SHAHNAWAZ TARIQ, J.-- Through this common order, we intend to dispose of Constitution Petitions Nos.D-1450, D-1621, D-1622, D-1623, D-3306, D-3307 and D-3308 of 2011, as the facts and law involved in the said petitions are almost identical. The petitioners have sought following reliefs:-
(a) Declare that the amendment made in the Rule 23, Sub-Rule(1) in column '1' of the Sindh Prohibition Rules, 1979, by the Government of Sindh has no retrospective effect and does not apply to the case of the petitioner.
(b) Declare that the demand of payment of the differential amount of Rs, 45,50,000/ - in view of Notification dated 12.08.2010 from the Petitioner is illegal as the said Notification does not apply to the case of the Petitioner, which was finalized and completed prior to the issuance of the above mentioned Notification.
(c) Direct the Respondent No,02 to issue New License of Retail Off Liquor Shop in the name of Petitioner on the basis of Challan submitted on 30th July, 2010 to the tune of Rs, 3,50,000/ - (rupees Three Lacs and fifty thousand only).
(d) Grant any other relief (s) which this Hon'ble Court deems fit and proper in the circumstances of the case.
2. Petitioner Kaniya Lal (C.P D-1450 of 2011) has submitted the application to the Chief Minister, Sindh for grant of retail off liquor license for new wine shop which was acceded by the Chief Minister, Sindh on 01.07.2010, and the said approval was transmitted to the respondent No,2, Director General, Excise and Taxation Department by the Chief Minister's Secretariat vide letter No,DS(II)CMS/ 10(1)/09, dated 01.07.2010. The office of respondent No,2 conveyed such approval to the petitioner vide letter dated 28.7.2010. In the said letter, the respondent No,2 further advised the petitioner to submit the required documents and copy of challan for payment of prescribed fee for the retail off liquor licence. The petitioner submitted all the required documents in the office of respondent No,2, vide letter dated 02.08.2010, along with photocopy of paid challan dated 29.07.2010, of prescribed fee for the licence amounting to Rs,3,50,000/-. As per procedure, the respondent No,2 issued letter to respondent No,3, directing therein to publish public notice in leading newspapers of English, Urdu and Sindhi besides pasting the same in the office of the concerned authorities to invite objections from public regarding the opening of retail off liquor shop by the petitioner. Public notices were published in daily Awami Aawaz on 06.08.2010, and daily North West on 06.08.2010. Station House Officer Police Station S.L. Town vide letter dated 20.08.2010, addressed to the Excise and Taxation Officer, Malir Karachi, accorded no objection regarding the opening of retail off liquor shop by the petitioner.
3. Petitioner Ajjy Kumar (C.P D-1621, of 2011) has submitted the application to the Chief Minister, Sindh for grant of retail off liquor license for new wine shop which was acceded by the Chief Minister, Sindh on 20.07.2010, and the said approval was transmitted to the respondent No,1, Secretary, Excise and Taxation Department, by the Chief Minister's Secretariat vide letter No, SO(Imp)CMS/ K-II(9)/ 2008/1254, dated 21.07.2010. The office of respondent No,2 conveyed such approval to the petitioner vide letter dated 28.7.2010. In the said letter, the respondent No,2 further advised the petitioner to submit the required documents and copy of challan for payment of prescribed fee for the retail off liquor licence. The petitioner submitted the required documents in the office of respondent No,2 along with photocopy of paid challan dated 30.07.2010, of prescribed fee for the licence amounting to Rs,3,50,000/-.
4. Petitioner Aasu Mal (D-1622 of 2011) has submitted the application to the Chief Minister, Sindh for grant of retail off liquor license for new wine shop which was acceded by the Chief Minister, Sindh on 20.07.2010, and the said approval was transmitted to the respondent No,!, Secretary, Excise and Taxation Department by the Chief Minister's Secretariat vide letter No,S0(Imp)CMS/K-II(9)/ 2008/1255, dated 21.07.2010. The office of respondent No,2 conveyed such approval to the petitioner vide letter dated 29.7.2010. In the said letter, the respondent No,2 further advised the petitioner to submit the required documents and copy of challan for payment of prescribed fee for the retail off liquor licence. The petitioner submitted the required documents in the office of respondent No,2, along with photocopy of paid challan dated 29.07.2010, of prescribed fee for the licence amounting to Rs,3,50,000/-.
5. Petitioner Hot Chand (D-1623 of 2011) has submitted the application to the Chief Minister, Sindh for grant of retail off liquor license for new wine shop which was acceded by the Chief Minister, Sindh on 29.06.2010, and the said approval was transmitted to the respondent No, 1, Secretary, Excise and Taxation Department by the Chief Minister's Secretariat vide letter No . SO(Imp)CMS/K- 149)/2008/1607, dated 01.07.2010. The office of respondent No,2 conveyed such approval to the petitioner vide letter dated 26.7.2010. In the said letter, the respondent No,2 further advised the petitioner to submit the required documents and copy of challan for payment of prescribed fee for the retail off liquor licence. The petitioner submitted the required documents in the office of respondent No,2, along with photocopy of paid challan dated 27.07.2010, of prescribed fee for the licence amounting to Rs,3,50,000/-.
6. Petitioner Chandar Kumar (D-3306 of 2011) has submitted the application to the Chief Minister, Sindh for grant of retail off liquor license for new wine shop which was acceded by the Chief Minister, Sindh on 24.06.2010, and the said approval was transmitted to the respondent No, 1, Secretary, Excise and Taxation Department by the Chief Minister's Secretariat vide letter No, SO(Imp-III)CMS/misc-Thatta/ 2008, dated 01.07.2010. The office of respondent No,2 conveyed such approval to the petitioner vide letter dated 28.7.2010. In the said letter, the respondent No,2 further advised the petitioner to submit the required documents and copy of challan for payment of prescribed fee for the retail off liquor licence. The petitioner submitted the required documents in the office of respondent No,2, along with photocopy of paid challan dated 29.07.2010, of prescribed fee for the licence amounting to Rs,3,50,000/-.
7. Petitioner Mohan Das (D-3307 of 2011) has submitted the application to the Chief Minister, Sindh for grant of retail off liquor license for new wine shop which was accepted by the Chief Minister, Sindh on 22.06.2010, and the said approval was transmitted to the respondent No,2, Director General, Excise and Taxation Department by the Chief Minister's Secretariat vide letter No,DS(III)CMS/ 10(1)/09/ 1608, dated 01.07.2010. The office of respondent No,2 conveyed such approval to the petitioner vide letter dated 26.7.2010. In the said letter, the respondent No,2 further advised the petitioner to submit the required documents and copy of challan for payment of prescribed fee for the retail off liquor licence. The petitioner submitted the required documents in the office of respondent No,2, along with photocopy of paid challan dated 27.07.2010, of prescribed fee for the licence amounting to Rs,3,50,000/-.
8. Petitioner Mohan Das (D-3308 of 2011) has submitted the application to the Chief Minister, Sindh for grant of retail off liquor license for new wine shop which was acceded by the Chief Minister, Sindh on 22.06.2010, and the said approval was transmitted to the respondent No,2, Director General, Excise and Taxation Department by the Chief Minister's Secretariat vide letter No,S0(Imp- III)CMS/ misc-Thatta/2008, dated 01.07.2010. The office of respondent No,2 conveyed such approval to the petitioner vide letter dated 28.7.2010. In the said letter, the respondent No,2 further advised the petitioner to submit the required documents and copy of challan for payment of prescribed fee for the retail off liquor licence. The petitioner submitted all the required documents in the office of respondent No,2 vide letter dated 02.08.2010, along with photocopy of paid challan dated 29.07.2010, of prescribed fee for the licence amounting to Rs,3,50,000/-.
9. It is further averred that after completing the required formalities for opening of said shops, the petitioners were waiting for issuance of licence, however, in the meantime, they were informed that the Government of Sindh has carried out amendments in Rule 23, sub-rule (1) in Column '1' of the Sindh Prohibition Rules, 1979, vide Notification No,S0 (Taxes)/E&T/1(91)12010-11, dated 12.08.2010, wherein the prescribed fees for retail off liquor New Wine Shop has been enhanced from Rs,3,50,000/- to Rs,50,00,000/-. In the light of the said notification the petitioners were directed to deposit the differential amount of Rs .46,50,000/-, hence these petitions.
10. Learned counsel for the petitioners contended that petitioners adopted the prescribed procedure for grant of retail off liquor licenses for new wine shop and made compliance of the directions issued by the respondent No,2. He further urged that the required documents were furnished to the respondent No,2 and the prescribed fee for issuance of new licenses at the rate of Rs,350,000/- each, was paid and such challans were also deposited with the respondent No,2 much prior to the enhancement of licence fee by the respondent Excise and Taxation Department.
11. Learned counsel further emphasized that the demanded enhanced fee for issuance of new license by the respondent No,2 is unlawful, unjust and having no legal substance as the notification dated 12.08.2010, regarding enhancement of fee for new license could not be exercised and taken into consideration as the petitioners have already deposited the prescribed licence fee as demanded by the respondent. Learned counsel further contended that the subject notification has its prospective effect while the petitioners deposited the licence fee prior to the issuance of notification on 12.08.2010, therefore, said notification has no retrospective effect and the demand of enhanced amount of Rs,46,50,000/- as per the new license fee is unjustified and utter violation of law laid down by the Superior Courts. He relied on 1997 SCM R 503 and 1993 SCM R 920.
12. In rebuttal, learned AAG, Sindh contended that the applications of the petitioners were considered by Chief Minister Sindh and such concurrence was conveyed to the petitioners by the respondents requiring them to furnish the required documents but they have not completed all required codal formalities. He further submitted that due to the amendment in Rule No,23(1) of Sindh Prohibition Rules, 1979, the required fee for the issuance of new license has been Enhanced from Rs,350,000/- to Rs,50,00,000/- as such petitioners were directed to deposit the enhanced fee.
He vehemently contended that as per section 18 of the Sindh Prohibition Ordinance, 1979, the fee is to be paid at the rate which is available at the time of grant of licence and still licences have not been issued to the petitioners. He relied on PLD 1982 Lahore 817 and order dated 01.06.2010, passed in C.P D-2700 of 2010, Haresh Kumar and others v. Federation of Pakistan and others.
13. Perusal of the available record and consideration of the arguments advanced by the learned counsel for the parties brings out that the petitioners moved applications to C.M Sindh for issuance of retail off liquor licenses for new wine shops which were acceded. Chief Minister Secretariat conveyed such approval to the respondent department through letters. Thereafter the respondent No,2 issued letters to the petitioners for compliance of the requisite formalities and submission of certain documents as well as to. Deposit the prescribed fee for the retail off liquor license. The petitioners deposited the prescribed fee at the rate of Rs,350,000/- through challans in favour of the Government. Subsequently, the respondents also published the required notices in newspapers calling the objections from the people of locality but none of the inhabitants came forward to show any anxiety or reservations against the opening of said shops. It is also noted that the petitioners made compliance of requisite formalities and no letter was issued by the respondent No,2 to the petitioners alleging non-compliance of any codal formality justifying withholding of the licenses of the petitioners.
14. It is also worth to mentioning that the amendment in Rule 23, sub-rule (1) in column I of Sindh Prohibition Rules, 1979, for enhancement of the requisite fee has been made vide notifications dated 02.08.2010, and 12.08.2010, respectively and the fee for nets licence was enhanced from Rs,3,50,000/- to Rs,50,00,000/-. Consequently, respondent Not issued letters to the petitioners to deposit the enhanced amount of Rs,46,50,000/- as per the subject notification. While the petitioners' applications were considered and granted by the competent authority i.e, Chief Minister. Sindh and prescribed fee for the licence was already paid by the petitioners at the prevailing rate of fee much before the amendment was made in the relevant rule.
15. It would be advantageous to reproduce the concurrence accorded by the worthy Chief Minister, Sindh, which reads as follow:-- 'CHIEF MINISTER'S SECRETARIAT, SINDH KARACHI No,DS(III)/ CMS/ 10(1)/ 09/ 1609 Dated the 1st July, 2010 To The Director General Excise and Taxation Department, Government of Sindh, Karachi.
Sub:- REQUEST FOR THE GRANT OF PERMISSION FOR NEW LICENSE OF LIQUOR DETAIL "OFF" SHOP AT KARACHI.
I am directed to enclose herewith an application received from Mr. Kaniya Lal S/o Jeso Mal, on the subject noted above, containing the following minutes of the Honourable Chief Minister Sindh:-- "May be sanctioned." Sd/-01.07.2010 CHIEF MINISTER SINDH
2. It is therefore, requested to kindly take necessary action into the matter in light of above directives of Honourable Chief Minister Sindh as per rules/policy under intimation to this Secretariat.
(KHALID HYDER SHAH)
ADDITIONAL SECRETARY (IMP-II)"
16. For the convenience, the approval letter of one of the petitioners is reproduced as under:-- "DIRECTORATE GENERAL EXCISE AND TAXATION SINDH KARACHI No,DG-2(637)/2010-Excise/2319 Karachi the 28th July 2010 To, Mr. Kaniyal Lal, S/o Jeso Mal, Subject:- REQUEST FOR GRANT OF LICENSE FOR WINE SHOP AT KARACHI.
' I am directed to refer to our application on the subject noted above and to inform you that your application for the grant of retail off license in District Malir, Karachi Division has been acceded by the Honourable Chief Minister Sindh.
' You are therefore advised to submit the following documents to proceed further in the matter: a. Bank Certificate to secure the payment of Government revenue, b. Complete address where the licensed liquor business is to be carried on duly supported by: i. Tenancy Agreement in case of rented premises, ii. Site Plan, iii. NOC of the landlord, iv. CNIC of the landlord and the applicant. v, Titlement documents of the proposed licensed premises. c. Title of the business i.e, Name and style, under which the subject business is to be carried on. d. Copy of challan mentioning the payment of prescribed fee for the retail of liquor license, DEPUTY DIRECTOR (HQ)
DIRECTORATE GENERAL EXCISE AND TAXATION SINDH, KARACHI."
17. For the appropriate conclusion the subject notification is reproduced as under:-- "GOVERNMENT OF SINDH EXCISE AND TAXATION DEPARTMENT Karachi dated the 12th August, 2010 NOTIFICATION NO. SO (TAXES) E&t/1 (91) 2010-11. In exercise of the powers conferred by Article 31 of the Prohibition (Enforcement of Hadd) Order, 1979, and in supersession of this Department Notification Nut SO(Taxes)ET/1 (91)/2010- 11 dated 2nd August, 2010, the Government of Sindh are pleased to make the following amendments in the Sindh Prohibitions Rules, 1979:-- AMENDMENT ' In Rule 23, in sub-rule (1), in column 1? a) Against the item "Trade and Import of Portable Liquor". In Column 5, for the figure "600,000", the following shall be substituted:- "Rs,70,00,000/- for grant of licence and Rs,6,00,000/- for renewal of licence" b) Against the time "Retial off", in column 5, for the figure "350,000", the following shall be substituted:- "Rs,50,00,000/- fo,r grant of licence and Rs,350,000/- for renewal of licence"
SECRETARY TO GOVERNMENT OF SINDH."
18. For perusal Article 18 of the Prohibition (Enforcement of Hadd) Order, 1979, is reproduced as under:--
18. Forms and conditions of licences. Every licence issued under this Order shall:--
(a) be granted on payment of such fee, if any, for such period and on such condition; and
(b) be in such form and contain such particulars, as the Provincial Government may direct, either generally or in any particular case.
19. At this juncture, we would like to discuss case law cited by leaned AAG as under:--
(i) In case of D.P. Edulji and Co Ltd v. Secretary, Excise and Taxation and others, PLD 1982 Lahore 817, it was observed as under:- "I am of the view that before a non-Muslim National may be aggrieved of the arrangements made by 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 possessing religious or even the ability to consume liquor and would for that matter have no locus standi to challenge the licensing arrangements. For the foregoing reasons the writ petition fails and is dismissed with costs. "
(ii) The operative part of order dated 01.06.2010, passed in C.P. D-2700 of 2010, Haresh Kumar and others v. Federation of Pakistan and others, is reproduced as under:-- 'Since the petitioners have not yet been granted licenses as they will have to fulfill the codal formalities and comply with the terms and conditions of the above article of the said Order and the fee would be governed on the date when licenses are formally granted and not merely when the request of the petitioners for grant of such licenses approved by the worthy Chief Minister. In the petition in hand, nowhere the petitioner have disclosed the location of the premises wherein such shops are to be established, therefore, Mr. M. Sarwar Khan, learned AAG, is justified in urging that since no licence has been granted so far in terms of Article 17 of Prohibition (Enforcement of Hadd) Order, 1979, as recorded above. Let the petitioners furnish requisite information with the authority concerned, whereafter the further process for licence may be issued and the fee as may be prevalent on the date of issuance of such licenses. The petition in above terms stands disposed of"
20. From close reading of case law of D.P. Edulji and Co. Ltd. (referred supra), the government had declined the request of the petitioner for grant of licence as petitioner was a Joint Stock Company and its case was not covered under ambit of Article 17 of Prohibition Order, 1979. Likewise, in referred C.P. No,2700 of 2010, the petitioners had not complied with the codal formalities and even they had not disclosed the venue where the wine shops were to be established, therefore, the above case is distinguishable and not applicable on the petitions in hand.
21. On the other hand the learned counsel for the petitioners relied upon the following case law:--
(i) Taj Mahal Hotel v. Karachi Water and Sewerage Board and others, 1997 SCM R 503, where the Hon'ble Supreme Court has observed as under:- "15. As regards the above second controversy, namely, whether the water rates specified in Resolution No, 2 (which was passed on 27.3.1982), are to be recovered retrospectively or prospectively from the date of the Resolution, it may be stated that it is well settled proposition of law that a Notification or an administrative order cannot operate retrospectively to the disadvantage of the persons affected by it and, therefore, the conclusion of the High Court seems to be in consonance with the above settled proposition of law.
16. -------------------
17. The above contention is devoid of any force, firstly, the perusal of above quoted Resolution No, 2 does not indicate that it was intended to be enforced retrospectively, and secondly, the above clause (ix) of section 147 saved rules and regulations made and in general all other acts done, deeds executed under any of the provisions of the repealed enactments or under directions or decisions of the Government or Resolutions of the Karachi Water Management Board, if not inconsistent with the provision of the Ordinance. Any levy of water Rates retrospectively under resolution of Board will be inconsistent with the provisions of the Ordinance, as the Ordinance does not anywhere empower the Board to increase the rate of water rates retrospectively through a notification and administrative order. "
(ii) The case of Mahesh Lal v. Province of Sindh and others, 2011 YLR 2925, where it was observed as follows:-- "12. We are of the considered view that the petitioner is diligently and actively pursuing the matter before the concerned department and no shortcoming is made out on the part of the petitioner and the amendment in the rule are much after the application of the petitioner which was conceded by the Chief Minister of Sindh as stated in annexure P/1 with the memo of petition and same should be entertained retrospectively and not prospectively.
22. The case law cited by the learned counsel for the petitioners are identical and relevant to the fact and circumstances of the petitions in hand.
23. Whenever there is a question of substantive or vested rights before the Court, retrospective operation should be avoided as it might impair such a right. A new law, therefore, should be prospective instead of retrospective as it affects substantive and vested rights, especially in case of procedural enactments because if applied retrospectively would result in new duties and disabilities for a transaction already carried out.
24. Indeed the petitioners have already completed the required formalities in compliance of approval of their applications and also deposited the prevailing prescribed fee as directed by the respondent No,2, therefore, a vested right has been accrued in their favour which could not be taken away by the subsequent events. Consequently, we are of the considered view that the subject notification issued by the Excise and Taxation Department has prospective effect and the petitioners could not be deprived from their legal rights by giving said notification a retrospective effect.
25. For the foregoing reasons, we are of the considered view that the demand of the differential amount is illegal and arbitrary. The respondent No,2 is directed to issue the retail off liquor licence's for new wine shops to the petitioners subject to the fulfillment of codal formalities, if any.
Consequently, the all Constitution Petitions mentioned in the title stand allowed.