ASHRAF INDUSTRIES (PVT.) LTD. Versus FEDERATION OF PAKISTAN through Secretary, Ministry of Petroleum and Natural Resources Control Secretariat and 3 others 2013 P T D 1732

2013 P T D 1732

 

[Peshawar]

 

Before Dost Muhammad Khan and Qaiser Rashid Khan, JJ

 

ASHRAF INDUSTRIES (PVT.) LTD.

 

Versus

 

FEDERATION OF PAKISTAN through Secretary, Ministry of Petroleum and Natural Resources Control Secretariat and 3 others

Writ Petition No.2514-P of 2012, decided on 13th June, 2013.

(a) Gas Infrastructure Development Cess Act (XXI of 2011)—

—-Ss. 3, 4, 6(2), Second Sched. & Preamble—Constitution of Pakistan, Arts. 73(2), (3) & 199—Constitutional petition—Money Bill—Scope—Gas Infrastructure Development Cess Act, 2011 introduced (in the Parliament) as a Money Bill—Legality—Keeping in view provisions of Art. 73(2) of the Constitution, Gas Infrastructure Development Cess Act, 2011 did not fulfill the requirements of a Money Bill nor could it be held to be a Money Bill in its true legal parlance—Provisions and Second Schedule of the Gas Infrastructure Development Cess Act, 2011 were ultra vires of the Constitution and therefore void ab initio—Constitutional petition was allowed accordingly.

(b) Gas Infrastructure Development Cess Act (XXI of 2011)—

—-Ss. 3, 4, 6(2) & Second Sched.—Constitution of Pakistan, Arts. 78, 81, 153, 158 & 199—Constitutional petition—Gas Infrastructure Development Cess (cess”), levy of—Constitutionality and legality—Discrimination, exploitation, irrationality and unreasonableness in levy of cess—Cess levied on proposed or planned facility/project—Mandatory procedure of Council of Common Interest not adopted—Bill regarding the cess tabled directly before the Parliament without getting approval from the Federal Cabinet—Effect—Return of cess levied to the consumers—Cess in question was to be utilized for the purpose of infrastructure development of Iran-Pakistan (Gas) Pipeline Project, Turkmenistan-Afghanistan-Pakistan-India(Gas) Pipeline Project, LNG or other projects or for price equalization of other imported alternate fuels including LPG—Initially, under Second Schedule of Gas Infrastructure Development Cess Act, 2011, Federal Government imposed the cess in question on the industrial sector at the rate of Rs.13 per MMBTU, however same was increased manifold up to Rs.669.23 per MMBTU—Subsequently Oil and Gas Regulatory Authority issued S.R.Os., whereby all consumers engaged in processing of industrial raw material into value added finished products, including hotel industries and other industries providing finished goods and commodities for the public, irrespective of volume of gas consumed, were brought under the net of the cess at the rate of Rs.460 per MMBTU with minimum charges of Rs.15510.78 per month—Subsequently Federal Government further increased the cess through a simple press release issued by Oil and Gas Regulatory Authority—Plea of petitioners/consumers was that increase in cess made in the said manner and its recovery from the industrial consumers was void ab initio, discriminatory and ultra vires of the Constitution—Validity—In the Second Schedule of Gas Infrastructure Development Cess Act, 2011, there was great disparity of cess rates both region-wise and with regard to the kind of industry, which was based on no intelligible differentia nor any sound rationale, and it also amounted to excessive delegation of legislative powers—For giving legal and constitutional validity and legitimacy to such discriminatory treatment, neither any meeting of Council of Common Interest (“the Council”) was held nor consent of its constituting members was obtained, which was a must in the circumstances—Clear case of discrimination was made out by enacting provisions of the Gas Infrastructure Development Cess Act, 2011 because Art. 158 of the Constitution provided that the Province in which the well head of natural gas was situated, shall have precedence over other parts of the country in meeting the requirements of that well head, but in the impugned Act, Provinces producing natural gas had not been given any concession or relief whatsoever—Levying and recovering of cess on random rates clearly offended mandatory and commanding provisions of Art. 158 of the Constitution—Bill of the impugned Act was tabled directly before the Parliament, whereas in a Parliamentary system of Government and because of Federal Government Business Rules, it was mandatory that before tabling any Bill before the Parliament for legislation, it should be placed before the Federal Cabinet presided over by the Prime Minister, and if the cabinet approved the same, then the Bill could be tabled before the Parliament—Article 78 of the Constitution required that all revenue and money received by the Federal Government shall be made part of Federal Consolidated Fund, while Art. 81 of the Constitution provided those expenditure which were to be charged upon the said Fund—Impugned cess was neither a tax nor fell within the definition of “revenue” of the kind which had to be deposited in the Federal Consolidated Fund nor the Gas Infrastructure Development costs could be charged on the Federal Consolidated Fund—Question as to how the cess was managed and by whom and under whose authority, and under which head of account the cess amount was deposited, was not certain—Even if the cess was authorized by any authority of the Federal Government, it was not clearly enumerated in any of the provisions relating to financial matters of the Federal Government—Cess could not be collected on future prospects of any proposed or planned facility, which was yet to be provided—Iran-Pakistan (Gas) Pipeline Project was not yet signed nor made functional till date, while the cess was being collected for the last many years from industrial and other alike consumers of natural gas on the proposition that on completion of the gas pipeline projects they would be provided increased supply of natural gas to meet their future requirements—Very fate of gas pipeline projects in question was uncertain and unpredictable—Imposition, levy and collection of the cess in question was irrational and unreasonable because in case industrial consumers after paying millions of rupees of cess, closed down their businesses, they would get nothing in return for the cess they had paid in advance—No provision of the Constitution, expressly or impliedly, authorized the Parliament or the Government to impose, levy or collect the cess in question from industrial consumers of natural gas—Provisions of the impugned Act, imposing, levying and recovering the cess in question, were absolutely expropriatory, exploitative and constitutionally illegitimate—Provisions and Second Schedule of the Gas Infrastructure Development Cess Act, 2011 were in conflict with clear provisions of the Constitution regarding imposition of taxes and collection of revenues etc. and therefore were void ab initio—Constitutional petition was allowed accordingly and High Court directed that Government should return the cess in question lump sum to the petitioners/ consumers within a reasonable time and in case it was impossible or impractical to do the same, then handsome amount of the same should be adjusted in the monthly consumption bill of each petitioner/ consumer.

(c) Interpretation of Constitution—

—-Constitution being an organic law, must be read as a whole and none of its provisions should be taken in isolation for the purpose of construction.

(d) Constitution of Pakistan—

—Art. 199—Constitutional jurisdiction of High Court—Judicial review of a legislative instrument/law enacted by the Parliament—Scope—Superior Courts were conferred power of judicial review to examine the constitutional legitimacy of any legislative instrument/law enacted by the Parliament.

(e) Words and phrases—

—“Tax” and “cess”—Distinction.

(f) Cess—

—-Levy of cess on basis of future prospects of any proposed or planned facility—Legality—Cess was collected on subsisting and existing services rendered by the State/Government or its functionaries to a particular segment of society/consumer—Cess could not be collected on future prospects of any proposed or planned facility, which was yet to be provided—Once a project/facility was completed and made functional and operative, (only) then cess was collected for such project/facility.

            Ishtiaq Ahmad for Petitioner.

            Javed Ali Asghar, Saeed Khan, Akhunzada, Arbab Muhammad Tariq and Fazal-e-Karim and Barrister Haroon Dugal for Respondents.

            Date of hearing: 13th June, 2013.

JUDGMENT

            DOST MUHAMMAD KHAN, C.J.—This single judgment shall also decide the following constitutional petitions, shown in the table below, because in all these petitions the vires of the provisions of Gas Infrastructure Development Cess Act, 2011, which was notified in the gazette notification, followed by the notification issued by OGRA in consequence of the same, have been challenged on the touchstone of various provisions of the Constitution, relating to protection of fundamental rights.

Case No. Title
Interim Relief (N) With Writ Petition 2514/2012(M) Ashraf Industries (Pvt.) Ltd. v. Federation of Pakistan through Secretary Ministry of Petroleum and Natural Gas.
Interim Relief (N) With Writ Petition 2523/2012(M) Messrs A.J. Textile Mills Ltd. v. Federation of Pakistan Ministry of Petroleum and Natural Resources
Interim Relief (N) With Writ Petition 2546/2012(M) Messrs TKM Enterprises v. Federation of Pakistan through Secretary Ministry of Petroleum etc.
Interim Relief (N) With Writ Petition 2577/2012(M) Bilour Industries (Pvt.) Ltd. v. Federation of Pakistan through Secretary Ministry of Petroleum
Interim Relief (N) With Writ Petition 2585/2012(M) M/S MKB Enterprises v. Federation of Pakistan through Secretary Ministry of Petroleum
Interim Relief (N) With Writ Petition 2584/2012(M) S.S. Polypropylene (Pvt.) Ltd. v. Federation of Pakistan through Secretary Ministry of Petroleum
Interim Relief (N) With Writ Petition 2583/2012(M) Premier Formica Indus. Ltd. v. Federation of Pakistan through Secretary Ministry of Petroleum
Interim Relief (N) With Writ Petition 2582/2012(M) Durrani Ceramics v. Federation of Pakistan through Secretary Ministry of Petroleum.
Interim Relief (N) With Writ Petition 2581/2012(M) AGE Industries (Pvt.) Ltd. v. Federation of Pakistan through Secretary Ministry of Petroleum
Interim Relief (N) With Writ Petition 2580/2012(M) United Ruber (Pvt.) Ltd. v. Federation of Pakistan through Secretary Ministry of Petroleum
Interim Relief (N) With Writ Petition 2579/2012(M) Swat Tyre and Rubber Co. (Pvt.) Ltd. v. Federation of Pakistan through Secretary Ministry of Petroleum
Interim Relief (N) With Writ Petition 2578/2012(M) Libra (Pvt.) Ltd. v. Federation of Pakistan through Secretary Ministry of Petroleum.
Interim Relief (N) with Writ Petition No. 2395/2012. Messrs Hafeez Iqbal Oil Ghee and (Pvt.) Ltd. v. Govt. of Pakistan etc.
Interim Relief (N) With Writ Petition 2424/2012(M) Messrs Rehman Cotton Mills Ltd. v. Federation of Pakistan etc.
Interim Relief (N) With Writ Petition 2456/2012(M) Frontier Foundry (Pvt.) Ltd. v. Federation of Pakistan etc.
Interim Relief (N) With Writ Petition 2454/2012(M) Royal Textile Mills Ltd. v. Federation of Pakistan etc.
Interim Relief (N) With Writ Petition 2455/2012(M) Sarhad Textile Mills Ltd. v. Federation of Pakistan etc.
Interim Relief (N) With Writ Petition 2459/2012(M) Lahore Steel Mills v. Federation of Pakistan etc.
Interim Relief (N) With Writ Petition 2457/2012(M) Khyber Match v. Federation of Pakistan etc.
Interim Relief (N) With Writ Petition 2458/2012(M) Peshawar Ceramics (Pvt.) Ltd. v. Federation of Pakistan etc
Interim Relief (N) With Writ Petition 2611/2012(M) Messrs L.T.H.F.Z. Mills etc. v. Federation of Pakistan through Secretary Ministry of Petroleum
Interim Relief (N) With Writ Petition 2612/2012(M) Messrs Gul Shahzada Enterprises v. Federation of Pakistan through Secretary Ministry of Petroleum
Interim Relief (N)With Writ Petition 2613/2012(M) Swat Ceramics Company Ltd. v. Federation of Pakistan through Secretary Ministry of Petroleum
Writ Petition 2740 of 2012 With C.M. 111 of 2012 Gateway CNG Station v. Federation of Pakistan etc.
Writ Petition 2739 of 2012 With C.M. 110 of 2012 Messrs Super Taj CNG Station v. Federation of Pakistan etc.
Writ Petition   3214 of 2012 Khushal CNG Filling Station etc. v. Federation of Pakistan etc.
Writ Petition 3228 of 2012 Messrs Shabqadar CNG Filling Station v. Federation of Pakistan etc.
Writ Petition 3227 of 2012 All Pakistan CNG Association v. Federation of Pakistan etc.
Interim Relief (N) With Writ Petition 2941 of 2012(M) With C.M. 107 of 2012. Messrs Blue Tee Filling Station etc. v. Federation of Pakistan through Secretary Ministry of Petroleum
Interim Relief (N) With Writ Petition 2940 of 2012(M) with C.M. 117 of 2012 Messrs Yasrab CNG Filling Station v. Federation of Pakistan through Secretary Ministry of Petroleum.
Interim Relief (N) With Writ Petition 2975/2012(M) Messrs Kohat CNG Station etc. v. Federation of Pakistan through Secretary Cabinet Division etc.
Interim Relief (N) With Writ Petition 2974/2012(M) With C.M. 108/2012 Messrs Aman CNG etc. v. Federation of Pakistan through Federal Secretary etc
Writ Petition 3380/2012 Messrs United Ruber (Pvt.) Ltd. v. Federation of Pakistan through Secretary Ministry of Petroleum.
Writ Petition 3156/2012 Messrs Brightex Industries v. Federation of Pakistan through Secretary Ministry of Petroleum.
Writ Petition 3104/2012 Daudsons Industries (Pvt.) Ltd. v. Federation of Pakistan etc.
Interim Relief (N) With Writ Petition 2987/2012(M) Messrs Aman CNG etc. v. Federation of Pakistan through Secretary Ministry of Petroleum etc.
Writ Petition 2750/2012 Frontier Ceramics Limited v. Federation of Pakistan through Secretary Ministry of Petroleum etc.
Writ Petition 2804/2012 Messrs Khyber Electric Lamps v. Federation of Pakistan Ministry of Petroleum and Natural Resources etc.
Writ Petition 2803/2012 Messrs Orakzai CNG Filling Station v. Federation of Pakistan Ministry of Petroleum and Natural Resources etc.
Writ Petition 2802/2012 Mohsin Match Factory (Pvt.) Ltd. v. Federation of Pakistan Ministry of Petroleum and Natural Resources etc.
Interim Relief (N) With Writ Petition 2801/2012 Messrs Enem Multi Textile (Pvt.) Ltd. v. Federation of Pakistan Ministry of Petroleum and Natural Resources etc.
Writ Petition 2738/2012 Messrs Taj Vegetable Oil Processing Unit v. Federation of Pakistan Ministry of Petroleum and Natural Resources etc.
Interim Relief (N) With Writ Petition 2910/2012(M) Alam Match (Pvt.) Ltd. v. Federation of Pakistan Ministry Petroleum and Natural Resources
Interim Relief (N) With Writ Petition 2911/2012(M) Messrs Daudzai CNG Filling Station v. Federation of Pakistan Ministry Petroleum and Natural Resources.
Interim Relief (N) With Writ Petition 2913/2012(M) Messrs Wadud Woolen Mills Ltd. v. Federation of Pakistan through Ministry of Petroleum
Interim Relief (N) With Writ Petition 2728/20l2 Messrs Peshawar Chemical Industries v. Federation of Pakistan etc.
Interim Relief (N) With Writ Petition 3270/2012 Messrs Khurshid and Gul Brothers CNG v. Federation of Pakistan through Secretary Ministry of Petroleum and Natural Resources etc.
Interim Relief (N) With Writ Petition 3271/2012 Al-Hafiz CNG II Filling State v. Federation of Pakistan through Secretary Ministry of Petroleum
Interim Relief (N) With Writ Petition 2654/2012(M) Messrs Ashraf Match Factory Ltd. v. Federation of Pakistan through Secretary Ministry of Petroleum
Interim Relief (N) With Writ Petition 2653/2012(M) Al-Jasmin Pvt. Ltd. v. Federation of Pakistan through Secretary Ministry of Petroleum
Interim Relief (N) With Writ Petition 2976/2012(M) With C.M. 109/2012 Messrs Super CNG v. Federation of Pakistan through Federal Secretary etc.
Writ Petition 2831/2012 A R Procession Industries (Pvt.) Ltd. v. Federation of Pakistan through Secretary Ministry of Petroleum
Writ Petition 3229/2012 Messrs Shah III CNG etc. v. Federation of Pakistan through Secretary Cabinet Division etc.
Writ Petition 3051/2012 Messrs Green Hill CNG Station v.   Federation of Pakistan through Federal Secretary
Writ Petition 3050/2012 Messrs Kumail CNG Filling Station v. Federation of Pakistan through Federal Secretary
Writ Petition 3023/2012 Messrs Gas Centre 11 CNG etc. v. Federation of Pakistan Ministry Petroleum and Natural Resources.
Writ Petition 3022/2012 Messrs Diamond Filling and CNG v. Federation of Pakistan Ministry Petroleum and Natural Resources
Interim Relief (N) With Writ Petition 2880/2012 Messrs Zam Zam CNG Filling Station v. Federation of Pakistan Ministry Petroleum etc
Interim Relief (N) With Writ Petition 2881/2012 Messrs Peshawar II CNG Filling Station v. Federation of Pakistan Ministry Petroleum etc.
Writ Petition 3090/2012 Messrs Behram CNG Station etc. v. Federation of Pakistan through Secretary etc
Writ Petition 3089/2012 Messrs Capital CNG Station v. Federation of Pakistan through Secretary etc.
Writ Petition 3088/2012 Messrs Power Tech CNG Filling Station v. Federation of Pakistan through Federal Secretary etc.
Interim Relief (N) With Writ Petition 3087/2012 Swat CNG Station v. Federation of Pakistan   through Federal Secretary   etc.
  1. The brief background of the controversy is that the Federal Government presented a Bill with the title “Gas Infrastructure Development Cess Act, 2011” under the garb to narrow down the widening gap between the demand and supply of natural gas because the Government intended to ink an agreement with the Government of Islamic Republic of Iran for Gas Pipeline Project and the second with Turkmenistan via Afghanistan, with the view to reduce the de-pendency on LNG import and LPG enhanced consumption in public and private sector.
  1. When the Bill was brought before the Senate of Pakistan, serious reservations were recorded and strong exception was taken to it because in its view the Bill could not be introduced as Money Bill as the pith and substance of the provisions of the Bill on the touchstone of Article 73 of the Constitution was not falling within the ambit/definition of Money Bill on any consideration and grounds, however, despite of such objections/reservations, it was got approved in the same form and finally assent of the President of Pakistan was obtained on 13-12-2011. The same was then notified in the Gazette of Pakistan vide Notification No.F.22 (20)/2011-Legis dated 15-12-2011. Under its Second Schedule, imposition of Cess initially at the rate of Rs.13 per MMBTU was imposed on the industrial sector, however, while pressing into service the different Clauses of second Schedule, the Gas Infrastructure Development Cess to be called hereafter as G.I.D.C. was increased manifold and ultimately it was raised sky high up to Rs.669.23% per MMBTU.
  1. The OGRA also stepped into the field and under the purported exercise of powers of section 8(3) of the OGRA Ordinance, it issued S.R.O. No.1144(I)/2011 dated 30-12-2011, followed by S.R.O. No.142(I)/2012 dated 15-2-2012 and other alike whereunder, it was provided that all consumers, engaged in processing of industrial raw material into value added finish products, irrespective of the volume of gas consumed including hotel industries and other industries mainly providing finished goods, like commodities for the public, were brought under the net of cess at the rate of Rs.460 per MMBTU with minimum charges of Rs.15510.78 per month.
  1. At a subsequent stage, the Federal Government raised the Cess at the rate of Rs.87 per MMBTU and took the same to Rs.100 per MMBTU but through a simple press release, issued by the OGRA on 30-6-2012. In all these constitutional petitions the increase made in the above manner in the so-called Cess, levied and recovered from the industrial consumers relating to different sectors have been questioned on the ground that the same is void ab initio and in disregard of the ironclad and binding dicta laid down by the Hon’ble Apex Court in various cases, almost of similar nature, involving similar points of law and constitution and the same be declared ultra vires of the Constitution and also discriminatory in nature and because excessive powers of sub-legislation were delegated to the Government/Authorities which is against the basic norms of the Constitution and the universal principle of law, practice and procedure.
  1. Arguments of all the learned counsel for the petitioner and that representing the respondents have been heard in considerable length, the provisions of the impugned law have been gone through with a degree of care vis-a-vis the relevant provisions of the Constitution of 1973 and our findings are as below:–
  1. It is an admitted rather an undeniable fact that the Bill was introduced as Money Bill but keeping in view the clearer than crystal provisions of Article 73(2), it does not fulfill the requirements of Money Bill nor indeed it can be held to be a Money Bill in its true legal parlance.
  1. The provision of Article 73(2) reads as follows:–

            “S.73. (2) For the purposes of this Chapter, a Bill or amendment shall be deemed to be a Money Bill if it contains provisions dealing with all or any of the following matters, namely:–

(a)        the imposition, abolition, remission, alteration or regulation of any tax;

(b)        the borrowing of money, or the giving of any guarantee, by the Federal Government, or the amendment of the law relating to the financial obligations of that Government;

(c)        the custody of the Federal Consolidated Fund, the payment of moneys into, or the issue of moneys from, that Fund;

(d)        the imposition of a charge upon the Federal Consolidated Fund, or the abolition or alteration of any such charge;

(e)        the receipt of moneys on account of the Public Account of the Federation, the custody or issue of such moneys;

(f)         the audit of the accounts of the Federal Government or a Provincial Government; and

(g)        any matter incidental to any of the matters specified in the preceding paragraphs.”

            While the provisions of Sub-Article (3) of Article 73 exclude a Bill from the definition of a Money Bill which reads as follows:–

  1. 73(3). A Bill shall not be deemed to be a Money Bill by reason only that it provides–

(a)        for the imposition or alteration of any fine or other pecuniary penalty, or for the demand or payment of a license fee or a fee or charge for any service rendered; or

(b)        for the imposition, abolition, remission, alteration or regulation of any tax by any local authority or body for local purposes.”

  1. The provisions of the Gas Infrastructure Development Cess Act No.XXI of 2011 dated 15-12-2011 provides for the levy of Cess in a very unique manner, as is evident from Section 3 thereof, while Section 4 thereof provides that the Cess, so realized, shall be utilized for with infrastructure development of Iran Pakistan Pipeline Project, Turkmenistan Afghanistan Pakistan India (TAPI) Pipeline Project, LNG or other Projects or for price equalization of other imported alternative fuels including LPG. Similarly, subsection (2) of section 3 provides that an annual report in respect of the utilization of the cess shall be laid before the House after three months of the end of the each fiscal year.
  1. Under the provisions of section 6 thereof, the Federal Government has been vested with powers to make rules for carrying out the purposes of the said Act and subsection (2) thereof, inter alia, provides as follows:–

            “S.6(2). In particular and without prejudice to the generality of the foregoing power, such rules may provide for,

(a)        the manner and time of payment of cess;

(b)        the manner of collection and recovery of arrears of cess; and

(c)        any other matter, not inconsistent with the provisions of this Act, for which provision is, in the opinion of the Federal Government, necessary for carrying out the purposes of this Act.”

  1. In the second Schedule, appended to, the Act ibid, there is great disparity of cess rates both region wise and with regard to the kind of industry. This, in our humble view, is based on no intelligible differentia nor any sound rationale has been shown therefor. Besides the fact that it amounts to excessive delegation of legislative powers, which are entirely against the universally accepted principle of justice and law both.
  1. Again, for giving legal and constitutional validity and legitimacy to this discriminatory treatment, explained above, neither any meeting of Council of Common Interest (CCI) was held nor consent of constituting members was obtained, which was a must in the given circumstances, and on this ground too, the second Schedule is ultra vires of the Constitution, therefore, it is void ab initio.
  1. Under the provisions of Article 153 of the Constitution, the CCI has been constituted and established while under the provisions of Article 155(5), it is provided that the decisions of the CCI must be given full effect by the Federal and Provincial Governments concerned with regard to the issue, upon which it has taken decision, and both the Governments must faithfully comply with the same according to its terms and tenors. Besides the fact that under Sub-Article (6) thereof, the decisions taken or the proceedings conducted by the CCI cannot be questioned before any Court at the instance of any party to a matter which was in issue thus, the CCI occupies a National Cohesion and Coordination Council to strengthen the Federation through its decision in case any dispute or contestable issue arises between the Federal and Provincial Governments or one and the other Provincial Governments on the matters falling within the domain of CCI.
  1. In the present case, as stated above, while enacting the provisions of the impugned Act No. XXI of 2011, this mandatory procedure was not adopted, hence, if combinedly read with the provisions of Article 158 of the Constitution, a case of clear discrimination has been made out by enacting the provisions of the impugned Act ibid because the said Article provides in a commanding way that the Province, in which the wellhead of natural gas is situated, shall have precedence over other parts of Pakistan in meeting the requirements of that wellhead subject to the commitments and obligations, as on the commencing day, therefore, levying and recovering the GIDC on the above rates, at random, clearly offend against the mandatory and commanding provisions of Article 158 of the Constitution because the Provinces, producing natural gas, have not been given any concession or relief whatsoever i.e. to the Industrial Sectors of that Province while on the other hand if such cess is paid by the Industries, manufacturing or producing commodities of daily domestic needs, the ultimate victims would be the end consumers, of which care has not been taken.
  1. In a parliamentary system of government and because of the Federal Government Business Rules, it is mandatory that before tabling any Bill before the Parliament for legislation to make it an act of Parliament and to be enforced throughout the country, it shall be placed before the Federal Cabinet, to be presided over by the Prime Minister of Pakistan, and if the Cabinet approve the same then, the Bill can be tabled before the Parliament, however, learned counsel for the replying respondents neither in the comments/reply submitted in all the writ petitions nor during the course of hearing were able to produce before the Court the minutes of any meeting held by the Federal Cabinet, according approval to the proposed Bill to be tabled before the Parliament for legislation. On this ground too, the Bill tabled directly before the parliament is violative of the mandatory procedure and because as explained above the CCI consent was also not taken, hence, on both counts the provisions of the Act along with the appended Schedules are ultra vices of the constitutional provisions, void ab initio and of no legal effect.
  1. After the 18th Amendment in the Constitution, the concurrent legislative list has been done away and a clear concept has been provided for devolution and decentralization of powers, the provisions of Article 154 read with Article 155 of the Constitution shall have to be applied by now more vigorously unlike in the past because the basic object of these amendments, introduced in the Constitution through 18th Amendment, was to vest the Provinces with considerable autonomy and the least is retained by the Federal Government / Federation.
  1. There is another fatal defect in the impugned law because under Article 78 of the Constitution, 1973, it is required that all revenue, received by the Federal government, all loans raised by that government and all moneys received by it and repayment of loan shall be made part of the consolidated fund, to be known as Federal Consolidated Fund while under Article 81 thereof, it is provided as follows:–

            “Art. 81. Expenditure charged upon Federal Consolidated Fund.—The following expenditure shall be expenditure charged upon the Federal Consolidated Fund: –

(a)        the remuneration payable to the President and other expenditure relating to his office, and the remuneration payable to –

(i)         the Judges of the Supreme Court and the Islamabad High Court;

(ii) the Chief Election Commissioner;

(iii) the Chairman and the Deputy Chairman;

(iv)       the Speaker and the Deputy Speaker of the National Assembly;

(v)        the Auditor-General;

            (b) the administrative expenses, including the remuneration payable to officers and servants, of the Supreme Court, the Islamabad High Court, the department of the Auditor-General, the Office of the Chief Election Commissioner and of the Election Commission and the Secretariats of the Senate and the National Assembly;

(c)        all debt charges for which the Federal Government is liable, including interest, sinking fund charges, the repayment or amortization of capital, and other expenditure in connection with the raising of loans, and the service and redemption of debt on the security of the Federal Consolidated Fund,.

(d)        any sums required to satisfy any judgment, decree or award against Pakistan by any Court or tribunal; and

(e)        any other sums declared by the Constitution or by Act of Majlis-e-Shoora (Parliament)] to be so charged.”

  1. The impugned cess called “GIDC” is neither a tax nor falls within the definition of revenue of the kind which has to be deposited in the Federal Consolidation Fund nor the so-called GID costs can be charged on the Federal Consolidated Fund. It is absolutely not certain that how the GIDC is managed, by whom and under whose authority, empowered under the Constitution and the law, the cess amount collected is deposited in which head of account and even if it is authorized by any authority of the Federal Government, not clearly enumerated in any of the provisions relating to financial matter of the Federal Government, such authorization is ipso facto unconstitutional, therefore, the provisions of the Act ibid are in conflict and clashes with the clearer provisions of the Constitution with regard to the imposition of taxes, collection of revenues etc. which does not include the cess. The Hon’ble Apex Court has held in its guiding and authoritative judgments, laying down a dicta that Constitution, being organic law, must be read as a whole and none of its provisions shall be taken for the purpose of construction in isolation and if that principle is applied, the GIDC imposed through the provisions of the Act ibid, impugned herein, is altogether illegal and unconstitutional.
  1. The next crucial point for consideration of the Court is as to whether power of judicial review, under the purview of Article 199 of the Constitution of 1973, could be exercised to strike down a legislative instrument/law enacted by the Parliament.
  1. On this subject the case-law, having been developed since long, confers power of a judicial review on the superior Courts to examine the constitutional legitimacy of any such law, made by the Parliament.
  1. In the first instance, we deem it essential to attend to the true definition of “Tax” and “Cess” Tax is imposed by the State under its sovereign authority on individual citizen, corporation, companies etc and the same is extracted compulsorily to generate revenue for the State exchequer which is to be spent on the welfare of the public in general and to meet other expenditure of the State with regard to its multifarious requirements for running the day to day affairs of the State/ Government. Under the provision of the Constitution, cited above, all kinds of taxes collected under the law is put in the Federal Consolidated Fund on which the enumerated expenses are charged. It is involuntary and may be unwilling surrender of assessed payment of certain amount to the State by the citizens which has with it corresponding liability for the State to allocate fund for the social sector development, government expenses of daily needs of many kinds are charged thereon, however, in all cases, the State/government is not under obligation to give in each individual case something in return to the taxpayer but the total sum of tax, so collected, is meant to be spent on welfare of the public in general and on different public sectors related matters also and to meet all other expenditure chargeable on Federal Consolidate Fund.

            On the other hand, cess is collected from particular users, class or segment of a society on account of existing services rendered/ provided by the government or functionaries of the State. In this connection reference may conveniently be made to the drinking water cess, irrigation water cess, tobacco cess and sugarcane cess. The cess on drinking water is collected because the consumers are provided drinking water and ancillary services, same is the case of irrigators to whom irrigation water is supplied for the time being and the tobacco cess is collected from the tobacco growers, providing them seeds, communication facilities and skill development to enhance production and earn more. Same is the case of sugarcane growers, to whom seeds, fertilizers, irrigation water and arrangement of better roads / communication facilities are provided from Farm to the market / sugar mills, the easy transportation of sugarcane thus, on the touchstone of the above definition, the two terms i.e. “Tax” and “Cess” are pole apart and it is for this reason that the same does not fulfill the definition of tax essentially collected under the constitution and the law on the subject neither it is deposited nor it goes into the Federal Consolidated Fund as required by the provision of the constitution nor any expenditure of the above mentioned nature is charged on the cess amount, so collected and deposited in a separate head of account.

  1. It is undeniably clearer than crystal that cess is collected on the subsistence and existing services rendered by the state / government or its functionaries to a particular segment of a society / consumer. Under no stretch of imagination, cess can be collected on the future prospects of any proposed or planned facilities yet to be provided.
  1. As discussed above, the Iran-Pakistan Gas Pipeline Project agreement was not yet signed nor it has been made functional till date while the cess is collected for the last many years from the industrial and other alike consumers of natural gas on the proposition that on completion of these Projects they would be provided increased supply of natural gas to meet their requirements in future.
  1. For the above stated reasons, too much anomalous situation has emerged due to imposition, levy and collection of the impugned cess because of the better facility by way of increase supply of natural gas to be supplied in future. The very fate of these Projects is still in a state of stagnation, uncertain and unpredictable. Its imposition, levy and collection is otherwise, illegitimate besides highly irrational and unreasonable because in case, if the petitioners, preferably of the Industrial Sectors, after paying millions of rupees of cess, closedown their business and stopped to run the wheels of their industries, a situation has already arisen then, in that case they would get nothing in return for the cess they have paid in millions in advance and got nothing in return.
  1. It is universal practice that once a Project is completed whether it relates to supply of extra facilities, construction of bridges and highways for the commuters/transporters and made functional and operative, cess or toll tax is then collected for these facilities used by the users and/or beneficiaries.
  1. Keeping in view this legal aspect, no provision of the constitution, expressly or impliedly, authorizes the Parliament or the government to impose, levy or collect this nature of cess from a particular segment of the society like in this case the industrial consumers of natural gas. On this ground alone, the impugned cess, so imposed, levied and collected from the petitioners on the strength of the impugned provisions of the Act ibid, are ultra vires of the constitutional mandate given to the Parliament to legislate and enact laws. True, that the Parliament has the sovereign power of legislation, enacting laws covering different areas and subjects, but while exercising such sovereign powers, it has no free hand to divest the citizens of its property in a manner which is not permitted by the Constitution on the strength of any law enacted in derogation of constitutional limitations, moreso, when it conflicts with the clearer provisions and scheme of the constitution, therefore, to the extent of inconsistency with the constitutional provisions, the provisions of the impugned Act, being subservient to the Constitution, shall cease to have effect.

            Accordingly, this and all the connected writ petitions, mentioned in the table above, are allowed and all the offending provisions of the Gas Infrastructure Development Cess Act, 2011 are declared ultra vires, unreasonable being not based on reasonable differentia or fulfilling corresponding responsibility and liability in a specified manner by the respondents and because the Project has not been mentioned either in the Schedule of the Act or elsewhere to convince this Court in any manner that the GIDC is collected for a specified purpose thus, all the offending provisions giving powers to the respondents to collect GIDC from the petitioners and others alike becomes absolutely unjustified, without lawful authority, void ab initio. The provisions of the Act, imposing, levying and recovering the impugned cess, are absolutely expropriatory and exploitative and being constitutionally illegitimate, having no sanction there for under the constitution, hence, are declared as such and set at naught.

            As in our short order of the even date we have stated that the methodology for return of the collected cess amount from the petitioner would be provided in the detailed judgment with reasons to be recorded, therefore, in our view, when this cess has been deposited in the separate head of account and because it is property/money of the petitioners, from whom it was collected, the better course for the government, whose obligation under the Constitution is to see the welfare of the citizen, hence, it is required that the same be returned to them within a reasonable time in lump sum or in case it is absolutely impossible or impracticable then, handsome amount of it be adjusted for the amount of cess collected from each of the consumer/petitioner in the monthly consumption bill and they be given the relief by way of return of the cess within a period of six (6) moths at the most.

            These are the detailed reasons for our short order of the even date.

MWA/399/P                                                                                        Petition allowed.

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