legality of the order impugned in writ jurisdiction. If the result is that by setting aside such an order another order would be revived which is unjust or unfair or is otherwise also illegal, then before setting aside the first mentioned order the Court will have to examine more carefully the question of exercise of discretion and in proper cases would decline to exercise the discretion and would thus not set aside an order even if it is illegal provided the setting aside of such an order would result, inter alia, in injustice or revive another illegal order." In Ghulam Sarwar Awan v. Government of Sindh through Home Secretary (P L D 1988 Karachi 414), a Division Bench of this Court held as under:‑‑ "We may observe that constitutional jurisdiction is a discretionary jurisdiction. It can be pressed into service to foster the cause of justice and for the good of the public and the country at large. It is a well‑settled principle of law that even where an impugned order is illegal, the Court may decline to press into service its constitutional jurisdiction if doing so would instead of advancing the cause of justice or the public good would defeat the same:' The legal position that emerges from the above decisions is that constitutional jurisdiction can neither be invoked nor be exercised in aid of injustice. That is to say, this Court in exercise of its constitutional jurisdiction 1" not come to the rescue of a person seeking its stamp or approval for the order action which is patently unjust, being without jurisdiction and hence void ab sinitio. Hence we cannot give any relief to the petitioners and dismiss the petition with no order as to costs. M.BA./N‑276/K Petition dismissed.