P L D 1989 Supreme Court 340 (PLP)

(1)Notwithstanding anything contained in an y. other law for the time being in force or any decision of any Court, for the Purpose of Sections 30 and 31, the rate of duty applicable to any goods shall include any amount Of duty. imposed under Section 18, Section 2 of the Finance Ordinance, 1982 (XII of 1982), and Section 5 of the Finance Act, 1985 (1 of 1985), and the anti‑dumping or counter‑vailing duty imposed under the Import of Goods (Anti‑dumping and Counter‑Vailing Duties) Ordinance, 1983 (111 of 1983), and the Mount of duty that may have become payable in consequence of the withdrawal of the whole or any part of the exemption or concession from duty whether before or after the conclusion of a contract or agreement for the sale of such goods or opening of a letter of credit in respect thereof. (2) For the purpose of determining the value of any imported or exported goods, the rate of exchange of which any foreign exchange is to be converted into Pakistan currency shall be rate of exchange in force.‑ (a) in the case of goods referred to in clause (a) of section 30, on the date referred to‑in that clause; (b) in the case of goods referred to in clause (b) of the, aforesaid section, on the date referred to in that clause; and (c) in the case of goods referred to in section 31 referred to in that section. (3) In section 156, in subsection (1), in the table, in column 1, in serial 8, in column 2, for the words "ten years" the words "fourteen years" shall be substituted. For the First Schedule, schedule set out in the First 'Schedule to this Ordinance shall be substituted." In the meanwhile, on somewhat similar questions seven other Constitutional petitions had also been filed in the High Court by Messrs Panama Ship Breaking Co. (C.P.No.39 9 of 1988 etc.). In so far as this new provision (Section 31‑A aforementioned) was likely to effect the case of the petitioners in the said Constitutional petitions they submitted seven applications under Order VI, Rule 17, C.P.C. seeking amendment in the seven Constitutional petitions filed by them. The petitioner herein also submitted an application under Order VI, Rule 17, C.P.C. (C.M.A. 2335/1988) for amending his Constitutional Petition and prayed for permission to add additional grounds to be numbered as paras. 10 to 20 to his Constitutional Petition. By these grounds the Finance Ordinance of 1988 was sought to be impugned on a number of constitutional grounds, inter alia that the formation of the Caretaker Government without the Prime Minister was contrary to the Constitution, that the impugned Ordinance promulgated on 28‑6‑1988 after the dissolution of the National Assembly on 29‑5‑1988 whereby section 31‑A was introduced by Finance Ordinance, 1988 was violative of Article 89 and further that Section 31‑A was ultra vires also because it intruded upon and rendered nugatory the exercise of judicial power. Several other grounds were also taken. It was explained that it had become necessary to amend their Constitutional petitions by adding these further grounds because the impugned Section 31‑A was added to the Customs Act during the pendency of, the aforesaid Constitutional petitions and the effect of the new provision was to deprive the petitioners of the rights they had acquired under the notifications in force when they filed their Constitutional petitions. The seven applications filed by Messrs Panama Ship Breaking Co. were rejected by the learned Division Bench of the High Court vide order, dated ‑3‑10‑1988. The learned Judges of the Division Bench were of the view that the petitioners through the amendments wanted to plead an entirely new case and the grounds sought to be taken were foreign to the pleas taken in their Constitutional petitions. According to the learned Judges "the mere fact that section 31‑A in the Customs Act, 1969 has been incorporated during the pendency of the above petitions and that the same affects the petitioners, in our view, does not entitle to convert the above petitions into entirely new petitions on entirely different grounds". The learned Judges went on to observe that "in the present petitions the short question in issue was, whether the petitioners ‑were liable to pay customs duty on the basis of Notification of 1986 or of 1987 read with Table to the First Schedule Finance Acts, 1986 and 1987 which controversy has been sought to be converted into a constitutional battle". The conclusion was expressed thus:‑ "We, are, therefore, of the view that the amendments sought are of the nature which cannot be included in the present petitions as it would change the complexion of the petitions 7 and would in fact substitute new petitions." Accordingly, permission to amend the Constitutional petitions was refused and the applications for amendment dismissed. This order was passed on 3‑10‑1988. The petitioners' application for amendment was not disposed of by this order. But this was done subsequently on 6‑10‑1988 by the following order:‑ "Application under Order

6. Rule 17 read with Section 151 C.P.C. 6‑10‑1988 ORDER Mr. Rasheed Akhund, Advocate for the petitioner. The above CMA was heard alongwith CMAs 2294/88, 2295/88, 2277/88, 2278188, 2296/88, 2297/88 and 2279/88 and was reserved for orders on 22‑9‑1988 but due to oversight the above petition and the above CMA have not been mentioned in the order announced in the above‑quoted seven petitions and seven miscellaneous applications. For the reasons already recorded in the above petitions upon the above CMA, we dismiss the above CMA as well." This petition for leave to appeal is directed against the above mentioned order passed on 6‑10‑1988. In our opinion, the application submitted by the petitioners seeking amendment in the Constitutional petition was misconceived but at the same time the view expressed by the learned Judges while rejecting it cannot too, in our view, be approved. It will be observed that the Constitutional petition instituted by the petitioners in the High Court was filed long before promulgation of the Finance Ordinance, 1988. In the petition it was contended that the petitioners were not liable to pay the customs duty at the enhanced, rate and that the demand for payment of customs duty at the during enhanced rate by the Customs House, Karachi was not justified in law. It was the pendency of this Constitutional petition that section 31‑A was introduced in the Customs Act, 1969 by the Finance Ordinance, 1988. Considering that this provision of law was likely to adversely affect their case as set out in their Constitutional petition, the petitioners applied for adding certain grounds to meet the threat posed by the newly‑added provision to their case. However the factual position is that the impugned provision of law has not been invoked so far by the respondents either in any written statement filed by them in Court or in the oral hearings of the Constitutional petition before it. It is only as and when the respondents rely on this provision that the stage will arise for the petitioners to contend that the same does not adversely affect their case on any ground available to them including the ground inter alia that it is not a valid piece of legislation. Whether ‑as a result of this plea a when ensues "constitutional battle" is not quite relevant. If a piece of legislation is relied upon~ by a party in a Court of law, which was not on the statute book, the proceedings were instituted before it the other party clearly, has the right to contend that the aforesaid piece of legislation is not, applicable to it or should not be given effect to because the same is not a valid piece of legislation. Accordingly, we think that it was, not at all necessary to amend the Constitutional petition moved earlier by on the petitioners for meeting in advance, any argument likely to be raised or to be founded on some piece of legislation which had come. the statute book after they had brought certain proceedings before Court. It is manifest that a Court cannot refuse to entertain the plea of a party wishing to show that a law being invoked by his opponent to defeat his case not being a valid law, cannot affect his case. This petition stands disposed of with these observations. M. B. A ‑ /P‑85/S Order accordingly