P L D 1976 Karachi 370 (PLP)

MUHAMMAD HALEEM, J.

By this Petition under Article 199 of the'. Constitution the petitioner assails the Notification dated 12th of March 1973, by which the production capacity was fixed at 45.600 tons a year and the order dated 8th of June 1974, of the Standing Tribunal (Production Capacity), Lahore by which the review application was dismissed as being barred by time. The petitioner is a charitable endowment constituted under the Charitable Endowments Act, 1890 (hereinafter referred to as the Act). The Federal Government by a Notification dated 8th of March 1972, issued under section 5(2) of the Act settled a Scheme of Administration for the Fauji Foundation wherein the beneficiaries are the ex-servicemen of the Armed' Forces and their dependents. Vide M. L. R. 103 promulgated on 30th of December 1971 the Chief Martial Law Administrator transferred the Fauji Sugar Mills, Khoski, to Fauji Foundation on certain terms and conditions mentioned therein. With the view to fix the production capacity of the Mills a declaration was invited from the petitioner. Such declaration was, submitted on 10th of October 1972, wherein the estimated production, during 197273 was estimated to be 20,51 5 tons. In spite of it the first respondent issued a notice dated 10th of January 1973, calling upon the petitioners to show cause as to why the production capacity should riot be fixed at 53,200 tons per year, which was again contested vide reply, dated 24th of January 1973. Not being satisfied by the representation, respondent No. 1 by an order dated 10th of March 1973, bearing No. S. R. O. 329(1)73 fixed the production capacity at 45,600 tons a year. The Notification was printed in the Gazette Extraordinary, dated 12th of March 1973, but a copy of the said notification was received by the petitioner at Rawalpindi on 14th of April 1973. However, before this date the petitioner) came to know of the passing of the order on 19th of March 1973, but the text of the order as printed in the Gazette was not received by the petitioner. The petitioner thereupon submitted the review petition to the Central Government on 18th of April 1973, which was referred to the second respondent for disposal but it was dismissed in limine as aforementioned.

2. Mr. Sharifuddin Pirzada on behalf of the petitioner raised manifold contentions to assail the impugned Notification and the order. The first is that the determination of production capacity by the Central Board of Revenue did not take into consideration factors enumerated in clauses a, c, c, and 2 of rule 3(1) of the Excise Duty on Production Capacity (Sugar) Rules, 1972 which is a must and in its absence such determination rested oil a theoretical maximum which was clearly in violation of rule 3 and as such it has no efficacy. In support of the contention the learned counsel relied on the contentions of paras. 4, 6, 7 and- ground (d) of para. 12 of the petition which are relatable to these factors which were ignored. To give further strength to his contention he relied on the observations in Zaibtan Textile Mills Ltd. v. Central Board of Revenue (P L D 1971 Kar. 333) which appear at pages 452 and 453 of the report. In this view of the matter learned counsel stressed that the Notification dated 12th of March 1973, fixing the production capa city had no legal validity in which case it was not also necessary to file a review application to challenge it. The second is that the implication of the word Notification in subsection (5) of section 3 of the Central Excises and Salt Act, 1944 is not only that it should be printed in the Gazette but that further it should be notified to the aggrieved person by some means. In support of this contention he relied on section 38 of the Act which provides that a Notification is to be issued by publication in the official Gazette and by the word publication what was meant was communication to the aggrieved person. In support of his contention he relied on the observation of their Lordships of the Supreme Court in the Province of East Pakistan v. Major Nawab Khawaja Hasan Askary (P L D 1971 S C 82) at page 94 of the report, and so also on the observations in Champat Gole v. Ismail Khan Dulekhan Musalman (A I R 1944 Sind 142) at page 144 of the report. The learned counsel therefore, stressed that the impugned Notification dated 12th of March 1973, though printed by the Manager, Printing Corporation of Pakistan Press, Islamabad, was published from Karachi by the Manager of Publications, Karachi and it was from here that a copy of the Gazette of Pakistan, Extraordinary, dated 12th of March 1973, was sent to the petitioner which was received on the 14th of April 1973, whereafter the review application was filed on 18th of April 1973. Therefore the period which intervened between 12th of March 1973, and 14th of April 1973, had to be excluded in computing the period of limitation as there was no means of knowing about the publication of the Notification. Thus the review petition which was filed on 18th of April 1973, was within limitation as it had to be filed within 30 days of the publication of the Notification. The third is that the intervening period between 12th of March 1973 and 14th of April 1973, should be regarded as time requisite for obtaining a copy of the Notification and has to be excluded under section 12 of the Limitation Act, which applies pursuant to section 29 of the said Act. In this view of the matter also the review application was within time. The fourth is that the Standing Tribunal should have disposed of the review application on merits as having regard to the powers specified in subsection (5) of section 3 of the Central Excises and Salt Act, 1944, namely, that of confirming, reducing or increasing production capacity and it was for the Government to consider the question of limitation before referring the review application to the Standing Tribunal.

3. After the learned counsel for the petitioner had concluded his arguments we asked the learned counsel for the respondents as to what objection he had if the case could be heard on merits to which he replied that he would take instructions from the respondents, and on the next day conceded that the review petition would be considered on merits. In this view of the matter it is not necessary to give our opinion on the contentions urged by the learned counsel for the petitioner as the petitioner would have an opportunity to assail the Notification dated 12th of March 1973 before the Tribunal on the same grounds as wag urged before us. Accordingly we would declare the order dated 8th of June 1974, as without lawful authority and of no effect but would leave the parties to bear their own costs. The review application, in view of the concession made by the learned counsel for the respondents shall be deemed to be pending for decision which should be decided after hearing the petitioner. S. Q. Order accordingly.