2010 PLP 226 (CLD)

EJAZ AFZAL KHAN, C.J.

By this single judgment, we propose to decide Writ Petitions Nos.1643, 1633 of 1997, 49, 1540 of 1999, 481 of 2001, 765 of 2003, wherein the petitioners have challenged the vires of Pakistan Standards Quality Control Authority Act, 1996, on almost identical grounds.

2. Learned counsel appearing on behalf of the petitioners by referring to Article 142 of the Constitution of Islamic Republic of Pakistan, 1973, contended that the Parliament has, no doubt, power to legislate laws in respect of the matters entered in the Federal or the Concurrent Legislative List but it has no power to legislate in respect of the matters, which have not been entered in either of the Lists. The learned counsel next contended that where no authority has yet been established in terms of section 3 of the Act. S.R.O. 705 (1) of 2001 dated 10-10-2001 and the letter dated 23-1-2002, being without jurisdiction and lawful authority are liable to be struck down. Pakistan Standard 1654 of 1999, the learned counsel added, issued by the Pakistan Standard Institution, is also without lawful authority, when the said Institution stood dissolved by virtue of section 37 of the Act. The learned counsel next contended that this Standard is all the more illegal, when it has been established in violation of section 2(j)(s) of the Act, inasmuch as the persons affected by it were not taken on the Board, while drawing up the technical specification. The respondents have no power, the learned counsel further added, to impose a tax on production in the garb of fee, when they render no service in lieu thereof. The learned counsel by concluding his arguments submitted that sections 14 and 22 of the Act are also ultra vires, when they are outside the scope of Federal and Concurrent Legislative List. The learned counsel to support his contention placed reliance on the cases of Nishat Tek Limited v. The Federation of Pakistan and others PLD 1994 Lahore 347, Messrs Nafees Dry Cleaners Wahadat Road, Lahore v. The Government of Punjab through Secretary Law and Parliamentary Affairs Department, Lahore and another 2001 PTD 2018, and Collector of Customs and others v. Sheikh Spinning Mills 1999 SCMR 1402.

3. As against that, the learned counsel appearing on behalf of the respondents by referring to entry at serial No.59 in the Federal Legislative List, submitted that the Parliament has the power to legislate in respect of the matter incidental or ancillary to any matter enumerated in the List. The learned counsel next contended that where 153 countries including Pakistan signed the World Trade Organization and has been required to conform to the International Standards, the Parliament can legislate with regard to the matters falling within the domain of the Province, if the objects and business travel beyond the Province and that this is what the entry at serial No.30 of the Fourth Schedule refers to and that this is, what is done in India under the aegis of Bureau of Indian Standard. Most of the petitioners, the learned counsel submitted, pay what they are required to pay under the aforesaid Bureau, as is evident from the entries downloaded through the network. The learned counsel by referring to sections 4 and 8 of the Act submitted that where general direction and administration of the authority and its affairs stand vested in the Board, the Board can exercise the power and do all acts and things done by the authority notwithstanding the authority in terms of section 3 of the Act has not been established. While dealing with the argument of the learned counsel for the petitioners addressed on the strength of section 2 (j)(s), the learned counsel for the respondents contended that the petitioner was not required to be taken on the Board as it was concerned with filling of bottles and those who manufacture concentrates were consulted and taken into confidence while drawing up the technical specification and other things connected therewith. Sections 14 and 22, the learned counsel affirmed, are also within the legislative competence of the Parliament for the reasons envisaged by the entry at serial No.30 of the Federal Legislative List. The learned counsel while dealing with the argument of the learned counsel for the petitioners, vis-a-vis the vires of the Act submitted that an Act or Law can only be declared, ultra vires, if it is repugnant to and inconsistent with the fundamental rights and that where there is nothing of that sort, its vires cannot be questioned. The learned counsel to support his contention placed reliance on the case of Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through, Secretary M/o Finance, Islamabad and 6 others PLD 1997 SC

582. The learned counsel, while controverting the argument regarding fee without service, submitted that when a lot many things as enumerated in section 8 of the Act, are done by the Board, it is not correct that fee is levied without any service.

4. We have gone through the record carefully and considered the submissions of the learned counsel for the parties.

5. Granted that quality control does not find mention with particularity in the Fourth Schedule of the Federal or Concurrent Legislative List but it is not an end of the matter. Parliament in view of diverse socio-economic dynamics can legislate in attending the changes around and in the International World. Many other entries in the Federal Legislative List provide for legislation and enlarge its scope, as is evident from the entries at serial Nos.3, 25, 30, 32, 54 and

59. In case they do not, which is not so here, it would be against the spirit of the sovereignty of Parliament to cabin or confine it to Federal or Concurrent Legislative List. Since law is an instrument for bringing about healthy and wholesome changes in the society, Parliament can legislate in accordance with the day to day requirements. It being alive and responsive to the growing needs and other socio-economic dynamics cannot remain static and stationary. In its struggle to be at par with other countries in the World, the Parliament of this country has to act and inter-act with the World at large and thus legislate accordingly. Once it entered into an agreement with 153 countries, it is supposed to conform to the International Standards notwithstanding some of the products manufactured by its Industrial Units are meant for home consumption. Their standardization is nevertheless imperative and so is the legislation made by the Parliament in this behalf. It would be a step-forward and not a step-backward. Fresh legislation on this plane was all the more desirable and even necessary, when the previous law in operation required revamping and updating in view of the changed National and International Secenario. Therefore, cannot be questioned on the basis of a pedantic or hyper-technical argument. In the case of Ailessrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary M/o Finance, Islamabad and 6 others (supra), the apex Court while dealing with similar situation held as under:-- "Keeping in view the above case-law and the treatises and the afore-said legal inferences drawn therefrom, we may now revert to the question of vires of impugned sections. It may again be observed that the power to levy taxes is a sine qua non for a State. In fact it is an attribute of sovereignty of a State. It is mandatory requirement of a State as it generates financial resources which are needed for running a State and for achieving the cherished goal, namely; to establish a welfare State. In this view of the matter, the Legislature enjoys plenary power to impose taxes within the framework of the Constitution. It has prima facie power to tax whom it chooses, power to exempt whom it chooses, power to impose such conditions as to liability or as to exemption as it chooses, so long as they do not exceed the mandate of the Constitution. It is also apparent that the entries in the Legislative List of the Constitution are not powers of legislation but only fields of legislative heads. The allocation of the subjects to the lists is not by way of scientific or logical definition but by way of mere simple enumeration of broad catalogue. A single tax may derive its sanction from one or more entries and many taxes may emanate from one single entry. It is needless to reiterate that it is a well-settled proposition of law that an entry in the Legislative List must be given a very wide and liberal interpretation. The word "income" is susceptible as to include not only what is in ordinary parlance it conveys or it is understood, but what is deemed to have arisen or accrued. It is also manifest that income tax is not only levied in the conventional manner i.e. by working out the net income after adjusting admissible expenses and other items, but the same may be levied on the basis of gross receipts, expenditure etc. there are new species of income tax, namely, presumptive tax and minimum tax."

6. We, thus, do not agree with the contention of the learned counsel for the petitioners that Pakistan Standards and Quality Control Act, 1996 is ultra vires.

7. The argument that no action could be taken against the petitioners unless the authority in terms of section 3 of the Act has been established, no doubt, sounds ingenious, but when we keep in view the overall scheme in general and provisions contained in section 4 of the Act in particular, the argument appears to be void and vacuous, both legally and logically. The Board constituted under section 5 of the Act, can exercise all the powers vested in the authority. Any such exercise by the Board cannot be held unlawful, simply because such powers can also be exercised by the authority as well. We need not reiterate that we while interpreting a Statute cannot read a provision in isolation and wrest meaning according to our whim and caprice. We while doing so trust consciously seek to mould the law to serve the 'needs of the time. We must not act like a mechanic or a working mason laying brick on brick without thought to the overall scheme. Our approach or outlook should be akin to that of an architect who thinks of the structure as a whole. Only in this way, in the words of Lord Denning, we can build a system of law for the society which would be just, strong and durable. We, therefore, are least moved even by the second argument of the learned counsel for the petitioners. The other arguments, too, would lose their force, once we hold that the first two are devoid of force. Similarly the argument addressed with reference to the provisions of section 20)(s) of the Act needs not further comments, when it has been befittingly answered by the learned counsel for the respondents.

8. The argument regarding the imposition of tax on production in the garb of market fee is also without force, when we see that numerous services are rendered by the Board under the umbrella of the Act to ensure the standardization and quality control of the products. Reference to section 8 of the Act would be quite relevant on this score. This is what is done by the Bureau of Indian Standard, where even some of the petitioners pay more than what they are required to pay under this Act for almost the same service. The cases of Nishat Tek Limited v. The Federation of Pakistan and others, Messrs Nafees Dry Cleaners, Wahadat Road, Lahore v. The Government of Punjab through Secretary Law and Parliamentary Affairs Department, Lahore and another and Collector of Customs and others v. Sheikh Spinning Mills (supra) cited by the counsel for the petitioners being distinguishable on legal and factual plane do not support their case. They rather appear to be in line with the ratio rendered in the case of Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary M/o Finance, Islamabad and 6 others (supra). Even otherwise, we would not like to subscribe to the view canvassed at the Bar by the learned counsel for the petitioners, when the object behind it is to get complete emancipation from all the checks and balances which are primarily meant to ensure standardization of the products. We, thus, do not feel inclined to issue the writ asked for.

9. For the reasons discussed above, these writ petitions being without substance are dismissed. M.H./10/P Petitions dismissed.