2023 PLP 1245 (MLD)

CH. MUHAMMAD IQBAL, J.

This Intra Court Appeal under section 3 of the Law Reforms Ordinance, 1972 is directed against the order dated 06.12.2022 passed by the learned Single Judge whereby Writ Petition No.60506/2022 filed by respondent was allowed.

2. Brief facts of the case are that the respondent is a public limited company [hereinafter referred to as "respondent-company"] filed an application for grant of D-2 license to install a distillery plant for production of rectified spirits and low grade spirit with the capacity of 125000 liter per day. The said application was pending before the appellants [hereinafter referred to as "the appellant-department"] since 2017. The respondent-company filed a Writ Petition No.1812/2021 with the prayer for issuance of direction to the appellant-department to proceed with the application dated 04.07.2017, which petition was disposed of vide order dated 14.01.2021 with the direction to the appellant-department to decide the said application through a speaking order. The matter remained undecided for a considerable period and the respondent-company again filed Writ Petition [No. 60506/2022] which was allowed by the learned Single Judge vide order dated 06.12.2022 with direction to issue the requisite license to the company. Hence, this appeal.

3. Learned counsel for the respondent-company raised objection regarding the maintainability of the instant Intra Court Appeal that under sections 14 and 15 of The Punjab Excise Act, 1914 the remedies of appeal and revision are provided and similarly a remedy of Review under section 8 of The Punjab Board of Revenue Act, 1957 is also available, as such instant appeal is barred under proviso to subsection (2) of section 3 of the Law Reforms Ordinance, 1972. Besides above objection the learned counsel has placed on record a copy of No Objection Certificate dated 29.12.2022 issued by the Directorate General of Industries, Prices, Weight and Measures, Punjab in favour of the respondent-company for storage of ethanol.

4. In response to the objection of the learned counsel for the respondent-company, the learned Advocate General Punjab has submitted that appellant No.1 himself is the authority regarding issuance of license and against his order no remedy is available whereas sections 14 and 15 of the Punjab Excise Act, 1914 provides a remedy against the orders of subordinate hierarchy of the department. Moreover, vide notification dated 07.01.1975, amended on 16.06.1975, issued by the order of the Governor of Punjab, the above statutory remedy of appeal or revision is not available to the appellants as such instant appeal is maintainable.

5. We have heard the arguments of learned counsels for the parties and have gone through the record with their able assistance.

6. Admittedly, the proceedings for issuance of the D-2 License in favour of the respondent-company were pending with the appellant-department since 04.07.2017. The respondent-company filed Writ Petition No. 1812/2021 wherein vide order dated 14.01.2021 the appellant-department was directed to decide the said proceedings/ application through a well-reasoned speaking order within a period of three months. For reference, the relevant portion of order dated 14.01.2021 is reproduced as under: "Prayer of the petitioner is that respondent No.2 be directed to decide the petitioner's pending application (Annex-B) for grant of permission to install a distillery plant of 125,000/- liters per day capacity expeditiously and in accordance with law.

2. In view of above, respondent No.2 is directed to decide the above said application, if pending, strictly in accordance with law, after affording opportunity of hearing to all concerned; and, through a well-reasoned speaking order as expeditiously as possible preferably within a period of three months." The appellant-department did not decide the application upon which the respondent-company filed Writ Petition No. 60506/2022 with the following prayer: "In view or the above, it is most respectfully prayed that: i. The inaction of the respondents, more particularly the respondent No.1 to issue the requisite D2 License to the petitioner, despite compliance with all legal requirements may be declared as illegal, unlawful and without jurisdiction; ii. The Respondents, more particularly the Respondent No.1 be directed to issue the 1)2 License to the petitioner forthwith. iii. In the interim and during the pendency of the instant Petition, the Petitioner be permitted to operate the already installed distillery plant during the current crushing season commencing in the month of November, 2022 having complied with all requirements of law."

7. As the question of maintainability a instant appeal has been raised, thus it is appropriate to decide it at the first instance. Under section 14 of the Punjab Excise Act, 1914 remedy of appeal and under section 15 remedy of revision, respectively, are provided. For reference, aforesaid provisions are reproduced as under: "

14. Appeal.

An appeal shall lie from an original or appellate order of an excise officer in such cases or classes of cases and to such authority as the Provincial Government shall by notification declare. Provided that no order under this section shall he passed unless the appellant is afforded an opportunity of being heard.

15. Revision.

(a) The Board of Revenue may at any time revise any order passed by any excise officer subordinate to it. (b) A Commissioner or Collector may call for the record of any case pending before, or disposed of by, any excise officer subordinate to him, and if he is of opinion that the proceedings taken or order made should be modified or reversed, he shall report the case with his opinion thereon for the orders of the Board of Revenue: Provided that the Board of Revenue shall not under this section pass an order revising or modifying any proceeding or order of a subordinate excise officer and affecting any person without giving such person an opportunity of being heard." (emphasis supplied)

8. As regard the argument of learned Advocate General Punjab that the words "Board of Revenue" in the Punjab Excise Act, 1914 have been deleted by the Governor of the Punjab vide notification dated 07.01.1975, hence the Board of Revenue has no jurisdiction to adjudicate the matter under section 15 of the Act ibid. It is settled law that an Act/Statute cannot be amended through notification or subordinate enactment as such the aforesaid provisions arc still operative or in field until and unless the same are repealed by a proper legislation. Reliance in this regard is placed on cases cited as Collector of Central Excise and Land Customs and 3 others v. Azizuddin Industries Ltd., Chittagong (PLD 1970 SC 439), Additional Collector, Sales Tax, Lahore and another v. Rupafab Limited and others (2001 PTD 2383), Muhammad Amin Muhammad Bashir Limited v. Government of Pakistan through Secretary Ministry of Finance, Central Secretariat, Islamabad and others (2015 SCMR 630), Farrukh Raza Sheikh v. The Appellate Tribunal Inland Revenue and others (2022 PTD 1467) and Muhammad Tayyab Bukhari and others v. Dr. Anees-ur-Rehman and others (2022 SCMR 1913). Thus, according to the Proviso of subsection (2) of section 3 of the Law Reforms Ordinance, 1972, when a remedy of appeal, review or revision against the original order is available before any Court, Tribunal or Authority, then Intra Court Appeal is not maintainable. For ready reference, Proviso of subsection (2) of section 3 of the Law Reforms Ordinance, 1972 is reproduced as under:- Provided that the appeal referred to in this subsection shall not be available or competent if the application brought before the High Court under Article [199] arises out of any proceedings in which the law applicable provided for at least one appeal for one revision or one review] to any Court, Tribunal or authority against the original order." (emphasis supplied) Admittedly, the application of the respondent is still pending before the appellant-department and against the said inaction, the respondent-company filed constitutional petition. It is settled law that the relevant order may not necessarily be the one which is under challenge but the test is whether the original order passed in the proceedings is subject to an appeal under the relevant law, irrespective of the fact whether the remedy of appeal so provided was availed or not. Apparently the meaning of the expression "original order" is the order with which the proceedings under the relevant statute commenced. It is apparent from the language of the aforesaid proviso that the availability of remedy of an appeal, revision or review is not restricted to only the impugned order passed in the Constitutional petition rather it extends to the basic original adverse order as well irrespective of the fact whether the said remedy was explored or otherwise, as such Intra Court Appeal is not maintainable. Reliance is placed on a case titled as Mst. Karim Bibi and others v. Hussain Bakhsh and another (PLD 1984 SC 344) wherein the lIon'ble Supreme Court of Pakistan has observed as under: "

8. After giving our anxious consideration to the arguments urged in support of this appeal we are, however, not impressed by any of the contentions raised. The test laid down by the Legislature in the proviso is that if the law applicable to the proceedings from which the Constitutional Petition arises provides for at least one appeal against the original order, then no appeal would be competent from the order of a Single Judge in the constitutional jurisdiction to a Bench of two or more judges of the High Court. The crucial words are the "original order". It is clear From the wording of the proviso that the requirement of the availability of an appeal in the law applicable is not in relation to the impugned order in the Constitutional Petition, which may be the order passed by the lowest officer or authority in the hierarchy or an order passed by higher authorities in appeal, revision or review, if any, provided in the relevant statute. Therefore, the relevant order may not necessarily be the one which is under challenge but the test is whether the original order passed in the proceedings subject to an appeal under the relevant law, irrespective of the fact whether the remedy of appeal so provided was availed of or not. Apparently the meaning of the expression "original order" is the order with which the proceedings under the relevant statute commenced. The word "proceedings" has been used in different enactments and has been subject to judicial interpretation in a number of cases wherein it has received either restricted or wide meaning according to the text and subject-matter of the particular statute. I do not consider it necessary to notice the various judgments in which this word was so construed. Suffice it to refer to the case of Nawab Din v. Member Board of Revenue (1) in which this Court had occasion to examine the scope and meaning of the word as it occurs in section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. A useful discussion will be found in this case with reference to precedents as the meaning of the term "proceedings". An earlier case of Jan Muhammad and another v. Home Secretary, West Pakistan and others (2) was referred to in this connection and the view taken therein was declared by this Court as the correct enunciation of the law on the subject. In the latter case reference was made to the definition of the term "proceedings" in the book "Words and phrases" which may usefully be reproduced as under: "The term 'proceedings' is a very comprehensive term, and, generally speaking, means a prescribed course of action for enforcing a legal right, and hence it necessarily embraces the requisite steps by which judicial action is invoked. A 'proceeding' would include every step taken towards the further progress of a cause in Court or before a Tribunal, where it may be pending. It is the step towards the objective to be achieved, say for instance the judgment in a pending suit. The proceeding commences with the first step by which the machinery of the law is put into motion in order to take cognizance of the case. It is indeed a comprehensive expression and includes all possible steps in the action under the law from its commencement to the execution or the judgment." (emphasis supplied) The Hon'ble apex Court affirmed the view rendered in the judgment (supra) in a case cited as Muhammad Abdullah v. Deputy Settlement Commissioner, Centre-I, Lahore (PLD 1985 SC 107) as under: "

5. The above contention, however, can no longer be accepted, because a similar question has been elaborately examined by this Court recently in a settlement case, namely Mst. Karim Bibi v. Hussain Bakhsh and others (PLD 1984 SC 344) and it was held that the meaning or the expression 'original order' is the order with which the proceedings under the relevant statute commenced." (emphasis supplied) The above said principle has been reiterated in a case cited as SME Bank Limited through President Islamabad and others v. Izhar ul Haq (2019 SCMR 939).

9. In view of above, this appeal is hereby dismissed being not maintainable. SA/P-7/L Appeal dismissed.