P L D 2011 Peshawar 120

Before Dost Muhammad Khan and Yahya Afridi, JJ

KHALID MAHMOOD---Petitioner

Versus

N.-W.F.P. through Chief Secretary, Peshawar and 4 others---Respondents

Writ Petitions Nos.945 of 2009 and 327 of 2005, decided on 25th November, 2010.

(a) Delegated legislation---

----Concept---Levy of duty by delegated legislation---Scope---Concept of delegated legislation"

had gained momentum with the mushroom population growth, the dire need for "good
governance" and the ultimate aim to cater for the essential basic needs of every segment of the
society to bolster and fulfil the attributes of an "Islamic Welfare State"---Present day Parliament
could not possibly legislate on each and every detail of the vast legislative needs---"Delegated
legislation", was whereby the legislature through legislation delegated to the Government or any
other specified authority to legislate through rules, regulations, orders, instructions or any other
instrument in conformity with the dictates of the parent statute---"Delegated legislation" could
surely be challenged on the ground of being excessive, beyond the authority of the parent statute;
further sub-delegating, what was delegated by the parent statute; and finally that the same was
not properly made public to all---Levy of duty through `delegated legislation', was not ultra
vires---All legislation, more so "delegated legislation", were to be prospective in the effect and
applicability, unless same had been expressed to be otherwise; and that too with the backing of
the parent statute---If an instrument of "delegated legislation", such as a notification, would
impair or disturb or adversely affect or reduce any benefit or impose a liability or any other way
affect the interest or right of a person, it would always be prospective in operation and not
retrospective.

Chief Administrator Auqaf v. Mst. Amina Bibi 2008 SCMR 1717, Mst. Umatullah v. Province
of Sindh PLD 2010 Kar. 236; Muhammad Ashiq v. Chief Administrator of Auqaf PLD 1977 SC
639; Muhammad Suleman v. Abdul Ghani PLD 1978 SC 190; Mian Musarat Shah v.
Government of West Pakistan PLD 1974 Pesh. 18; Imtiaz Ahmad v. Punjab Public Service
Commission PLD 2006 SC 472; Commissioner of Sales Tax v. Messrs Kruddsons Ltd. PLD
1974 SC 180; ANOUD Power Generation Ltd. v. Federation of Pakistan PLD 2001 SC 340;
Messrs Army Welfare Sugar Mills Ltd. v. Federation of Pakistan 1992 SCMR 1652; Messrs
Pfizer Laboratories Ltd. v. Federation of Pakistan PLD 1998 SC 64; Burma Oil Company Ltd.'s
case PLD 1961 SC 452; Tehsil Municipal Administration Faisalabad v. Secretary Local
Government PLJ 2006 SC 783; Tehsil Municipal Administration v. Noman Azam 2009 SCMR
1070; Tehsil Nazim TMA, Okara v. Abbas Ali 2010 SCMR 1437; Pakistan Defence Officers
Housing Authority v. Shamim Khan PLD 2005 SC 729 ref.
(b) North-West Frontier Province Forest Ordinance (XIX of 2002)---

----S. S6---Constitution of Pakistan, Art.199---Constitutional petition---Levy of duty and forest

development charge on timber and other forest produce---Levy of duty through "delegated
legislation" was not ultra vires---Authority of delegating the power to levy duty had to be clear,
unambiguous and precisely rendered to a particular authority--Delegated authority to levy duty
provided under S.56(1) of North-West Frontier Province Forest Ordinance, 2002, was
"conditional" upon the rules to be framed on the manner, the place and the rates of the duty-..
North-West Frontier Province Forest Ordinance, 2002 being the parent statute, did not expressly
delegate the authority to the Provincial Government to levy duty with retrospective effect---
When the parent statute did not provide and expressly delegate such authority to the Provincial
Government to levy the duty retrospectively, same could not be so exercised.

Amir Javed for Petitioners.

Lal Jan Khattak, A.A.-G for Respondent.

Date of hearing: 25th November, 2010.

JUDGMENT

YAHYA AFRIDI, J.---Khalid Mehmood has for the third time, through the instant petition,
invoked the constitutional jurisdiction of this Court, as he is now aggrieved of the outcome of the
directions rendered by this court in Writ Petition No.327 of 2005 vide judgment dated 3-2-2009.

2. The directions given were to the following effect:--

"Therefore, respondent No.1 is directed to decide the representation of the petitioner

positively, within a period of one month after hearing both the parties but strictly
according to law, rules and practice and procedure of rules of propriety."

In compliance to the aforementioned directions, the respondents decided the representation of the
present petitioner in the following terms:-

"Compliance report.

(1) In compliance with the order of the Hon'ble Peshawar High Court, Peshawar dated 3-
2-2005 in Writ Petition No.327 of 2005 titled Khalid Mehmood v. Government of
 N.-W.F.P., through Chief Secretary, a meeting was convened in the office of the
Establishment Secretary on 24-2-2009 on the direction of the Chief Secretary, N.-
W.F.P. to scrutinize the representation of the petitioner submitted to the Government
in the subject case. The parties had been invited for their hearing as directed. Beside
the petitioner Khalid Mehmood his counsel Mr.Aamir Javed, Advocate was also
present. They were heard at length and the record was also thoroughly consulted.

(2) The representation was duly considered impartially. It was found that the forest duty
at the rate of Rs.90 per Cft has been recovered in good faith in accordance with the
government policy invogue, without any discrimination whatsoever. Resultantly, the
representation of the petitioner after due consideration has been rejected by the
competent authority.

(3) Compliance report is submitted accordingly.

Mian Sahib Jan

Secretary Establishment

27th February 2009."

3. The petitioner has impugned the aforementioned decision of the provincial government and
this time prayed for the following:--

(i) Declare the impugned policy of respondent No. 1 dated 16-10-2003 is without lawful
authority and of no legal effect.

(ii) Declare the impugned policy as unreasonable, discriminatory and illegal to the extent
of imposition of forest duty at the rate of Rs.90 per Cft.

(iii) Declare that the notification dated 5-5-2005 as illegal and ultra vires to the
constitution and the fundamental rights of the petitioner.

(iv) Declare that the petitioner is/was liable to pay similar amount of Rs.40 per Cft as
forest duty on importation of timber from Afghanistan through Bin Shahi (Dir) root.

(v) Declare respondent to refund the forest day paid/extracted from the petitioner in
excess of Rs.40 per Cft and the amount of one million held as security by the
respondents."

4. The matter before us this time relates to the enhancement in the rate of duty on the import of
timber from Afghanistan via Bin Shahi vide notification dated 16-2-2005, whereby the rate of
duty on the said timber was enhanced from Rs.40 per cubic foot ("Cft") to Rs. 90 Cft., with
retrospective effect from 10-1-2004 ("Notification") under section 56 of North-West Frontier
Province Forest Ordinance, 2002 ("Ordinance").

For convenience, the Notification is reproduced as under:--

"Notification Dated 16th February, 2005.

No.SO(Tech)ED/V-544/2004/KC/1203-28---In exercise of the powers conferred by

section 56 of the North-West Frontier Province Forest Ordinance, 2002 (N.-W.F.P. Ord.
No.XIX of 2002), Government of the North-West Frontier Province is pleased to direct
that in this Department's Notification No. SOFT-I (FFD)/V-221/73/4146-51, dated 12-
7-1994 and No.SOFT-I(FFW)/V-105/99/7640-49, dated 18-9-1999, the following sub-
item is added, in schedule-I after serial No.I (a) namely:--

Description of timber/firewood and Rate of duty

Other forest produce
b. Coniferous timber imported/brought (i) Rs.90 per cubic foot (ii) Forest
from Afghanistan via Bin Shahi. Development charges at the rates
given below: Rs. 10 per Cft on
deodar; Rs.8 per Cft on Kail; and
Rs.6 per Cft on Fir/spruce.

(2) This amendment takes effect with effect from 10-1-2004.

Secretary to Govt. of the

North-West Frontier Province

Environment Department."

5. Mr. Amir Javed, Advocate, the learned counsel for the petitioner, vehemently argued that
the petitioner does not challenge the authority of the provincial government to enhance the rate
of duty on timber imported from Afghanistan via Bin Shahi under the Ordinance but he was
agitated by the retrospectively given to the Notification; that the Notification is "subordinate
legislation" or "delegated legislation", which cannot be given retrospective effect as there is no
clear authority provided for the same in the parent statute; and that the duty paid by the
petitioner on the enhanced rate on the timber imported between 1-10-2004 and 5-5-2005 is to
be returned to the petitioner as the same was illegally extracted from the petitioner. In this
regard the learned counsel relied upon Chief Administrator Auqaf v. Mst.Amina Bibi (2008
SCMR 1717), Mst. Umatullah v. Province of Sindh (PLD 2010 Karachi, 236), Muhammad
Ashiq v. Chief Administrator of Auqaf (PLD 1977 SC 639), Muhammad Suleman v. Abdul
Ghani (PLD 1978 SC 190), Mian Musarat Shah v. Government of West Pakistan (PLD 1974
Peshawar 18), Imtiaz Ahmad v. Punjab Public Service Commission (PLD 2006 SC 472),
Commissioner of Sales Tax v. Messrs Kruddsons Ltd. (PLD 1974 SC 180), ANOUD Power
Generation Ltd. v. Federation of Pakistan (PLD 2001 SC 340), Messrs Army Welfare Sugar
Mills Ltd. v. Federation of Pakistan (1992 SCMR 1652), Messrs Pfizer Laboratories Ltd. v.
Federation of Pakistan (PLD 1998 SC 64).
6. Mr. Lal Jan Khattak, the learned Additional Advocate-General, representing the provincial
government, aggressively argued that the petitioner was "estopped" by his conduct to agitate
the present issue before this court at this belated stage; that the petitioner had accepted the
terms of the Notification, and had also signed a written undertaking in that behalf
("Undertaking"), hence he could not challenge it this stage; that the payment had been made by
the petitioner in compliance with the Undertaking; and that huge amount of public money was
involved, which had lawfully been paid and accepted by the respondent department; and that
recovery of money could not be demanded through a constitutional petition.

7. The valuable arguments of the learned counsel for the parties heard and the available record
of the case thoroughly considered.

8. To start with, reviewing the parent statute, we note that the Notification derives its force
from section 56 of the Ordinance, which reads as follows:--

"56. Duty and forest development charges on timber and other forest produce---(1)
Government may, by notification levy a duty -or forest development charges, or both,
in such manner at such places and at such rates as may be prescribed on any timber or
other forest produce which is.

(a) produced in the Province, or

(b) brought from any place outside the Province, or is transported from or through any
place within the Province, or from beyond the frontier or elsewhere.

(2) In every case in which such duty or forest development charges, or both, are directed to
be levied ad valorem, Government may fix, by notification, the value on which such duty
or forest development charges, or both, shall be assessed.

(3) All duties on timber or other forest produce listed in Schedule-I and all forest
development charges, or both, which at-the time when this Ordinance comes into force, are
levied therein under the authority of Government, shall be deemed to have been duly levied
under the provisions of this Ordinance;

Provided that the fees and forest development charges so levied shall not exceeding any
case a fair estimate of twenty five percent of the average market price realizable on the
sales.

(4) The amount realized from duties and forest development charges shall be credited to the
Forest Development Fund."
9. Reading section 56 of the Ordinance, reveals that the legislature has delegated the authority to
the provincial government to levy a duty, inter alia, on import of timber into the province. This is
"delegated" or "subordinate" legislation.

The concept of "delegated legislation", has gained momentum with the mushroom population
growth, the dire need for "good governance" and the ultimate aim to cater for the essential basis
needs of every segment of the society to bolster and fulfil the attributes of a "Islamic welfare
State".

Surely, the present day parliament can not possibly legislate on each and every detail of the vast
legislative needs, hence the "delegated legislation", whereby the legislature through legislation
delegates to the government or any other specified authority to legislate through rules,
regulations, orders, instructions or any other instrument in conformity with the dictates of the
parent statute.

What is important to note is that "delegated legislation" can surely be challenged on the grounds
of being excessive, beyond the authority of the parent statute, further sub-delegating what was
delegated by the parent statute and finally that the same was not properly made public to all.

10. As far as levying duties through "delegated legislation", it is by now settled law that the same
is not ultra vires. What is to be considered is that the authority of delegating the said power to
levy the duty has to be clear, unambiguous and precisely rendered to a particular authority.
However, modern legislation saddles the said power to legislate with the conditions or guidelines
of rendering the same. We note that the delegated authority to levy duty provided under section
56(1) of the Ordinance is "conditional" upon the rules to be framed on the manner, the place and
the rates of the duty. As the petitioner has neither objected to nor raised any protest against the
vires of the Notification having not fulfilled the said conditions provided under section 56(1) of
the Ordinance. Hence, it would not be proper on our part to comment on the same in the present
case. We leave -it to be resolved in a subsequent appropriate case.

11. Now, moving on to the retrospectivity of the Notification. All legislation, more so
"delegated legislation", are to be prospective in its effect and applicability, unless the same have
been expressed to be otherwise and that too with the backing of the parent statute. In the present
case, the Ordinance, being the parent statute, does not expressly delegate the authority to the
provincial government to levy duty with retrospective effect. Hence, when the parent statute does
not provide and expressly delegate such authority to the provincial government to levy duties,
retrospectively, the same can not be' so exercised. "Delegatee" can not go beyond the power
delegated by the "Delegator".

12. In this regard, guidance can also be sought from the provisions contained in West Pakistan
General Clauses Act, 1956 ("Act"). The purpose of the Act is to shorten the language used in the
provincial statutes and for the application of the provisions contained therein to all provincial
statutes. Section 3 of the Act provides:

"Coming into operation of enactments.--Where any West Pakistan Act is not expressed to
come into operation on a particular day, then it shall come into operation of published in
the official gazette and in every such act the date of the first publication thereof shall be
printed either above or below the title of the Act and shall form part of every Act.
 (ii) Government shall, by notification in the official gazette or by any other means
available, ensure void decimation of all circulars, rules, regulations and instructions
having the effect of law."

In addition to the said provision, section 28 of the Act also provides that:--

"Application to Ordinances and regulations.--The provisions of this Act shall apply in

relation to any Ordinance promulgated by the governor as they apply in relation to Acts
made by the provincial legislature of the West Pakistan."

The term "notification", has been defined in section 2(41) of the Act, which states:--

"Notification shall mean a notification published under proper authority in the official
gazette."

As the term "Notification" has not been defined in the Ordinance, the provisions of the Act
would have to be resorted to and applied. Accordingly, the Notification in the Ordinance would
also have to be published in the Official Gazette before the same can gain legal sanction and
lawful effect.

13. View from another angle, it is by now a well-settled that in case an instrument of "delegated
legislation", such as a Notification, impairs or disturbs or adversely effects or reduces any benefit
or imposes a liability or any other way effects the interest or rights of a person, it would always
be prospective in operation and not retrospective.

14. Tracing the judicial trend, we note that initially there was a defined inclination towards
allowing retrospectively to "delegated legislation". In Burma Oil Company Ltd.'s case (PLD
1961 SC 452), the august Supreme Court of Pakistan held that a notification is to operate from
the date of its promulgation unless it had been expressly or by necessary intendment made to
take effect retrospectively. This trend of judicial interpretation of the operation of a notification
was drastically changed when in Commissioner of Sales Tax Karachi v. Messrs Kruddson Ltd.
(PLD 1974 SC 180), the august Supreme Court held that notification cannot operate
retrospectively to impair existing right or to nullify the effect of' final judgment, even if the
notification be expressly so designed.

Thereafter, the trend has progressively been to ensure that any notification in the form of
delegated legislation cannot be made to operate retrospectively, so as to impair an existing or
vested right or to impose new liability or obligation, even if the said notification so expressly
provides.

The august Supreme Court of' Pakistan in Anoud Power Generation Ltd. v. Federation of
Pakistan (PLD 2001 SC 340) while dilating upon the scope and legal effect of a notification
under a statute has clearly settled the issue by holding that:

"The conclusion so drawn by the learned High Court is entirely in consonance with the
law laid down by this court from time to time that a notification cannot operate
retrospectively and benefits and advantage if already accrued in favour of a party
during subsistence of a notification shall be available to it until a notification is
amended or ascended.

At this juncture another important aspect of the retrospectivity of the notification may
also be noted that if the notification has been -used for the benefit of the subject then it
can be made operative .retrospectively but if its operation is to the disadvantage of a
party who is subject of the notification then it would operate prospectively."

In a more recent judgment the august Supreme Court of Pakistan in Chief Administrator Auqaf
v. Mst. Amina Bibi (2008 SCMR 1717) has further elaborated the view point taken in the
aforementioned judgment by holding that:--

"It has been further asserted that legislation never intended to deprive the citizen of valuable
rights by merely printing a notification and not giving it proper publication. Notification, after
printing, must be passed on to sales depot and displayed prominently at suitable public places
and it has been further asserted that the notification under section 7 must not only be published
and gizzard but must also be served on person in possession of property declared as 'Waqf' . In
another case………. it was held that mere insertion in official gazette of the notification is not
enough it should be published in a manner usually adopted for publication of those
documents…….".

It would be important to note that in a recent judgment of the Sindh High Court in Mst.
Umatullah v. The Province of Sindh (PLD 2010 Karachi 236) the learned court referring the
provisions of the Sindh General Clauses Act, 1956 held that:--

"There is wisdom in enacting sections 2(41) and 19-A of Sindh General Clauses Act,
1956 that necessitates publication, in the official gazette of subordinate legislation
instruments effecting rights duties and obligations in any manner of any class of persons.
The publication of subordinate legislation instrument in the official gazette would, as
held in the case of Saghir Ahmad v: Province of Punjab (PLD 2004 SC 261) inspire
public confidence in the public decision and promote the system of good governance and
transparency. Merely issuing a notification without publication in official gazette keeping
in a close shrouded secrecy is opposed to public policy and law, otherwise, it would add
another tool of impression in the arsenal of the public functionaries, who may arbitrary or
selectively confer or in ping any privilege benefit or right of a person at their wimps and
fancies for extraneous consideration."

The present issue has been discussed by the august Supreme Court of Pakistan in Tehsil
Municipal Administration Faisalabad v. Secretary Local Government (PLD 2006 SC 783),
wherein while dilating upon the authority of the local government to levy taxes through
notification under the Punjab Local Government Ordinance, 2001 held that:
 "The procedural requirements of the law were satisfied by the petitioner. The learned
counsel for the petitioner frankly conceded that the revision of rates and fees would take
effect from 10-2-2005 i.e. from the date of publication of the notification in the Punjab
Gazette and not from 1-7-2004 as mentioned therein."

This view has been consistently followed by the august Supreme Court even in the most recent
cases of Tehsil Municipal Administration v. Noman Azam (2009 SCMR 1070) and Tehsil Nazim
TMA, Okara v. Abbas Ali (2010 SCMR 1437).

14. We are in complete consonance to hold that the Notification would take effect from the date
of its publication i.e. 5-5-2005 and not from the date of the Notification i.e. 16-2-2005 or the
date provided i n the Notification from which it is to take effect i.e. 10-1-2004.

15. As to the objection of the respondent department regarding seeking recovery of money
through constitutional jurisdiction, suffice it to state that when the state organs are abusing
their discretion and exploiting their authority, which is apparently clear from the record and
does not require any further inquiry or evidence to be recorded, the same can be agitated and
recovered through constitutional jurisdiction. The august Supreme Court of Pakistan has in
Pakistan Defence Officers Housing Authority v. Shamim Khan (PLD 2005 SC 729) held
that:--

"We agree with the learned counsel for the appellant that in case of controversial
questions of facts requiring adjudication on the basis of evidence, the High Court
should not interfere in its constitutional jurisdiction but in the present case we find
that material facts were admitted by the appellant and the High Court after satisfying
the requirements interfered i n the matter."

And another landmark judgment of Messrs Pfyzer Laboratories Ltd. v . Federation of

Pakistan (PLD 1998 SC 64) the august Supreme Court has gone to the extent of holding
that:--

"Following are the principles on the point in issue:

(i) If one party under mistake, whether of fact or law, paid some money to another
party which includes a Government Department, which was not drew by law or
contract or otherwise, that must be repaid in view of section 72 of the Contract Act,
1972

(vii) Where some money is received by the government not lawfully due, the plea of
limitation by its department was violative of the principles of morality and justice

(ix) There may not be legal liability on the part of the government functionary to
refund any amount received by it, as a tax or other levy by virtue of certain special
provision under the special law but keeping in view the democratic society governed
 by rule of law and every government, which claims to have ethical and moral values,
must do what is fair and just to the citizens regardless of legal technicalities.

(x) The fact that the amount of tax of which refund was claimed was voluntarily paid,
did not preclude the right to claim refund, if it was not lawfully payable."

Hence, in view of the clear dicta of the August Supreme Court stated above, the objections of
the respondent department regarding the jurisdiction and "estoppel" would not legally hold.

16. Accordingly, for the reasons stated above, we accept the present petition and hold that;

(I) Notification issued under the Ordinance would have legal effect from it is
published in the Official Gazette.

(II) The duties paid by the petitioner and received by the respondent department, as
import duty on timber for the period between 10-1-2004 and 5-5-2005 at the
enhanced rate of Rs.90 Cft was not with lawful authority and the excess amount of
Rs.50 Cft was devoid of any legal sanction, and thus surely returnable, without
any delay.

(III) The security deposit of Rs. 1000 Million retained by the respondent department
from the petitioner be returned forth-with.

H.B.T./63/P Petition accepte