' SAIDUZZAMAN SIDDIQUI, J.---The appellants have called in question, in the above appeal with leave of this Court, the order of the High Court of Sindh, dated 23-8-1989, passed in Constitution Petition No, D-128 of 1985, declaring the order of petitioner No, 2, dated 27-3-1982, withholding the grant of patent to the respondent, herein, as without lawful authority and of no legal effect.
2. Leave was granted in the above case to consider the following questions:-- "(1) Whether there can be any power in the nature of prerogative of the Federal Government after the enforcement of the Constitution?
(2) Whether such prerogative stands incorporated as statute law on the strength of section 79 of the Patents and Designs Act, 1911?
(3) Whether section 79 of the Patents and Designs Act has lost its efficacy and place by the mere mention of the expression of the prerogative after the enforcement of Constitution'?"
3. The facts of the case, in brief, are that the respondent, who holds a degree in Master of Science (Physics) claims to have invented/developed a process of separation of Uranium 235 from natural Uranium which is very economical. The respondent applied for grant of patent right in respect of the above process developed by him under the Patents and Designs Act, 1911 (hereinafter to be referred as 'the Act' only) to appellant No,
1. The application was duly processed. However, the grant of patent in favour of respondent for the process developed by him for separation of Uranium 235 from the natural uranium has been withheld by petitioner No, 2 vide its order dated 27-3-1982. The respondent challenged the order of withholding of the grant of patent in his favour, before the High Court of Sindh in a Constitutional petition which has been allowed and the petitioners have been directed to pass a proper and legal order on the application of respondent.
4. The learned Judges of High Court repelled the contention of the petitioners that the Government has any prerogative to withholding the grant of patent under section 79 of the Act. The learned Judges of High Court, after detailed discussion on the subject, whether the right of prerogative can be exercised by the Government in a democratic and parliamentary set-up in line with the prerogative exercised by the Crown in England, finally observed as follows:-- "In the present case the Crown does not exercise any authority in the territory of Pakistan. The Parliament created by the Constitution is the supreme law-making authority. The concept of prerogative of the Crown as embeded in British jurisprudence is now alien to our system. Where a particular situation is covered and governed by a definite law the prerogative powers even if existed before shall stand superseded or curtailed and law shall prevail. The law and prerogative if it can be said to exist is subordinate to law. In Laker Airways Ltd. v. Department of Trade (1977)2 All E.R. 182 Lord Reskill L.J. At page 206 observed as follows:- ' I do not think that the Attorney-General's argument that the prerogative power and the power under the municipal law can march side by side each operating in its own field is right. The two powers are inextricably interwoven. Where a right to fly is granted by the Authority under the Act by the grant of an air transport licence which has not been lawfully revoked and cannot be lawfully revoked in the manner thus for contemplated by the Secretary of State. I do not see why we should hold that Parliament in 1971 must be taken to have intended that a prerogative power to achieve what is in effect the same result as lawful revocation would achieve, should have survived the passing of the Act unfettered so as to enable the Crown to achieve by what I have called the back door that which cannot lawfully be achieved by entry through the front'."
' However Lord Denning in a broader manner favoured striking down of the prerogative and observed: "Seeing that the prerogative is a discretionary power to be exercised for the public good, it follows that its exercise can be examined by the Courts just as any other discretionary power which is vested in the executive.
' It is thus established that question of existence of prerogative can be investigated by the Court in the same manner as the question of existence of any power, authority, jurisdiction or function of the Government can be examined. Mainly so because the discretionary power as conferred by law is to be exercised for the public good. Considering the present case in the light of the above observations we find that firstly respondent No, 2 does not have any prerogative of any nature as claimed by it. The constitution and law are the source of power and jurisdiction to be exercised."
There can be no cavil with the proposition that the Government of Pakistan or for that matter any of the holder of its offices, or any Government functionary do not enjoy any conventional prerogative as was or is available to Crown in England except those discretionary powers which are either specifically conferred by the Constitution or under any law passed by the Parliament. We are also of the view that any discretionary power available to Government or its functionaries in the nature of prerogative either under the Constitution or under any of the Act of the Parliament is subject to the process of Judicial review by the Superior Courts, in accordance with their jurisdiction under the Constitution. However, any exercise of discretionary power in the nature of a prerogative claimed by the Government or holder of any of its offices, or its functionaries has to be justified either under some statute law or under the- provisions of the Constitution, before it is pressed into service before a Court. Having stated above broadly the principles governing the exercise of discretionary power or prerogative by the Government, holder of any of its offices or its functionaries; we will now examine the extent and nature of jurisdiction exercisable by the Government under section 79 of the Act.
6. The Act was promulgated on 2nd of March, 1911 and it was enforced in the territories now forming part of India and Pakistan immediately before the partition of sub-continent. It was adapted and continued as a law applicable in Pakistan after 1947. The Act has been amended in Pakistan on various occasions and the words "Central Government" appearing in section 79 were omitted by President's Order No, IV of 1975 and in its place the words "Federal Government" were substituted. It may be mentioned here that after partition in India, section 79 of the Act was repealed by India Adaptation of Laws Order, 1950, while in Pakistan in spite of various amendments made in the Act on several occasions by the legislature, the provisions of section 79 of the Act were retained in its original form except for substitution of the words "Federal Government" in place, of "Federal Government" through President's Order No,IV of 1975. It is, therefore, quite clear that the 'prerogative' of Federal Government, mentioned in section 79 of the Act was retained and continued in Pakistan consciously by the law-makers. We will, therefore, now examine the nature of the right available to "Federal Government" in the form of 'prerogative' under section 79 of the Act. The expression 'prerogative' used in section 79 is not defined in the Act. However, it is defined in the Concise Oxford Dictionary as:-- "Right of Sovereign, theoretical subject to no restriction. Peculiar right or privilege natural or divine giving advantage, privilege or faculty."
' In Websetr's New Dictionary (College Edition), 'prerogative' is defined as:-- "A prior or exclusive right or privilege, especially one peculiar to rank, class. Prior of proceedings as that derived from such a right or privilege. A superior advantage."
7. Considering the above definitions of the word 'prerogative', we are of the view that the expression 'prerogative of the Federal Government, used in section 79 of the Act is to be understood in the sense of a discretionary power of the Government conferred on it under the provision of the Act.
Prerogative as commonly understood a divinely right or an unbridled or uncontrolled discretion of a Ruler or a Sovereign is neither available in Pakistan nor it is contemplated in that sense, under section 79 of the Act. Since the prerogative of the Federal Government mentioned in section 79 of the Act is exercisable only as a discretionary power under the Act in public interest, it is naturally subject to review by the Superior Courts in exercise of their power of judicial review under the Constitution. A careful study of various provisions of the Act C will show that the right to claim a patent under the Act is not an absolute right. For instance, the Controller, under section 69 of the Act has the discretion to refuse to grant a patent for an invention or register a design of which the use would, in his opinion, be contrary to law or morality. The Controller, under section 68 of the Act, in case of any doubt or difficulty arising in giving effect to the provisions of the Act, is empowered to make a reference to the Central Government for seeking directions in the matter. By reading sections .68 and 69 of the Act together it can be gathered that the Central Government in exercise of its prerogative or discretionary power, under section 79 of the Act, can withhold the grant of a patent or restriction of a design, if it reaches the conclusion that such withholding will be in the public interest or for the public good or would be against any provision of the Act or morality.
8. In the case before us, it could not be disputed that the process for separating Uranium 235 from the natural uranium claimed to have been developed by the respondent relates to a very sensitive matter which may have far-reaching effect even on the very existence and working of the Government. Keeping of such sensitive matter subject to control and discretionary power of Government is neither against any principle of law nor policy. No doubt, under section 21-A of the Act, the Federal Government has the discretion to acquire the patent right of an inventor in respect of improvement in instrument or munition of war either for or without valuable consideration but this provision could not curtail or take away the 'prerogative' or discretionary power of Federal Government under section 79 of the Act. It is, therefore, not correct to argue that the Federal Government has no right or power to refuse or withhold the grant of patent to a person if his application fulfils the requirements of the Act. The learned counsel for the appellant has placed before us a copy of the letter, dated 22nd of March 1982, written to the Controller of Patents and Designs by the Deputy Secretary to the Government of Pakistan concerning the grant of patent to the respondent, in respect of the process evolved by respondent for separating isotopes of the Uranium and the same is reproduced here, as follows:-- ' IMMEDIATE NC. 2(7)/79-Admn-VI(VOL-II)
GOVERNMENT OF PAKISTAN MINISTRY OF INDUSTRIES Islamabad, the 2nd March, 1982.
' MEMORANDUM ' SUBJECT: PATENT APPLICATION NO. 123/78 CONCERNING "FLUID CENTRIFUGE PROCESS TO THE ISOTOPES OF URANIUM"
' Reference Patent and Design Office O.M. No, 13/1/82-Pol., dated the 23rd February 1982, on the subject mentioned above.
2. After careful perusal of the relevant records the Federal Government is pleased to exercise its prerogative under section 79 of the Patents and Designs Act, 1911 (No,II of 1911) and direct the Controller of Patents and Designs, in the public interest to the withholding of the grant of patent to Mr. Muhammad Quadir Hussain for liquid centrifuge process to separate the isotopes of uranium.
3. The Controller of Patents and Designs is directed to take immediate necessary action under intimation to this Ministry.
(Sd.)
(Muhammad Malik), Deputy Secretary to the Government of Pakistan.
9. From reading above letter, it appears that withholding of the grant of patent in favour of the respondent was considered by the Government in the public interest and accordingly exercising its discretion, under section 79 of the Act, it directed the Controller of Patent not to grant the patent right to respondent in respect of the process developed by him. This exercise of discretion by the Government, under section 79 of the Act, in our view is neither arbitrary nor against the public policy. It is, however, necessary to hear the affected person before the Government takes a decision to withhold grant of patent to him in the public interest as such discretionary right of refusal or withholding a patent though available to the Government could not be exercised to the prejudice of a party without affording him an opportunity of hearing. We, accordingly, hold that while Government has the power to withhold or refuse to grant the right of patent to a person in respect of an invention on the ground of public interest, such right can only be exercised after affording the affected person a right of hearing. From the material placed, before us on record, although it appears that Government had decided to withhold the grant of patent in respect of the process of separation of Uranium 235 from natural Uranium devised by the respondent, in the public interest but before taking that decision the respondent was neither heard nor given an opportunity of defending himself against the decision. We, accordingly, partly allowed his appeal and hold that the Central Government has right to withhold or refuse the grant of patent under section 79 of the Act, if it is of the view that grant of such patent is not in the public interest or against the morality or against any law, but exercise of this discretion would be subject to the right of hearing of the affected party before taking such decision. As a result of the above discussion, the matter will go back for consideration afresh by the Federal Government (respondent No, 2) under section 79 of the Act, after affording an opportunity of hearing to the respondent. Before parting with the case we would like to express that it would have been more appropriate for the Government to promulgate a specific law for control of strategic and sensitive inventions in Pakistan in line with section 4 of Indian Patents Act, 1970 (which is relied by the appellants in this case) which prohibits patenting of an invention relating to atomic energy, to effectively deal with such situations. There will be no order as to costs, in the circumstances of the case.