DADABHOY ENERGY SUPPLY COMPANY LTD. vs FEDERATION OF PAKISTAN and others
This petition for leave to appeal arose from a judgment of the Sindh High Court, which dismissed a constitutional petition challenging the validity of certain Statutory Regulatory Orders (S.R.Os) imposing customs duties and advance income tax on power generation units. The core legal question was whether the petitioner could challenge the constitutionality and legality of S.R.Os that had already been adjudicated upon and upheld by the Supreme Court in previous litigation. The High Court had dismissed the petition primarily because the petitioner's counsel conceded that the Supreme Court had previously examined the same notifications in 'Collector of Customs v. Ravi Spinning Ltd.' and 'Anoud Power Generation Ltd. v. Federation of Pakistan' and found them to be lawful and intra vires the Constitution. The Supreme Court affirmed the High Court's decision, holding that once the highest court has determined the legality of a notification, it cannot be re-litigated on the same grounds. The principle laid down is that a lower court cannot take a view contrary to a binding precedent of the Supreme Court, and re-agitating settled issues is impermissible in law.
- Can a party challenge the constitutionality of a statutory notification that has already been upheld by the Supreme Court in previous litigation?
- Is a High Court permitted to take a view contrary to a judgment of the Supreme Court on the same legal issue?
- Does the concession of counsel regarding the binding nature of a Supreme Court precedent preclude further adjudication on the same matter?
- Section 18(2), Customs Act 1969
- Section 50(5), Income Tax Ordinance 1979
- Article 199, Constitution of Pakistan 1973
ORDER
' SAIYED SAEED ASHHAD, J.--- This petition for leave to appeal has been filed against the Sindh High Court judgment, dated 23-12-2003 in Constitution Petition No,272 of 2000 dismissing the same.
2. Brief facts of this case are that petitioner had filed C.P. No,272 of 2000 in the High Court of Sindh wherein they sought the following reliefs:-- "It is therefore, prayed in the interest of justice that this Honourable Court may be pleased to:--
(a) declare that S.R.O. 584(1)/95 is discriminatory, unlawful, unconstitutional and void ab initio insofar as it amends S.R.O.279(1)/94 and seeks to impose Customs Duty on power generation unit on the basis of, who the ultimate purchasers are;
(b) declare that S.R.O. 585(1)/95 is discriminatory, unlawful and ultra vires the Constitution of Pakistan, 1973 and should be struck down;
(c) (i) declare that S.R.O. 560(1)/96 is ultra vires the Customs Act, 1969, and the Constitution of Pakistan, 1973 and should, be struck down;
(ii) in alternative section 18(2) of the Customs Act, 1969 be struck down for being in excessive delegation of powers;
(d) direct the respondents to issue an Exemption Certificate in terms of section 50(5) of the Income Tax Ordinance, 4979 and in the meanwhile to clear the goods of the petitioner without demanding payment of any Advance Income Tax;
(e) grant costs of the petition;
(f) grant interim relief by way of staying the recovery of Customs Duty, Regulatory Duty from the petitioners in respect of consignments imported under L/C Nos.SCB/408/DCIL and 02/10660/96 and Bills of Entry, Import General Manifest Nos.1352/96 dated September 19, 1996, 1372/96, dated September 22, 1996, 1560/96, dated October, 26, 1996, No,1612/96 dated November 5, 1996, 1849/96 dated December 21, 1996 and 255/97 dated February 19, 1997, without payment of the impugned Regulatory Duty, Customs Duty and Advance Income Tax;
(g) direct the respondents or anyone acting for through or under them not to take any coercive measures against the petitioners and or their Directors till a decision in this petition;
(h) grant such other relief as may be deemed just and proper by this Honourable Court."
' During the course of arguments before the High Court the counsel for respondent No,2 Raja M.
Iqbal, drew the attention of learned Division Bench of Sindh High Court to the pronouncement made by this Court in the case of Anoud Power Generation Ltd. v. Federation of Pakistan PLD 2001 SC 340. In this case this Court had refused leave against the order of the Lahore High Court in a petition assailing Notification S.R.O.279(I)/94 as amended by S.R.O.584(I)/95 and S.R.0.585(1)/95 on the ground of being discriminatory, unlawful and ultra vires the Constitution, maintaining the order of the Lahore High Court declaring the notification in question as lawful and intra vires to the Constitution and also not being discriminatory.
3. From the impugned judgment of the Sindh High Court it transpires that Mr. I.H. Zaidi, learned Advocate Supreme Court for the petitioner who also appeared on behalf of the petitioner in the Sindh High Court conceded that the S.R.Os. In question were examined by the Court in the case of Collector of Customs v. Ravi Spinning Ltd. 1999 SCM R 412 and was not found to be discriminatory or ultra vires the Constitution. The High Court in view of such concession/statement made by Mr. I.H.
Zaidi, found that once it was admitted that the notification in question was examined by this Court and it was found that neither it was unlawful nor ultra vires the Constitution then it could not be assailed again on the same grounds before the Court as it would have amounted to examining or determining the correctness, legality and propriety of a judgment given by this Court on the same issue in an earlier case, which was not permissible in law. Therefore, the Sindh High Court came to the conclusion, and rightly so that nothing was left for adjudication as it could not take a view contrary to the one taken by this Court.
4. For the foregoing facts and discussion this petition is found to be misconceived and also without any substance. Accordingly it stands dismissed and leave to appeal refused.