Declaration

Relief claimed was declaration that actions of authorities leading to creation of post in question and hiring of respondent to such office were illegal and ultra vires the provisions of National Energy Efficiency and Conservation Act, 2016 and National Energy Efficiency and Conservation Service Regulations, 2021

Objection that office in question was not a public office was irrelevant

Objection was overruled in circumstances.

Right to fair hearing and fair trial necessitates that no one should be penalized by decision upsetting and afflicting his right or legitimate expectations unless he is given a fair chance to answer it and a fair opportunity to explicate / present the case

To enjoy protection of law and to be treated in accordance with law is an inalienable right of every citizen

Purposefulness of Article 4 of the Constitution is to ascribe and integrate doctrine of equality before law or equal protection of law and no action detrimental to life and liberty of any person can be taken without due process of law

Principles of natural justice require that the delinquent should be afforded a fair opportunity to converge, explain and contest before he is found guilty and condemned

Principles of natural justice and fair-mindedness are grounded in philosophy of affording a right of audience before any detrimental action is taken

In the Constitution, right to fair trial has also become a fundamental right under Article 10-A of the Constitution

Principle of natural justice is grounded in astuteness and clear-sightedness of affording a right of audience before any prejudicial action is taken

This is an inescapable obligation of all judicial, quasi-judicial and administrative authorities to ensure justice according to sagacity of law

Supreme Court set aside orders passed by High Court and Chairman Evacuee Trust Properties Board and remanded the matter to the Chairman Evacuee Trust Properties Board to decide the matter afresh after providing ample opportunity of hearing to parties

Appeal was allowed.

Respondents failed to prove either that petitioners did not make payment of shares or that valid transfer of shares as reflected in Form A dated 8.5.2008 took place in the mode and manner prescribed by S. 76 of Companies Ordinance, 1984

Alleged transfer of shares of petitioners as reflected in Form A submitted by respondents with Security and Exchange Commission of Pakistan on 8.5.2008 and 19.11.2011 had no legal sanctity as no document was brought to substantiate allegation that process formalities prescribed by S. 76 of Companies Ordinance, 1984, which were mandatory in nature, were duly complied with

High Court declared transaction for transfer of shares of petitioners as reflected in Form A submitted on 8.5.2008 and 19.7.2011 with the Commission, to be null and void

High Court directed respondents to forthwith enter names of petitioners in Register of Members and to transmit relevant information to the Commission through Form A

Petition was allowed, in circumstances.

Petitioner and Provincial Government sought implementation of order passed by Federal Government with regard to status of property in question

Validity

Mutation in question was incorporated in compliance of Cabinet Division decision dated 10-06-1976 which mutation was later on illegally cancelled by Chairman Evacuee Trust Property Board

Revisional authority in its order dated 04-06-2005 observed that the mutation was incorporated incompliance of the policy of Evacuee Trust Property Board, which was formulated in the light of decision of Federal Government in year 1976 and subsequent decision in year 1983 regarding possession of Educational Institutions

High Court directed Evacuee Trust Property Board to implement order passed by Federal Government / Revisional Authority in letter and spirit

Constitutional petition was allowed accordingly.

While final determination was not completed within six months, appropriate officer passed the impugned final assessment order by holding that the amount determined through provisional assessment order had become final and as a result thereof , the security instrument i.e. bank guarantee for differential amount should be encashed

Petitioner / importer assailed impugned order passed by invoking constitutional jurisdiction of the High Court

Validity

Though the appropriate officer, had herself admitted her failure to complete the final determination within six months, but her approach was not in consonance with the purpose, mandate and language of S. 81(4) of the Customs Act, 1969 ('the Act 1969'); she, while passing the impugned order, was probably misled by the explanation; as at the end S. 81 of the Act, it was explained that the provincial assessment meant the amount of duties and taxes paid or secured against bank guarantee, however, the provisional determination of the duty as provided under subsection (1) of S. 81 of the Act, 1969, did not include the additional amount determined on the basis of provisional assessment and the said differential amount was indeed a speculated amount of duty which could ultimately be the actual amount of duty , taxes and other charges after a complete probe and inquiry leading to the final determination of duties / taxes etc.

It was only when there was actual final determination within the stipulated period that the additional amount was relevant and was adjustable in terms of subsection (3) of S. 81 of the Act, 1969

Said differential amount secured through bank guarantee in terms of S. 81(1) of the Act, 1969 was not part of provisional determination, therefore, when the appropriate officer failed to pass an order of final determination as per inquiry envisaged under the enabling provision of S. 81 of the Act, 1969 , then the amount only determined as a provisional assessment would be deemed as a final determination and as a consequence thereof, the differential amount if already paid, would be refunded or if it was secured through an instrument (pay-order / bank guarantee) the same would be returned to the importer

High Court set aside the impugned order passed by the Appropriate Officer, declaring that her findings were not based on correct appreciation of subsection (4) of S.81 of the Act 1969 and directed the respondents / Department to return the bank guarantee through which the differential amount was secured from the petitioner / importer

Constitutional petition filed by the importer was allowed, in circumstances.

During proceedings before Chairman of the Board, petitioners did not produce any proof of their entitlement of allegedly abondand lands in Azad Jammu and Kashmir

Petitioners also did not produce relevant documents in respect of claim or its verification

Documentary proof of ownership was not brought before Chairman of Board and in revenue record property in question was in possession of tenants and under the management of Evacuee Trust Property Board since 1947

No other record was produced to prove that property in question was available in compensation pool to be allotted to petitioners

On the basis of material available on record, Chairman of the Board declared the suit property to be a Evacuee Trust Property attached to religious and charitable purpose

High Court declined to interfere in the matter, as there was no illegality or jurisdiction defect, nor there was misreading or non-reading of relevant record by the authorities below

Constitutional petition was dismissed in circumstances.

High Court is not to usurp jurisdiction of Federal Shariat Court on one hand or Council of Islamic Ideology comprising religious scholars and the Parliament on the other by importing one's personal understanding of principles emanating from the Quran and the Sunnah in deciding cases in the presence of clear statutory provisions addressing the subject matter.

Petitioner was aggrieved of cancellation of Permanent Transfer Deed regarding property in question which was declared to be an evacuee trust property

Validity

Property was declared as an evacuee trust property and such long standing entries were also made part of quadrennial periodical record (Jamabandies), which had acquired presumption of correctness under Art. 100 of Qanun-e-Shahadat, 1984

Such presumption was not displaced by petitioners through any believable and trustworthy record

Relief under S.10 of Evacuee Trust Properties (Management and Disposal) Act, 1975, could only be provided to those claimants to whom Settlement Authorities had transferred evacuee trust properties erroneously in a bona fide manner

Deliberate or wanton transfer of evacuee trust property by Settlement Authorities against evacuee claim was not covered by S.10 of Evacuee Trust Properties (Management and Disposal) Act, 1975

Property in question was trust property which was excluded from compensation pool as per S.4(2) of Displaced Persons (Compensation and Rehabilitation) Act, 1958, and could not be allotted/auctioned by any government functionary

Evacuee Trust Property Board rightly treated property in question as an evacuee trust property and cancelled Permanent Transfer Deed

High Court declined to interfere in cancellation of Permanent Transfer Deed as no illegality was committed by the fora below

Constitutional petition was dismissed, in circumstances.

Even if a right is complete in all respects, even then requirement which forces a plaintiff to move Court is denial of that right by defendant

Civil Court is Court of plenary jurisdiction to grant decree upon existing right

When a decree is passed in favour of plaintiff, defendant is bound to acknowledge such status/right in respect of that property duly affirmed by Court of competent jurisdiction.

Declaration referred to the nature, description and value of goods so that the assessing officer could apply appropriate tariff rates for assessment and charging.

Actual transaction value of each of the two imported consignments was USD 175 and USD 180 per metric ton respectively, which was duly reflected in the Letter of Credit and the Goods Declaration filed at the time of in-bonding of goods

Importer contended that the goods at the time of in-bonding upon inspection were found to be of secondary quality instead of prime quality and as similar goods of secondary quality imported from the same country of origin and shipped on the same ship were assessed at USD 157 per metric ton, hence the goods were to be assessed under S. 25(5) of the Customs Act, 1969 ('the Act') at USD 157 per metric ton

Held, that when the goods without any difficulty could be assessed on the basis of the transaction value under subsection (1) of S. 25 of the Act i.e. the price actually paid or payable for the goods sold for export to Pakistan, then the question of invoking subsection (5) of S. 25 did not arise at all

Only in circumstances when the goods could not be assessed on transaction value then they were to be assessed on the basis of the value of identical goods sold for export to Pakistan at about the same time at which the goods were being valued under subsection (5) of S. 25

In the present case it was not the case of the importer that the goods were not the same as were originally ordered, which resulted in raising a claim with foreign supplier for refund of the differential amount

Hence, the two consignments imported by the importer were liable to be assessed at the undisputed transaction value reflected in the invoices, the Letter of Credits and the Goods Declarations that were filed at the time of arrival of goods, which was admittedly USD 175 and USD 180 per metric ton respectively.

Goods imported in Pakistan for transit to foreign country are not leviable to duty and taxes, which are otherwise leviable and to be paid in case of filing goods declaration under S.79(1), Customs Act, 1969.

Directorate General of Intelligence and Investigation detained the goods of importer at the exit gate after their release by Clearance Collectorate

Deputy Collector of Customs (Adjudication) issued show-cause notice on the basis of shipping bill of the exporting country, charged importer for fiscal fraud and passed order-in-original

Appeal filed against order-in-original was dismissed

Validity

Invocation of S.32A, Customs Act, 1969 by the Deputy Collector of Customs (Adjudication) was illegal and void as no document had been uploaded by importer in the goods declaration, which was concocted, altered, mutilated, false, forged, tampered or counterfeit

Clauses (b) and (c) of S.32A, Customs Act, 1969 were irrelevant as importer never gave any information electronically or by any other means corresponding to shipping bill of exporting country referred in the show-cause notice

Section 32A(d), Customs Act, 1969 did not apply as importer never altered, mutilated or suppressed any finding of any customs functionaries or any document in the computerized record

Section 32A(e), Customs Act, 1969 was irrelevant as no attempt, abetment or connivance in any action mentioned in said provisions was committed by importer

Show-cause notice issued by invoking irrelevant provisions was held to have been issued without lawful authority and was declared as void ab initio

Appeal was allowed.

Directorate General of Intelligence and Investigation detained the goods of importer at the exit gate after their release by Clearance Collectorate

Deputy Collector of Customs (Adjudication) issued show-cause notice on the basis of shipping bill of the exporting country and passed order-in-original

Appeal against order-in-original was dismissed

Validity

Documents warranted for filing/transmitting goods declaration under the provision of S.79(1), Customs Act, 1969 are commercial invoice, packing list, bill of lading or air way bill or documents used for customs clearance, whether or not signed, initialed or otherwise authenticated, which are contract, pro forma invoice, letter of credit, certificate of origin, health certificate, free trade area certificate or akin documents

Shipping bill filed by the shipper at the port of loading or the value available on the website of foreign country's customs figure nowhere in the definition of documents available in S.2(kka), Customs Act, 1969

Shipping bill of exporting country was not warranted for filing import general manifest under S. 45, Customs Act, 1969

Contents of shipping bill filed by the exporter at the port of shipment with country of export could not be deemed to be construed as an "information" or "document" under Customs Act, 1969 for framing of contravention report and issuance of show-cause notice

Reliance on exporting country's shipping bill was held to be misconceived, suffered from legal infirmity and could not be made a tool for penalizing the importer

Appeal was allowed.

Section 79(1), Customs Act, 1969 cannot be invoked in the show-cause notice particularly when the goods were selected for examination and were released after passing valid assessment/clearance order.

Appellant imported old and used crimping machine at declared value of US $ 2000 whereas invoice of a higher value of US $ 20,000 was found in the container

Deputy Collector of Customs (Adjudication) vide order-in-original confiscated the machine, imposed redemption fine and personal penalty

Appeal filed before Collector of Customs (Appeals) was dismissed

Validity

Appellant had produced a letter of supplier in which it was stated that its staff negligently made mistake by typing wrong value of US $ 20,000 in invoice instead of correct value

Department rejected the document of supplier but did not verify the letter or send email or conducted inquiry to confirm its veracity

Invoice found in the container could not be treated as direct evidence

Invoice did not qualify as "transaction value" in the absence of any evidence or proof

Appellant/importer was not responsible for invoice found in the container he had no knowledge of said invoice, therefore there was no reason to believe that the declaration submitted by him was false in material particulars

Shipping companies were to place invoice of the shipped goods for filing Import General Manifest

Appellate Tribunal allowed the appeal and vacated the show-cause notice.

Declaration referred to the nature, description and value of goods so that assessing officer could apply appropriate tariff rate for assessment and charging of duty and taxes levied thereon.

Meanings.

Property in question was declared to be evacuee trust property and order was set aside by Federal Government in exercise of revisional jurisdiction

Validity

Federal Government as revisional authority under S. 17 of Evacuee Trust Properties (Management and Disposal) Act, 1975, was competent to call for record and examine orders passed by Chairman Evacuee Trust Property Board

High Court in its Constitutional jurisdiction was competent to examine orders passed by Chairman and revisional authority and its legality

In view of mutation and fehrist maafiyat, property in question was correctly declared by Chairman as evacuee trust property

Such was not simple 'evacuee property' available for allotment to displaced persons under Displaced Persons (Compensation and Rehabilitation) Act, 1958

Order passed by revisional authority was result of misreading and non-reading of record including documentary evidence based on wrong presumptions

High Court set aside order passed by Federal Government and restored that of Chairman Evacuee Trust Property Board

Constitutional petition was allowed in circumstances.

Predecessor-in-interest of petitioners was a Hindu who embraced Islam and his father mutated land in favour of his sons excluding him

After partition, predecessor-in-interest of petitioners remained in possession of land left by his family but the authorities declared the land as evacuee "land" and allotted the same to other persons

In year 2003, Notified Officer declined to interfere in allotments on the plea that there was no "pending case"

Validity

In view of the provisions of Pakistan (Administration of Evacuee Property) Act, 1957, it was the exclusive jurisdiction of Custodian to decide as to whether a person/applicant before him was entitled to have property and the question as to whether a property was evacuee or not could only be settled by the Custodian under settlement authority having jurisdiction to inquire into character of the property

Custodian was never approached by petitioners or their predecessor-in-interest in order to have a declaration as to the status of the property

Decision of Custodian under relevant law was appealable in view of S. 43 of Pakistan (Administration of Evacuee Property) Act, 1957

Transfer of property was confirmed in favour of claimants on 14-6-1972 and mutations showing such confirmation were placed on record, which confirmations had never been challenged by petitioners

High Court did not find any illegality in the impugned order passed by Notified Officer

Petition was dismissed, in circumstances.

Decision of government to declare property of a private person/entity as protected heritage under Sindh Cultural Heritage (Preservation) Act, 1994 depends only on recommendation of Committee.

Earlier, matter was remanded to Notified Officer on the ground that Chief Settlement Commissioner did not declare the building in question as 'big mansion'

In post remand proceedings Notified Officer while relying upon parawise reply filed in earlier petition, found that Chief Settlement Commissioner had already declared the building as `big mansion'

Validity

Requirement was that a prior declaration by Chief Settlement Commissioner or an officer authorized by Central Government in such behalf to the effect that a building or premises whether residential or commercial, had been declared as a big mansion or Hotel to dispose of the same by unrestricted public auction

Such pre-requisite was not fulfilled and Notified Officer had acted only on presumptions and an annexure to earlier petition, which had been equated with a declaration specifically required under para 16 of the Schedule, which act had no legal sanction

Annexure in question could in no manner be termed as a declaration by Chief Settlement Commissioner or any Notified Officer by Central Government in such regard

Act of authorities in putting property in unrestricted public auction, in absence of any required declaration was unauthorized and illegal, the same had no legal sanction and was liable to be set aside

High Court declared auction proceedings irregular, unauthorized having no legal effect or bearing upon entitlement of persons in possession of the property to be considered as entitled to get the property, as the same were conducted without there being any required declaration

High Court declared that order passed by Notified Officer was passed without lawful authority and of no legal effect and the same was set aside

High Court directed that if occupants of the property, including the petitioners, would so apply, be considered for transfer of the properties in their possession in any capacity, which law permitted on the applicable terms and conditions

Petition was allowed in circumstances.

Appellant claimed that respondent who was her paternal grandmother was mentally disordered person and filed application before Court of Protection

Court of Protection rejected the application after personally examining the respondent

Validity-Proceedings initiated by appellant were crude and cruel effort on her part to even usurp legitimate share inherited by the mother from the estate of her deceased son

Even at the end of the day such 1/6th share would devolve upon legal heirs of such lady which included appellant who seemed to be in hurry to get her share

High Court declined to interfere in the order passed by Court of Protection

Appeal was dismissed in circumstances.

Shop in question was originally transferred to respondent as evacuee property and Permanent Transfer Deed was issued to him by Settlement Department on 24-4-1972

Petitioner purchased the shop from respondent on 14-12-1978, through registered sale-deed, without having knowledge that the property was a Trust property

Department remained sleeping over the matter for 20 years when in year 1991, reference under Ss. 8 and 10(2) of Evacuee Trust Properties (Management and Disposal) Act, 1975, was instituted

Validity

Inaction on Evacuee Trust Properties Board for such a long time disentitled it for any relief, as it was nowhere mentioned in Permanent Transfer Deed that shop in question was Trust property

Both forums below misconstrued material available on record and had illegally declared shop in question as a trust property without there being any basis for so holding

High Court declared order passed by Evacuee Trust Properties Board to have been passed on wrong presumption of law and facts of the case hence of no legal effect and the same was quashed

Petition was allowed in circumstances.

Subordinate fora can not declare the judgment of a higher appellate fora to be incuriam.