' GHULAM RABBANI, J.--- With consent this Constitutional petition is admitted to regular hearing and is heard accordingly.
2. Through this petition, the petitioner has challenged an order, dated 17-2-1999 passed by the respondent No,2 cancelling the wine shop licence granted to him.
3. Succinctly stated, the facts of case of the petitioner are that he was granted a licence to sell liquor to non-Muslim citizens with a condition that licence would carry on the business at Shop, Plot No,167 Village Sukhio Burfat, Deh Bittie Ammeri, Malir (Excise) District East, Karachi. The said licence was renewed in the month of June, 1997 and then in the month of July, 1998, rendering it valid upto 30-6-1999. Some aggrieved persons had approached the Provincial Ombudsman, Sindh complaining, inter alia, that the issuance of licence to the petitioner was against the Sindh Excise Manual as there existed a mosque near the wine shop. The Provincial Ombudsman, after hearing the complainant before him, the petitioner herein, and the representative of Excise and Taxation Department, on a number of dates, by his order, dated 18-12-1998 dismissed the aforesaid complaint. It seems that, in the meantime, on 12-12-1998 the respondent No,2, served a notice upon the petitioner to show cause as to why the licence may not be cancelled for breach of conditions thereof. According to the petitioner, the aforementioned show-cause notice was replied to, however, learned respondent No,2 under the impugned order, has cancelled the licence. The petitioner has, therefore, sought for a declaration, inter alia, to hold the impugned order without lawful authority, and for direction that the premises be unsealed and restored to the petitioner.
4. Respondents have not denied the above facts. Their case is that there is a place of worship of Muslims within the radius of 230 feet (77 yards) of shop, which is violation of Rule 282-A(19) of Sindh Excise Manual Volume I, therefore, the licence was cancelled. It is stated that the cancellation of licence is legal and lawful.
5. Learned counsel for the petitioner has argued that at the time of grant of licence to him, there was no place of worship and that on lapse of much time thereafter, a shop-keeper converted a raised ground into a place for prayers. According to him, this fact has been admitted by the respondent No,2 through department's representative in their comments filed before the Provincial Ombudsman, who considered the same while disposing of the complaint. Learned counsel also urged that paragraph 282-A of Sindh Excise Manual Vol. I is irrelevant in the instant case since at the time of grant of licence no such place of worship existed. He referred to the decision of the Provincial Ombudsman to support his contentions on factual side. Also, he urged that the licence was rightly granted to the petitioner by the relevant authority and it could not be cancelled, unless there was violation of section 19 of Prohibition (Enforcement of Hadd) Order, 1979, which according to him, is none. He sought for reliance on case of J.J. Tajik v. Government of Balochistan PLD 1993 SC 445.
6. Learned Advocate-General, Sindh supported the impugned order for the same reasons as are shown therein and viewed that it has been passed legally and lawfully.
7. We have considered the above submissions and we have also examined the material available before us.
8. It appears that retail "off" licence of the petitioner - a proprietor of Messrs Kheerthar Wine Shop, District East, Karachi -- was cancelled for violation of paragraph 282-A(19) of Sindh Excise Manual Vol. I on a report received by the respondent No,2 that there stood a mosque within radius of 230 feet of wine shop. We have, therefore, carefully read the said paragraph, which, for conveniences' sake is reproduced as follows:-- "282-A (Instructions for conducting auction sales). No, 5521-X, dated 25th August, 1925.--- The following instructions for conducting auction sales of several excise licences are issued for the guidance of the District Officers in Sindh.
(1) to (18) ...................................................................................
(19) Bidders for country spirit licences will be informed that no country liquor licence will be allowed to open his shop within 100 yards of place of public worship, or a school, or an existing country or foreign liquor 'on' shop refreshment room or beer shop but that these restrictions do not apply to existing premises. If the shop is not conducted in the premises of the outgoing licensee it must be at such place within 200 yards in the same quarter as may be approved by the Collector. Transfer to greater distance will only be allowed in very special circumstances." Note: above underlining is ours.
' Precisely stated, on examination of above context of para.282-A, we find it in the nature of guidelines to the concerned officers conducting auctions of several Excise Licences. Relevant clause (19) of said paragraph, reproduced above, strictly speaking, stipulates that no country licencee is to be allowed to open his shop within 100 yards of place of public worship meaning thereby, that opening of said liquor shop is not allowable when a place of public worship already exists. This view of our may also be beneficially construed from the underlined portion of above text which explicitly provides that the restrictions do not apply to the existing premiss.
9. Now, reverting to the factual side of the case, it is to be seen if the said wine shop was allowed to be opened with mosque or worship place already existing. In order-to know the real facts, we have benefited from the comments filed by Excise and Taxation Officer (H.Q.) of respondent No,2 and also from the decision, dated 18-12-1998 of learned Provincial Ombudsman (Mohtasib), Sindh. Both these documents have been produced by the petitioner and have gone unchallenged. In the aforementioned comments it is stated that the wineshop licence was granted to the petitioner in pursuance of Rule 23(1) of Sindh Prohibition Rules, 1979 by competent. Authority after completion of formalities required under para. 100 of Sindh Excise Manual-I and that there is no Masjid within the radius of 100 yards and that the investigation conducted by Assistant Excise Taxation Officer Incharge revealed that after opening the liquor shop nearly 6 months ago the shop-keeper of the market converted a Thalla (raised place) with two feet wall around 12' x 12' and named it as Jainamaz (prayer place). These comments seem to have been placed before the Provincial Ombudsman in a complaint of aggrieved an inhabitant of surrounding village admitted by him on 30-9-1997. Learned Provincial Ombudsman, after verifying the record presented before him, has, inter alia, observed in his decision that there is no religious or educational institution within the radius of 100 yards of wine shop as required by law and concluded that there is no maladministration on the part of Excise and Taxation Department. He also, observed that the licence was issued strictly in accordance with law. He dismissed the said complaint being malicious and frivolous.
10. Admittedly, the licence was issued in the year 1996 and it was being renewed in subsequent years 1997 and 1998 making it valid upto 30th June, 1999. Thus, it is crystal clear that the worship place was built after the wines hop was allowed to be opened and even much after the renewal of licence in 1997.
11. Having dealt with the matter as above we come to the other ground raised by learned counsel that no contravention of Prohibition (Enforcement of Hadd) Order, 1979 or of the rule made thereunder has. Taken place. Suffice it to say that in the impugned order the contravention, as alleged, is only of 282-A(19) of the Sindh Excise Manual Vo.lI for the reason that the mosque stood within radius of 230 feet of the said shop. It may be significant to note that the licence was cancelled by the respondent No,2 in exercise of powers vested in him under Article 19 of the Order of 1979; but, since the department does not allege any contravention of the Prohibition Order, 1979 any discussion on this point shall be an exercise in futility serving no purpose being an academic discussion.
12. Nonetheless, keeping in view the above discussion, we observe that learned respondent No,2 has not exercised his jurisdiction legally and lawfully while cancelling the licence in question under his order, dated 17-2-1999 which is declared accordingly. This petition is, therefore, allowed in these terms. It is, however, observed that the licence issued to the petitioner has already lost its validity; therefore, the department is at liberty to proceed further if so liked, in accordance with law, keeping in view the present circumstances. Miscellaneous Application No,879 of 1999 also stands disposed of, accordingly.