1994 PLP 859 (SCMR)

(ii) auction notified through Public Notice;'31 (iii) transfer. Quota acquired by any of the above processes is recorded by the respective Associations in the Pass Book of respective exporters, which is in turn authenticated by respondent No.

1. Against holding of quota shipment Visas to that extent are obtained by the quota holders from respondent No. 1 through the respective Association, the details of which are recorded in leis category Pass Book like a Bank Account. Likewise, transfer‑in and transfer‑out through transfer deeds duly signed by the transferor and tae transferee containing signatures verified by their banks are forwarded by the concerned Associations to respondent No. 1 for authentication and these are recorded in the Pass Book." A perusal of the above‑quoted extract from the Bureau's comments indicates that there are three modes of acquiring of a quota entitling an exporter to export textile items, namely, on the basis of exporters' performance of the preceding year, (2) through purchase in an auction held by the Bureau and (3) purchase from the other exporters. It is also evident that every exporter has a Pass Book in which respective Association records the quotas acquired by him through above one or more modes. The above entry recorded by an Association is to be authenticated by the Bureau. It is also apparent that the shipment Visas are obtained by the Association concerned on behalf of an exporter from the Bureau for shipment. Transfer of quotas is made through transfer deeds duly signed by the transferor and transferee and authenticated by the Banks. The above transfers are also to be recorded by the Association concerned in the Pass Book of the exporter concerned and the same is to be authenticated by the Bureau.

8. During the hearing of the above proceedings before the Vice Chairman of the Bureau Qaiser was shown the photostat copies of original five Visas which were issued to five different firms and of the forged five Visas used by him for exporting his five consignments. A comparative statement of the fake and genuine Visas bearing same number has been given by the Vice- Chairman in his impugned order. It may be advantageous to reproduce the same which reads as follows: COMPARATIVE STATEMENT SHOWING FAKE AND GENUINE VISAS OF SAME NUMBER Fake Visas presented at U S Custom: (US$) M/s. Ghurba 9PK009437 338 1002 Doz 14,

529. Textiles " 9PK010692 338 738 " 10,701. " 9PK009652 339 , 902 " 28,413. " 9PK009396 339 301 " 8,729. " 9PK009398 339 600 " 17,

400. M/s. Dadabhoy Silk 9PK009437 339 983 Doz 36,823.10 Mills (P) Ltd. M/s. Sajid Textile 9PK010692 313/226 71,071" 19,

830. Indus. (Pvt.) Ltd. M/s. Afroze Textile 9PK009652 239 1429Kgs 8,330.77 Ind. (P) Ltd. M/s. Shamsi Indus. OPK009396 363 77940Kgs 67,911.82 (P) Ltd. M/s. Sally Textile 9PK009398 607 100245SME 40,700 Mills Ltd.

The above table is based on the documents furnished by the Customs Department of U.S.A. to the Government of Pakistan pursuant to its complaint lodged with the Government of Pakistan that more than allocated quota for export had been utilised by Pakistan. The Vice‑Chairman after hearing the parties for the following reasons concluded that the above five Visas used by Qaiser were forged: "Firstly, there are no entries in his export quota pass book which indicate that he had acquired this additional quota from some other exporter, secondly, the name of the transferring quota exporter has not been disclosed, thirdly, the transaction has not been routed through the textile associations concerned and, fourthly, the export quota pass book was never presented to the Export Promotion Bureau for the issuance of an export Visa. Instead a forged visa was used to get the goods cleared into the United States. Forgery of an official document of the Government of Pakistan is an extremely serious matter especially in view of the fact that such forgeries have an adverse effect on the country's reputation, standing and prestige abroad. In addition there is the fact that the exporter had illegally benefited at the expense of other genuine exporters since the United States Government has deducted Pakistan's Export Entitlement for the subsequent year." .

9. The High Court in the impugned judgment has set aside the above finding as the learned Judges of the Division Bench were of the view that none of the above‑quoted reasons was sustainable in law. At this juncture we may point out that the High Court was not hearing a regular appeal against the impugned order of the Vice‑Chairman of the Bureau but was dealing with a Constitutional petition. It is well‑settled proposition of law that Constitutional jurisdiction is not designed and intended to be used as a substitute for a regular appeal or to be equated with a regular appeal. In a Constitutional petition the High Court cannot interfere with a finding of fact merely on the ground that the reasons which found favour with the Authority whose order is under scrutiny were not such which would have been accepted by the High Court. The Constitutional jurisdiction can be invoked to rectify jurisdictional defects. It is to be pressed into service against an order which is without jurisdiction or tainted with malice or is violative of a provision of the Constitution/Law and not to correct a finding of fact. However, even in Constitutional jurisdiction the High Court may interfere with a finding of fact, if it is founded on no evidence or is contrary to the evidence. Applying the above principle to the present case, we find that none of the above‑quoted reasons recorded by the Vice‑Chairman of the Bureau could be said to be unfounded. It is an admitted position that none of the five consignments against which unauthorised export Visas were used reflected in Qaiser's Pass Book. It also seems to be true that in the first reply to the show‑cause notice dated 19‑1‑1991 he did not disclose the name of the transferring quota exporter nor he was able to bring anything on record to indicate that the above transactions were routed through the Associations concerned nor he could demonstrate that the Export Quota Pass Book was presented to the Export Promotion Bureau for obtaining above five Visas. We failed to understand as to how the learned Judges concluded that the finding based on the above reasons is not sustainable. We may point out that in the proceedings before the Vice‑Chairman, it was not necessary for him to have held that Qaiser had committed forgery as it was sufficient to conclude that the above Visas were not obtained by him from the Bureau. The question whether he is guilty of any forgery may be an issue in a criminal proceedings before the Criminal Courts and/or the Commercial Court under the Act. Any finding about the alleged commission of forgery recorded by the Vice‑Chairman will have no evidentiary value, before the above two Courts.

10. This leads us to the question, whether the punishment imposed by the Vice‑Chairman of the Bureau falls within the ambit of above‑quoted clause. (13) of the Scheme. It may be noticed that sub‑clause (1) of the above clause provides that no allocation shall be valid unless it is in accordance with the provision of the Order, whereas sub‑clause (2) thereof lays down that any export made in contravention of the provision of this Order shall not count towards the performance of the exporter and shall be treated as an irregular and void. It may further be noticed that sub‑clause (3) provides that cases of shipment in contravention of the Order and other malpractices , ach as excess shipment over the allocated quantity, misdeclaration of weight and category shall lead to cancellation of quota and/or the penalty provided for in the Imports and Exports (Control) Act, 1950. It may further be pointed out that above‑quoted clause‑ (1) lays down that if an exporter has made shipment in excess of his entitlement such excess shipment shall be adjusted against his entitlement for next year on such terms and conditions as the Export Promotion Bureau may determine. There is no doubt that under sub‑clause (3) of section 13, it has been provided that commission of any of the irregularities referred to therein shall, lead inter alia to cancellation of quota. The question arises what is a `quota' as there is no definition of the above term given in the Scheme. In this behalf, it stay be pertinent to refer the definition of the above term in the following dictionaries: The Concise Oxford Dictionary, VIIth Edition, page 849: "Quota. Share that individual person or company is bound to contribute to or entitled to receive from a total (2) quantity of goods etc. Which under Government controls must be manufactured, exported, imported, etc.; maximum quantity which may similarly be manufactured; number of yearly immigrants allowed to enter a country, students allowed to enrol for a course, etc." Black's Law Dictionary, Vth Edition: "Quota. A proportional part or share, the proportional part of a demand or liability, falling upon each of those who are collectively responsible for the whole. In assigned goal, as a sales quota; a limiting number or percentage such as the quota of immigrants from a particular country." Webster's Third New International Dictionary: "Quota. A proportional part; share; esp. the share or proportion assigned to each in a division or to each member of a body. (2) The share or proportion received, granted, or 'necessary to a person as being one of a certain number entitled to a part; specific: the smallest number of votes political representation required for election and sometimes determine by dividing the total number of votes cast by one more than the number of seats to be filled and rounding off to the next higher full number. The number of immigrants allowed to enter in a particular year and sometimes determined by the proportionate number of foreign‑‑born, groups in a given census. (3) A fixed number or percentage of minority group members who may be admitted into some activity or institutions." The American Heritage Dictionary: "Quota. (1) A share, as of goods, assigned to a group or to each member of a group; allotment. (b) A production assignment. (2) The maximum number or proportion of persons he may be admitted, as to nation, group, or institution." Reference may also be made to the definition of the term "export quota" given in the above Black's Law Dictionary at page 520: "Export quotas. Amounts of specific goods which may be exported. Such quotas are set by the Federal Government for purposes of national defence, economic stability, price support etc." 11: From the above‑quoted definitions of the term "quota", it seems that it has varied connotations. It inter alia means share that individual person or company is bound to contribute to or entitled to receive from a total or a proportionate part or share especially the share or proportion assigned to each in a division or to each member of a body, whereas the term "export quota" inter alia means, the maximum targeted quantities for the export of various items of goods for certain specified period fixed by the Government.

12. In the instant case, foreign countries fix import quotas for the various textile items to be imported from Pakistan. According to the above definition of the term "quota", the Federal Government can apportion or divide the above quotas among the exporters on the basis of some equitable formula and can allocate the same in the form of an export licence or export quota to each of the exporters in line with the existing licensing system under the Act against the payment of nominal fee. However, the Federation instead of adopting above procedure, has evolved different modality. An exporter is‑not entitled to' receive a definite export quota, but he has to acquire through three modes referred to hereinabove in para. 7,.namely: (i) on the basis of his performance of the preceding year; (ii) by purchasing in the Government auction; (iii) by purchasing from the other exporters as under clause 5 of the Scheme quotas are transferable. In other words, the Federation does not allocate any definite export quota to an exporter, but he has to earn on the basis of his export performance of the preceding year or has to purchase either from the Federation in auction or from the other exporters in the market. Since the acquisition of above export quota depends on the performance of the past export or on payment of cash consideration, it creates legal right in favour of an exporter. In .this regard, reference may be made to the case of Pakistan and The Chief Controller of Imports and Exports v. S. Hussain Ali Shah A. Fazlani (PLD 1960 SC 310), in which the facts were that the Government issued policy for the import of Indian films in West Pakistan on the following condition:‑‑ "In West Pakistan import licences will be granted to persons who after the issue of this notice, export Pakistani films to India with the approval of the C.C.I. & E. The value of import licence will depend on the sale 'proceeds of the Pakistani films exported." Upon the fulfilment of the above condition by the respondent, he was granted an import licence for an Indian film under the title "Nays Andaz". However, subsequently the above import licence was cancelled on the ground that the application for licence was not accompanied by a banker's certificate showing that the money earned by the film exported had been repatriated. The above cancellation order was challenged in the erstwhile High Court of West Pakistan through a Constitution petition. The Federation's contention was that the respondent had no legal right to the grant of import licence. The above contention was repelled by the learned Judges of the Division Bench in the following words:‑‑ "Having acted upon the invitation of the respondents and having fulfilled the conditions which involved financial commitments, he did acquire a legal right to an import licence of equivalent value." The Federation filed an appeal with the leave of this Court against the above judgment of the High Court, the same was dismissed with the following observation:‑‑ "We agree entirely with the views of the learned Judges. The pretext of non‑compliance with the rule requiring submission of a Bank certificate with the import application is clearly an afterthought, and in the light of the fact that a licence had actually been issued after proof of the receipt of the sale proceeds of the respondent's film from abroad, it would appear to be merely colourable. The licence granted was no mere act of discretion or unilateral act on the part of the Government. It was granted in fulfilment of an undertaking, which imposed certain prior conditions upon the applicant, which conditions he had fulfilled, and thereby there had accrued in his favour, something in the nature of a legal right to an import licence of equivalent value. That right had been respected, and in so doing the Government had performed no bare uncontrolled act of discretion ' under their powers, but had exercised the relevant power as a matter of obligation in favour of the respondent."

13. We may observe that in fact there are three different categories of quotas involved in the case in hand. In our view, the same cannot be equated with an export quota, which the Federation grants through an export licence on charging nominal fee. There cannot be any controversy that the latter type of quota reflected in an export licence can be cancelled on the grounds specified in sub‑clause (3) of clause (13) of the Scheme. But the above sub‑clause cannot be construed as to empower the Bureau to cancel the above three categories of quotas, against which there is no right of appeal or revision or review nor there is any requirement that before cancelling the above quotas, the Vice‑Chairman should apply his mind to the questions, what are the quantities and the market value of the quotas which are to be cancelled and whether cancellation of all types of quotas is warranted by the nature of breach. Another important fact, which militates against the view contrary to what we are inclined to take is that it is not practically possible to award the above punishment to all the exporters, who may be guilty of identical breach/irregularity/illegality. For example, A and B export the same quantity of goods against forged/unauthorised visas to the same country. A may have to his credit in his pass book the above category of export quotas worth Rupees one crore, whereas B's pass book does not have any export quota to his credit as he has already exhausted. In the above example though the breach/default on the part of A and B is the same, but it will not be possible to award the above punishment to B.'' We pointedly invited Mr. Khalid Anwar's attention to the above aspect, he had candidly submitted that if there is no quota available to the credit in the pass book of a particular exporter, it will not be possible to impose the above punishment. The above example demonstrates that the above punishment may operate discriminately between the two persons, who may be guilty of the same breach/default.

14. It may be pertinent to observe that Qaiser in para. 23 of his writ petition has made the following averments:‑‑

"

23. That the Vice‑Chairman through his order dated 24‑7‑1991, without lawful authority, cancelled the entire quota held legally by the petitioner in his pass book and its worth was over a crore of rupees. It is submitted that the quota legally held by the petitioner was not only purchased by him from out‑right quota but also earned through exports legally made during the year 1990. In the circumstances it is submitted that the petitioner has thus been deprived of his property not in accordance with the law and the petitioner has further been deprived of his right to conduct lawful trade/business. The details of the lawful quota held by the petitioner in his pass book during the year 1991 are given in Annexure `J' hereto." The Annexure "J" referred to in the above para. gives details of Qaiser's export entitlement mentioned in his pass book as under:‑‑ "S. No. Category Quantity in Sq. Metres Quantity in dozens. 1. 338 188,524.00 SME 31,421.00 Dozens 2. 339 054,570.00 SME 09,095.00 Dozens 3. 638/639 018,528.00 SME 03,088.00 Dozens 4. 336 46,548.00 SME 14736 Pcs 5. 647/648 046,724.00 SME 03,136.00 Dozens" The quantity of the textile items which Qaiser allegedly exported against five forged visas totalled 3543 dozens, whereas according to above Anneure "J", he held various categories of export entitlement for 61470 dozens. The Vice Chairman has not adverted to the questions, whether factually the quotas held by Qaiser in his pass book were worth about Rupees one crore as alleged by him, and whether the export against five alleged forged visas the above quantity of 3543 dozens warranted the cancellation of all the above categories of quotas held by him, particularly keeping in view that it was not the case of the Bureau that he had committed any breach of the clauses of the Scheme in respect of the above quotas held by him in his pass book.

15. At this juncture, we may point out that under section 4 of the Registration (Importers and Exporters) Order, 1952, hereinafter referred to as the Order, the Central Government is entitled to cancel the registration of an importer or exporter on the ground of breaches referred to therein after notice, Against the above cancellation, an aggrieved person can file an appeal, then revision before the authorities specified therein. There is an elaborate procedure provided for the above reliefs, whereas clause 13(3) of the Scheme under which the impugned order has been passed does not provide any remedy against the order passed therein. In this regard, it may be pertinent to refer to the case of Messrs Faridsons Ltd., Karachi and anther v. Government of Pakistan through its Secretary, Ministry of Commerce, Karachi and another (PLD 1961 SC 537), in which the appellant's registration as importer and exporter was suspended without disclosing the reasons. The appellant filed a writ petition in the erstwhile High Court of West Pakistan, which was declined. Thereupon, he filed an appeal with the leave of this Court. The above appeal was allowed through the above reported judgment by a Full Bench, in which inter alia it was highlighted that omission to state reasons for suspension of import registration certificate rendered the provision for appeal from order of suspension futile and that the vested right of the importer was affected. The above judgment indicates that even where registration of an importer is suspended temporarily, it is a serious matter. This Court insisted on compliance with the legal requirement in order to enable the affected party to contest the department's action.

16. Mr. Khalid Anwar was at pains to urge that if this Court is going to hold that under clause 13(3) of the Scheme, the Vice‑Chairman of the Bureau could not have cancelled the above quotas for export, it would provide leverage to the dishonest exporters as they would get away scot free, which would encourage them to indulge in the above malpractices which bring bad name to the standing and reputation of our country. In his list of books, he has referred to the case of Messrs Norwich Union Fire Insurance Society Limited v. Muhammad Javed Iqbal and another (1986 SCMR 1071), in which this Court, while declining leave to appeal against the judgment of the High Court of Sindh passed in a Constitution petition, observed that the High Court was within its power to refuse relief in Constitutional jurisdiction even though the authority concerned had acted clearly without jurisdiction as the impugned order was passed "in order to foster the cause of justice". In the above reported case, reliance was placed on the famous case of Raunaq Ali v. Chief Settlement Commissioner (PLD 1973 SC 236), The above proposition of law seems to be well‑settled. In this regard, reference may also be made to a more recent case referred to by Mr. Sharaf Faridi in his list of books besides the above case relied upon by Mr. Khalid Anwar (Syed Ali Shah v. Abdul Saghir Khan Sherwani and others PLD 1990 SC 504). We may observe that we are not countenancing the above alleged act of Qaiser. If he has factually committed forgery or has caused the commission of it as was alleged and if the same can be proved in a Court of law, he can be prosecuted under the general criminal law before the normal criminal Court besides his liability under sections 5 and 5‑B. of the Act before the Commercial Court. However, under Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973, hereinafter referred to as the Constitution, he is entitled to enjoy the protection of law and to be treated in accordance with law which has been declared by our Constitution as the inalienable right of every citizen wherever he may be and of every other person for the time being within Pakistan. It further enjoins that in particular:‑

"(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law; (b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and (c) no person shall be compelled to do that which the law does not require him to do." Whereas under Article 24 of the Constitution (which is one of the Fundamental Rights guaranteed under the Constitution), it has been provided that no person shall be deprived of his property save in accordance with law. The various categories of export quotas acquired by Qaiser through his earning on the basis of his export performance of the preceding year and/or by purchase from the Federation and/or from the exporters in the market had become his property, which he could not have been deprived of without clear mandate of law.

17. We have held that the High Court could not have interfered in exercise of its Constitutional jurisdiction with the finding of fact recorded by the Vice‑Chairman of the Bureau that Qaiser had exported five consignments referred to in the impugned order on the basis of unauthorised visas which were not issued by the Bureau, but we have also held for the reasons discussed g' hereinabove that in he instant case the Vice‑Chairman of the Bureau could not have cancelled Qaiser's above quotas. In view of the latter finding, the case is to be re‑examined by the Vice‑Chairman of the Bureau for considering the question of imposition of any other punishment or punishments other than Cancellation of Qaiser's above quotas, in terms of the Scheme. Before concluding the above discussion, we may observe that Mr. Khalid Anwar had referred to an unreported judgment dated 24‑9‑1991 of another Division Bench of the High Court of Sindh rendered in the case of M/s. Al‑Munif Corporation v. Export Promotion Bureau and another (C.P.No.D‑929 of 1991), which involved more or less identical facts and in which the learned Judges have made following observation in para. 12 thereof about the interpretation of clause 14 of the Scheme:‑‑ "

12. Learned counsel of the petitioner was of the view that at the most Article 14 of the Notification Annexure 1‑C was attracted to the charges levelled against the petitioner. This does not appear to be the case. Since Article 14 deals with cases where an exporter exceeds his entitlement in a bona fide and unintentional way and it has no application where the allegations are of the nature of forging export visas." We are unable to subscribe to the above view. If the above reasoning is to be accepted, then even clause (13) of the Scheme would not be attracted to, which in our view is not the correct position.

18. The upshot of the above discussion is that the case is remanded to the Vice‑Chairman of the Bureau. The above two appeals stand disposed of an the above terms, with no order as to costs. M.BA./E‑43/S Order accordingly.