1989 PLP 3405 (MLD)

SAEEDUZZAMAN SIDDIQUI, J.--The petitioner has sought a declaration from this court under Article 199 of the Constitution to the effect that the import of consignment valuing at 4:,/ 63 equivalent to 1,379 Pakistani rupees is not affected by SRO 130(1)/80 dated 4-2-1980 issued by respondent No.3 under section 3 of the Imports and Exports (Control) Act, 1950. The following are the brief facts of the case: The petitioner who is a foreign exchange earner applied for a No -Objection Certificate on 26-11-1978 to the Ministry of Industries, Investment Promotion Bureau for import of second hand /recondition machinery/equipment valuing at $ 1177 C & F Karachi equivalent to Pak Rs.2,23,540 out of his own foreign exchange reserve/earnings, for setting up of Auto repairs workshop at Karachi. The application of the petitioner was processed and on 27-12-1978 he was issued a No-Objection Certificate by the Director-General, Investment Promotion Bureau under non-repatriable investment scheme. After obtaining the aforesaid no-objection certificate the petitioner applied for issuance of an import licence which was granted on 24-2-1979 and which was valid for import upto 23-2-1980. It may be mentioned here that in the no-objection certificate granted to the petitioner by the Director General, Investment Promotion Bureau a list of second-hand machinery/equipment which the petitioner could import under NRI Scheme were specifically mentioned alongwith their value. The case of the petitioner is that a part of the consignment mentioned in the no-objection certificate imported by the petitioner arrived at Karachi port on 8-5-1979 but on arrival of the consignment it was withheld by the Customs authorities whereupon the petitioner submitted a constitution petition in this court being Petition No.D-1339/79. Upon service of notice of the above petition, the Customs Authorities released the first consignment imported by the petitioner. While the above petition was still pending in this Court it is alleged by the petitioner that the remaining part of the above consignment was shipped from London on 19-2-1980. This consignment arrived at Karachi port on 2-4-1980. However, when the petitioner submitted a bill of entry for home consumption for clearance of the above consignment the Customs authorities refused to clear the same on the plea that under SRO 131(')/80 dated 4-2-1980 the Federal Government under section 3 of the Imports and Export (Control) Act, 1950 has banned imports of part of machinery and Automotive vehicles under NRI Scheme except those which have already been shipped before the issue of the above order. The contention of the learned counsel for petitioner is that the consignment which was shipped on 19-2-1980 was only a part of the second hand machinery/equipment for which the petitioner had obtained a no-objection certificate in the prescribed manner from the Director-General, Investment Promotion Bureau on 27-12-1978 and for import whereof the respondent No.2 had issued import licence No.A-279451 dated 24-2-1979 which was valid for import upto 23rd October, 1980. It is accordingly submitted by the petitioner that having obtained no-objection' certificate dated 27-12-1979 under NRI Scheme and a valid import licence dated 24-2-1979 for import of the same the petitioner acquired a vested right to import these items within the validity period of Import Licence which could not be effected or taken away under a notification issued by the Federal Government on 4-2-1980. Learned counsel for the respondents on the other hand contended that the shipment of the second part of the consignment having taken place after the issuance of notification dated 4-2-1979. It fell within the mischief of that notification and as such the clearance of the consignment which was shipped from London after issuance of notification was rightly refused by the Customs Authorities. After hearing the learned counsel for the parties we are of the view that the petitioner was entitled to the clearance of the consignment shipped on 19-2-1980 under Import Licence dated 24-2-1979 which was valid for import upto 23-2-1980. The petitioner has clearly stated in their petition that they made arrangement for the import of the entire consignment upon issuance of the import licence dated 24-2-1979 but on account of paucity of the shipping space the consignment had to be shipped in part. It is also alleged by' the petitioner that the first part of the consignment arrived at Karachi on 8-5-1979 while the second part was shipped on 9-2-1980 when the shipping space became available. It is therefore, quite clear from these allegations that the petitioner had made all arrangement for the purchase and shipment of the entire consignment before issuance of the notification dated 4-2-1980 and as such the mere fact that the shipment had taken place on a date after the issuance of the notification could not effect their right to import the above consignment in accordance with terms of the Import Licence which was valid for import upto 23-2-1980. It may be mentioned here that the respondents have submitted a counter-affidavit m the case in which the factual aspect of the case stated above has neither been disputed nor denied. We accordingly allow this petition and declare that the petitioner was entitled to the clearance of the consignment valuing at Rs.1,379 which was shipped on 19-2-1980 during the validity of the import licence issued to them and that the action of the respondents in withholding the said consignment from clearance on the basis of notification dated 4-2-1980 was without lawful authority and of no legal effect. There will be no order as to costs. It is stated by the learned counsel for the petitioner that the goods were released during pendency of this petition upon furnishing of security. As we have allowed this petition, surety submitted by the petitioner is discharged. MA.K. - 96 I Petition accepted.