Government of Pakistan’s Subsidy for Manufacturers and Importers of Fertilizers

Government of Pakistan's Subsidy for Manufacturers and Importers of Fertilizers Case Laws Civil Law Condonation of Delay Constitutional Law Food & Beverages Industrials Intelligible Differentia Knowledge - Civil Law Knowledge - Constitutional Law Limitation Litigation & Arbitration Solutions - Civil Law Solutions - Constitutional Law Supreme Court Mr. Justice Qazi Faez Isa, in his judgment has decided the issue regarding Government of Pakistan’s subsidy for manufacturers and importers of fertilizers in Civil Petition No. 1067 of 2016.

1. The Federation of Pakistan through Secretary, Ministry of National Food Security and Research, Islamabad has belatedly filed this petition, nineteen days after the prescribed period of limitation, assailing the judgment dated 23rd December 2015 of a Division Bench of the Peshawar High Court, Peshawar, whereby the petition filed by the respondent No. 1 and 2 was disposed of.

Civil Miscellaneous Application No. 2485 of 2016

2. Through this application the delay in filing of the petition is sought to be condoned. This Civil Petition No. 1067 of 2016 was filed on 8th April 2016 assailing the impugned judgment dated 23rd December 2015, certified copy whereof was provided to the petitioner on 20th January 2016. The office has noted that the petition is barred by nineteen days. Mr. Sajid Ilyas Bhatti, the learned Deputy Attorney General for Pakistan (“DAG”), stated that the delay was neither wilful nor deliberate and occurred for factors completely beyond the control of the petitioner. The reason for the delay in filing the petition and the basis for seeking it to be condoned is contained in paragraph 2 of the said application, which is reproduced as under:

“2. That the competent authority Mr. Seerat Asghar, the Secretary of the Department has been retired on 14.01.2016. The post remained vacant till ___ [left blank] when the present Secretary took over the charge and issued the direction to file the present CPLA after the examining the relevant record then the Department started processing and after fulfilling the required formalities now the present CPLA is being filed with certain delay.”

The learned DAG placed reliance upon the case of Government of Punjab v Muhammad Rafique Shah (2013 SCMR 1468) to support his contention that since the matter was of public importance the delay, as in the cited precedent, may be condoned.

3. Mr. Salman Akam Raja, the learned counsel for the respondent Nos. 1 and 2, has strongly opposed the application and stated that no reason whatsoever has been given to condone delay; that the retirement of Secretary of the Department was not an unforeseen event; that upon his retirement and on the same day acting charge was handed over to the Additional Secretary; and that a Secretary was permanently appointed to the post on 20th February 2016. Therefore, there was no justifiable reasons for filing the petition on 8th April 2016. It was also pointed out that initially the petitioner had accepted the decision and had subjected the Company to the verification process as stipulated in the impugned judgment, by dispatching a team from the Pakistan Standards and Quality Control Authority to ascertain whether the Single Super Phosphate (“SSP”) fertilizer manufactured by the Company contained the prescribed minimum phosphatic content of 18 per cent, however, for some inexplicable reason the petitioner belatedly elected to file this petition. He further stated that the delay of each and every day has to be explained which has not been done by the petitioner. He placed reliance on the cases of Province of East Pakistan v Abdul Hamid Darji (1970 SCMR 558), Government of Pakistan v Malbrow Builders Contractors (2006 SCMR 1248), Food Department v Ghulam Farid Awan (2010 SCMR 1899) and Parvez Musharraf v Nadeem Ahmed (Advocate) (PLD 2014 SC 585).

4. In the judgment in the case of Government of Punjab v Muhammad Rafaqat Shah (above) which was cited by the learned DAG it was noted that the matter was of public importance as it affected a large number of Government employees, and this fact coupled with the fact that another appeal, filed within time and in respect of the same matter, was pending therefore this Court had exercised its discretion to condone the delay in filing the subsequent appeal. However, since there is no other pending case the said citation is not attracted. We have also gone through the application which does not provide any reasonable ground justifying the delay to be condoned. The working of the Government neither stops, nor should stop, upon the retirement of a Secretary of a Government department. If at all the successor had not been appointed the petition could have been filed by the person holding charge of the office. In any event, since the post of the Secretary had been filled in on 20th February 2016 there was more than sufficient time for the Government to approach this Court. All the more so, if, as contended by the learned DAG, the matter was of public importance. Therefore, this is not a case wherein it would be appropriate to exercise our discretion to condone the delay. Consequently, the application seeking to condone the delay in filing the petition is dismissed. However, since we spent some time in hearing this matter on merit and had also heard the learned Attorney General on the constitutional and legal questions that had emerged it would be appropriate to highlight the same and the respective contentions of the parties.

5. A writ petition was filed by Agritech Limited (“the Company”) and its Works Manager. The Company manufactures fertilizer at its plant situated in Haripur, District Hazara of the Khyber Pakhtunkhwa Province. The SSP fertilizer manufactured by the Company and which is in dispute is manufactured by using locally mined rock containing phosphate. The Company alleged that by utilizing the locally mined phosphorous rock it was producing SSP fertilizer the phosphatic content whereof was 18 per cent, as has been confirmed by the Pakistan Standards and Quality Control Authority, a statutory body set up under The Pakistan Standards and Quality Control Authority Act, 1996, therefore, it was also entitled to the subsidy provided to other manufacturers and importers of phosphatic fertilizers, including SSP fertilizer.

6. The subsidy was provided vide two notifications issued by the Ministry of National Food Security and Research Government of Pakistan dated 15th October 2015 and 3rd November 2015 respectively, which are reproduced here under:

“Government of Pakistan, Ministry of National Food Security and Research, Islamabad the 15th October, 2015
Notification: No.F. 1-11/2012/DFSC-II/ Fertilizer. In the light of Finance Division’s letter No. 1(7) CF-C/2015-2147 dated: 15-10-2015, the Competent Authority, Ministry of National Food Security & Research is pleased to notify, with immediate effect, the salient features of the subsidy on Di-ammonium Phosphate (DAP), Nitrophos (NP) and NPK fertilizers (based on P contents) as per detail below:

i. Subsidy shall be paid @ Rs.500/- per 50 kg bag of DAP (one time subsidy), Rs. 217/- per 50 kg bag of Nitrophos and NPK fertilizers (based on P contents) and will continue till the pledged amount is exhausted.

ii. Subsidy shall be paid after the sale of bagged DAP, Nitrophos and NPK fertilizers on the basis of sales tax invoice and sales tax returns submitted by the manufacturers/ commercial importers.

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