The Opium vends for Multan City and Cantonment were auctioned to the petitioners for one year 1974-75 for a. Sum of Rs. 5,00,000. In pursuance of the terms and conditions of the agreement a sum of Rs. 85,000, was deposited in advance and the balance was required to be paid in equal monthly instalments. It is stated that a sum of Rs. 41,500, for the month of July, 1974 was paid on 30- 7-1974 and the next instalment for the month of August was paid on 28-8-1974 whereas these monthly instalments were due on or before the 7th of' each month. It so happened that Haji Yar Muhammad, one of the petitioners went to his native place and fell ill and the other petitioner learnt that his son had met with an accident and he also rushed to Peshawar, leaving the business in the hands of his employees and the instalment for the month of September could not be deposited in time. In the meantime, their employees were arrested under suspicion in connection with the bomb blasts which occurred in different parts of the Province and also on account of keeping in possession non-Excise Opium. For that reason the vends remained closed for some time, and the Collector, Excise and Taxation cancelled the Licence of the petitioners on 18-9-1974.
Khan Wazir, the petitioner, came back to Multan on 27-9-1974 and found that instalment for the month of September was still outstanding and that the licence had since been cancelled and the vends given over to respondents 2 and 3 for the remaining period. He filed an appeal before the Commissioner and also deposited the fee on 30-9-1974. The appeal was accepted on 28-10-1974 and case remanded for fresh decision and the licence was restored.
3. On restoration of the licence respondents 2 and 3, the new purchasers, started litigation in Civil Court and obtained a temporary injunction. Ultimately through Civil Revision No. 953-74 the licence was temporarily restored to the petitioners and a fresh enquiry started. On 21-2-1975 the Collector, in pursuance of the remand order, issued a show-cause notice to the petitioners why their licence may not be cancelled. The petitioners contested the notice, made a reply and appeared before the Collector on two dates, but all of a sudden they were informed that their licence had been canceled, their advance fee for two months forfeited and that they were black-listed. The petitioners filed an appeal before the Director-General, Excise and Taxation. The order of the cancellation of licence was upheld but there was no order about the forfeiture of two months fee and black-listing of the petitioners. The order of the Director-General dated 22-3-1975 has been, therefore, challenged in the present writ petition.
3. At the time of preliminary hearing of the petition the learned counsel for the petitioners raised an objection that the Collector, Excise and Taxation did not afford them an opportunity of being heard, but this contention was taken up at length and the objection was disposed of by an order passed by this Court on 14-4-1975 and it was considered that the contention that the petitioners were not given a fair chance to defend themselves had no force. It was, however, considered that the Director-General, the appellate authority failed to decide whether or not there was a justification to black-list, the petitioners and forfeit their advance money whereas that dispute was also before him and the writ petition was admitted to a regular hearing on the question whether the order of the Collector merged in the appellate order and the penalties of forfeiture and black-listing remained in force or not and in this connection the matter whether these two penalties were legally imposed was kept open.
4. The learned counsel at the outset, made a detailed discussion on the point of cancellation of licence. He contended that licence fee for the month of July was paid on 30-7-1974 and for the mouth of August paid on 28-8-1974 whereas they were payable by the 7th of each month. It was usually the practice that the instalments were paid by the end of the month, but the penalty was imposed when the tee for the month of September was paid late. The licence was cancelled on 18- 9-1974. He has placed reliance on a list (Annexure A) prepared by him in regard to other vendors and con--tended that every licensee should have been treated equally and referred to the provisions of Article 4 of the Constitution in his support. According to him it was a privilege to accept the fee late from one and why was this privilege riot available to the other. This argument has no force for the reason that in the case of the petitioners the complaint was not only of the late payment but also that they had connived at the commission of' an offence under excise law, and it has already been observed it para. 5 of the admitting order dated 14-4-1975 that late deposit by others did not become a law and action could be taken even on the default of one month. But this is not the only ground. Action against the petitioners has been taken on two grounds, i.e. Under rule 60 (b) of the West Pakistan Opium Rules that the petitioners failed to deposit the fee for the month of September in time and under Rule 60 (j) that they connived at the commission of an offence under an Excise Law. If the plain words of rule 60 are read, the late deposit of the fee' by itself does not render the cancellation of licence. A licence can be revoked, cancelled or suspended at any time (a) if it is transferred or sublet by the holder thereof without the permission of the Collector; and (b) if any duty or fee for instalment of duty or fee payable by the holder thereof be not duly paid. The word "and" in-between the two clauses (a) and (b) indicates) that both the clauses are to be read conjunctively to make out a ground for, the cancellation of licence. Both of them are not independent of oneanother. Therefore, to constitute a ground for cancellation of a licence the default of payment as well as the transfer or subletting should be found established which is not present in the instant case, and the licence could not be cancelled for the late payment of fee alone.
5. The learned counsel has further contended that the offences, if any, were committed by the employees of the petitioners and the appropriate clause of the West Pakistan Opium Rules was clause (k) and not (j) of rule 60 which could be applied in the present case for the cancellation of the licence and in the circumstances, the department has first to establish that the employees have been guilty of commission or connivance at the commission of an offence. The penalty of cancellation of licence has been imposed under clause (j) of rule 60. Clauses (j) and (k) are reproduced as under :------ "60. Any licence, permit or pass granted under the rules may at any time be forthwith revoked, cancelled or suspended by the Collector-
(j) if the holder .Thereof is reasonably suspected of committing or con--niving at the commission of an offence under the Dangerous Drugs Act, 1930, or the West Pakistan Prohibition of Opium Smoking Ordinance, 1960 or any other Excise law for the time being in force ; or
(k) if an employee or agent of the holder thereof has within the scope of his employment or agency, been guilty of the commission or con--nivance at the commission of an offence under the Opium Act, 1978, or the Dangerous Drugs Act, 1930 or the West Pakistan Prohibition of Opium Smoking Ordinance, 1960 or any other excise law for the time being in force and the said holder of licence, permit or pass has failed to have taken reasonable precautions to prevent such commission of or connivance at the offence."
To bring the case under clause (j) above it is necessary that the holder of the licence is reasonably suspected of committing or conniving at the commission of an offence under the Dangerous Drugs Act, 1930 or the West Pakistan Prohibition of Opium Smoking Ordinance, 1960 or any other excise law for the time being in force. The allegation against the petitioners-licence--holders, is that three seers of non-excise opium from Opium vend Haram Gate was recovered from the possession of Shirin Gul, and four seers of non--excise opium was recovered from Nazar Hussain. Similarly one maund of non-excise opium was recovered from the possession of Naqab Gul, and cases under Opium Act were registered by the Police and all the above persons were the employees of the petitioners. The nature of the alleged offence or con--nivance at the commission of the said offence is under none of the laws mentioned in clause ( j) of rule 60 but under the Opium Act and the emp--loyees have been challaned under the Opium Act which specifically or impliedly does not find mention in clause (j). The framers of the rules intentionally did not mention Opium Act in clause (j) as it has been done in clause (k), therefore, clause (j) would not apply when the alleged connivance at the commission of an offence is under Opium Act. In the case of an offence under the Opium Act committed by the employees the appropriate clause was (k) and not (j) and before taking action under clause (k) it was necessary that the employees were guilty of the offence, meaning thereby, that an offence was proved against them. In such circumstances, the authorities committed an illegality in applying clause (j) of rule 60 and imposing a penalty on the petitioners.
The action taken under clause (b) without applying clause (a) alongwith and under cause (j) instead of clause (k) without waiting for the result of the case registered under Opium Act was not justified and the impugned orders cannot be said to have been passed with lawful authority.
6. As the petitioners could not be proceeded against under any of the provisions of rule 60, and their licences could not be cancelled as mentioned above, the impugned order is without lawful authority and the question of the petitioners being black-listed and confiscation of and their advance money did not arise at all.
7. For the above reasons, the petition is allowed. The order passed by the Director-General, Excise and Taxation dated 22-3-1975 upholding the orders of the Collector, Excise and Taxation dated Nil (Annexures E and F) is without lawful authority and is of no legal effect. No order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.