ORDER SYED HASAN AZHAR RIZVI, J.---The petitioner through the instant petition has challenged the Notification dated 2-8-2010 issued by the Excise and Taxation Department, Government of Sindh.
2. Brief facts of the case are that the petitioner submitted an application for grant of new license for Retail of Liquor Shop to the respondent No.2. Accordingly, the respondent No.2 vide its letter dated 28-4-2010 informed the petitioner that his application has been acceded by the worthy Chief Minister, Sindh and he was directed to submit the required documents for further proceedings. In compliance of the directives of the respondent No.2, the petitioner submitted all required documents in the office of the respondent No.2. After submission of the documents by the petitioner, the respondent No.2 vide its letter dated 26-7-2010, directed the petitioner to pay prescribed fee for an amount of Rs.3,50,000 for issuance of the Retail of Liquor Shop. In response thereto, the petitioner approached the office of the respondent No.2 for issuance of challan, which was issued to the petitioner on 29-7-2010 and ultimately on 30-7-2010 an amount of Rs. 3,50,000 was deposited by the petitioner in compliance of the said directives and a letter dated 11-8-2010 with the subject "verification of treasury paid challan" has been issued by the respondent No.2 addressed to the Treasury Officer, City Courts, Karachi. - All the required formalities were completed timely.
3. All of a sudden, by letter dated 10-8-2010 (Annexure P/6), the petitioner was informed by the office of the respondent No.2 that Government of Sindh has been pleased to make amendments in Rule 23, in Sub-Rule (1) in Column 1 of the Sindh Prohibition Rules, 1979 and enhanced the prescribed fee for issuance of new license for Retail of Liquor Shop from Rs.3,50,000 to Rs.50,00,000 and asked the petitioner to deposit the differential amount in the office of the respondent No.2, hence this petition.
4. It is, inter alia, contended by the learned counsel for the petitioner that the demand of differential amount is unjust, unlawful and contrary to the law laid down by the honourable Apex Court. It is further contended that the petitioner have completed all required formalities prior to the amendments made by the Government of Sindh, as the amendments have been made vide Notification dated 2-8-2010, but respondent No.2 vide its letter dated 28-4-2010 had informed the petitioner to comply with all the formalities as his application was granted for issuance of Retail of Liquor Shop. It is next argued that the petitioner has been compelled to pay differential amount for a past and closed transaction. In support of his contention, learned counsel has placed reliance upon the case of City District Government, Karachi v. Muhammad Arif (2010 SCM R 1186) and Messrs Mirpurkhas Sugar Mills Ltd. V. Government of Sindh (1993 SCM R 920).
5. In the case of City District Government, Karachi v. Muhammad Arif (2010 SCM R 1186) it has been held that it is settled principle of law that the rights of the parties shall be governed/decided as per the law prevailing at the time when cause of action has accrued, particularly in the matters pertaining to fiscal disputes, unless manifestly intention of the law is otherwise.
6. On the other hand, Mr. Muhammad Sarwar Khan, learned Addl.A.-G filed comments of the respondent No.2 and has submitted that the petitioner filed all required documents except title documents of the proposed licensed premises and the petitioner requested for the opening of the Wine Shop at Shop upper 6 and 7, Plot No.C-4, Block-10, F.B. Area, Karachi. The petitioner was further directed to publish public notice in the leading newspapers to invite public objections within 14 days of the publication. Learned Addl.A.-G. Further submitted that during the objection period, a number of complaints were received, which were forwarded to the respondent No.2 for consideration at the time of furnishing final and. Conclusive report. According to the comments, prior to the submissions of the said final report, the petitioner submitted another application wherein he requested to open licensed liquor shop at Shop No.3, Survey No.24, Main Bazar Murad Memon Goth, District Malir, Karachi, instead of Shop Upper 6 and 7, Plot No. C-4, Block-10, F.B. Area.
Karachi, which was turned down due to the objections of the inhabitants of the area. Though the request of the petitioner for issuance of the challan was acceded, but the objections were also being received from the inhabitants of the area of Malir for opening of the were shop, which were forwarded to the respondent No.2 with the request to consider the same at the time of final report.
According to the learned Addl. A.-G., the respondent No.2 furnished his report dated 9-8-2010 due to the fact that the matter has not been specifically recommended by him, as the report of the concerned S.H.O. Was awaited. According to the learned Addl. A.-G., the crux of the lengthy arguments is that the matter was under consideration and on the written request of the petitioner dated 26-7-2010, the petitioner was allowed to deposit the prescribed fee for issuance of Retail of Liquor License. According to him, it' is well settled law that in the generality of cases, license (simpliciter) is a privilege and not a legal right; much less there is a legal duty for its grant.
Therefore, exceptional cases apart, mandamus would not issue in such cases. Speaking generally in such cases the emphasis is on policy, and any discretion vesting in the authorities is directed towards attaining the policy objective. Learned Addl.A.G. Has placed reliance upon the case of Muhammad Akbar Khan v. Province of West Pakistan (PLD 1961 SC 17), Government of Pakistan v.
Zamir Ahmed Khan (PLD 1975 SC 667) and D.P. Edulji and Co v. Secretary, Excise and Taxation (PLD 1982 Lahore 817).
7. We have heard the learned counsel for the petitioner as well as 'learned Addl. A. G and perused the material available on record.
8. Prima facie, it. Appears from the A record that petitioner had applied for grant of new license for Retail of Liquor Shop to the respondent No.2, which was granted. Thereafter the petitioner fulfilled all required formalities as per directions of the respondent No.2 vide its letter dated 28-4-2010 addressed to the petitioner. The petitioner was also issued a challan for an amount of Rs.3,50,000 in respect of prescribed fee, which was also deposited by him.
9. It would be seen that the amendments in Rule 23, in Sub-Rule (1) in Column 1 of the Sindh Prohibition Rules 1979 for enhancement in the prescribed fee has been made vide notification dated 2-8-2010 i.e. Much after when the petitioner had applied for issuance of a license for Retail of Liquor Shop, The main arguments of the learned Addl.A.G. Are that the objections having been received from the inhabitants of the areas, which were allocated by the petitioner for opening of the were shop and the same were kept pending till final report of the Excise and Taxation Department. In our opinion, the petitioner has been in touch with the concerned Government Department and there is no fault of the petitioner to suffer. If the concerned department had issued the license to the petitioner in time and did not keep the matter pending for calling the reports/objections from the concerned S.H.O. And the concerned areas etc., the petitioner would not have suffered. It is settled principle Of law that the rights of the parties shall be governed/decided as per the law prevailing at the time when cause of action has accrued.
10. As regard the filing of Appeal under section 10 of the Sindh Prohibition Rules, 1979 is concerned, since the application of the petitioner has already been acceded to by the respondents vide their letter dated 28-4-2010 and subsequently the respondent issued letter dated 26-7-2010 (Annexure P/2) whereby petitioner was directed to pay the prescribed fee for the Retail of Liquor and admittedly the petitioner has complied with the said directions of the respondent on 30-7-2010.
Hence, there was no occasion for the petitioner to file any appeal.
11. With profound respect, we found no relevance of the case-law cited by the Learned Addl. A.G.
With these facts, circumstances and point involved in the present petition.
12. We are of the considered view that the petitioner is diligently and actively pursuing his matter before the concerned department and no shortcoming is made out on the part of the petitioner and the amendments in the rule are much after the application of the petitioner which was acceded by the Chief Minister of Sindh as stated in Annexure P/1 with memo of petition and the same should be entertained retrospectively and not prospectively.
13. In the circumstances of the case, this petition is disposed of with the observation that the petitioner is entitled to have a license for Retail of Liquor Shop on the basis of challan submitted on 30-7-2010, but subject to the compliance of call required legal formalities in accordance with law, which are mentioned in the letter dated 28-4-2010 of the respondent No.2 attached as Annexure P/1 in the memo of petition..