The petitioner, a limited company, applied for and was granted 18 import licences in different years.
The first one is of the year .1974, 8 are for the year 1975, 3 for the year 1976, 3 for 1978 and 3. For 1979.
The company also deposited by way of fees a cumulative sum of Rs. 64,608.25. It did not utilize any of the import licences and, therefore, applied to the respondents for refund of the fees. That was, however, refused vide letter dated 6th November, 1979. The petitioner challenges that order through the present writ petition. '
2. It is contended on the basis of an earlier decision of this Court in Colony Thal Textile Mills Ltd. v.
Pakistan PLD 1982 Lah. 364, that in the absence of the utilisation of the various licences the petitioner is entitled to the refund of the fee amounts. Reliance is placed on Article 3(1) of the Licences and Permits Fees Order, 1977. It was held on the basis of the contents of the Schedule attached to the above-referred Order that fee is payable for imports made and not for an application to open letter of Credit or for licences etc.
3. The learned counsel for the respondents, in the earlier case, had submitted that by virtue of a public notice dated 5th June, 1972, the licence fees were payable' at the time of presentation of the application for licences. He further stated that Article 6(c) of the licences and Permits Fees Order, 1958, was omitted raising an implication that the Licence fee was not refundable. No date of that omission has been given. However, mere omission will not help the respondents as they can appropriate fees in the presence of an enabling, provision. Article 6(c) as it then stood read as under :- "6. The licensing authority may, in a case where the licence fee paid by a party has not already been adjusted against some dues payable by the party, allow refund of the whole or part of the fee paid by the party if he is satisfied that-
(c) the imports authorised by the licence in respect of which the fee was paid 'did not materialise, or letters of credit could not be opened for reasons beyond the control of the party."
4. The learned Deputy Attorney-General appearing for the respondents, in this case, has further relied on Article 7(c) of the Licences and Permits Fees Order, 1979, issued on 1st July, 1979. Article 7 reads as under :- "7. The Licensing Authority may, in a case where the fee paid by a party has not already been adjusted against some dues payable by the party, allow refund of the whole or part of the fee paid by the party if he is satisfied that-
(a) the fee was not payable and was paid by mistake ; '
(b) the amount of the fee paid exceeded the amount payable ; or
(c) The fee was paid but letter of credit could not be established within the prescribed period on account of change in the Government Policy provided that, in such cases, the application for refund of fee shall be submitted to the Licensing Authority within thirty days of the change in the Government Policy failing which the refund shall not be allowed."
5. The position of law obtaining prior to Ist July, 1979, had been dis--cussed in the earlier case with the result that the respondents were found obliged to refund the licence fee with regard to an unutilized licence. The question to be considered now is as to what difference has been. Made to the previous situation by Article 7(e) referred to above. A bate reading of it would show that the respondents are obliged to refund the whole or part of the fee; if the fee already pair] has not been adjusted against some payable dues. It, therefore, specifically means that the fees of such licences which were not utilized remain due only so far the conditions given there are fulfilled. As a result, the Government is obliged to refund the fees subject to the conditions contained in clauses (a) to
(c) of Article 7 referred to above.
6. The conditions laid down in Article 7 reproduced above, are that the refund is to be made only of such a fee, which was not payable and had bee paid by mistake ; was paid in excess of the amount payable or a letter ofcredit could not be established within the prescribed period, on account o change in the Government Policy. Time limitation of 30 days had also nee provided for making an application in the last mentioned eventuality, failing which the refund is not allowable.
7. The position thus boils down to this that all the fees paid before Ist July, 1979 were refundable if the licences for which they had been deposited) had not been utilized for any reason whatever. As for the period, thereafter, the refund can be allowed only in the given conditions. The learned counsel for the petitioner states that all the amounts had been paid prior to that) date and so the same must be refunded. The case of the respondents is that all the licences in the year 1979, had been issued thereafter and consequently the petitioner is not entitled to their refund unless its case fails within the exceptions made in Article 7(c) referred to above.
8. Even the Licences and Permits Fees Order, 1979, has been issued in exercise of powers under section 3(1) of the Imports and Exports (Control) Act, 1950. This provision, inter alia, lays down that the Federal Government may by order published in the official Gazette---..Prohibit, restrict or otherwise control the import or export of goods of any specified description or regulate generally all practices and procedure connected with the import or export of such goods and such order may provide for application for licence under this Act---..grant, use, transfer, sale or cancellation of such licence------.charging offees in respect of such matter as may be provided in such orders. (Under-- lining! Is provided).
9. The above provision, therefore, does authorise the Federal Govern--ment to specify fees even for the .Issuance of licences apart from their use etc, D Consequently, the present Article 7 with the conditions contained therein, will have its effect and operate validly. In this view of the matter, the respon--dents have to show that some licences were issued after Ist July, 1979, and then it will be for the petitioner to prove that its case fell within any of the exceptions .Mentioned therein. As regards the controversy about the dates of issuance of the licences, I find that two of the licences had been issued on 21st June, 1979, whereas the third one was issued on 25th June, 1979. The fees about these licences were paid earlier to their issuance. Article 7,(c)~ on the other hand, cannot operate retrospectively as it is at the most a subordinate Legislature. Reference be made to Government of West t Pakistan and another v. Nasir M. Khan and others (1). In this view of the matter, the petitioner is entitled to the refund of the entire amount on all the three licences as well.
Reference be also made to Province of West Pakistan and another v. Messrs Asgharali Muhammadali & Co. (2) wherin it is laid down that such orders can be passed in this jurisdiction.
(1)PLD1965SC106(2)1968SCMR417
10. The learned Deputy Attorney-General also imputed laches to the petitioner as according to him it applied for refund after a long time. Thal delay, however, shall not debar the petitioner from asking for refund and it does not behave any Government to withhold such amounts of a citizen, which' it is not entitled to retain, as held in the case already referred to in the preceding paragraph.
Further, it is always necessary and reasonable that the Government does not rely on technicalities to deprive its citizen of some--thing which is due to them, unless there is an express provision of law. The delay, however, may debar the petitioner from demanding any interest on these amounts.
In view of the above, this petition succeeds with a direction to the respondents to refund to the petitioner-Company all such amounts or fees as had been paid by way of import fees prior to 1st July 1979.. The parties are left to bear their own costs.