1983 PLP 1208 (SCMR)

NASIM HASAN SHAH, J.‑This judgment will dispose of Civil Appeals Nos. K‑56 of 1977, K‑57 of 1977, K‑58 of 1977 and K‑77 of 1977, as all of these appeals arise from a common judgment .of a Division Bench of the High Court. of Sind & Baluchistan dated 19th February, 1976, in the matter of the liability of certain manufacturing concerns to pay premia for war risk insurance' as required under the War Risk Insurance Ordinance, 1971. It appears that certain amounts of pretnia were paid on their goods and machinery etc. by the companies concerned for compulsory war risk insurance under the aforesaid Ordinance but the Enquiry Officer appointed under the Ordinance was not satisfied as to the power evaluation of the assets so insured. He, accordingly, issued show‑cause notices to the companies concerned and called upon them to make up the deficiency in the amounts of premia, and also imposed a surcharge besides interest on the unpaid amounts. His assessment orders were appealed against by the companies (except the company which is the appellant in the last‑mentioned appeal vie. Civil Apps No. K‑77 of 1977). Their appeals, however, were dismissed by a Joint Secretary, Government of Pakistan in the Ministry of Commerce without affording theta any opportunity of personal hearing, although they had requested for such an opportunity. Aggrieved by these departmental orders, the Companies in question filed writ petitions in the High Court of Sind & Baluchistan. The Division Bench in the High Court, which heard the petitions, set aside the assess ment orders made by the Enquiry Officer, War Risks insofar as the conten tions raised by the Companies with regard to four matters, namely, that devaluation, ought to be disregarded and that the valuation was to be made on the relevant date, in accordance with the Ordinance and the Rules; that the Motor Cars should have been exempted; that the benefit of depreci ation ought to have been given without exception in all cases, and that M all the cases where the assessment orders were passed with effect from 3rd December, 1971, instead of 5th December, 1971, the Companies concerned were entitled to two days' benefit, were upheld and all the cases remanded to the Enquiry Officer, War Risks for fresh decision in the light of the aforesaid findings. However, certain other contentions raised by the Companies, some of which had far‑reaching consequences, were, negative.. The appellants herein, feeling aggrieved on that account, have, therefore, appealed to this Court, by its leave. In support of these appeals, a large number of contentions were raised, for instance, that the rules and the schemes were ultra vires of the relevant provisions of the Ordinance; that the War had, in fact, lasted only up to the 17th December, 1971, but the appellants had been asked to pay premia for the period up to the 31st July, 1972, during which period there was neither any War nor was any risk of War involved; that the war risk insurance was in the nature of a service provided by the Government but the latter was using it as an instrument of taxation, there being no nexus between the recovery of premia and the Government liability to pay for losses sustained by the assured; that the accounts had not been published as required by the rules and that in any case the appellate authority had acted contrary to the established principles of natural justice by refusing to give a personal hearing to the appellants. Besides these common points, the learned counsel appearing for the appellant in Civil Appeal No. K‑56 of 1977 Pakistan Chrone Mines Limited v. The Enquiry Officer, War Risk Insurance and another urged that his company being a mining company did not fall within the purview of the Ordinance, as his equipment was located at thirty‑four different places and at each place the value of the machinery was less than Rs. 3 lacs (the minimum value prescribed for compulsory insurance) but neither the appellate authority nor the learned Judges in the High Court had at all adverted to this aspect of the matter. He further submitted that under section 2(c) of the Ordinance, mining equipment is excluded from the definition of a factory and the same is not covered even by the notification dated the 5th December, 1971 (S. R. O. 577/1/71, dated 5‑12‑77). The learned Deputy Attorney‑General conceded before us that in view of the law declared by this Court in a large number of cases it was, indeed, incumbent upon the appellate authority to afford a personal hearing to the appellants before disposing of their appeals, and, therefore, the orders passed by it without affording the appellants an opportunity of personal bearing were void and of no legal effect; with the result that the appeals filed by the appellants must be deemed .to be still pending requiring disposal and decision afresh after affording a hearing to the appellants. We observe that all these matters already stand remanded by the High Court to the Enquiry Officer, War Risks for re-decision in the light of the findings given by it on some of the issues agitated before it. We think, however, that in order to avoid unnecessary delay, it would be more appropriate if all these matters are remanded to the appellate authority rather than to the Enquiry Officer, War Risks, moreso as the earlier decision of the appellate authority has been found to be of no legal effect on the ground that it was made without hearing the parties: We would direct accordingly and. add that. the appellate authority will decide all the issues already found in favour of the appellants by the High Court and, referred to above, in accordance with the said findings. However, so far as the other questions are concerned, some of which have also been referred to above, while others can also be urged before the appellate authority, all such questions will be decided by it on merits by a speaking order after allowing the parties an opportunity of personal hearing. So far as the case of the last‑mentioned appellant viz. Nagaria Textile Mills Ltd. v. Government of Pakistan (Civil Appeal No. K‑77 of 1977) is concerned, as the said matter shall, on account of our present order, also stand remanded to the appellate authority. The said Company may submit the grounds which it desire to urge against the order of the Enquiry Officer, War Risks, as also any other ground that it desires to raise before the said Authority. This can be done by it within 30 days of the passing of this order. The overall effect is that all these appeals are allowed. The result will be that the appellate authority designated by the Ministry of Commerce shall consider the appeals afresh in the light of the observations made above. The parties, however, will be left to bear their own costs. M. Z. M. Appeal allowed.