P L D 2006 Karachi 479

Before Muhammad Mujeebullah Siddiqui and Syed Zawwar Hussain Jafri, JJ

Messrs FACTO BELARUS TRACTORS LIMITED KARACHI and another---

Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Industries, Production

and Special Initiatives Islamabad and others---Respondents

Constitutional Petitions Nos.D-304 of 2006, D-1347 of 2005, decided on 4th May, 2006.

(a) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Relief, moulding of---Relief not sought, cannot be
granted---Such relief can be denied in the cases in which High Court is exercising original
jurisdiction in suit or appellate or revisional jurisdiction---Even in exercise of such jurisdiction
the dominant prevailing view is that the Court can mould the relief and allow the same though
it is not prayed for, as the Courts are not merely slaves of technicalities but are the Courts of
justice and, therefore, relief can be moulded in a way which serves the purpose of justice.

(b) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court---Judicial review---Import, object and

scope-High Court, in exercise of such jurisdiction is required to see whether public
functionaries have acted in accordance with law---Such jurisdiction of High Courts and
particularly the superior Courts is in accordance with the concept of checks and balances which
is integral part of concept of separation of powers enshrined in the Constitution---Court, in
exercise of jurisdiction of judicial review of administrative/public action, is required to see
whether functionaries of the State in connection with the affairs of federation, province or local
authorities have done things in accordance with the law or actions have been taken otherwise
than in due course of law---Basic principles in this behalf are that in the realm of public actions
every thing should be taken objectively and on the basis of criteria already determined and
fixed---No room available for subjectivity or actions which smack of arbitrariness, favouritism
or discrimination---If yardsticks are not determined prior to the taking of decisions then
decisions are bound to be subjective and non-transparent, which are not the hallmark of good
governance---In a democratic set up the complete transparency and accessibility to the policy
decisions in pursuance of right of information are strictly observed.

(c) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition-Maintainability-Jurisdiction of High Court---Principles--

-Objection raised by the authorities was that as some of the respondents were based at
Islamabad, therefore, Sindh High Court did not have jurisdiction to adjudicate the matter---
Validity---All the High Courts in Pakistan were exercising jurisdiction under Art.199 of the
Constitution in respect of decisions/orders made by the Federation and authorities/officers
functioning with the affairs of Federation---Sindh, Balochistan and Peshawar High Courts
therefore, had the jurisdiction---Objection was repelled in circumstances.

(d) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Judicial review---Administrative decision---One time

import at, zero tariff---Petitioner was refused but respondents were granted permission by
authorities to one time import of tractors at zero tariff---Plea raised by petitioner was that the
order of authorities was not transparent and was subjective, arbitrary and in excess of
jurisdiction as well as based upon favouritism---Validity---Entire proceedings initiated with
advertisements inviting proposals for import of agriculture tractors were not in accordance with
the decision of Economic Coordination Committee---Entire proceedings suffered from lack of
transparency and smacked of subjective decision, arbitrariness and excess of jurisdiction as
well as favouritism---High Court directed the members of Committee set up by Economic
Coordination Committee to devise a detailed scheme containing modalities for proper
implementation of the decision taken by Economic Coordination Committee, prescribing
criteria as well as measures which were to be adopted for achieving purpose of supply of
tractors to farmers at reasonable rates and to evolve the safety-valves to prevent misuse of the
scheme---High Court further directed the authorities that after devising detailed scheme giving
parameters, conditions, requirements, timeframe and other necessary guidelines, they should
re-advertise the scheme and invite proposals and thereafter recommend allocation of import of
tractors to companies/investors who were found eligible and most suited---High Court in
exercise of constitutional jurisdiction quashed all the proceedings.

Munir A. Malik for Petitioner (in C.P. No.D-304 of 2006).

Khalid Jawaid Khan for Petitioner (in C.P. No.D-1347 of 2005).

Aamir Raza Naqvi for Respondent No.8 (in C.P. No.D-304 of 2006).

Shaikh Jawaid Mir for Respondent No.8 (in C.P. No.D-1347 of 2005).

S. Tariq Ali, Federal Counsel for Respondents Nos. 1, 2, 3 and 9 (in C.P.No.D-30-4 of 2006).

Salman Talibuddin for Repsondnet No.4.

Raja Qasit Nawaz for Respondent No.5.

Mehmood A. Shaikh for Respondent No.6.

Nasir Ali Jafri for Respondent No.7.

Date of hearing: 2nd May, 2006. .

JUDGMENT

MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---Both these petitions arise out of the same
set of facts and the parties are also almost same, therefore, with the consent of learned
Advocates for the parties, both the petitions have been heard together and are disposed of by
this single judgment.

C.P. No.D-304 of 2006 is treated as leading petition and for the sake of convenience the
marshalling of facts shall be as on the record of this petition.

The relevant facts giving rise to these petitions are that the Economic Coordination Committee
of the Cabinet, made the following decision on 1-7-2005:--

"Case No.ECC-89/6/2005?????????????????????????????????????????? Allowed One Time

Import of
Dated 1-7-2005?????????????????????????????????????????????? 10,000 Tractors (CBU) at
Zero Tariff.
DECISION

(I) The Economic Coordination Committee (ECC) of the Cabinet considered the summary
dated 28th June, 2005 submitted by the Ministry of Food, Agriculture and Livestock on
"Allowing One Time Import of 10,000 Tractors (CBU) at Zero Tariff" and decided to set up a
Committee under Secretary, Ministry of Industries, Production and Special Initiatives to work
out the modalities and review the plan of import of 10,000 Tractors at zero tariff. The
Committee shall comprise senior level representatives from the Ministries of Finance, Food,
Agriculture and Livestock and Board of Investment.

(II) Import of tractors shall be allowed only to those companies who have their tractor
manufacturing units in Pakistan or are in the process of installing these. Bank guarantees may
be obtained in order to ensure use of this facility by genuine manufacturers only.

(III) The Committee shall submit its recommendations to the .Prime Minister for approval."

The above decision was communicated to various ministries/divisions by the Joint Secretary
(Cabinet Committees) vide covering letter dated 4th July, 2005, with the direction for necessary
action to be initiated immediately and for reporting the status of implementation to Cabinet
Division within a fortnight.

However, before initiation of any action as directed vide letter dated 4th July, 2005, , the
Economic Coordination Committee of the Cabinet modified its decision dated 1-7-2005 on 4-
7-2005. Para (ii) of the decision dated 1-7-2005 was substituted as follows:--

"(ii) Import of tractor shall be allowed only to those companies who want to install their Tractor
manufacturing facility in Pakistan. Bank guarantees may be obtained in order to ensure use of
this facility by the genuine prospective companies/investors. In case, they are unable to fulfil
their commitment the proposed committee will review the matter."

Consequent to the above substitution of decision dated 1-7-2005, the Cabinet Secretariat issued
a corrigendum on 12th July, 2005. After substitution the ECC decision read as follows:--

"(I) The Economic Coordination Committee (ECC) of the Cabinet considered the summary
dated 28th June, 2005 submitted by the Ministry of Food, Agriculture and Livestock on
`Allowing One time Import of 10,000 Tractors (CBU) at Zero Tariff' and decided to set up a
Committee under Secretary, Ministry of Industries, Production and Special Initiatives to work
out the modalities and review the plan of import of 10,000 Tractors at zero tariff. The
Committee shall comprise senior level representatives from the Ministries of Finance, Food,
Agriculture and Livestock and Board of Investment.

(II) Import of Tractor shall be allowed only to those companies who want to install their Tractor
manufacturing facility in Pakistan. Bank guarantees may be obtained in order to ensure use of
this facility by the genuine prospective companies/investors. In case, they are unable to fulfil
their commitment the proposed committee will review the matter.

(III) The committee shall submit its recommendations to the Prime Minister for approval."

Thereafter the Ministry of Industries, Production and Special Initiatives invited proposals for
import of Agricultural tractors through publication of notices in the National Dailies which
read as follows:--

GOVERNMENT OF PAKISTAN
MINISTRY OF INDUSTRIES, PRODUCTION AND
SPECIAL INITIATIVES

NOTICE INVITING PROPOSALS FOR

IMPORT OF AGRICULTRURAL TRACTORS

Ministry of Industries, Production and Special Initiatives, Government of Pakistan hereby

invites proposals for import of 10,000 agricultural tractors in CBU condition at zero tariff rate
for supply to farmers, from those registered companies which are in the process of Installing
the tractor manufacturing/ assembling units in Pakistan. The said companies shall be required
to fulfil the following documents:

(a) Number of tractors allocated to companies qualifying as per given below criteria shall be
subject to a maximum of 2,500 units.

(b) The tractors shall be imported during the financial year 2005-2006.
(c) Company(ies) submitting their proposals would be required to submit proof for establishing
local tractor manufacturing/ assembly plaint, i.e. land acquisition, technical agreement with the
foreign firm for joint venture, planned annual production capacity, application for deletion
program duly approved by Engineering Development Board and schedule for setting up of after
sale service in the country.

(d) Verification of proposals received for import of tractors (CBU) on the basis of the above
criteria would be conducted by the Engineering Development Board of Ministry of Industries,
Production and Special Initiatives if needed. Engineering Development Board would also
conduct on spot verification.

(e) The company(ies) allowed to import tractors would be required to establish irrevocable L.C.
within 90 days from date of approval by Ministry of Industries, Production and Special
Initiatives.

(f) The company(ies) approved to import tractors as per above conditions would be required to
submit a Bank Guarantee.

(2) The interested manufacturing firms may submit their detailed proposals in light of the above
conditions so as to reach this office in sealed cover within 10 days of publication of this Notice.
Sealed proposals will be opened on 15th August, 2005 at 11-00 a.m. in the Committee Room,
1st Floor, Block-A, Pak Secretariat, Islamabad in the presence of the applicants or their
authorized representatives.

(3) Proposals received after due date would not be entertained. Clarification, if any, can be
obtained from the undersigned."

By another notice published in the National Dailies dated 13th August, 2005, the date for
receipt of the proposals was extended up to 18th August, 2005. In pursuance of above
advertisements eleven companies/investors submitted their proposals to the Ministry of'
Industries, Production and Special Initiatives. The committee constituted by ECC examined
the proposals on the basis of eligibility requirements approved by the Prime Minister and short-
listed three companies namely Messrs Dewan Automotive Engineering Co., Universal Tractors
Ltd., and Agro Tractors (Pvt.) Ltd., Respondents Nos.4, 5 and 6 in C.P. No:D-304/2006. A
summary was submitted to the Prime Minister for approval who approved the award of import
of tractors to these three companies. It is alleged by the petitioner Fecto Belarus Tractors Ltd.

that five companies were short-listed which included the petitioner, the Fecto Belarus,
respondent No.7, Dewan Automotive Engineering Ltd., Respondent No.5, Universal Tractors,
Respondent No.6 Agro Tractors and respondent No.7, Hero Motors. It is alleged that this short-
listing was done in presence of the representatives of all these five companies. However, it is
denied by the Respondent No.1, the Ministry of Industries, Production and Special Initiatives,
alleging that three companies only were short-listed. According to the Respondent No.1, in the
summary submitted to Prime Minister it was provided that the Respondent No.7 Hero Motors
shall submit additional documents and after examination thereof, the case of Messrs Hero
Motors will be finalized. This proposal was also approved by the Prime Minister. Subsequently
Messrs Hero Motors supplied the additional documents. In the meanwhile the petitioner Fecto
Belarus made a representation to the Prime Minister of Pakistan and the representative of
petitioner Fecto Belarus Tractors and respondent Hero Motors were heard who explained their
respective positions. The committee formed unanimous view that the petitioner Fecto Belarus
Tractors did not qualify under the scheme, as the scheme was for new entrants only and the
Fecto Belarus Tractors was an existing unit. The proposal of Hero Motors was found in
accordance with the scheme and the Committee recommended Hero Motors for the award of
quota. The case of petitioner Shehzad Riaz in C.P. No.D-1347 of 2005 was not considered as
he had not submitted his case in time. Finally quota of 2500 units was allotted to each of the
respondents Nos.4, 5 and 6 while respondent No.7 was recommended for allocation of similar
quota which is still under consideration.

It is contended by the petitioner Fecto Belarus Tractors that only those companies were eligible
under the zero tariff rate who had manufacturing and assembling agreements with foreign firms
for the local manufacturing and assembling of these tractors. It is alleged that respondent No.7,
Hero Motors does not fulfil this condition. It is averred that the petitioner was refused the quota
for the reasons that it was an existing manufacturing unit but the respondents 4 and 5 Messrs
Dewan Automotive Engineering Limited and Messrs Universal Tractors Pakistan (Pvt.)
Limited in spite of being existing units were allotted the quota. Therefore, the implementation
of the scheme was not transparent or fair, but was mala fide and arbitrary. It is alleged that for
the first time, the petitioner was provided the corrigendum dated 12th July, 2005 on 13rd
February, 2006, whereby the existing units were excluded from the eligibility criteria. It is
further alleged that the respondent No.4, is already in production of tractors and Respondent
No.5 is also in production but has merely changed its name from G.M. Tractors (Pvt.) Ltd. to
Messrs Universal Tractors Pakistan (Pvt.) Ltd. The petitioner has produced copy of certificate
issued by Farmtrac North America dated 9th August, 2005, according to which the foreign
manufacturer had signed agreement on 16th December, 2003 with G.M. Tractors (Pvt.) Ltd.
the name of which has been changed to Universal Tractors (Pvt.) Ltd.

It is further contended in the petition that the implementation of scheme is non-transparent,

unfair, unjust and arbitrary.

It is also pleaded that the respondent No.9, C.B.R. has issued three special exemption orders
bearing Nos. 10, 11 and 20 of 2006, dated 13th February, 2006 and 24th February, 2006 in
favour of respondent No.4 Messrs Dewan Automotive Engineering (Pvt.) Ltd., respondent
No.5, Messrs Universal Tractors Ltd., and respondent No.6, Messrs Agro Tractors Ltd.,
granting exemption from whole of the customs duty leviable on the import of 2500 tractors by
each of these respondents in CBU and CKD condition. It is contended that initially the
respondents 4 and 5 were allowed import of tractors in CBU condition but vide letter dated 2nd
November, 2005 by modifying their earlier letter dated 26th September, 2005 they have granted
exemption for import of the tractors in CKD condition also, which is beyond and contrary to
the decision taken by ECC. It is alleged that the exemption notification for import of tractors
in CKD condition is non-transparent, illegal and mala fide.

The petitioner in C.P. No.D-304 of 2006 has prayed as under:

(a) Declare that the permission granted to the respondents Nos. 4 to No.7 to import 2,500 units
of tractors each under the zero tariff import scheme is illegal, mala fide and of no legal effect.

(b) Declare that the Special Exemption Order No.10/2006, dated February 13th 2006, Special
Exemption Order No.11/2006, dated February 13, 2006, and Special Exemption Order No.20
of 2006, dated 27th February, 2006, are without jurisdiction, illegal and of no legal effect.

(c) Restrain the respondents Nos. 4 to 6 from importing any tractors (i.e. in CBU or CKD
condition) under the zero tariff import scheme.

(d) Restrain the respondent No.7 from importing any tractors, including Belarus Tractors, (i.e.
in CBU or CKD condition) under the zero tariff import scheme.

(e) Grant any other relief deemed appropriate and just in the circumstances of the present case.

Or in the alternative

(a) Declare that the decision of the Economic Coordination Committee of the Cabinet
(Corrigendum No.F.I/6/2005, Corn. dated 12th July, 2005) is discriminatory and violative of
Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973, and of no legal effect.

(b) Direct the respondents Nos. 1 to No.3 and No.9 to grant permission to the petitioner to
import 2,500 Belarus Tractors under the zero tariff import scheme in terms of the decision of
the Coordination Committee of the Cabinet (Case No.ECC-89/6/2005, dated 1st July, 2005);
(c) Declare that the permission granted to the respondent No.7 to import 2,500 units of tractors
under the zero tariff import scheme is illegal, mala fide and of no legal effect;

(d) Restrain the respondent No.7 from importing any tractors, including Belarus Tractors, (i.e.
in CBU or CKD condition) under the zero tariff import scheme;

(e) Grant any other relief deemed appropriate and just in the circumstances of the present case;"

The petitioner in C.P. No. D-1347 of 2005 has prayed as follows:--

"(a) Declare that grant of permission by respondent No.1 to private respondents Nos. 5 and 7
and others for import of 7500 tractors in violation of the terms and conditions stipulated in
public notice/advertisement dated 13-8-2005 is arbitrary, illegal, mala fide and set aside the
same.

(b) Declare that the respondent No.5 having submitted technical manufacturing agreement of
one manufacturer cannot import zero tariff tractors from different manufacturer under the
Scheme.

(c) Declare that the respondents Nos. 4 and 6 are not qualified/eligible in terms of the conditions
stipulated in the public notice dated 13-8-2005 to be granted permission under the scheme to
import 2500 tractors at zero tariff.

(d) Direct that in the execution/implementation of Government policy/Scheme of grant of

permission to import 10,000 actors at zero tariff, the respondent No.1 must act in order to
achieve the objective of promoting interests of farmers by timely supply of tractors to them and
to pass on the benefit of zero tariff/reduced price to the farmers and not to provide opportunity
to private importers/respondents to unjustly enrich themselves at the expense of farmers and
public exchequer.

(e) Direct the respondent No. 1 to grant permission to the petitioner to import 2500 Belarus
tractors at zero tariff under the Scheme.

(f) Grant any other relief deemed appropriate in the circumstances of the present case.

(g) Grant costs of the petition."

The respondent No.1 in its parawise comments has taken plea that the advertisement was
published in the National Dailies inviting proposals in accordance with the amended ECC
decision and it was mentioned in the advertisement that import of tractors shall be allowed only
to those companies who, "want to install their tractors manufacturing facility in Pakistan". The
attention of learned Federal Counsel was drawn to the advertisements dated 4-8-2005 and 13-
8-2005 and it was pointed out that the assertion in para. 4(a) of the parawise comments is
factually incorrect. It was not mentioned in the advertisement that import of tractors shall be
allowed only to those companies, "who want to install their tractors manufacturing facility in
Pakistan". The advertisements contain that, "the proposals for import were invited from those
registered companies, which are in the process of installing the tractors
manufacturing/assembling units in Pakistan". It is further contended in para. 4(b) that the
import of tractors was allowed in CBU condition to Messrs Dewan Automotive Engineering
Co. Ltd., Universal Tractors Ltd. and Agro Tractors, but import of tractors in CKD condition
was also allowed by ECC on the representation of approved firms. However, no such modified
decision of ECC has been brought on record.

It is also averred in para. 4(c) of the parawise comments that the committee worked out
modalities strictly within the parameters laid down by the ECC Cabinet. However, copy of the
alleged modalities either by Economic Coordination Committee or the Committee of officials
has not been brought on record and it appears that no modalities whatsoever giving the
requirements and conditions were worked out within the parameters of the decision of ECC as
modified on 4-7-2005. This aspect shall be discussed further at its appropriate place. It is stated
in the parawise comments that the petitioner Fecto Belarus Tractors Ltd., was an existing
manufacturing unit and therefore, they were not new entrant with the result that they did not
meet the criteria prescribed by ECC. Dewan Farooq Automotive, respondent No.4 had acquired
a sick unit for manufacturing of tractors and were trying to revamp the same and therefore, they
fulfil the criteria. Respondent No.5, Universal Tractors were also having an existing
manufacturing unit and they were in the process of establishing second plant. The Committee
of officials formed view that since new plant was being established by the company its case
was being treated differently as compared to other existing tractor manufacturing units who
also applied for import of tractors. The second plant of Messrs Universal Tractors Ltd., was
therefore, found to be qualified for import of tractors at zero tariff rate. It is also alleged that
some terms were varied after approval of Prime Minister on a summary submitted by Ministry
after examination of joint presentation filed by three eligible firms namely respondents 4, 5 and
6. However, the copy of any such summary or copy of approval order of the Prime Minister
has not been produced. It is also alleged that Respondent No.7, Messrs Hero Motors Ltd., are
new entrant and therefore, they qualify the prescribed conditions.

The respondent No.4, has raised objection to the jurisdiction of this Court on the ground that
no writ can be issued to a person not performing any action in connection with the affairs of
federation, province or local authorities and that intricate and complicated questions of fact are
involved which cannot be resolved in a petition under Article 199 of the Constitution. They
have stated that they acquired a tractor manufacturing plant (sick unit) in April, 2004 and it
was in the process of re-vitalizing, revamping and modernizing of the sick unit at relevant time
and therefore, it fell in the category of companies eligible to apply for import of tractors at zero
tariff rated under the scheme. It is stated that respondent No.4 applied in response to the
advertisement and was granted permission to import 2500 tractors in accordance with the
scheme. It is further stated that the respondent No.4 acquired the sick unit along with the stock
including number of unassembled tractors. These tractors were assembled by them by way of
test run of the plant. It is alleged that respondent No.4 was not aware of the corrigendum issued
on 12th July, 2005 and came to know about it for the first time when the copy of this petition
was received.

The respondent No.5, Messrs Universal Tractors Pakistan Ltd., has contended that the petition
is not maintainable as the petitioner has no cause of action against them. It is stated that they
are already engaged in establishment of plant with new technology. It is further alleged that
disputed questions of fact have been raised which cannot be decided in the petition.

The respondent No.6, Agro Tractors (Pvt.) Limited, has raised objection to the territorial
jurisdiction of this Court for the reason that the respondents Nos. 1 to 3 and 9 are located at
Islamabad. It is stated that the petitioner Facto Belarus Tractors is not qualified to import the
tractors at zero tariff rate because they have a plant at Lahore which is closed for almost 14
years and therefore, no tractor was being manufactured and or assembled by them. It is
contended that in fact it is a dispute between petitioner and the respondent No.7 and the
respondent No.6 has been unnecessarily impleaded in this case.

The respondent No.7 has mostly taken pleas pertaining to its status and the status of the
petitioner. All these pleas pertain to the disputed questions of fact. This respondent has
admitted that the original decision of ECC was modified and the scheme was restricted to the
companies who want to install their tractor manufacturing facility in Pakistan but has alleged
that the scheme was announced by the Government of Pakistan for those companies only which
on 15-8-2005 were in the process of installing the Tractor manufacturing/assembling units in
Pakistan.

The interest of respondent No.8 is not adverse to the interest of petitioner. He is himself
petitioner in the connected' petition C.P. No.D-1347/2005 and the interest of respondent No.8
in the connected petition is also not adverse to the interest of petitioner in the leading petition
and therefore, it is not necessary to narrate their pleas.

We have heard Mr. Munir A. Malik, learned counsel for the petitioner in C.P. No.D-304 of
2006. Mr. Khalid Jawaid Khan, learned counsel for the petitioner in C.P. No.D-1347/2005. Mr.
Aamir Raza Naqvi, Advocate for respondent No. 8 in the main petition and Mr. Shaikh Jawaid
Mir, Advocate for respondent No.8 in C.P. No.D-1347/2005. The later three Advocates have
adopted the arguments addressed by Mr. Munir A. Malik, Advocate. We have also heard Syed
Tariq Ali, learned Federal Counsel for the respondents Nos. 1, 2, 3 and 9 in the main petition.
Mr. Salman Talibuddin, learned counsel for respondent No.4. Mr. Raja Qasit Nawaz, Advocate
for respondent No.5, Mr. Mehmood A. Shaikh, learned counsel for respondent No.6 and
Mr.Nasir Ali Jafri, learned counsel for respondent No.7.

During the course of arguments the following position has emerged:---

(1) The ECC took a decision on 1-7-2005 for allowing one time import of 10,000 Tractors
(CBU) at zero tariff and decided to set up a committee under Secretary Ministry of Industries,
Production and Special Initiatives and comprising senior level representative from the
Ministries of Finance, Food, Agricultural and Livestock and Board of Investment to work out
the modalities and review the plant of import of 10,000 tractors at zero tariff.

(2) The import of tractors was to be allowed only to those companies who have their
manufacturing units in Pakistan or are in the process of installing these. It was further decided
that the bank guarantees may be obtained in order to ensure use of this facility by genuine
manufacturers only. It was also decided that the Committee shall submit its recommendations
to the Prime Minister for approval.

(3) This decision was communicated by Joint Secretary (Cabinet Committees) through a
secret/immediate letter dated 4th July, 2005 to the Secretaries of various divisions. Immediate
implementation of the decision was directed.

(4) After three days of the first decision, i.e. on 4th July, 2005 when the decision dated 1-7-
2005 was communicated, the ECC reconsidered the decision and modified the decision dated
1-7-2005 by substituting para. (ii) thereof. Under the modified decision the import of tractors
was to be allowed only to those companies who want to install their tractor manufacturing
facility in Pakistan. In the original decision the bank guarantees were to be obtained in order to
ensure use of this facility by genuine manufacturers only. Under the modified decision the bank
guarantees were to be obtained in order to ensure use of this facility by the genuine prospective
companies/investors. It was also added that in case they are unable to fulfil their commitment
the proposed Committee will review the matter.

(5) Under the original decision the existing manufacturing units and those in process of
installing these manufacturing units were eligible for the facility and the bank guarantees were
also to be obtained from the genuine manufacturers only. Under the modified decision the
existing manufacturing units were excluded from the eligibility criteria and the scope of second
category was expanded. Under the original decision only such companies who are in the
process of installing manufacturing units were eligible and the bank guarantees were to be
obtained in order to ensure that the applicants were genuine manufacturers. In the modified
decision the eligibility threshold was extended to all those companies who want to install their
tractor manufacturing facility in Pakistan. Meaning the -by, that, under the original decision
the second category comprised of such companies who were actually engaged in the process
of installing manufacturing units in Pakistan while under the modified decision all those
companies became eligible for the facility whether in actual process or having mere intention
to install their tractor manufacturing facility in future which is indicated from the expression
used, "those companies who want to install". This change is further indicated from the fact that
under the original decision the bank guarantees were to be obtained to ensure use of facility by
genuine manufacturers only while under the modified decision the bank guarantees were to be
obtained to ensure that this facility is used by genuine prospective companies/investors. Under
the original decision only companies were eligible who were existing manufacturers or in the
process of installing manufacturing units while under the modified decision the facility became
available to the companies as well as to the investors, whether they were companies, firms or
individuals and to all the prospective companies and investors. It was not necessary that they
should be in the process of installing manufacturing units or had taken any steps in that behalf.
The result is that the modified decision became too wide, uncertain and fluid.

(6) Although under the original decision also a committee comprising senior officers headed
by Secretary Ministry of Industries was set up and was given to work out the modalities for
implementation of the scheme and to review the plan but under the new dispensation it became
more necessary to work out the modalities before the scheme was initiated in order to bring
some certainty to the scheme and avoid further complications, but, it appears that no modalities
were worked out prior to the initiation proceedings for implementation of scheme and inviting
of proposals through advertisement.

(7) The decisions of ECC were communicated to the various ministries concerned through a
secret letter. This unnecessary secrecy has created complications, which shall be explained
presently.

(8) As already pointed out the respondent No. l , in its comments took plea that in the
advertisement it was clearly mentioned that import of tractors shall be allowed only to those
companies who want to install their tractor manufacturing facility in Pakistan but it is incorrect
assertion. It was pointed out to the learned Federal Counsel that both the advertisements dated
4-8-2005 and 13-8-2005 are in terms of as part of the original decision dated 1-7-2005 which
was substituted by the decision of ECC dated 4th July, 2005. Under the original decision the
second category of the persons eligible were the companies which were in process of installing
manufacturing units. It appears that on account of unnecessary secrecy the modified decision
was not brought to the notice of relevant officers of the respondent No.1, Ministry of Industries,
Production and Special Initiatives, with the result that in the advertisements it was stated that
the proposals were invited from those registered companies who are in the process of installing
the tractor manufacturing/assembling units in Pakistan. Thus, these advertisements are not in
accordance with the modified decision and the eligibility criteria as existing on the dates when
the advertisements were published.
(9) The purpose of decision to allow one time import of 10,000 tractors at zero tariff is not
contained in the decision of ECC. It appeared for the first time in the advertisements dated 4-
8-2005. The purpose was shown as supply to farmers. It is not known as to who incorporated
this purpose in the decision.

(10) As already observed the modalities criteria and the parameters of the scheme are not
contained in the decision of the ECC which is confined to the eligibility condition only. No
working of the committee of senior officers set up by the ECC has been produced before us. It
is not known as to who has taken the decision that 2500 units shall be allocated to each company
qualifying under the scheme.

(11) It is provided in Clause (c) of the advertisement that the company submitting proposals
would be required to submit proof for establishing local tractor manufacturing/assembling
plant i.e. land acquisition, technical agreement with the foreign firm for joint venture, planned
annual production, capacity, application for deletion program duly approved by Engineering
Development Board and schedule for setting up after sale service in the country. This condition
further indicates that no parameters and criteria were appeared prior to the advertisement and
in any case it appears to be in continuation of the condition that proposals were to be given by
those registered companies which are in the process of installing the tractor
manufacturing/assembling units in Pakistan. In fact the criteria ought to have been fixed
keeping in view the decision of ECC that the import of tractors shall be allowed only to those
companies who want to install their tractor manufacturing facility in Pakistan. As observed
earlier on account of unnecessary secrecy in respect of the modified decision of the ECC the
advertisement was published containing wrong condition of eligibility and consequently wrong
criteria which was in consonance with the condition published in the advertisement and was
not in consonance with the decision of ECC as it stood after modification of the decision with
effect from 4th July, 2005.

(12) In view of the modified decision it was imperative for the Committee of the senior officers
to devise a detailed scheme giving the criteria and the parameters bringing certainty to the
scheme and specifying as to what would be the indicators to establish that a company wants to
install its tractor manufacturing facility in Pakistan and that it was genuine prospective
company/investor. It was also necessary to specify in the detailed working prepared by the
Committee of the officers as to what would be the time limit for import of machinery for the
purpose of establishing the tractor manufacturing facility and what would be outer time limit
for the installation of the manufacturing unit and in case of non-fulfillment of the commitment
what would be the consequences such as forfeiture of the bank guarantees or imposition of
penalty etc. The committee also ought to have devised necessary ways and means to ensure
that the benefit of this facility is actually availed by the formers and the amount saved on
account of import at zero rated tariff is not siphoned off by the companies. The Committee was
also required to fix the criterion whether this facility shall be available to the new entrants
meaning thereby that they had no existing manufacturing units or it shall be available to the
companies/investors who were existing manufacturing units and wanted to establish an
entirely_ new manufacturing unit. It was necessary to avoid the taking of subjective decisions
by the members of the Committee and to avoid the discriminatory treatment. For this purpose
the definition of expression "prospective companies/investors" was required to be given in
order to alienate the adoption of varying criterion for determining the eligibility. Without
working out the detailed scheme and modalities the scheme was put to implementation giving
rise to the complications.

(13) The ECC in its original and modified decision allowed import at zero tariff to tractors in
(CBU) condition but the C.B.R. has issued exemption notification under section 20 of the
Customs Act, extending the benefit to the import in CKD condition also. It is not known as to
how, the import in CKD condition was also included in the facility. No decision of the ECC
has been produced before us to show that the facility was extended to import of tractors in CKD
condition also. Prima facie and in the absence of any decision/order of the ECC the notification
of C.B.R. granting exemption to import in CKD condition also at zero tariff appears to be
beyond the decision of ECC.

Learned Advocates for the respondents 4, 5, 6 and 7 are not able to controvert the above
position but have vehemently contended that the prayer clauses of the two petitions do not
contain any relief which may flow from the consideration of the issues narrated above. All of
them have contended that the petitioners have filed the petitions with the purpose to get
themselves included in the list of persons who were allowed the facility of importing tractors
at zero tariff rate, for which both of them are not entitled and consequently the petitions are
liable to be dismissed. Their plea is that the Court should not grant any relief which is not
sought by the petitioners.

We are not impressed with the contention for the reason that such plea is normally raised in the
cases in which the Court is exercising original jurisdiction in suit or appellate or revisional
jurisdiction. Even in exercise of such jurisdiction the dominant prevailing view is that the Court
can mould the relief and allow the same though it is not prayed for, as the Courts are not merely
slaves of the technicalities but are the Courts of justice and, therefore, the relief can be molded
in a way which serves the purpose of justice.

So far, jurisdiction under which the present petitions are being heard, it falls within the category
of judicial review of administrative/public action. In exercise of such jurisdiction the Court is
required to see whether the public functionaries have acted in accordance with the law. This
jurisdiction of the Courts and particularly the superior Courts is in accordance with the concept
of checks and balances which is integral part of the concept of separation of powers enshrined
in the Constitution of Islamic Republic of Pakistan. In exercise of this jurisdiction, of judicial
review of administrative/public action, the Court is required to see whether the functionaries
of the State in connection. with the affairs of federation, province or local authorities have done
the things in accordance with the law or actions have been taken otherwise than in due course
of law. The basic principles in this behalf are that in the realm of public actions every thing
should be done with complete transparency and the decisions should be taken objectively and
on the basis of criteria already determined and fixed. There is no room for subjectivity or the
actions which smack of arbitrariness, favourtism or discrimination. If the yardsticks are not
determined prior to the taking of decisions then the decisions are bound to be subjective and
non-transparent, which are not the hallmarks of good governance. In a democratic set up the
complete transparency and accessibility to the policy decisions in pursuance of right of
information are strictly observed. In the present case, we find that first, the modified decision
of the ECC was kept secret to the extent that not only the persons from whom proposals were
invited were not aware of the modified decision but the relevant officials of the Ministry of
Industries, Production and Special Initiatives were also not aware of the correct position with
the result that the advertisements were wrongly published giving the condition of eligibility
which was no more existing and omitting the eligibility condition which was holding the field.
Secondly, the necessary detailed scheme was not worked out as highlighted above, with the
result that the situation was uncertain and fluid which led to the subjective decisions which is
reelected from the fact that some of the companies who had already existing manufacturing
units were treated to be new entrants. Thirdly, the facility was extended to import of tractors in
CKD condition also although in the decision of ECC produced before this Court no such
decision was taken by the ECC. Fourthly, the C.B.R. issues exemption notification to import
in CKD condition also which is beyond the purview of decision of the ECC. Fifthly, the purpose
of the scheme finds place in the advertisement only and no detailed scheme has been devised
as to how this benefit shall reach the farmers. No safeguards have been provided in the absence
of detailed modalities which were to be worked out by the Committee of the senior officers.

At this stage, we would like to observe that Mr. Mehmood A. Shaikh, Advocate for respondent
No.6, raised objection to the jurisdiction of this Court on the plea that the respondents Nos. 1,
2, 3 and 9 are stationed at Islamabad. It was pointed out to the learned counsel that all the High
Courts in Pakistan are exercising jurisdiction under Article 199 of the Constitution in respect
of the decisions/orders made by the federation and the authorities/officers functioning with the
affairs of federation and asked him to show any judgment of the Hon'ble Supreme Court,
holding that the Sindh, Balochistan and Peshawar High Courts have no jurisdiction. The
learned counsel stated that he is not in possession of any such judgment of the Hon'ble Supreme
Court. The objection is therefore, repelled.

Before concluding the judgment we would like to observe that we have not considered any
disputed question of fact and any other fact affecting rights of any of the parties for the reasons
that the authority competent in law should take these decisions and the disputed questions of
fact are to be considered by the Civil Court.

For the reasons recorded above, both these petitions are disposed of in the terms that the entire
proceedings initiated with the advertisements inviting proposals for import of agricultural
tractors are not in accordance with the decision of the ECC. The entire proceedings suffer from
lack of transparency and smack of subjective decision, arbitrariness and excess of jurisdiction
as well as favouritism. All the proceedings are therefore, quashed. The members of the
Committee set up by the ECC are directed to devise an detailed scheme containing the
modalities for the proper implementation of the decision taken by ECC, prescribing the criteria
as discussed above, as well as measures which are to be adopted for achieving the purpose of
supply of the tractors to the farmers at the reasonable rates and to evolve the safety-valves to
prevent the misuse of the scheme. After devising the detailed scheme giving the parameters,
conditions, requirements, timeframe and other necessary guidelines, they shall re-advertise the
scheme and invite proposals and thereafter recommend the" allocation of the import of tractors
to the companies/investors found eligible and most suited. The exemption notification issued
by the C.B.R. to the extent of import in CKD condition being beyond the purview of ECC
decision is also struck down, while the exemption to import by the approved parties in CBU
condition shall remain intact, but fresh notification shall be issued after the new allocations.
The existing notifications are not to be acted upon.

At the conclusion of the arguments Mr. Mehmood A. Shaikh, learned counsel for the
respondent No.6 contended that the respondent No.6 has already imported 156 tractors.which
are not in CBU condition and the respondent No.6 shall have to bear heavy demurrage,
therefore, it may be allowed to get the tractors released on zero tariff basis. We are not inclined
to allow this relief because we have held that the exemption granted by C.B.R. to the imports
in CKD condition is beyond the purview of decision by ECC and we have struck down the
exemption notification to that extent. However, the respondent No.6, shall be at liberty to get
the tractors imported by it released, on payment of normal duties and taxes.

Both the petitions stand disposed of accordingly.

M.H./F-
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??????? Order accordingly.