2005 S C M R 492

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

GOVERNMENT OF PAKISTAN through Secretary Ministry of Commerce, Pak.

Secretariat, Islamabad---Petitioner

Versus

Messrs VILLAGE DEVELOPMENT ORGANIZATION, V.P.O. LANDRWAN,

DISTRICT LAKI MARWAT through (General Attorney) Sher Adam---Respondent

Civil Petition No. 1502 of 2004, decided on 16th December, 2004.

(On appeal from the judgment, dated 31-3-2004 of the Peshawar High Court, Peshawar in W.P.
No.86 of 2004).

Executive order---

----Retrospectivity---Requirement---Executive orders or notifications, which confer right and are

beneficial, would be given retrospective effect and those which adversely affect or invade upon
vested right cannot be applied with retrospective effect---Government of Pakistan, in the present
case, had accorded permission to export with "no objection certificate" dated 2-3-2002 and for
the first time on 9-1-2004, informed the exporter that Government had taken decision to export
specified quantity of the commodity and that too through manufacturers of the commodity
only---Said order of the Government having adversely affected the vested right of the exporter as
such, it would not be appropriate to apply the same with retrospective effect.

Anound Power Generation Limited and others v. Federation of Pakistan and others PLD 2001
SC 340 ref.

Raja Muhammad Irshad, D.A.G. for Petitioner.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court and Mehr Khan Malik,
Advocate-on-Record for Respondent.

Date of hearing: 16th December, 2004.

JUDGMENT

ABDUL HAMEED DOGAR, J.---Petitioner seeks leave to appeal against the judgment, dated
31-3-2004 passed by a learned Division Bench of the Peshawar High Court, Peshawar, whereby
Writ Petition No.86 of 2004 filed by the respondent was allowed.
2. Briefly, stated, the facts leading to the filing of the instant petition are that respondent an
N.G.O. proclaims to be Social Welfare Organization duly registered with the Government of
N.-W.F.P. under the Voluntary Social Welfare Agencies (Registration and Control Ordinance,
1961. Respondent moved an application to the Secretary. Ministry of Food, Agriculture and
Livestock, Government of Pakistan for permission to export/transport 20,000 M-Tons of
Fertilizer (Urea) to Afghanistan which was allowed vide order, dated 2-3-2002 with the
condition that the transport of urea be carried out through the exit points i.e. Torkham and
Miranshah (N.-W.F.P.). Consequent upon above said permission respondent entered into
agreement with two firms of Afghanistan namely Messrs Shrikat Haji Fida Yar and Company of
Kahandar and Ghulam Jan and Company of Kandahar about the supply of fertilizer which made
advance payment also. Accordingly, respondent purchased substantial quantity of Fertilizer from
open market for the said supply. The respondent after completion of all formalities to export the
Fertilizer, moved an application to the petitioner for grant of transit permit/clearance certificate
for export which was not acceded to. The respondent filed writ petition in the Peshawar High
Court, Peshawar which was allowed vide judgment, dated 31-3-2004.

3. We have heard Raja Muhammad Irshad, D.A.G. for the petitioner and Syed Iftikhar Hussain
Gillani, learned Advocate Supreme Court for the respondent and have gone through the record
and proceedings of the case in minute particulars.

4. It is vehemently contended by the learned counsel for the petitioner that in view of decision
taken by Economic Co-ordination Committee (ECC) of Cabinet Government has decided to
export only 50,000 tons of urea to Afghanistan through manufacturers only. As respondent is not
a manufacturer, therefore, his request was rightly turned down by the petitioner vide letter, dated
9-1-2004. According to him it is well-settled principle of law that matters in which factual
controversy is involved, the writ petition is not maintainable.

5. On the other hand learned counsel for the respondent has supported the impugned judgment
and contended that the respondent was granted transit/export permit by MINFAL for transporting
and exporting of Urea (Fertilizer) to Afghanistan. The facility was also extended to Messrs Haji
Nida and Nazir Ahmad and Messrs Haji Muhammad Isa and Co. by the High Court of
Balochistan vide order, dated 8-5-2002 and by this Court vide order, dated 27-10-2003. Similar
facility was also given to W.R.C. (another N.G.O.) but respondent was discriminated. The transit
permit granted by MINFAL has not been cancelled, therefore, refusal by the Ministry of
Commerce is void an ab initio and coram non judice which warrants interference.

6. As per record, facility/permit to export allowed to the respondent by MINFAL has not yet
been withdrawn but is subsisting as such a vested right has accrued in its favour. It is well-settled
principle of law that the executive orders or notifications, which confer right and, are beneficial,
would be given retrospective effect and those which adversely affect or invade upon vested right
cannot be applied with retrospective effect. In the instant case also permission to export was
accorded by Government of Pakistan, Ministry of Food, Agriculture and Livestock on 2-3-2002
with N.O.C. The copy of the said letter was sent to Ministry of Commerce. It was for the first
time that petitioner informed the respondent vide letter, dated 9-1-2004 that E.C.C. has taken
decision to export 50,000 M/Tons of urea through manufacturers only. Since the said order had
adversely affected the vested right of the respondent as such, it would not be appropriate to apply
it with retrospective effect. For better appreciation, reference can be made to the case of Anound
Power Generation Limited and others v. Federation of Pakistan and others PLD 2001 SC 340,
wherein this Court while dealing with the similar aspect of the matter held that if the notification
has been used for the benefit of the subject then it can be B made operative retrospectively but if
its operation is to the disadvantage of a party who is the subject of the notification then it would
operate prospectively.

7. As regards the discrimination, .it has also come on record that firms viz. Messrs Haji Nida and
Nazir Ahmad, Messrs Muhammad Hashim and others, Messrs Haji Muhammad Isa and Co. and
W.R.C. (an N.G.O.), were allowed the same facility to export urea to Afghanistan whereas it was
denied to the respondent. On Court query, dated 21-9-2004, it was informed that the petitioner
during the period from January, 2002 to December, 2003 allowed the export of 4,33,542 tons of
urea. Regarding the remaining quantity learned counsel for the petitioner could not furnish
further details. It also transpired from the impugned judgment that petitioner did not object to the
shifting of entire stock by respondent which process was to be completed within four months.
This is tantamount to an admission on the part of the petitioner. Moreover, learned counsel for
the petitioner is unable to show any illegality in the impugned judgment, which is accordingly
maintained.

8. Resultantly, the petition being devoid of force is dismissed and leave to appeal refused.

M.B.A./G-41/S Petition dismissed.