MUHAMMAD MUZAMMAL KHAN, J.-Instant Constitutional petition challenged the letter dated 9.3.2004 and FE Circular No. 1/EPP.(95)EC-Policy-2004, dated 12.2.2004, to be declared illegal, void and of no legal consequence, whereby money changer business was stopped after 30.6.2004 and the persons dealing in this business were required to enter into franchise arrangement with the Exchange Companies, as per conditions laid therein.
2. The franchise arrangement of the exchange company through the impugned Circular, dated 12.2.2004 was challenged on the touchstone of Articles 3, 18, 25 and 38 of the Constitution of Islamic Republic of Pakistan, 1973, and relying on the judgment in the case of Arshad Mehmood Vs. Government of Punjab through Secretary, Transport, Civil Secretariat, Lahore and others (PLD 2005 SC 193) with the arguments that the franchise in question could only be introduced to provide exclusiveness to Federal/Provincial Governments or to some Corporation but it could not be introduced to facilitate private individuals, It was also emphasized in support of the petition, complained action is discriminatory and the impugned notification is unreasonable.. Judgments in the cases of Miss. Benazir Bhutto Vs. Federation of Pakistan and another (PLD 1988 SC 416), Shaukat Ali Vs. Government of Punjab through Secretary, Industries and Mineral Department and 8 others (PLD 1992 Lah. 277) and Messrs Firdous Spinning and Weaving Mills Limited and others Vs. Federation of Pakistan and 2 others (1984 Kar. 522) were referred.
3. Petition was opposed with the submissions that the judgment in the case of Arshad Mehmand and others (supra) examined the statutory provisions of Section 69-A of the Provincial Motor Vehicle Ordinance, 1965 in the light of the Constitutional provisions whereas the petitioner has challenged only a notification issued in execution of Governmental policy/matter which is protected under Article 30 of the Constitution, It was also emphasized that under Section 3-A of the Foreign Exchange Regulation Act, 1947, issuance of license to the money changer is discretionary and the petitioner being a defaulter of Rs. 54,80,000/- may not be indulgence in discretionary Constitutional jurisdiction. Policy decisions of the Government were claimed to be protected, on the basis of judgments in the case of Malik Muhammad Saeed Vs. Pakistan Water and Power Development Authority through Chairman, WAPDA and 22 others (2002 CLC 1198) and Ahmad Abdullah and 62 others Vs. Government of the Punjab and 3 others (PLD 2003 Lah. 752). The policy under dispute was said to have been acted upon accepted by 90% of the money changers and interference by this Court was resisted by relying judgments in the cases of Mehr Zulfiqar Ali Babu and others Vs. Government of the Punjab and others (PLD 1997 SC ,11) and Shafiq Ahmad and others Vs. Federal Government of Pakistan and others (1997 CLC 697). The petitioner was also said to have estopped from maintaining Constitutional petition, as he remained associated with the respondents while formulating the policy under attack.
4. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record appended herewith. Undisputedly regularization of business of money changers is a policy matter protected under Article 30(2) of the Constitution of Islamic Republic of Pakistan, 1973 which reads as under:- "30. (1) The responsibility of deciding whether any action of an organ or authority of the State, or of a person performing functions on behalf of an organ or authority of the State, is in accordance with the Principles of Policy is that of the organ or authority of the State, or of the person, concerned.
(2) The validity of an action or of a law shall not be called in question on the ground that it is not in accordance with the Principles of Policy, and no action shall lie against the State, any organ or authority of the State or any person on such ground."
5. Respondents being organs of the State no action against them is maintainable even in form of Constitutional petition under Article 199 of the Constitution. The Honourable Supreme Court while dealing with this aspect of the matter in their esteemed judgment in the case of Arshad Mehmood (supra) in its para 35 has graciously observed as follow:-- "We have gone through the judgments cited bv the learned counsel. The facts narrated therein are distinguishable. However, we are of the opinion that in the instant case, right of franchise on specified routes has not been granted to private respondents in pursuance of any directive of the policy but in accordance with provisions of Section 69-A of the Constitution and this Court is not debarred to examine its validity on the touchstone of Article 8 of the Constitution, because if any law is promulgated in derogation of fundamental rights, it would be declared void because at the cost of fundamental rights, guaranteed by the Constitution, the executive Government is not empowered to frame a policy. Resultantly, the argument so raised by learned counsel, has as no force."
(underlining is mine, to highlight the applicability)
6. The above reproduced portion of the judgment relied by the learned counsel for the petitioner and tenure of rest of it, depicted that provisions of Section 69-A of the Provincial Motor Vehicle Ordinance, 1965, were examined on the touchstone of Article 8 of the Constitution on the reasoning that it was not policy directive and the Courts were not denuded of jurisdiction to look into validity or otherwise of those, It means that pure and simple policy matters are- protected from challenge by virtue of above-referred Constitutional provisions. Petitioner could pot refute stance of the respondents as detailed in factual part of this judgment and the principles propounded by the Hon'ble Supreme Court in the case of Shafiq Ahmad and others (supra).
7. Foreign exchange markets in this country and licensees working there, are being controlled/regulated by the State Bank of Pakistan (SBP), who issues/renews their licences. S.B.P. In order to give better controlled system of Foreign Exchange Business, formulated the policy under attack with due consultation and discussions with the persons already in the trade which was highly appreciated, as is evident from the fact that out of 375 AMCs more than 90% have already adopted one of the options given through the policy Under discussion for remaining in the business. Petitioner reportedly got a loan of Rs. 5,480,000/- from Prudential Commercial Bank, Sialkot (presently Saudi Pak Commercial Bank) and could not repay it, resulting in filing of suit for recovery of his' outstanding finance availed. Petitioner being a defaulter of considerable amount was not in a position to get renewal of licence or to opt any of the options of the new policy given by S.B.P. Thus elected to seek protection of Constitutional jurisdiction of this Court, under a fake cover.
8. Petitioner already being a defaulter of M/s. Saudi Pak Commercial Bank, as noted above, apparently was incapacitated to fulfil the conditions of the new policy of setting up of Exchange Companies by association of at least Five A.M.Cs. Each with a capital of Rs. 20.00 Million which was to increase to 20 Million within a year and for this season, he in spite of being aware of the policy, did not move for its adoption, within the time stipulated, therein, It goes without observing that Authorized Money Changers who have opted for franchise or for franchised Exchange Booth from existing Exchange Companies, got the same at nominal cost which was not more than the available I.T. Based accounting and recording system already in vogue at Exchange Companies granting the franchise, It brings me to hold that the petitioner himself deliberately remained away to seek franchise in spite of his association in formulating the policy, hd was a defaulter of a Considerable amount and the policy under attack having already been acted upon and accepted by 90% of the persons of the trade, is not open to any exception, even on merits.
9. For all the reasons noted above, this petition has no merit and is accordingly dismissed with no order as to costs.