Anwaar Hussain J. Through the present constitutional petition, actions and in-actions on part of the respondents regarding non-issuance of Stamp Vending License ("the license") to the petitioner has been challenged.
2. It is the case of the petitioner that he repeatedly approached the respondents for grant of the license in terms of the Punjab Stamp Rules, 1934 ("Rules"), however, he has been, proverbially speaking, made to wait for Godot, inter-alia, on the ground that there is no seat vacant. In order to substantiate his stance, learned counsel for the petitioner has drawn attention of this Court to order of the Provincial Ombudsman dated 24.05.2017 wherein the stance of the respondents is duly recorded. Further contends that even during pendency of the present petition, another application was also made, however, no order has been passed thereon, rather, the requests of the petitioner for issuance of the license has earned the wrath of the authority concerned which vent its anger and displeasure against his brother and the license already granted to the brother of the petitioner has been cancelled that brings forth the malafide at play vis--vis the requests of the petitioner.
3. Conversely, learned Law Officer submits that police verification submitted by the petitioner along with his application was checked and the same was found bogus and hence, his request was accordingly declined as good moral character is one of the condition precedents for grant of the license. In rebuttal, learned counsel for the petitioner has referred to the latest computerized character certificate of the petitioner, dated 19.11.2022 issued by office of District Police Officer, Attock to contend that decision of the respondents in declining the request is unlawful.
4. Arguments Heard. Record Perused.
5. After initial report and para-wise comments had been filed and preliminary arguments were heard, this Court directed the learned Law Officer to ensure filing of fresh report and para-wise comments while highlighting as to the procedure to be followed while entertaining applications for grant of the license. Fresh report has been filed and same has been taken on record today, perusal whereof depicts that since 2017 till 29.03.2022 as many as 08 licenses have been issued to various persons to the exclusion of the petitioner. The learned Law Officer was confronted as to existence or otherwise of the mechanism and guidelines to be followed by the authority concerned for the grant of the license in order to bring the process in consonance with the transparency and fair-play as the stamp-vending assignment not only involves an opportunity of livelihood for aspirants but the public exchequer in the form of revenue and valuable rights of citizens in the form of agreements reduced on such stamp-papers are also involved. In response, the learned Law Officer candidly concedes that there is neither any mechanism, guidelines and Standard Operating Procedure ("SOPs") for issuance of the license nor applications for the grant of such license are invited from aspirants through publication in any newspaper, however, contends that the creation of seat for grant of stamp vending license is the prerogative of the Commissioner and Collector concerned is the competent authority to grant such license and only police verification is required along with some basic educational qualification. Certainly, the matter is of great public importance and requires judicial scrutiny inasmuch as admittedly, a concrete policy is not in place for creation and filling of the seats of stamp vendors.
6. The legal framework in existence as to grant of the license for stamp vending is provided under Section 74 of the Stamp Act, 1899 ("the Act") and the Rules, which have been framed thereunder.
Section 74 of the Act empowers the Government to make rules as to who can sell stamp papers, which for facility of reference, is reproduced hereunder: "74. Power to make rules relating to sale of stamps.- The Government may make rules for regulating-
(a) the supply and sale of stamps and stamped papers,
(b) the persons by whom alone such sale is to be conducted, and
(c) the duties and remuneration of such persons."
(Emphasis supplied)
Rule 22 of the Rules defines classes of vendors as under: "Vendors.--There shall be two classes of vendors, namely--
(a) ex-officio vendor as defined in rule 1(f):
(b) licensed or specially licensed vendor as defined in rule 1(g), (h) and (i)."
Rule 23 contemplates that no person other than a vendor or his agent as defined under the Rules shall, unless specially authorized by the Collector of the District, sell stamps other than revenue stamps of the value of certain denomination. Rule 25 of the Rules provides that the maximum number of licenses to be issued shall be fixed by the Collector of the District in consultation with the Commissioner of the Division and the Collector shall not issue licenses in excess of such numbers as fixed without concurrence of the Commissioner. Thus, the Collector is vested with the power to issue the license to vend stamp up to numbers fixed for a District or Tehsil, as the case may be, and in case the Collector intends to issue any license in excess of such numbers, he shall seek concurrence of the Commissioner concerned. Similarly, Rule 26 of the Rules, inter alia, provides that the Collector or other officer empowered by the Local Government in this behalf may grant a license for the sale of stamp to any person at any place or within any area within the limits of his District of any value or description. Rule 28 lays down number of conditions to regulate the work and duties of a licensee. Similarly, Rule 34 prescribes the remuneration of vendors in terms of entitlement to discount at certain rate on the value of every court-fee stamps purchased by him from an ex-officio vendor as well as commission allowed on non-judicial stamps as well as discount at the rates specified in the schedule on the value of every non-judicial stamps purchased by a licensee from an ex-officio vendor. Here it is imperative to note that this Court is also mindful of the fact that with the revolutionary advancement having been made in the field of information technology, the issuance of stamp papers has also been computerized and made available online through authorized bank with the result that the stamp papers can be purchased directly online, however, since the stamp vending licenses are being issued and such licensees are authorized to sell stamp papers below the prescribed denomination, the above mentioned examination of the matter, on the one hand, makes it crystal clear that holder of the license under the Act read with the Rules receives the stamps from the Government Treasury for sale to the public and receives commission out of the public revenue for performance of his work and is also duty bound to maintain the correct account and record of all such receipts and sale of stamp papers on the Registers prescribed for this purpose which renders the office of licensee a Public Office as held in case reported as "Abdul Ghafar v. The State etc." (2012 P.Cr. LJ 255), and on the other hand perusal of the above provisions of the Act and the Rules brings forth that no mechanism in the Rules have been provided for the grant of the license to a stamp vendor and unfettered and unstructured discretion has been vested with the Collector concerned. The august Supreme Court of Pakistan in case reported as "Maqbool Ahmed Qureshi v. The Islamic Republic of Pakistan" (PLD 1999 SC 484) held that the appointment against an office, official agency, job or employment has to be made on merit of a person. Similarly, the Hon'ble Apex Court in case reported as "Walayat Ali Mir v. Pakistan International Airlines Corporation through tis Chairman and another" (1995 SCMR 650) held as under: "8-A The discretion is not to be exercised on whims, caprices and moods of the authorities. It is now well-settled that exercise of discretion is circumscribed by principles of justice and fairness. The authority exercising discretion should take into consideration and advance the aim and object of the enactment, rule or regulation under which it is authorized to act."
Similarly, in cases reported as "In re: Abdul Jabbar Memon and others" (Human Rights Cases Nos.104(i), 104(ii), 104(iii), 104(iv) of 1992, heard on 6th March, 1993) (1996 SCMR 1349) and "Mushtaq Ahmad Mohal and others v. The Honourable Lahore High Court, Lahore and others" (1997 SCMR 1043), it has been held by the Hon'ble Supreme Court of Pakistan that in matters which involve public participation pertaining to pursuit of profession through permanent jobs or otherwise, the matter should be advertised properly inasmuch as under Article 27 read with Articles 18, 25 and 2A of the Constitution of Islamic Republic of Pakistan, 1973, mandates that every citizen shall have the right to enter upon any lawful profession or occupation and to conduct any lawful trades or business.
7. The instant case highlights an important aspect pertaining to how the license for stamp-vending is being issued, across the Province of Punjab, by exercise of unfettered and unstructured discretion and without any guiding principles and policy framework in place. The learned Law Officer has been fair in assisting this Court in acknowledging that there are no SOPs or criteria carved out by the Provincial Government in this regard on the strength of which seats are created and more importantly filled while granting the license except requirement of police verification and a vague reference to marks assigned for possessing minimum education (matric as per the fresh report) and this inaction is a cause of unnecessary litigation as well as hardship for the individuals such as the petitioner, who aspire to seek issuance of the license. It is also noted that besides lack of policy guidelines for issuance of the license, the process is also bereft of transparency and fair play as the license is dished out to aspirants of liking on mere filing of an application without any formal advertisement in a newspaper inviting applications thereof so that the largest pool of the aspirants can come to know about creation/existence or vacancy of such a seat for grant of license in a District as the same carries with it an opportunity for any citizen interested to apply for the same and, if qualified, gives an opportunity to earn his bread and butter, which is fundamental right of every citizen.
8. The above discussion propels to the conclusion that grant of the license has to be in consonance with some settled criterion to structure the discretion which is currently unfettered and unguided. In a judgment, dated 02.09.2011, from the neighboring jurisdiction in case titled "Mohan Lal Bansal and another Vs State of Punjab and others", bearing (CWP No.19842 of 2010, (available at https://www.indiankanoon.org/doc/27949412) the grant of license by Collector was set aside by the Financial Commissioner and subsequently, the High Court of the Punjab and Haryana upheld the decision of the Financial Commissioner and held that grant of license by Collector to be deficient for not following and adherence to the directions and instructions issued by Deputy Secretary, Revenue which in fact were the directions of the said High Court in another case titled "Vijay Kumar Vs State and other cases" bearing Writ Petition No. CWP 2247 of 2008 that goes on to show that in the neighboring jurisdiction where the law, on the subject, is in pari materia to the provisions of the Act as well as the Rules, the unfettered and unstructured discretion, have come in for judicial scrutiny and the same has been structured through issuance of certain instructions.
9. The absence of a criterion for grant of the license is the cause which coerces individuals like the petitioner to move from pillar to post for redressal of their grievance. In this regard, it is imperative to note that the petitioner applied for grant of the license in the year 2014 and was declined, which constrained the petitioner to approach the office of learned Ombudsman, Punjab, before whom the official respondents took the stance that the case of the petitioner will be examined in accordance with law as and when a seat is created, which never happened although admittedly, multiple licenses have been issued to the people in Tehsil Fateh Jang detail whereof is given in the fresh report and for facility of reference the same is reproduced herein below: Sr.
No.No. of License & DateName of applicant Place 1 34/29.1.2019 Syed Rasool Shah s/o Syed Mubarik Shah r/o Bhal SyedanTehsil Office 2 332/8.10.2019 Dilawar Khan s/o Muhammad Sadiq of Fatehjang Fatehjang 3 10/8.1.2020 Saqib Ali s/o Rab Nawaz r/o Fatehjang Fatehjang 4 304/28.10.2020 Muhammad Ali s/o Nazar Abbas r/o Fatehjang Fatehjang 5 314/3.11.2020 Zameer Hussain Shah s/o Noor-ul-Haq r/o Charat Fatehjang 6 318/11.11.2020Asif Mehmood s/o Muhammad Miskeen Mujahid of Fatehjang.Fatehjang 7 600/25.5.2021 Mudassar Bilal s/o Abdul Qadir of Fatehjang Fatehjang 8 85/29.3.2022 Usman Tariq s/o Tariq Masood r/o Fatehjang. Fatehjang The petitioner has been knocked out on the ground that he has failed to fulfill the criteria for grant of the license under the Rules, particularly his police verification report was found bogus. The police report in question was issued by the SHO, Fateh Jang. This fact was confronted to learned counsel for the petitioner who with the permission of the Court has tendered fresh character certificate under the seal of Police Station, Fateh Jang dated 21.11.2022, which clearly reads as under: Sd/ Malik Muhammad Siddique, General Councillor U.C 42, Sharha Asadullah Fateh Jang (Attock)
"19.11.22 Sd/ SHO, Police Station, Fateh Jang.
"21.11.22 Perusal of the said character certificate reveals that the same was initially issued by the General Councilor concerned and then endorsed by the SHO concerned and is taken on record as Mark 'A'.
Similarly, the computerized police character verification certificate issued by the office of District Police Officer, Attock has also been taken on record as Mark 'B' and there are no adverse remarks against the petitioner.
10. In view of the documents placed on record by the petitioner side, it appears that the petitioner has been hard done by the authorities concerned merely because he has approached the office of learned Ombudsman, Punjab as well as this Court for redressal of his grievance. Therefore, the application of the petitioner for grant of the license shall be deemed to be pending before the Collector concerned who shall pass a fresh order in this regard by taking into account the observations made herein and if there is no other impediment, the petitioner is held entitled to be considered for grant of the license and the computerized character certificate presented today may also be verified from the office of District Police Officer, Attock as to its genuineness or otherwise. Needful shall be done within a period of fifteen days from the date of receipt of certified copy of this order, under intimation to Deputy Registrar (Judicial) of this Court.
11. Having remitted the matter of the petitioner to the authority concerned for decision afresh with the above-mentioned observations, it is imperative to hold that the unfettered and unstructured discretion in grant of the license, for stamp vending, needs to be structured through issuance of proper instructions by the authority concerned under the Punjab Government Rules of Business 2011 ("Rules of Business"). In Province of Punjab, so far, this aspect has been eluded the attention of the competent authority under Rules of Business which is the Board of Revenue, Punjab in terms of entries recorded under the Second Schedule made thereunder pertaining to the distribution of business among the departments. Board of Revenue is also responsible for the administration of the Act, under the Rules of Business. Lack of instructions have perpetuated the unstructured exercise of discretion while granting the license, which cannot be countenanced under the jurisprudence developed by the Hon'ble Supreme Court of Pakistan regarding the exercise of discretion by the public functionaries.
12. In view of the above discussion, Office is directed to transmit a copy of this judgment to the Senior Member, Board of Revenue, Punjab who, being administrative head, of the Revenue Department, under the Rules of Business, is directed to look into the matter holistically and ensure that proper policy guidelines regarding creation of the seats for the stamp vendors as also regarding qualifications and the manner in which the license for stamp vending is to be granted be prepared that, inter-alia, may include advertisement for inviting applications from public to ensure that every person eligible has fair opportunity to apply for the same. Once such policy is prepared and approved in accordance with the Rules of Business, the same should be strictly followed. In the meanwhile, any fresh stamp vending license required to be granted across the Province of Punjab must be granted after advertisement in the newspaper.
13. Disposed of in above terms. 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.