1988 PLP 721 (MLD)

AJMAL MIAN, J.

The petitioner which is a partnership firm, inter alia, exports the cotton textiles to various countries. They have prayed for the following relief in the present petition; "Prayer it is, therefore, prayed on behalf of the petitioner that this Hon'ble Court will be pleased to pass the, following orders:‑ (i) To declare that in view of the order passed and decision area by the respondent No.l the petitioner was entitled to the full entitlement of 31,99,112 sq.yds being the quota available to the petitioner for the year 1986. (ii) Directing that the respondent shall release the full entitlement of 31,99,112 sq.yds to the petitioner immediately. (iii) To direct the‑respondent No. l !o release quota to the petitioner for the balance entitlement of petitioner for the years 1986, 1987 and subsequent years allowing utilization thereof within reasonable time. (iv) To direct the respondent No.l to work out petitioner's entitlement for the export of textile products during the year 1986 on the basis of its performance for the year 1985 being 37,63,662 sq.yds and for the subsequent years on the basis of its entitlement instead of actual exports or in such other manner as this Hon'ble Court deems fit in the circumstances. (v) To restrain the respondent No.l from releasing the 1987 and the subsequent years' quota for export to U.S., to the extent of petitioner's entitlement. (vi) That the cost of the petition be borne by the respondents and any other relief that this Hon'ble Court deems fit and proper.

2. The brief facts leading to the filing of the above petition are that the Government of Pakistan, Promotion Bureau issued a public notice dated 12‑10 1982 containing the textile quota administration policy (hereinafter referred to as the policy) for the EEC and the USA for 1983‑86, which was to remain in force from 21st January, 1983 till 31st December, 1986 subject to such changes, as may be notified three months ahead of its enforcement. It may be pertinent to reproduce para.4(l) of the above policy which has direct bearing on the point in issue; "

4. BASIS OF ALLOCATION.‑‑The basis of allocation of quota shall be as under:‑ (1) 90 % of available quota of an item for a given country shall be allocated on the basis of average previous export performance. The average performance for the year 1983 will be determined on the basis of exports for the same items to that country in 1979, 1980, 191 and upto 30th June, 1982, as reflected in export certificates/visas issued, shipments made and confirmed reservations under the Government Quota Administration Policy for the year 1982. For the subsequent years i.e. 1984‑1985 and 1986 the basis of entitlement shall be the actual performance in each respective preceding year."

3. In pursuance of the above policy, the respondent No.l adopted the system of issuing visas containing the authorization of the quantity of the textile to be exported to the countries specified. It seems that the petitioner exported various quantities of items 313, 315 and 317 of the textile products. It further seems that for the year 1985 the petitioner exported an excess quantity to the extent of 12.92 lass sq. yds. than what they were entitled to in the year 1985. The respondent No. 1 while granting visa for the year 1986 claimed the adjustment of the above excess quantity, which was resisted by the petitioner on the ground that the same was regularised by imposing penalty of 10%; and that their entitlement for the year 1986 should be worked out on the basis of the actual quantity, exported by them including the above additional quantity of 12.92 lacs sq. yds However, eventually the petitioner's above request was turned down. The petitioner filed a complaint-dated 19‑3‑1986 before the Wafaqi Mohtasib, which was dismissed by him by a detailed order dated 9‑12‑1986. A review petition filed before the Wafaqi Mohtasib was also dismissed by an order dated 8‑4‑1987. The present petition was filed on 29‑10‑1986 when the complaint before the Wafaqi Mohtasib was pending adjudication.

4. In support of the above petition Mr. Khalid M. Ishaque, learned counsel for the petitioner has vehemently urged as follows:‑ (i) That as per above quoted para. 4 of the policy the entitlement to the export quota is to be determined on the basis of actual export of each year. (ii) That any revision in the policy could not have been effected before the expiry of three months from the date of such revision. (iii) That once the export of the above additional quantity was regularised by imposing penalty the above quantity could not have been deducted for the purpose of fixing the entitlement for the year 1986. On the other hand Mr. Noorul Hassan, learned counsel for respondent No. 1 has urged as follows:‑ (i) That since the above additional quantity to the extent of 12.92 lacs sq.yds. was regularised on the condition that it would be adjusted against the quota of the following year, it is not open to the petitioner to urge otherwise. (ii) That any adjustment in the quantity of quota affects other exporters who are about 1500 in number and, therefore, in their absence the petition is not competent. (iii) That the petition has become infructuous as the shipping period for the disputed year of 1986 had expired on 31st December, 1986 and the new quota for each exporter is to be assessed and recommended by respondent No. 2's association, which represents all the exporters. (iv) That the petition raises disputed questions of fads requiring arithmetical calculations which cannot be gone into in exercise of constitutional jurisdiction. (v) That the Export Policy is linked with the International Trade Agreements, inter alia, with U.S.A. and, therefore, this Court will act in aid of the above International Treaties than to cause its breach. (vi) that even otherwise Government Export policy cannot be amenable to writ jurisdiction. (vii) That the petitioners have already availed of the remedy before the Wafaqi Mohtasib and having exhausted the same, cannot invoke the constitutional jurisdiction.

5. In our view, the petition can be disposed of on the simple ground that the above additional export was regularised by respondent No.l on the condition that the same would be adjusted against the petitioner's entitlement for the year 1986. It may be advantageous to reproduce Deputy Director Export Promotion's letter dated 15th September, 1985, which reads as follows:‑ "M/s. World Trade Corporation, 1st Floor, Kabul Cloth Market, Mandir Gali No.3, Rail Bazar, Faisalabad. Subject. Allocation of Cotton Textiles Export Quota for U.S.A. Dear Sirs, Please refer to your Letter No.WTC/FSD/786/CT‑84‑85, dated 28th July, 1985 on the above subject. Your request has been considered and it has been decided to allow you an additional quota of 12.92 lacs sq.yds against your entitlement for 1986. However, this would be allowed after payment of 10% as penalty. You are also advised to refrain from over shipment, as such request would not be considered again."

6. A perusal of the above‑quoted letter indicates that respondent No. 1 had I agreed to regularise the above additional export on two conditions namely (1) the above quantity would be adjusted against the petitioner's entitlement for the year 1986 and (ii) 10% penalty. However, Mr. Khalid M. Ishaque has invited our attention to the petitioner's letter dated 18th September, 1985 in reply to respondent No.l's above letter dated 15th September, 1985 in which it was, inter cilia, contended that as per para, 19 of the public notice dated 20th December, 1984 only penalty could have been imposed; and that the above additional quantity could not be adjusted against the petitioner's entitlement for the year 1986 as it would amount to two penalties i.e. deductions from future entitlement and 10% penalty. He has also referred to para.19 of the above notice dated 20th December, 1984 which reads as follows: "

19. Cases of contravention shipments and other malpractices such as excess shipments over the allocated quantity, mis-declaration of weight and category etc. shall be dealt with and allowed against payment of penalties at the rate of at least 10% of F.O.B. value subject to the availability of quota ceiling etc."

7. A perusal of the above‑quoted para indicates that there was no maximum ceiling of the amount of penalty fixed therein in the above‑quoted para but it provided minimum i.e. at least 10% of F.O.B. value of the goods involved and secondly, it was subjected to the availability of quota, ceiling etc. However, the petitioner has filed a photostat copy of an alleged letter dated 17th September, 1985 allegedly signed by Nighat Parveen, Deputy Director of respondent No. 1 addressed to the petitioner whereby the condition of adjustment against 1986 entitlement was waved. In this behalf, it may be pertinent to mention that respondent No.l has filed C.MA. No. 2150 of 1987 alongwith the affidavit of said Nighat Parveen denying the factum that she had sent the above letter to the petitioner. It has been alleged that the above letter is a forged letter which fact is apparent from the factum that this letter has not been referred to by the petitioner m their subsequent correspondences on the subject, inter alia, in their letter dated 19th February, 1986, copy has been filed alongwith the application. It has been prayed that action be taken against the petitioner under clauses (b) and (c) of subsection (1) of section 195, Cr.P.C., the above application was fixed alongwith the main petition for hearing. We are not inclined to go into above disputed questions of fact. However, it 9" suffice to observe that there is no reliable material on record on the basis of which it can be concluded that respondent No.l had waived the above condition. In our view, as the petitioner has availed of the above regularisation on the conditions contained in the aforesaid Deputy Director's letter dated 15th September,1985, they have no cause to maintain a Constitutional petition.

8. Even otherwise, constitutional jurisdiction is discretionary and the Court in a fit case may decline to exercise the same. In the instant case there are more than one reason which warrant that the Constitutional jurisdiction should not be pressed into service. Apart from the fact that there‑ are certain disputed questions of facts, in our view, it is not free from doubt, whether the Government Export Policy which is linked with International Trade Agreements with the foreign countries can be amenable to writ jurisdiction.

9. We, therefore, see no merit in the above petition and hence the same is dismissed but there will be no order as to costs. Civil Miscellaneous Application No.2524 of 1987 Petitioner's application C.M.A.No.2531 of 1987 for the release of the balance of the petitioner's entitlement for the years 1986 and 1987 during the pendency of the petition, which was fixed alongwith the above petition for hearing, has become infructuous, in view of the proposed judgment. The same is, therefore, dismissed as such. A.A./W‑25/K Petition dismissed.