THE HIGH COURT OF SINDH AT KARACHI

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Shamsuddin Abbasi

C.P.No.D- 1676/2023

Petitioners Union Fabric Pvt. Ltd and another

Respondents Federation of Pakistan and others

C.P.No.D-1621/2023

Petitioners M/s Younus Textile Mills Ltd

Respondents Federation of Pakistan and others

C.P.No.D-1675/2023

Petitioners Nadeem Textile Mills Ltd & others

Respondents Federation of Pakistan and others

C.P.No.D- 1677/2023

Petitioners M/s Noor Processing

Respondents Federation of Pakistan and others

C.P.No.D-1693/2023

Petitioners M/s Ganitex Industries

Respondents Federation of Pakistan and others

C.P.No.D-1694/2023

Petitioners M/s Lakhani Silk Mills (Pvt) Ltd & others

Respondents Federation of Pakistan and others

C.P.No.D-1697/2023

Petitioners M/s Asco International & others

Respondents Federation of Pakistan and others

C.P.No.D-1720/2023

Petitioners M/s Ismail’s Knitworth & others

Respondents Federation of Pakistan and others

C.P.No.D-1724/2023

Petitioners M/s Hafiz Tannery & others

Respondents Federation of Pakistan and others

C.P.No.D-1725/2023

Petitioners M/s Al-Abbas Fabrics & others

Respondents Federation of Pakistan and others

C.P.No.D-1726/2023

Petitioners Unique Weaving

Respondents Federation of Pakistan and others

C.P.No.D-1727/2023

Petitioners Ishtiaq Textile Mills Ltd and others

Respondents Federation of Pakistan and others

C.P.No.D-1730/2023

Petitioners Artistic Garments Ind (AGI Denim) Pvt Ltd

Respondents Federation of Pakistan and others

C.P.No.D-1734/2023

Petitioners Vohra Tex and others

Respondents Federation of Pakistan and others

C.P.No.D-1751/2023

Petitioners Adnan Textile Mills Pvt Ltd

Respondents Federation of Pakistan and others

C.P.No.D-1778/2023

Petitioners Western Textile Industries Pvt. Ltd and Ors

Respondents Federation of Pakistan and others

C.P.No.D- 1830/2023

Petitioners Gul Ahmed Textile Mills Ltd and others

Respondents Federation of Pakistan and others

C.P.No.D-1861/2023

Petitioners M/s New Fazale Rabi Dyeing & Ors

Respondents Federation of Pakistan and others

C.P.No.D-1862/2023

Petitioners M/s Castle Ind

Respondents Federation of Pakistan and others

C.P.No.D-1885/2023

Petitioners Al-Karam Towel Industry Pvt Ltd & Ors

Respondents Federation of Pakistan and others

C.P.No.D-1891/2023

Petitioners M/s Yunus Textile Mills Ltd

Respondents Federation of Pakistan and others

C.P.No.D-1899/2023

Petitioners M/s Shaikh Brothers & Ors

Respondents Federation of Pakistan and others

C.P.No.D-1926/2023

Petitioners Akbar Ali & Brothers Pvt Ltd and another

Respondents Federation of Pakistan and others

C.P.No.D-1983/2023

Petitioners M/s Mustaqim Dyeing & Printing Ind Pvt Ltd & Ors

Respondents Federation of Pakistan and others

C.P.No.D-1988/2023

Petitioners M/s Mount Fuji Textile Ltd & Ors

Respondents Federation of Pakistan and others

C.P.No.D-2002/2023

Petitioners Pinnacle Fiber Pvt Ltd & others

Respondents Federation of Pakistan and others

C.P.No.D-2004/2023

Petitioners Sadiq Towel Pvt Ltd and others

Respondents Federation of Pakistan and others

C.P.No.D-2007/2023

Petitioners M/s Chamois Leather & Others

Respondents Federation of Pakistan and others

C.P.No.D-2051/2023

Petitioners M/s Sonsra & others

Respondents Federation of Pakistan and others

C.P.No.D-2071/2023

Petitioners M/s Shaikh Brothers

Respondents Federation of Pakistan and others

C.P.No.D-2073/2023

Petitioners M/s A. ESSAK & Sons

Respondents Federation of Pakistan and others

C.P.No.D-2080/2023

Petitioners Silver Textile Factory

Respondents Federation of Pakistan and others

C.P.No.D-2112/2023

Petitioners M/s. Ghousia Dyeing & Bleaching & Ors

Respondents Federation of Pakistan and others

C.P.No.D-2113/2023

Petitioners ISIS Pharmaceuticals and Chemical Works

Respondents Federation of Pakistan and others

C.P.No.D-2128/2023

Petitioners M/s Any Textile Mills Pvt. Limited

Respondents Federation of Pakistan and others

C.P.No.D-2129/2023

Petitioners M/s K.N Terry Tex and others

Respondents Federation of Pakistan and others

C.P.No.D-2156/2023

Petitioners M/s Shabbir Ind

Respondents Federation of Pakistan and others

C.P.No.D-2169/2023

Petitioners M/s Sohail Wearing Ind

Respondents Federation of Pakistan and others

C.P.No.D-2154/2023

Petitioners Shahbaz Garments Pvt. Limited and others

Respondents Federation of Pakistan and others

C.P.No.D-2220/2023

Petitioners Utopia Ind Pvt. Limited and others

Respondents Federation of Pakistan and others

For Petitioners : M/s. Taimur Ali Mirza and Ali Nawaz Khuhawar advocates in CPs D-1675, 1676, 1778, 1730, 1885, 1926, 2080 & 2220 of 2023

Mr. Naeem Suleman and Mr. Arshad Hussain Shahzad advocates in C.Ps.D-1621, 1697, 1725 & 1983 of 2023

M/s Abdul Karim Khan and Zeeshan Naeem advocates in C.P.No.D-1677 of 2023

Mr. Hamza Maqsood Habib advocate in C.P.No.D-1693, 1694, 1988 & 2071 of 2023

M/s. Qazi Umair Ali and Muhammad Imzimam Sharif advocates in C.P.No.D-1722 & 1734 of 2023

Mr. Ameen Bandukda advocate in C.P.No.D- 1727, 1830, 2002 & 2154 of 2023

Mr. M.A. Rehman Khurram advocate in C.P.No.D-1861 & 1862 of 2023

Syed Mohsin Ali advocate in C.P.D-1720, 1724, 1899, 2007 & 2129 of 2023

Mr. Ghulam Muhammad advocate in CP D-1727 & 1830 of 2023

M/s. Faiz Durrani, Gharib Shah, Ghulam Muhammad and Ms. Maryam Riaz advocates in C.P.No.D-1891 of 2023

M/s Saifullah Abbasi and Qamar Hussain advocates in C.P.No.D-2051 of 2023

Ms. Sofia Saeed Shah, M/s Umer Sikandar and Tasleem Hussain advocates in C.P.No.D-2128 & 2169 of 2023

Ms. Sadia Sumera advocate in C.P.No.D-2113 of 2023

For Respondents : M/s. Malik Sadaqat Khan, Addl. Attorney General, M/s Pir Riaz Muhammad Shah and Khaliq Ahmed, DAGs and Mr. G.M. Bhutto Asstt. Attorney General

Syed Waqar-ul-Hassan Special Secretary and Mehfooz Bhatti Joint Secretary, Power Division, Islamabad

M/s. Abid S. Zuberi, Ayan Mustafa Memon, Hasaan Qamar and Eesha Azmat advocates for K-Electric

Syed Moonis Abdullah Alvi CEO (K-E)

Syed Irfan Ali Shah, Director Legal K.E

Jam Mohsin Aftab DGM (K-E)

M/s. Kashif Hanif and Sarmad Ali advocates for NEPRA

Syed Amir Ali Shah Jeelani along with Mr. Zahid Hussain Shoro Law Officer of respondent No.6 in C.P.No.D-1675 & 1676 of 2023

Jam Mohsin Aftab DGM, K-Electric

Date of Hearings : 27.04.2023, 28.04.2023, 04.05.2023 & 09.05.2023

Date of Judgment : 09.05.2023

ORDER

NAIMATULLAH PHULPOTO, J.- The petitioners have invoked the jurisdiction of this court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the “Constitution”) mainly for the following reliefs:

i. Declare the Decision dated 28^th February 2023 to have been taken without lawful authority and is of no legal effect and set aside the same;

ii. Declare the Impugned Bills to have been issued without lawful authority and of no legal effect;

iii. Permanently restrain the Respondents from charging amounts and issuing bills in excess of PKR 19.99 Per KWH till 30^th June, 2023;

iv. Direct the Respondents to refund any and all amounts collected in excess of PKR 19.99 per KWH till 30^th June 2023;

v. Any further relief that this Honorable Court may deem appropriate in the facts and circumstances of the case;

vi. Cost of the proceedings.

2. Brief facts leading to the filing of the C.P.No.D- 1675/2023 are that petitioner is an exporter of textile articles, who has challenged discontinuation of ZRI package, which was issued vide letter dated 28.02.2023 by Government of Pakistan, Ministry of Energy (Power Division), Power Policy & Finance Wing, whereby, concessionary rates of electricity consumption at Rs.19.99 per KW with effect from 1^st October 2022 to 30^th June 2023 made applicable to the petitioner and other exporting textile industries through office Memorandum dated 07.10.2022 issued by Government of Pakistan, Ministry of Commerce (Textile Wing) have been withdrawn with effect from 1^st March 2023, thus violating the vested right created to the petitioner, who has made huge investments and obtained export orders as per aforesaid concessionary rates, therefore, such withdrawal has adversely effected the petitioner’s industry and export as well. It is further mentioned in the petition that vested right could not have been withdrawn retrospectively to the disadvantage of petitioner. It is also stated that respondents have issued bill for the month of March 2023 while charging enhanced rate from the petitioner, however, the petitioner is willing to pay amount of electricity consumption in terms of office Memorandum dated 07.10.2022 issued by Government of Pakistan, Ministry of Commerce (Textile Wing) whereas, petitioner is willing to deposit remaining amount before the Nazir of this Court in the shape of pay order/ bank guarantee. It is further submitted that respondents may be directed to issue revised bill by excluding the disputed amount and not to disconnect the electricity of the petitioner and prayed for the prayers mentioned above.

Facts and circumstances of other connected petitions are identical.

3. Pre-admission notices were issued to the respondents as well as DAG. Respondent No.4 Karachi Electric Company Limited filed comments and raised preliminary legal objection that petitions contained disputed questions of fact, which cannot be adjudicated in the Constitution petitions; that withdrawal of a subsidy is a policy decision of the respondent No.1, which cannot be challenged through the writ jurisdiction and it is prayed for dismissal of the Constitution Petitions.

4. Parawise comments have been filed on behalf of Respondent No.2. We intend to decide all captioned petitions through this common order, having the common question of law and facts involved therein.

5. Learned counsels appearing for the petitioners in all the petitions mainly contended that they are manufacturers and exporters of Textile articles and have challenged discontinuation of ZRI package, which was issued on 28.02.2023 by Government of Pakistan, Ministry of Energy (Power Division), Power Policy & Finance Wing, whereby, according to counsel for the petitioners, concessionary rates of electricity consumption at Rs.19.99 per KW with effect from 1^st October 2022 to 30^th June 2023 made applicable to the petitioners and other exporting textile industries through office Memorandum dated 07.10.2022 issued by Government of Pakistan, Ministry of Commerce (Textile Wing) the same have been withdrawn arbitrarily with effect from 1^st March 2023 without assigning reasons and withdrawal violated vested rights created to the petitioners, who have invested huge amounts and obtained export orders as per aforesaid concessionary rates. It is further submitted that such withdrawal of subsidy has adversely effected the petitioners’ industries and export. It is argued that such vested right could not have been withdrawn retrospectively to the disadvantage of petitioners and submitted that decision of Government dated 28.02.2023 was without lawful authority and of no legal effect and the same may be set aside. Lastly, argued that valuable rights had accrued to the petitioners, which could not be interfered with; that principle of locus poenitentiae is available to the Government and Government is competent to make order and has power to undo it but subsidy cannot be withdrawn once it has taken legal effect and created certain rights in favour of any individual. In support of his submissions, reliance is placed upon the cases reported as (i) Pakistan through Secretary Ministry of Finance vs. Muhammad Himayatullah Farukhi (PLD 1969 S.C 407), (ii) Collector of Central Excise and Land Customs and 3 others vs. Azizuddin Industries Ltd, Chittagong (PLD 1970 S.C 439), (iii) Pakistan through Secretary Ministry of Commerce and 02 others vs. Salahuddin and 3 others (PLD 1991 S.C 546), (iv) M/s Army Welfare Sugar Mills Ltd and others vs. Federation of Pakistan and others (1992 SCMR 1652), (v) Shahnawaz (Pvt) Ltd through Director Finance vs. Pakistan through Secretary Ministry of Finance Government of Pakistan Islamabad and another (2011 PTD 1558), (vi) Anwar Yahya and 3 others vs. Federation of Pakistan through Secretary and 4 others (2017 PTD 1069), (vii) Uzma Manzoor and others vs. Vice Chancellor Khushal Khan Khattak University Karak and others (2022 SCMR 694), (viii) Inspector General of Police Quetta and another vs. Fida Muhammad and others (2022 SCMR 1583), (ix) unreported judgment passed by Supreme court of India in Civil Appeal No. 3860-3862 of 2020 (The State of Jharkhand and others vs. Brahmputra Metallics Ltd. Ranchi and another), unreported judgment dated 07.02.2023 passed by this Court in C.P.No.D-8233/2019 (Sapphire Textile Mills Limited vs. Federation of Pakistan and others).

6. Learned Additional Attorney General argued that these Constitution petitions against the policy matters are not maintainable and policy decision taken by Government dated 28.02.2023 is not in conflict with any provision of law or is violative of vested rights of petitioners.

7. Mr. Ayan Mustafa Memon counsel for respondent K.E argued that constitution petitions under Article 199 of the Constitution are not maintainable in the policy matters of Government as through these petitions, petitioners have challenged withdrawal of a subsidy which is policy decision of the respondent No.1. It is further argued that no vested right accrued to the petitioners against concessionary zero rated subsidy; that provision of subsidy is not vested right and Government/respondent No.1 enjoys power to withdraw the same. Lastly, it is argued that according to Notification dated 28.02.2023 issued by the respondent No.1 and the current tariff notified by NEPRA, respondent No.4 correctly issued bills in the month of March 2023 to the petitioners; that the respondent No.1 lacks the funds to pay for the zero rated subsidy to support the expert industries. In support of his submissions he has relied upon an unreported judgment dated 19.01.2023 passed by Supreme Court in (i) C.A.Nos. 1011 to 1119 of 2020 and others (K-Electric Ltd through its Chief Executive Officer and others vs. Federation of Pakistan and others), (ii) Dr. Akhtar Hassan Khan and others vs. Federation of Pakistan and others (2012 SCMR 455) and (iii) Government of Khyber Pakhtunkhawa through Chief Secretary Peshawar and others vs. Hayat Hussain and others (2016 SCMR 1021).

8. Special Secretary, Power Division was called in person, he submitted that subsidy was withdrawn due to financial crunch and IMF commitments and it was not possible for the Government to continue subsidy to Zero Rated Industry. It is further submitted that the Petitioners have not accrued any vested rights against the withdrawal of concessionary subsidy. The Cabinet had expressly withdrawn the subsidy effective from 1.3.2023, therefore, there arise no question of retrospective operation of the impugned notification. The period between March 2023 to June 2023 has not elapsed as such, there is no question of a past and closed transaction.

9. Heard learned counsel for the parties and perused the relevant record.

10. In our considered view, Federal Government is well within its right to introduce, modify or withdraw subsidies, so a consumer of electricity is entitled to the subsidy as long as it is offered by the Federal Government and is bound by any modifications or withdrawals made by the Government. There is no vested right in favour of the consumers with reference to a subsidy, simple because the subsidy is built into the tariff. Effectively, a subsidy is a relief package offered to consumers and remains operative for as long as it is required as per Government policy. In the present case, Notification which was bound by a time period has been withdrawn by the Federal Government before expiry of such period due to financial crunch and IMF commitments. International Monitory Fund plays its role in several countries. Though its policies sometimes may be open to criticism but this is for the concerned economists in the Government to examine and opine but once the competent Authority in the Government has taken a decision backed by law, it would not be in consonance with the well established norms of judicial review to interfere in policy making domain of the executive authority as held by Supreme Court in the case of Dr. Akhtar Hassan Khan and others vs. Federation of Pakistan and others (2012 SCMR 455). The Federal Government is well within its’ right to introduce, modify or withdraw subsidies as held in recent unreported in the case of E-Electric Ltd through its Chief Executive Officer and others (supra).

11. We have perused the decision dated 28.02.2023 issued by Government of Pakistan, Ministry of Energy (Power Division), in which it is mentioned that “Federal Cabinet has approved the discontinuation of ZRI Package for the supply of electricity at the rate of Rs.19.99 KWh (all inclusive) export-oriented sectors from 1^st March 2023”.

On the face of it there appears no malafide on the part of Government. Subsidy was introduced by the Government for export oriented textile sector and the same has been withdrawn in the public interest.

12. This is purely an administrative matter relating to policy decision of the Government with which the superior Courts are always reluctant to interfere. Moreover, the interest of the public at large will prevail over individual rights or interests. In the case of Mian Muhammad Afzal vs. Province of Punjab and others (2004 SCMR 1570). Relevant portion is reproduced as under:

“3. We have heard learned counsel for the petitioner and examined the impugned order which enunciated correct position of law. Petitioner by getting admission in F.Sc with Biology and Science subjects neither acquired any vested right to admission in M.B.B.S. nor were the authorities debarred from prescribing maximum age limit for admission to such course of studies. This is purely an administrative matter relating to policy decision of the Government with which the superior Courts are always reluctant to interfere. In our view, there is no merit in this petition and the High Court has rightly referred to the dictum of this Court in Sultana Khokhar versus The University of the Punjab, through its Registrar (PLD 1962 SC 35), which clinches the issue under controversy.”

13. Subsidy is not a right as already observed by us, but a benefit, and in our opinion cannot be claimed as of right or as a fundamental right that can be agitated under Article 199 of the Constitution as held in the case of Messrs Bolan Steel Industries (Pvt) Ltd through Managing Director and others vs. Water and Power Development Authority (WAPDA) through Chairman and others (PLD 2014 Balochistan 173). Relevant portion is reproduced as under:

“In the Pakistan Flour Mill's case a learned Single Judge of the Lahore High Court had stopped the imposition of FPA on consumers who consume less than 350 units of electricity per month. The learned judge calculated the number of units presumably consumed by a family (in paragraph 47 of the judgment) and then proceeded to state that, "a family whose earning is only Rs.10,000/- or less than Rs.15,000/- per month and if they are burdened with fuel adjustment price it will become impossible for them to have the basic necessity of life, hence they are entitled to get the energy at subsidized rates" (paragraph 48 of the judgment). With utmost respect to the learned judge it is our considered opinion that it is not within the constitutional mandate of the High Court to determine whether any particular category of consumer should receive a subsidy or not. Moreover, subsidy is not a right, but a benefit, and in our opinion cannot be claimed as of right or as a fundamental right that can be agitated under Article 199 of the Constitution. Be that as it may none of the petitioners herein are domestic consumer consuming less than 350 electricity units per month.”

14. For the foregoing reasons, we find no merit in these petitions, warranting interference by this Court in exercise of discretionary jurisdiction under Article 199 of the Constitution. This being the position, we dismiss all the petitions without any order as to costs. All the pending application are accordingly disposed of.

JUDGE

JUDGE