The top court on Wednesday sought assistance of Attorney General for Pakistan over a question of law if supplementary grant could be released without approval of the Parliament in the country. A two member judge bench of Justice Ejaz Afzal Khan and Justice Qazi Faez Isa resumed the hearing of federal government plea challenging Peshawar High Court (PHC) verdict over a subsidy matter.
Agritech Limited, manufacturer of Single Super Phosphate (SSP) in Haripur, District Hazara Khyber Pakhtunkhwa had invoked the Peshawar High Court jurisdiction seeking directives for subsidy benefits of Prime Minister Mian Nawaz Sharif's 'Kissan Package' 2015. The Agritech Limited made federal and provincial governments along with M/s Imtiaz Ali Gopal, Deputy Food Security Commission and Muhammad Riaz, Director Law, Managing Officer National Food Security and Research Islamabad as respondents.
Agritech Limited prayed, "A declaration may kindly be made that the SSP fertiliser manufactured by the petitioner-company is entitled to the same subsidy as all other SSP fertiliser sold in Pakistan that is allowed the subsidy amount specified in the Notification of 3 November, 2015 and the respondents be directed to make payment to the petitioner company of the said subsidy". Urging for another remedy, the petitioner requested the PHC, "In the alternative, it is prayed that the Notifications dated 15 October, 2015 and 3 November, 2015 may be declared to constitute a scheme of discrimination and be declared to be of no lawful authority and legal effect in their entirety."
Announcing its judgement in the matter on December 23, 2015, the PHC said in its order, "The petitioner company is aggrieved of the impugned notification dated 3.11.2015 whereby it has been excluded from the one time subsidy announced by the Government of Pakistan Ministry of National Food, Security and Research Islamabad for the manufacturers of SSP based on Phosphatic-Content of the product. In this respect, it would be more apt to reproduce Clauses ii and iii of the notification dated 3rd November, 2015: "ii. The Provincial Governments stressed that they would not give subsidy on SSP manufactured from the local rock. iii. The subsidy would be given to SSP fertiliser manufactured by using imported rock.
The Phosphatic content should not be less than 18%." The PHC ruled, "Since the phrase 'imported rock' from some unspecified destination goes unexplained at the respondents' end, as per clause iii of the impugned notification, then it is the 18% P-Content in SSP fertilisers which should be the litmus test or the sine qua non for qualifying for the subsidy announced by the Federal Government through the impugned notification dated 3.11.2015 on the SSP fertilisers. Whether a manufacturer of fertiliser uses an imported rock or a domestic rock, it is the end product which is to be examined and analysed in order to meet the requisite 18% P-Content". "Simultaneously it cannot be legally argued that manufacturing plants using imported rock would be granted subsidy without any laboratory analysis of the quality of their end product. By the same corollary it can be safely said that the classification made between fertiliser made from imported rock and fertiliser made from domestic rock does not constitute intelligible differentia having rational nexus to the very object of the subsidy scheme announced by the government.
Certainly it is the 18% P-Content in the end product or so to say the SSP fertiliser which is relevant and not the source of the raw material. In order to evaluate and analyse the desired 18% P- Content in an SSP fertiliser, we understand that the product should be subjected to undergo the requisite test by a statutory body ie Pakistan Standards and Quality Control Authority Standards Development Center (Chemical Division) and if a product or a fertiliser meets the standards of the said authority and possesses 18% P-Content, then there should be no legal justification to deny the manufacturer the subsidy as per the impugned notification dated 3.11.2015".
However, Federal government has challenged the PHC verdict saying the Kissan Package was released under the Article 84 of the Constitution, adding that Rs 10 billion have been distributed from the total allocated amount of Rs 20 billion. The bench raised question whether the Parliament has approved the Kissan package or not, to which Justice Qazi Faiz Isa observed that it is the tax money saying if the government intended to release funds without approval of the Parliament then what is need to call the Parliament session. Later, hearing of the matter was adjourned till May 24.