The petitioner in this case is a Joint Stock Private Company Limited by share liability incorporated under the provisions of Companies Act, 1913, with its registered office situated in the Province of Punjab. All the share--holders of the Company are stated to be Parsis by faith which is not disputed by the learned counsel for the respondent.
2. It appears that ever since its incorporation in the year 1946, the petitioner was duly licensed to carry on the business of purchase and sale of wine and liquors including import and export of that commodity. Before incorporation the same business, it is claimed, was carried on by the share-- holders and their predecessor-in-interest in the status of an "Association of Persons" since the year 1880. Immediately before the promulgation of the Prohibition (Enforcement of Hadd) Order (P. O. 4 of 1979), the petitioner was duly licensed under the provisions of section 11 of the Punjab Prohibition Ordinance VI of 1978.
3. As against the provisions of section 4 of the Punjab Ordinance VI of 1978 which made consumption of intoxicating liquor by Muslims alone an offence punishable with imprisonment not exceeding six months or with fine not exceeding Rs. 5,000 or with both, the present Order aims at imposing a total prohibition. Article 3 of the Order forbids the import, export, manufacture or processing of any intoxicant. The prohibition covers bottling, sale and service of intoxicants. The law even takes care of the owner or occupier of the premises where any of the prohibited intoxicants are stored or handled. Any person violating the provisions of this Article is liable to imprisonment up to 5 years and whipping not exceeding 30 stripes apart from fine. By virtue of the provision of Article 4 even the mere fact of owning, possessing or keeping intoxicants is punishable with imprisonment which my extend to two years or with whipping not exceeding 30 stripes apart from liability to fine.
The only exception being the cases of (1) Non-Muslim fore--igner; and (2) Non-Muslim citizen of Pakistan. The latter being entitled to a limited immunity against prosecution in respect of possession of reasonable quantity of intoxicating liquor for the purposes of using it "as .a part of a ceremony prescribed by his religion". The only other exception is provided by Article 5 which lays down that provisions of Articles 3 and 4 shall not apply to acts done under or in accordance with the provisions of the Order or the terms of any rule, notification or licence issued thereunder.
Under Article 8 of the Prohibition (Enforcement of Hadd) Order, 1979, drinking is liable to Hadd and is punishable with whipping numbering 80 stripes. However, in the event of drinking not being proved in accordance with the requirements of Article 9 read with Article 10, the punishment of Hadd is not enforceable. In such cases the accused is liable to Tazir under the provisions of Article 11 and a maximum punishment of 3 years or whipping not exceeding 30 stripes or both may be awarded.
4. The petitioner company is aggrieved by the action of the respondent in declining to issue a licence to it under the provisions of Article 17 of the Prohibition (Enforcement of Hadd) Order, 1979.
The writ petition raised a large number of questions. However, the learned counsel for the petitioner stated before me that he does not press any other ground except those relating to the question of the petitioner's entitlement to a licence under Article 17 of the Prohibition (Enforcement of Hadd)
Order, 1979.
5. On 20-3-1.979 a notice was issued to respondent No. 1 to show how the petitioner ceases to be entitled to a licence under the aforesaid provisions of the newly-promulgated law when it was entitled to a licence under the prima facie identical provisions of section 11 of the Punjab Prohibition Ordinance, 1978.
6. Article 17 of the Prohibition (Enforcement of Hadd) Order, 1979 which regulates the grant of licence reads as under :- "17. Licences for bona fide medicinal or other purposes.-The Provincial Government, or subject to the control of the Provincial Government, the Collector, may issue licences to any person in respect of any institution, whether under the management of Government or not,-
(a) for the manufacture, import, transport sale or possession of any intoxicant or article containing intoxicating liquor on the ground that such intoxicant or article is required by such person in respect of such institution for a bona fide medicinal, scientific, industrial or similar other purpose or for consumption by a non-Muslim citizen of Pakistan as a part of a religious ceremony or by a non- Muslim foreigner ; or .
(b) for the export of any intoxicant or article containing intoxicating liquor."
A comparison of the provisions of this Article with the corresponding provisions of section 11 of the Punjab Prohibition Ordinance, 1978 shows that while under the repealed Provincial enactment the Provincial Govern--ment could grant a licence "to any person or in respect of any institution" the newly-enacted law restricts the power of the Provincial Government to issue licences "to any person in respect of any institution."
7. Before me the learned counsel for the petitioner vehemently argued that the aforesaid modification in the language of the licensing provision is rather inconsequential. It was contended that it was not reasonable to draw from the, aforesaid amendment the conclusion that "persons" independent of institution were no longer entitled to be licensed under Article 17 of the Prohibition (Enforcement of Hadd) Order, 1979. According to the learned counsel for the petitioner the expression "institution" has no definite meaning and is used in relation to strong financial institutions and is interchangeable for organization owned by companies trusts. And undertakings. In this behalf the learned counsel referred to the definition in various law dictionaries which incorporate some judicial observations.
In Law Terms and Phrases by Sardar Muhammad Iqbal Mokal at page 481 the expression is defined as under :- "Institution"-Meaning of the term "institution".-According to the dictionary meaning the "institution" means "a body or organisation or an association brought into being for the purpose of achieving some object". Oxford English Dictionary defines an "institution" as "an establishment, organisation or association, instituted for the promotion of some object especially one of public or general utility, religious, charitable, educational, etc." Other dictionaries define the same word as "organised society established either by law or the authority of individuals for promoting any object; public or social."
The learned counsel next relied on Jwitt's Dictionary of English Law Volume I, pages 985, 1977 Edition.
The word "institution" is defined as under :- "Institution", laws, rites, and ceremonies enjoined by authority, as permanent rules of conduct or of Government ; a society for promoting any public object, as a charitable or benevolent institution."
In the Oxford Dictionary the expression "institution" is defined as follows :-- "Institution" 7.-An establishment, organization, or association, instituted for the promotion of some object, especially one of public or general utility, religious, charitable, educational, etc., e.g. a church, school, college, hospital, asylum, reformatory, mission, or the like ; as a literary and philosophical institution, a deaf and dumb institution, the Royal National Life-boat institution, the Royal Masonic Benevolent Institution (instituted 1978), the Railway Benevolent Institution, etc. The name is often popularly applied to the building appropriated to the work of a benevolent or educational institution."
In Saunder's Words and Pharases Legally Defined, Volume III, page 67, the word "institution" means :- "It is a little difficult to define the meaning of .The term "institution" in the modern acceptation of the word. It means, I suppose, an undertaking formed to promote some defined purpose having in view generally, the instruction or education of the public. It is the body .(so to speak) called into existence to translate the purpose as conceived in the minds of the founders into a living and active principlepublic library may, I think, be properly called an "institution" in that sense".
Manchester Corpn v. McAdam (1896) A C 500, per Lord Macnaghten, at pp. 511, 512."
8. The learned counsel for the respondent asserted that the expression "institution" will have to be construed in the sense in which an ordinary person conversant with the word "institution" would use it in contrast to the expression "individual" or "person". According to him the expression, "institution" in the provision would cover an organisation - or a society engaged in objects of general and public welfare including promotion of tourism. This would include trusts, societies, clubs and corporations set up by or with the aid or assistance of department of tourism of the Government or any other agency with the object of promoting tourism. He contended that the Government recognised clubs and organizations like Hotel Inter---Continental and Hotel Hilton as being engaged in providing multifarious services to the tourists and cater to a large number of foreigners providing them both boarding and lodging facility, apart from the provision for games and pastimes like golf, swimming pool, travellers requisites, small shopping centres, air passage booking facilities, foreign exchange, recreation and music provision for holding meetings, conferences, etc. The language of Article 17 of the Prohibition (Enforcement of Hadd) Order, 1979 is suggestive of the anxiety of the law giver to restrict the power to issue a licence which is now exerciseable strictly in respect of "any institution `whether under the management. Of the Government or not". In other words persons may be licensed for and on behalf of or for the benefit of an "institution". The word "institution" is used in contradiction of the word "person" who may be a natural or an artificial person.
The word "institution" is not interchangeable with the word "person". The language of section 17 leaves no room for doubt that the word "institution" is used in contradistinction to the expression "person" which means a natural or juristic person including a joint stock company.
It is difficult to agree with the learned counsel that the petitioner's company is an "institution" within the meaning of Article 17 for whose benefit a licence could -be issued. Even if it be assumed that the petitioner is an "institution" the petitioner shall have to est4blish that it has a right to acquire a licence which is being unjustifiably denied.
9. The learned counsel for the petitioner relies on Montgomery Flour & General Mills Ltd., Montgomery v. The Director, Food Purchases-West Pakistan and 2 others (1), Ikram Bus Service and others v. Board of Revenue, West Pakistan and 2 others (2), Mian Fazal Din v. Lahore Improvement Trust, Lahore and another (3), Dr. A. N. M. Mahmood v. The Syndicate of the University of Dacca (4) and Messrs Shameem Textile Mills, Lahore v. The Republic of Pakistan, through the Secretary Ministry of Industries (5) to contend that subject to the fulfilment of the conditions laid down by law every person has a lawful right to acquire a licence under Article 17. According to him it is incumbent on a licensing authority to examine the claim of an applicant in accordance with law and where the applicant fulfils the requirement of law, the licensing authority must grant a licence.
In this behalf he relies on . Wade's Administrative Law, IInd Edition, page 148 and also 4th Edition of the same book at page 332.
The learned counsel contended that the discretion to issue a licence is to be exercised by licensing authority reasonably, according to rules of justice and fairplay and ought not to be exercised arbitrarily or capriciously. He further relied on the following passage in Halsbury's Laws of England, 4th Edition, Volume 1, page 32 :- "Duty and Discretion":
(1) PLD 1957 Lah. 914 (2) PLD 1963 SC 564
(3) PLD 1969 SC 223(4) PLD 1970 Dacca 85
(5) PLD 1972 Lah. 572 A statutory discretion is not, however, necessarily or, indeed, usually absolute ; it may be qualified by express and implied legal duties to comply with substantive and procedural requirements before a decision is taken whether to act and how to act. Moreover, there may be a discretion whether to exercise a power, but no discretion as to the mode of its exercise ; or a duty to act when certain conditions are present,, but a discretion how to act. Discretion may thus be coupled with duties. On she other hand, duty unaccompanied by any discretion requires action in a prescribed manner and form to be taken when the conditions precedent exist ; performance of such a duty is a mere ministerial act. The exercise of judicial powers overlays these distinctions, for, although there may be an enforceable ministerial duty to exercise a jurisdiction, a judicial body has a limited area of freedom to err in purporting to .Find facts and apply the law. In certain fields of public conduct, where the duties and powers of a public body in respect of an area of activity are intermingled and questions as to the civil liability of that body arise, it may be more appropriate to analyse that body's functions in terms of control rather than power or duty."
The learned counsel further referred to pages 36, 86, 109, 118, 120, 130 and 133 of the same volume in support of the view.
The learned counsel next relied on Syed Hadi Ali v. The Government of West Pakistan and others (1) where the following observations appear at page 838;- "That even in respect of purely administrative acts there is a duty to act justly, fairly, and reasonably and if the order impugned be one which could not possibly have been passed by a person acting justly, fairly and reasonably, the order will be invalid in law. I am also of the opinion that the duty to act justly, fairly and reasonably necessitated the grant of an opportunity of explanation to the petitioner by the a Provincial Government before passing the order in dispute."
The learned counsel has drawn my attention to the following observations made by the Supreme Court in The Presiding Ofcer v. Sadrud Din Ansari and another (2) at page 579: "That it is true a mandamus does not lie where a duty is purely discre--tionary but from this it does not follow that a party upon when the duty rests can exercise his discretion in any and every manner. The mere fact that there is an element of discretion in the duty to be discharged is not by itself sufficient to exclude relief by way of mandamus, for, even a discretion must be exercised reasonably and honestly and not arbitrarily or capriciously or in bad faith."
10. The learned counsel for the respondent vehemently argued that the petitioner had no right to acquire a licence under the provisions of Article 17 of the Prohibition (Enforcement of Hadd) Order, 1979 and contended that there is no such thing as a "right to a licence" which is ordinarily in the nature of a privilege and in the discretion of the licensing authority.
The learned counsel for the respondent relied upon Government o; Pakistan Through Secretary Ministry of Commerce and another v. Zamir Ahmad Khan (3) which in fact is the latest pronouncement of our Supreme Court on this subject. In that case the Supreme Court had the occasion to consider the rights of an applicant for a licence under the provisions of the Imports and Exports (Control) Act, 1950 read with Import Policy Order, 1972. The Court examined a number of judgments including the case reported as Shameem Textile Mills v. The Republic of Pakistan, Montgomery Flour and General Mills Ltd. v. Director, Food Purchases West Pakistan and Ikram Bus Service v. Board of Revenue. The Court quoted with approval a passage from Warr v. London County Council (4) where it was held that a dispensation or licence, properly passeth no interest, nor alters or transfers properly in any thing but only makes an action lawful, which, without it, had been unlawful, e.g. a licence to hunt in a man's park and carry away the deer killed to his own use."
It was held that !He power to issue a licence vested in the Government being unabridged the Government was the sole arbiter of the exercise of executive authority and the decision taken by it in this behalf fell in the realm of "policy making." The Court expressed the opinion that a mere licence is revocable and where licence has been refused to the respondent, there is no question of any right being created in his favour. The Court observed "it is wrong to suggest that the respondent had acquired any legal right for the grant of licence by merely applying for the same and deposit of the necessary fee. Grant of licence remains a privilege until it is actually granted and is accompanied by a grant. In the instant case, licence has been withheld ab initio and, therefore, no legal liability is incurred and there is no further question .Whether licence was coupled with grant."
(I) PLD 1956 Lah.824 (2) PLD 1967 SC 569
(3) PLD 1975 SC 667(4) (1904) 1 K B 721 After consideration of a large number of decisions delivered by the superior Courts in this country as well as abroad their Lordships recorded the opinion that "law is well settled that in the generality of cases, licence simpliciter is 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. The emphasis on policy discretion vested in the authorities is directed towards attaining the policy objective." Their Lordships quoted with approval the following observations from Halsbury Laws of England, 3rd Edition, volume II at page 100 :- "The order of mandamus will not be granted against one who is an inferior or ministerial officer, bound to obey the orders of a competent authority, to compel him to do something which is a part of his duty in that capacity. Mandamus has accordingly been refused when it was sought thereby to compel a county treasurer to obey an order of quarter sessions ; also when it was sought to compel a borough treasurer to pay the costs of a prosecution in obedience to the order of a Judge of assizes or a Court of quarter sessions."
Following, with respect, the judgment of the Supreme Court in Govern--ment of Pakistan, Through Secretary, Ministry of Commerce v. Zamir Ahrnad Khan, I hold that the provisions of Article 17 of the Prohibition (Enforcement of Hadd) Order, 1979, do not confer any right on the petitioner to claim the grant of a licence and consequently the respondents are under no obligation to issue a licence to the petitioner under the aforesaid law.
11. The learned counsel for the petitioner vehemently argued that the action of the respondent in issuing licences to institution like Islamabad Club, Hotels Intercontinental, Lahore and Rawalpindi and Hilton Hotel and withholding the grant of the licence to the petitioner was mala fide. It is claimed that the petitioner has been in this trade since its incorporation in the year 1946 and before that the shareholders carried on the same G business in the capacity of an association of persons. It is, however, admitted that no other vendor of liquor has been granted a licence under Article 17 of the Order.
The learned counsel for the respondent repudiated the suggestion made by the learned counsel for the petitioner that action of the respondent in omitting to grant licence under section 17 of the Prohibition (Enforcement of Hadd), Order, 1979 was mala fide. The learned counsel contended that the expression mala fides was considered by the Supreme Court in the case reported as Federation of Pakistan v. Saeed Ahmad PLD1974cC150,where the following observations appear at page 170 :- "Malafides" literally means "in bad faith". Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to hurt the person against whom the action is taken or to benefit oneself. Action taken in colourable exercise of powers, that is to say, for collateral purposes not authorised by the law under which the action is taken or action taken in fraud of the law are also mala fide. It is necessary, therefore, for a person alleging that an action has been taken mala fide to show that the person responsible for taking the action has been motivated by any one of the considerations above.
A mere allegation that an action has been taken wrongly is not sufficient to establish a case of mala fides, nor can. a case of mala fides be established on the basis of universal malice against a particular class or section of the people. Thus, action taken, for instance, to acquire lands or take over of industries or banks on the basis of a policy intended for introducing a more socialistic system cannot be characterised as action taken mala fides. But in order to make out a case of mala fides, on individual must establish that his land was taken not for the purposes authorised by the law but for the personal aggrandisement of the person empowered with the power to make the order of acquisition, or because the person so authorised to take action bore any personal grudge against the person in respect of whose lands or properties action has been taken."
The learned counsel for the respondent maintained that the mere fact that the Government in the exercise of its discretion did not grant a licence to the petitioner is no ground to contend that the act was mala fide when the petitioner is not in a position to show that any other person possessing similar qualifications has been granted a licence for vending liquor.
11-A. There is little doubt that in the context of the prohibition contemplated by Articles 3 and 4 of the Order the number of bona fide consumers is bound to be small and that while a non-Muslim foreigner who is entitled to consume liquors at his volition may purchase liquor from the licensed institution the non-Muslim national of Pakistan is entitled to consume or possesses liquor only upon satisfying the precondition of consumption of such liquor "as a part of a ceremony prescribed by his religion."
12. The learned counsel for the petitioner was unable to show that any religion enjoined or encourages its followers to use liquor as apart of religious ceremony. He attempted to rely on a certificate from the Priest of Parsis stating that it is customary for the Parsis to consume liquor during Nauroz celebrations. The certificate, however, falls short of the statutory requirement of use of liquor as a part of religious ceremony.
It was open to the State in view of the extremely limited scope of consumption of liquor to issue such restricted number of licences as the Government considers necessary for the purposes of Article 17. Thus while distilleries chemical, pharmaceutical and other industrial companies may be E issued licences keeping in view their legitimate requirements for a bona fide medicinal, scientific, industrial or similar other purposes, the vendors and shopkeepers can hardly claim that privilege because they have not to meet requirements of a business which they are licensed to carry on but are supposed to cater to the requirements of consumers of liquor only. In the context of this state of law it seems that it was legitimate for the Government to make such restricted arrangements as it may consider necessary or reasonable to meet the requirement of non-Muslim foreigners and the occasional requirements, if any, of non-Muslim Nationals of Pakistan.
Rule 12 of the Punjab Prohibition (Enforcement of Hadd) Rules, 1979 framed by the Provincial Government under Articles 21 and 31 of the Prohibition (Enforcement of Hadd) Order (P. O. 4 of 1979) enables the Prohibition Officer to issue non-renewable permits to a non-Muslim foreigner for purchase and possession of specified quantity of intoxicating liquor for personal consumption athis residence or a hotel room in his occupation. Likewise non-renewable permits may be issued to a non-Muslim citizen of Pakistan not below the age of 21 years to enable him to purchase, possess or consume such quantity of intoxicating liquor at or about the ceremony prescribed by his religion as does not exceed the quantity specified in the permit.
The law thus contemplates a strict control on the ability of a non-iP Muslim foreigner and a non- Muslin citizen tb purchase and possess liquor.
13. The learned counsel for the petitioner next urged that the arrangements made for the distribution of liquor for consumption by non-Muslim consumers were grossly inadequate. He contends that places like Hotel Intercontinental and Hotel Hilton were hardly meant for poor strata of society. The learned counsel was, however, unable to substantiate his allegation by showing that the prices charged by these licensees which the respondent claims to be controlled by it were, in any manner, excessive. In fact, no specific- case of hardship was brought out. To my mind the question has to be examined in the light of the language of the prohibitory provisions of the Prohibition (Enforcement of Hadd) Order, 1979. The strict control on distribution of liquor for human consumption appears to G be in accord with the mischief sought to be suppressed.
I am of the view that before a non-Muslim National may be aggrieve of the arrangements made by the Provincial Government to ensure distribution of liquor he shall have to establish that he is entitled to consume liquor as a part of religious ceremony. The petitioner is a Joint Stock Company having an artificial personality but undoubtedly is incapable of either posse sing religious or even the ability to consume liquor and would for that matter have no locus standi to challenge the licensing arrangements.
14. For the foregoing reasons the writ petition fails and is dismissed with costs.