By Amjad Javaid Hashmi, Advocate Supreme Court & Shahid Ali Qureshi, Advocate High Court
This article brings home the constitutional noise and statutory clamor by way of misguided application and affirmation of the ratio of Haji Razzaq’s case (PLD 2017 SC 207) in the case of Searle IV Solutions and others, decided by the Honorable Supreme Court in June this year which overruled the finding of learned High Court of Sindh in Naveena Industries’ case (2017 PTD 2123) to the effect that in tax matters bar of suit applies.
A Synoptic view of Haji Razzaq’s case
The question of law in Haji Razzaq’s case essentially was a question of exemption from charge of court fee and it revolved around consideration of the terms of two ‘provincial’ statutes i.e. the High Court of West Pakistan (Establishment) Order (1955 Order) and the Court Fees Act 1870.
The appellant, the Province of Sindh, was aggrieved by the order of the then Honorable High Court of Sindh and Balochistan, whereby it held that the exemption from payment of court fee provided under Section-4 of the Court Fees Act 1870, in cases which were heard by a High Court in its ‘extraordinary original civil jurisdiction’ was also applicable in the case of suits pending before High Court of Sindh on the original side or appeals filed against orders passed in such suits. The Honorable Supreme Court while relying on an earlier judgment in Firdous Trading Corporation v Japan Cotton and General Trading Co. Ltd (PLD 1961 Karachi 565) set aside impugned order of the Learned High Court of Sindh and held that as per Section-5 of the 1955 Order, the High Court of Sindh at Karachi was not a district court but a ‘principal Court exercising original civil jurisdiction’ for the district of Karachi which was kind of a ‘special jurisdiction’ in contradistinction to ‘ordinary original civil jurisdiction’ exercised by a District Judge and hence it did not fall within the exemption provided under Section-4 of the Court Fees Act 1870.
As is evident from the above synopsis of Haji Razzaq’s case, the issue involved was payment of court fee under a provincial statute and the stature and nature of jurisdiction of that court for the purposes of the levy i.e. whether Learned High Court was a district court or a principal court of civil jurisdiction, was decided strictly for the purposes and in the context of the Court Fees Act 1870. The judgment in Haji Razzaq came on 25-02-1991, meaning thereby that the 1982 amendment in Section-7 of the Sindh Civil Courts Ordinance 1962 (1962 Ordinance), whereby original civil jurisdiction was conferred on Karachi Bench of the Learned High Court of Sindh, had already been introduced ten years before. Therefore, it is quite apparent on record that their lordships in Haji Razzaq’s case did not take into account the latest legislative development and based their opinion on Section-5 of the 1955 Order which had been impliedly repealed.
In the back drop of the above judicial history, the article holds, with respect that in the Searle Solutions’case the Supreme Court was faced with a different and hard question of prohibition in terms of determining the force and effect andbar of suit in tax matters as clamped by a federal tax statute,the 1969 Act and its overriding effect against the terms of two provincial statutes i.e., Civil Procedure Code (CPC 1908) and the 1962 Ordinance.
It was the crucial factor of emerging conflict between the two distinct types of federal and provincial statutes and their resolution through the constitutional filters of Article 175 and 143 towards which the parties in dispute failed to diligently assist the Supreme Court and hence, the unintended consequences of the ruling whereby it appears to disturb the constitutionally recognized principle of federal eminence and the provincial subservience. Reference is invited to Pakistan Telecommunication Company Ltd versus Member NIRC (2014 SCMR 535) wherein the Supreme Court held: “under the provisions of Article 143, laws enacted by the Parliament have been given overriding and superimposing effects over the laws enacted by a Provincial Assembly of any of the Provinces and in case of any clash or repugnancy between the two, the laws enacted by the Parliament shall prevail.
Thus on the touchstone of the provision of Article 142 of the Constitution, the act of Parliament has been placed on high pedestal and any Provincial Law enacted by the Provincial Assembly shall give way to the Federal Law, enacted by the Parliament, if the former is inconsistent or repugnant to the latter.”
Before we move on, at the outset, it would be relevant to mention here that the petitioner Searle IV Solutions was also aggrieved by the outcome of High Court’s judgment in Naveena Industries case (2017 PTD 2123) and challenged it before the Supreme Court.The ratio in the Naveena Industries’ case needs to be put into perspective. The Learned High Court had held that suits in tax matters were not maintainable before a Single Judge of the Learned High Court of Sindh at Karachi in view of Ouster Clause of Section-217 read with the bar stipulated in Section-9 of the CPC 1908, which mandates that civil courts can try all suits excepting suits of which cognizance is expressly or impliedly barred.The crucial operating point in paragraph-20 of the High Court’s
judgment is reproduced herein below as a ready reference:
“It will not be out of place to observe that the Single Judge of this Court, while trying a civil suit at original side, exercises the same poweras of a civil court as vested in the District Judge in terms of Section-7 of the Sindh Civil Courts (Amendment) Act, 2010, therefore, the restriction and the qualification imposed in terms of Section-9 of Civil Procedure Code 1908, is equally applicable in respect of a suit before the Single Judge.”
Misguided Application of Haji Razzaq’s Case (PLD 2017 SC 207)
The Honorable Supreme Court while affirming Haji Razzaq’ case and overruling on its strength the above findings of the Learned High Court of Sindh, held:
“The Single Bench of the Sindh High Court, regardless of what jurisdiction it exercises, is a “High Court” and will always remain a High Court because it is a Constitutional Court and is not a District Court.”
The Honorable Supreme Court reiterated its ruling on the basis of following stream of reasoning which is critical for fair evaluation of the controversy:
“Obviously, a literal interpretation of Section 217(2) would lead to the conclusion that only ‘civil courts’ are barred from taking cognizance of civil suits arising out of disputes regarding the claim of entitlement to exemption from tax duties under the Customs Act. Had it been the intention of the Legislature to bar the cognizance of any Court exercising civil jurisdiction, the language of the said provision would have used the words “civil original jurisdiction” and not simply used the term “civil courts”.This approach can be grasped better when looked at with the rich history of this exercise of civil jurisdiction by the Single Bench of the High Court, an overview of which has been beautifully encapsulated in the judgment of “Haji Razzaq’s case”(supra); the Legislature was aware of such exercise of special jurisdiction and thus had its intention been to place a complete bar on cognizance by any court exercising such jurisdiction, it would have used the language that clearly reflected its intent. The question of the state of Single Bench of the Sindh High Court at Karachi stands conclusively decided in the judgment of Province of Sindh v Haji Razzq judgment (supra)…………”
The finding is, in our humble view, defective for the key reason of rich history of a provincial statute but which failed to appreciate that even where a hundred year history of a provincial statute is pitched against one-day history of a federal statute, the latter shall prevail as a constitutional command. It has presumed gap of purpose in the wording of Section 217(2).
It has also attributed improper motive to the Legislature. Still more surprising is the fact that none of the learned counsels appearing on both sides assisted the Honorable Supreme Court on the crucial limitation, scope and effect of Section-7 of the 1962 Ordinance, as amended through 1982, 2002 and 2010 Amendment acts/ordinances especially the 1982 Ordinance whereby the Learned High Court was conferred upon its ‘original civil jurisdiction’.The error seems all the more incomprehensible when we see that the Learned High Court of Sindh had based its findings entirely on the wording of Section-7 of the 1962 Ordinance.
Within the constitutional mandate of Article 175, the character of the jurisdiction of a High Court is either constitutional or statutory. It cannot wear two caps simultaneously i.e. statutory and constitutional cap. From another aspect, Article 175 forbids the High Court to perform constitutional and statutory functions at the same time. Impliedly, the ruling permits such duality of functions i.e. the High Court while retaining its status as a constitutional court can still perform the function of a statutory court when so stipulated by Section-5 of the 1955 Order or for that matter under Section 7 of the 1962 Ordinance; the successor law in the field.
On the above test, the assumption of jurisdiction by a Single Judge of Learned High Court at Karachi merely on the basis of higher pecuniary jurisdiction conferred by an inferior provincial statute would be illusory and self-deceptive if not abuse of the process of law.The ruling is also germane to a misgiving as if a higher pecuniary value case be mistaken as higher pecuniary value of a tax demand for which no sanction exists under the 1969 Act. In sum, the Honorable Supreme Court was not assisted on the crucial point that despite being a constitutional court, the Learned Single Bench could not escape the sweep of Article 175.
As the controversy also involves interplay of the crucial provisions of the Constitution with specific provisions of various federal and provincial statutes, the same are reproduced herein below to bring further clarity to the discussion:
Article 175- Establishment and jurisdiction of courts
(1). There shall be a Supreme Court of Pakistan, High Court for each Province (and a High Court for Islamabad Capital Territory) and such other courts as may be established by law.
Explanation — Unless the context otherwise requires, the words “High Court’ wherever occurring in the Constitution shall include “Islamabad High Court”
(2) No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.
(3) The judiciary shall be separated progressively from the Executive within fourteen years from the commencing day.
Article 143. Inconsistency between Federal and Provincial law.
If any provision of an Act of a Provincial Assembly is repugnant to any provision of an Act of Majlis-e-Shoora (Parliament) which Majlis-e-Shoora (Parliament) is competent to enact, then the Act of Majlis-e-Shoora (Parliament), whether passed before or after the Act of the Provincial Assembly shall, to the extent of the repugnancy, be void.
Section 5 (High Court of West Pakistan (Establishment) Order 1955)
Original Civil and Criminal Jurisdiction of the Bench at Karachi- Notwithstanding anything in this Order or in any other law for the time being in force. The Bench of the High Court at Karachi shall have the same original civil jurisdiction for the civil district of Karachi and the same criminal jurisdiction and powers of the Court of Session for the Sessions Division of Karachi, as were exercisable before the commencement of this Order by the Chief Court of Sind under section-8 of the Sind Courts Act 1926 (Sind Act VII of 1926)
Provided that the Governor General may by notification in the official gazette direct that, as from a specified date such jurisdiction and powers as are mentioned therein shall ceased to be exercisable by that Bench and as from that date that Bench shall cease to exercise that jurisdiction and powers.
Preamble (West Pakistan Civil Courts Ordinance 1962)
8th January 1962 – An Ordinance to amend and consolidate the law relating to civil courts in the Punjab, Sindh, N.W.F.P. and Balochistan. Whereas it is expedient to amend and consolidate the law relating to civil courts in the Province of West Pakistan………………..”
Section-3 (West Pakistan Civil Courts Ordinance 1962)
Besides the Courts of Small Causes established under the Provincial Small Cause Courts Act, 1887, and the Courts established under any other enactment for the time being in force, there shall be the following classes of Civil Courts, namely:—
(a) the Court of the District Judge;
(b) the Court of the Additional District Judge; and
(c) the Court of the Civil Judge.
Section-7 (West Pakistan “Civil Courts Ordinance” 1962 as amended by the Sindh Civil Courts Amendment Act 2010)
Subject to this Ordinance or any law for the time being in force, the original jurisdiction of the court of the District Judge in civil suits and proceedings shall be without limit of the value thereof excepting in the Karachi Districts where the original jurisdiction in civil suit and proceedings of the value exceeding fifteen million rupees shall be exercised by the High Court.”
Section 17(2) of Customs Act 1969
(2) No suit shall be brought in any civil court to set aside or modify any order passed, any assessment made, any tax levied, any penalty imposed or collection of any tax made under this Act.
Section-9 of Civil Procedure Code 1908
Courts to try all Civil Suits unless barred: The courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred…………………..”
A careful reading of the above provisions of the statutes goes to show the 1962 Ordinance and the 1955 Order are provincial in their reach and identical in purpose so far as the establishment and management of civil courts is concerned. The 1962 Ordinance has achieved four goals:
- It outlays the structure of the courts
- It has identified the nature of civil litigation (not tax litigation) and titled them as ‘civil suits’
- It has identified and created the forums where such litigation would be agitated and resolved and
- It has also stipulated exception in terms of pecuniary jurisdiction while retaining the functional parity
For Karachi District, it has, within the dictates of Article 175 of the Constitution, conferred upon the Learned High Court pecuniary jurisdiction of civil suits exceeding 15 million rupees in value.
Section-9 of CPC contemplates permission as well as prohibition upon a civil court’s power to try suits. It permits trial of any civil suit but does not entertain any tax matter under the garb of a suit.
In contradistinction, Section-217 of the 1969 Act is a command of absolute prohibition in the context of self-contained code of 1969 for the purposes of tax justice. It begins with the word ‘No’, which is a word of prohibitive command. By no fiat of interpretative skills, the prohibition can be understood as an express or implied permission to adjudicate in tax matters by confounding a suit rooted in CPC into a tax controversy rooted in 1969 Act.
The prohibitive command is very expansive and it further ordains that the nature of litigation recognized in the current legal system as “suits” is foreign to the scope and purpose of tax justice in the 1969 Act. It also ordains that the judicial forums of litigation recognized in the general legal system in the current hierarchy of ‘civil courts’ are also alien to the scheme of tax justice.
It is well-established that in the context of ‘civil courts’ the qualifying expression of ‘any’, as noted in section-7 of 1962 Ordinance, is a word of enlargement, a word of infinite inclusion and therefore it engulfs‘any civil court’ having the nomenclature and stature of Learned High Court. Of course, the Learned High Court per se is the principal civil court in Sindh. It may have any variety of functions i.e. original, appellate, referential, probate or advisory but it remains a civil court. The ruling in Searle IV Solutions, for want of consideration of above facts,reached a conclusion on wrong presumption of law.
It may be instructive to note that the language of Section-9 refers to the term ‘the Courts shall have jurisdiction to try all suits of civil nature”. Here the phrase ‘all suits of civil nature’ excludes the subject matter of tax disputes.It does not refer to the courts as ‘civil courts’ but rather as ‘the courts’. It provides us an insight into the wisdom of the Legislature which intended to encapsulate all courts trying suits of civil nature within the meaning of Section-9 of CPC, meaning thereby that the bar of jurisdiction under Section 217 (2) or any other ouster clause of any other taxing statute operates unqualifiedly and unconditionally.
By implication, the ruling emits mixed signals to presume that that ‘civil jurisdiction’ and ‘tax jurisdiction’ is identical in scope, reach and effect. It also confounded and overlapped two distinct concepts originating from two distinct statutes for two distinct purposes (courts of equity and courts of statutes). It unwittingly introduced civil impurities to the pure waters of the tax justice under Section 217(2) of the 1969 Act.
Surprisingly, the ruling has impliedly undermined the constitutional integrity and superiority of the 1969 Act by misconstruing the purposes of an inferior provincial statute of 1962 Ordinance and the 1955 Order. The Honorable Supreme Court of Pakistan did not take into account an earlier leave-refusing order in Batala Engineering versus ITO (29 Tax 190) decided on 03-05-1973, wherein on the basis of earlier judgments in Raleigh Investment Company Ltd. versus Governor General-in-Council (PLD 1947 PC 19) & Commissioner of Income Tax West Punjab versus Tribune Trust (PLD 1947 PC 247) the Supreme Court had held that Income Tax Ordinance is a complete code by itself and any grievance in regard to the assessment can be remedied within its four corners.
Acts, Deeds, Things Should be Done in the Manner Prescribed
Our legal system supports two streams of justice i.e. tax justice and civil justice. Looking at the CPC, from cover to cover, we conclude that it is essentially rooted in common law standards and controls the litigation process when interests of parties in movable and immovable properties are at stake (section 16 of CPC).
Suit is a two-stage litigation process. At the first stage, the right is determined in favor of one of the parties. At the second stage, such right is actually delivered by way of ‘Execution Proceedings’. These proceedings are conducted in an adversarial manner and the whole bundle of Orders and Rules annexed to CPC 1908 sanction such adversarial form of litigation processes before civil court which also includes a Learned High Court.
It is to be noted in particular that adjudicatable rights/liabilities in a dispute in a civil suit reside outside the CPC, i.e. the Contract Act 1872, Specific Relief Act 1877 and Negotiable Instruments Act 1881 etc. On the contrary, tax litigation is based on the policy of tribunalization of justice. It emanates from public law (all tax laws) as against the private law like contract law. With the object of speedy justice through the engine of tax tribunals, the tax law determines and delivers the tax rights or creates tax liabilities and enforces them at the same time without any executory hassle.
In public law, the disputes arise out of a relationship between the state and the citizen (taxpayer). Tax laws, unlike CPC, contract law andother civil court laws,are a complete code. Rights, liabilities, procedures and the machinery to grant such rights and enforce such liabilities are resident in a tax code. In the wake of such completeness, exhaustiveness and self-sufficiency, tax authorities create tax demands (tax liabilities) and the aggrieved party is provided a bundle of due process rights to agitate any wrongdoing within the legal framework of tax code.
The tax litigation process is inquisitorial in character and any disputed tax liability is challengeable at appellate forums of administrative as well as judicial character (Tribunal,High Court and the Supreme Court). For the sake of reference, a judgment of Indian Honorable Supreme Court in CIT v. Parmeshwari Devi Sultania (1998) 230 ITR 745 may be a useful reading wherein the Indian Supreme Court while setting aside findings of the Orissa High Court held that Section 293 of Income Tax Ordinance 1961 does not merely bar an ‘order’ passed by assessing office but all ‘proceedings’ to be challenged by way of civil suits.
Private Rights versus Public Rights (Tax Obligations)
With respect, the rulings in Searle Solutions failed to consider the well-established distinction between private and public rights. The civil suit in essence is a claim brought to a civil court for contesting a right to a property or an office. On the other hand, a public right (or a public duty to pay tax) is collectively vested in citizens of the state and such public right is not singularly vested in any one individual like a private right. A private right can be vindicated in suits but a public right belongs to a community because its violation affects community therefore it cannot be vindicated by an individual in a civil suit.
The Federal Supreme Court of United States in Stern v. Marshall, 564 U.S. 462, 491-492 (2011) framed the following question while discerning public-versus-private rights distinction:
Whether the rights at issue are “Integrally related to a particular government action” because “the claim at issue” derives from a federal regulatory scheme, or — the resolution of the claim by an expert government agency is deemed essential to a limited regulatory objective within the agency’s authority”?
If the answer to this question is “yes”, the right in question is a ‘public right” whose application congress may entrust to adjudication by an administrative body.
If, on the other hand, the claim is one of ‘private right”, a category typically understood to include is suits traditionally brought at common law.
The Honorable Supreme Court’s ruling under review has confounded, if not ignored,a well-established distinction of disputes emanating from non-compliance to public duty in a tax matter and the dispute of private rights resolved by way of civil suits alone.
Distinction between Administrative (Tax) and Civil (Non-Tax) Jurisdictions
There are three types of jurisdictions available to judicial and quasi judicial forums in modern legal systems:
Civil Jurisdiction can be further divided into three sub-classes:
- Subject-matter jurisdiction
- Pecuniary jurisdiction
- Territorial jurisdiction
The civil jurisdiction is exercised by civil courts where private rights are involved. Claims brought to civil courts might pertain to movable and immovable property or right to an office.
Criminal jurisdiction is exercised by criminal courts where the state as a representative of the society prosecutes an offender who is alleged to have offended the legal norms, values, customs,mores or ethos of society codified in law. Such jurisdiction is conferred upon the courts by criminal and penal statues.
Administrative jurisdiction is exercised by the executive authorities (Collector of Customs, Commissioners Inland Revenue etc.) regulatory bodies (like FBR) and quasi-judicial tribunals (Appellate Tribunal Inland Revenue). It involves public rights, which we have discussed at some length in the preceding lines. The procedures and mechanisms are laid down by the administrative law. An executive authority, first, passes an order, which may be scanned, at the urging of the aggrieved taxpayer, by departmental appellate forum, followed by its further scrutiny, if desired by aggrieved party, by a quasi-judicial tribunal and further review by higher and the apex court in their referential and civil appellate jurisdictions, if necessary.
The 1969 Act and all other federal and provincial tax statutes provide an elaborate system of grievance redressal as aforesaid. On the contrary, a suit is basically a ‘remedy’ available in civil law and exercisable by a civil court in its original civil jurisdiction.
Is it not strange and perplexing to note that this remedy and jurisdiction is being availed of and exercised in matters which fall within the domain of administrative law?
The argument in Abbassia Cooperative Bank’s case that ‘mala fide action’ gives taxpayer a right to challenge such action at common law is deeply flawed when we see that the word ‘mala fide and ‘without lawful jurisdiction’ may be subjectively interpreted by individuals.
If this argument is to be taken on its face-value then, surely, the whole edifice of administrative law would very likely come crashing down because every action of a government functionary can be subjectively termeda ‘mala fide’ act, if one does not want to accept it. This practice is open to abuse, as is evident from current trends in litigation in tax jurisdictions of Karachi where suits are often filed even against initial show-cause notices without filing any reply by taxpayers with the tax authorities.
Supreme Court’s Self-Contradictory Pragmatism
The Honorable Supreme Court’s ruling that the suits against orders and actions of tax authorities can be entertained but such jurisdiction must be sparingly exercised is a self-contradictory finding. What is not prohibited is permissible under the law. If suits are maintainable in tax matters then why the jurisdiction should be sparingly exercised in the first place? What is the objective criterion for the Single Bench of Learned High Court of Sindh at Karachi to figure out situations where jurisdiction should be used sparingly? The word ‘sparingly’ has also not been elaborated in the judgment.
Furthermore, directions to plaintiffs in pending and freshly instituted suits, to deposit 50% of the disputed tax amount with the Revenue authorities before or after filing of such suits is an express deviation from the dictates of Article 10-A of the Constitution of Pakistan 1973 in terms of guaranteed due process rights of taxpayers. It is also a matter of concern that such directions are likely to be misused in our tax system where authorities have a persistent reputation for conducting fishing and roving inquiries and sending inflated tax demand notices to taxpayers.
Judicial Will Prevails over the Legislative Will
With deepest respect, the authors are of the view that Irrespective of the fact that who would benefit more from it, the Revenue or taxpayers, the judgment in Searle IV Solutions & others has done little in terms of enunciating a principle of law or deciding question of law.
Collaterally, the ruling gets stuck up in the constitutional filters of Article 143 in so far as it shows implied disregard to a paramount federal tax statute by failing to exhaustively consider the text, structure and purpose of the bar of suit under section 217 of the 1969 Act.In the same context, reference is invited to Miguel Miguel versus Gonzalez 500 F. 3d &941, 949 (9th Cir. 2007). The interpretation fails if it is ‘unmoored from the purposes and concerns” of the underlying statutory regime.
Reference is also invited to Judulang 565 U.S. at 64.In sum, we are of the view that the view taken in Searle IV Solutions’ case amounts to prevalence of judicial will over the legislative will as stipulated in Section 217 of the 1969 Act. It will not be out of place to refer to Osborn versus Bank of the United States 22 U.S. (9 Wheat) 738 (1824) wherein the Federal Supreme Court of the United States defined the judicial power as being nothing but the power of laws:
“Judicial power, as contra-distinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise discretion, It is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and when that is discerned, it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge, always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law.”
Honorable Supreme Court’s Ruling Warrants Revisiting
To maintain the constitutional uniqueness of tax matters within the framework of Article 175 read with Article 143 and the taxing powers conferred in the 4th Schedule and sustain the statutorily ordained fairness and purity of tax justice and to neutralize the unintended consequences flowing from the ruling, three perspectives rush to the mind.
Firstly, that the wording of Section 217 (2) of the 1969 Act and the wording of other corresponding provisions of bar of suit against federal, provincial and municipal taxing statutes be customized by adding after the words ‘civil court ’ the qualifying expression “including High Court exercising its original civil jurisdiction”as conferred by a provincial statute.
Secondly, definition of the word ‘suit’ may be added to theCPC1908 with a qualifying expression that it excludes tax matters emanating from any tax statute. Thirdly, the Honorable Supreme Courtmay consider revisiting this ruling at appropriate time as it is not a slave of its own precedents. The Honorable Supreme Courtin the case ofHitachi Ltd reported as 1998 SCMR 1618 ruled that it was not a slave of the doctrine of stare decisis and can change or modify its view with the passage of time.
Mr. Amjad Javaid Hashmi is an Advocate of the Supreme Court and professor of taxation laws at S.M. Law College, Karachi. He can be reached at firstname.lastname@example.org. Mr. Shahid Ali Qureshi is tax lawyer based in Karachi. He can be reached at email@example.com