1. ' SALEEM AKHTAR, J.-By this judgment all the six petitions shall be disposed of which are based on identical facts and law points : ' The petitioners are registered as commercial importer under the Registration (Imports & Exports)
2. Order, 1952. In exercise of power under section 3(1) of the Imports & Exports (Control) Act, 1950, Import Policy Order, 1978 was issued by the Federal Government (respondent No, 3) for the period 1-7-78 to 30-6-79. The registered commercial importers became eligible for grant of licence in respect of import of yarn and thread of man made fibre excluding above 100 deniers of rayon acetate yarn as provided under serial No, 354 of part A of Annexure 1 to the said Import Policy Order of 1978. This item was in the free list and could be imported by all registered importers. On the basis of the said Import Policy the Petitioners applied for licence in respect of the import of the said good.
3. According to the prescribed procedure the licences applied for were to be issued after the applications were authenticated by the respondents. The petitioners made applications through their bankers for issuance of import licence. It has been alleged that in accordance with the practice, custom or usage which was prevalent, the applications for the licence were to be authenticated by respondent No, 1 within a period of 3 days of the submission of the application. It is alleged that this authentication was withheld for more than about 2 months with mala fide intentions and the applications were returned to the bankers of the petitioners without any authentication. It would be convenient to give the date of filing of the applications and the dates when they were returned.
(1) C. P. 1529/78 applied on 13-8-78 returned on 12-10-78.
(2) C. P. 1608/78 applied on 19-8-72 and 2-9-73 for two licences returned on 16-10-78.
(3) C. P. 1657/78 applied on 7-8-78 returned on 16-10-78.
(4) C. P. 1658/78 applied on 9-9-78 returned on 16-10-78.
(5) C. P. 1659/78 applied on 10-8-78 returned on 15-10-78.
(6) C.P. 1660/78 applied on 10-8-78 returned on 12-10-78.
4. ' The petitioners have alleged that the applications were detained with mala fide intentions for such a long period with the sole purpose of providing benefit to the businessman of a particular area from where the minister concerned hailed. The petitioners have alleged that the respondent No, 1 returned the applications without authentication on the ground that in view of the amendment made in the import policy by Notification published in the Gazette of Pakistan dated 25th September, 1978 the authentication could not be made. The Petitioners have challenged the action of the respondents and the validity of the said Notification on grounds that the action taken by the respondents is mala fide and further that the Notification is not valid and legal.
5. ' The respondents in their counter-affidavit have denied the allegations of mala fide and have merely stated that the Notification amending Import Policy Order is legal and valid.
6. ' Mr. Sharaf Faridi the learned counsel for the petitioners has contended that the petitioners had a vested right to apply and to obtain import licence under the Import Policy Order. Mr. Sharaf Faridi referred to PLD 1961 SC 537 where it was held that a licence is a valuable property. But it does not mean that a person has a vested right to acquire and obtain that licence. The petitioners' counsel referred to the case of Sharnim Textile Mills PLD 1972 Lab. 572 but as discussed in the following paragraphs on facts this case is distinguishable. In this regard Mr. Sharaf Faridi has frankly brought to our notice the case of Government of Pakistan v. Zamir Ahmad (1) where after considering a host of authorities, authoritative observations were made which finally decide the issue under consideration. At page 674 the following observation was made: - "Thus it becomes clear that 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."
7. ' While considering the provisions of the Import Policy Order, 1972 which does not seem to be different from Import Policy Order, 1978, and referring to the Shamim Textiles' case the following observation was made :- "In the instant case, there is no provision for the automatic grant of licence after the expiry of two days ; rather Article 15 of the Import Policy Order, contemplates formal authentication of the import permit by the Licensing. Authority and its registration with the State Bank of Pakistan before its delivery to the applicant through his Banker. Authentication and registration are both formal acts.
8. Authentication in the relevant context, according to the Shorter Oxford Dictionary, means ; "to give legal validity or effect". Therefore, the observation in the case of Shameem Textile viz., right to apply for import licence is not a 'fake right but a valuable right "and I may say so with respect widely worded, and therefore, must be read as confined to the peculiar facts of the case and not laying down a general proposition."
9. ' While considering whether the grant of licence is a privilege or a legal right it was observed :- "Law is well-settled that in the generality of cases licence (simpliciter) is a privilege and not a legal right much less there is a legal duty for its grant. Therefore, exceptional cases apart, mandamus could not issue in such cases. Speaking generally in such cases the emphasis is on policy and not discretion vesting in the authorities is directed towards attaining the policy objective."
10. ' Section 3 of the said Act of 1950 was also considered and the following observation was made.: "In the instant case, as already pointed out, section 3(1) of the 1950 Act reserves to the Central Government power of the widest amplitude to prohibit, restrict or otherwise control the import of goods. What goods are to be imported, how and in what quantities and by whom they are to be imported are all questions of policy to be laid down by the Federal Government. Indeed, the Government has all along since the inception of the Act, frequently and materially altered import policies. These policies are determined generally with reference to the domestic needs their priorities, availability of foreign exchange and multitudes of other factors of which the Federal Government is the sole arbiter in exercise of its executive authority. The decision taken, falls within the realm of policy making. These policy decisions are binding on the subordinate administrative authorities as a matter of duty. In all such {{FOOT NOTE}}
(1) PLD 1975 SC 667 {{FOOT NOTE}} cases, orders made must conform to the policy decisions of the Government. The amendment made on 10-8-1972 in item No, 49 signified a change in policy and the respondent was informed that be was being refused licence because of "the change is policy" and not because of any other reason. On these facts, it is not possible to subscribe to the proposition that a writ of mandamus would lie against the Licensing Authority which would have the effect of defeating the policy, competently made by the Federal Government. Accordingly, I would answer the second question on which leave was granted also in the negative."
11. ' It is thus clear that the licence has been held by the Honourable Supreme Court to be a privilege and not a legal right. In such cases mandamus will A not issue except in exceptional cases. Mr. Sharaf Faridi the learned counsel has referred to the case of Mrs. Amina Bibi v. Islamic Republic of Pakistan and 2 others (1) in which while referring to Shamim Textile Mills' case it was observed that a right to apply for an import permit or licence is a valuable right regulated by law. This observation was made in the facts and circumstances of the case where the petitioners had imported car after complying with the provisions of the Gift Scheme which entitled certain category of persons to import a car and it was on compliance with those pre-conditions that the import permit was to be issued. In such circumstances when all the pre-conditions prescribed by the scheme had been complied with by the importer who in that process had incurred heavy expenses, on the representation made by the Government in the Gift Scheme, the case will fall within the category of exceptional cases where the importer can seriously challenge the action of the Government refusing to issue the import permit. It would be advantgeous to mention that Zamir Ahmad's case (2) came under review in and while referring to Shamim Textile Mills' case the following observation was made at page 229 :- "As to the authorities referred to by Mr. Muhammad Nazar Khan, we find that the judgment of the Lahore High Court in case of Shamim Textile Mills was exhaustively discussed by the Court and the conclusion reached was that the facts of that case were rather peculiar, as it was not a case of the initial grant of the Import licence, but a case of restoration of a licence which had been wrongfully cancelled by the Provincial Government. It was also observed that the observations of the High Court with regard to the nature of the right in dispute were rather widely worded, and must, .Therefore, be read as confined to the peculiar facts of the case and not laying down a general proposition." .
12. This clearly shows that the rule laid down in Shamim Textile Mills' case has been restricted to the facts of that particular case. Likewise the observation made in Mst. Amina case have to be read in the background of the facts of that particular case. It cannot be applied to the present cases. In the present cases as provided by the Import Policy Order the petitioners had to comply with certain pre-conditions which included the authentication of the application which has not been granted to them. Mere payment of licence fee did not entitle the petitioners to obtain the licence as a matter of right. In Mst. Amina's case the petitioner had acted upon a policy issued by the Government by investing huge amount and had imported the car. This case is therefore clearly distinguishable {{FOOT NOTE}}
(1) PLD 1981 Kar. 688 (2) 1978 SCM R 327 {{FOOT NOTE}} from the present cases. The obvious result is that merely by applying and paying the fee for grant of licence no vested right was created in the petitioners and if an amendment has been made in the Import Policy before the grant of licence the same will be operative and govern the result of the applications, unless it is held that the amendment was illegal and without lawful authority.
13. ' It has, therefore, to be considered whether the amendment made in the Import Policy on the basis of which the authentication of the petitioners' applications was refused was valid and legal. At this stage it would be convenient to reproduce the impugned notification :- "Islamabad, Tuesday, September 26, 1978. Part-II ' Statutory Notification S. R.
14. 0.) Government of Pakistan Commerce Division ORDER ' Islamabad, the 26th, September, 1978 Import Trade Control.
15. ' S. R.
0. 1152 (I)78.-In exercise of the powers conferred by subsection (1) of section 3 of the Imports and Exports (Control) Act, 1950 (XXXIX of 1950), the Federal Government is pleased to direct that the following further amendment shall be made in the Import Policy Order, 1978, namely :- ' In the aforesaid Order, in Annex. I, in Part A, against Sl. No, 354 in column I, in column 4, the words and letters, Import will be allowed according to the basis of licensing to be notified by C. C. I. & E. "shall be inserted.
16. ' [F. No, 16(7) (78)-Imp.-1.4].
17. (Tariq Bokhari), SECTION OFFICER."
18. ' This notification has been issued and signed by a Section Officer. Mr. Sharaf Faridi has contended that a Section Officer has no authority to issue Notification to amend the Import Policy Order. The Import Policy Order is issued by the Federal Government in exercise of the powers conferred by subsection (1) of section 3 of the Imports and Exports (Control) Act, 1950 (Act XXXIX of 1950). The learned counsel has referred to Article 99 of the Constitution in pursuance of which Rules of Business, 1973 were framed and contended that the Import Policy Order could be amended only by the Chief Controller of Imports and Exports.
19. ' Article 99 which was operative at the material time in the year 1978, provides in sub-clause (i) that the Federal Government may by Rule specify the manner in which the order and instruments executed in the name of the President be authenticated. It further provides that any order or instrument authenticated in the manner provided by the Rules shall not be called in question on the ground that it is not an order or instrument made or executed by the President. Sub-clause (ii) of Art. 99 provides that "the Federal Government may" in the words of Munir "make Rules or Orders regulating the allocation and transaction of its business and may for the convenient transaction of such business delegate any of its functions to officers or authorities subordinate to it,"
20. Mr. Hamid Hussain-the learned counsel for the respondents has contended that the section officer has merely circulated the order passed by the Chief Controller. Of Imports and Exports, but he has not been able to produce any document to show that in fact the impugned order was passed by an authorised officer. Mr. Hamid Hussain has contended that provisions of Article 99 are directory and has relied upon Pakistan v. Amin Agencies Ltd. (1) where it was held that the provisions of section 175(3) of Government of India Act and Art. 135 of the Constitution of Pakistan (1956) are directory and not mandatory. In this case section 175 (3) was under consideration which provided that all contracts shall be made by the Governor-General or Governor, and such contracts shall be executed by a person who is duly authorised to do so. There was no formal contract but the letter of acceptance was issued hy an authorised officer. The following observation may be quoted with advantage :- "It is obvious that only such a contract is enforceable which has been executed by a person who has been duly authorised by the Governor-General or the Governor, as the case may be. In the present case, the authority of the Director of Purchase (Defence), who issued the letter of acceptance, is not disputed and, therefore, it is obvious that if the contract was in the form required by law it could be enforced against the respondents. Admittedly, formal agreement, in writing, was executed by the Director of Purchase in the name of the Governor-General and the question that requires decision is whether, in the absence of formal agreement in the prescribed form, the Federation of Pakistan could enforce against the respondents the liability which they had incurred after their offer was accepted."
21. ' The Court held that "the provisions of section 175(3) or similar provisions which require that a certain instrument, or document, should be in a particular form, or in the name of particular person, are not of mandatory nature and their non-compliance does not render the document or instrument void."
22. ' It is thus clear that only the provisions relating to the form and the manner in which contract is to be executed has been held to be directory. But the provisions relating to the authority of the person executing contract are not directory and have to be strictly followed. This case, therefore, is of no assistance to the respondents as in the present case it is not the form but the authority of the person who has issued the impugned notification has been challenged.
23. ' Article 99 (1), provides that the form in which the order and instrument is to be executed and authenticated may be specified by the Rules. Sub-Clause (ii) provides that the Federal Government may make Rules or Orders to regulate the transaction of business and may for that purpose delegate its functions to officers and authorities subordinate to it. The second clause therefore, contemplates delegation of the functions of the Federal Government to its officers and subordinate authorities. Rules of Business were framed by the Federal Government under Article 99.
24. Under Schedule IV of the Rules of Business list of officers has been given who have been authorised to make and execute order and others instruments in the name of the President, Clause 5 provides as follows :- "In respect of orders issued under subsection (1) 3 of the Imports and Exports (Control) Act, 1950, in accordance with the Import Policy approved by the Government-The Chief Controller of Imports and Exports." {{FOOT NOTE}}
(1) P Idb 1972 Kat. 467 {{FOOT NOTE}} The Federal Government has thus delegated its power Controller the Chief Controller of Imports and Exports to make orders in respect of Import Policy Order. Such delegated function can be performed only by the delegatee.Any exercise of such function by a person not authorised dated 26th September, 1978 was issued without lawful authority and is of no legal effect. Ender it unauthorised. The respondents have failed to show at actually the to perform will that order was passed by an authorised officer. We are therefore, of the view that the impugned notification is without lawful authority. We, therefore, allow the petition to the extent of granting a decaration that the Notification No, S. R.
0. 1152(1)/78 published in the Gazette of Pakistan. There will be no order as to costs.