' Facts giving rise to the present writ petition are that the petitioner is a registered Homoeopathic Medical Practitioner, registered with the National Council for Homoeopathy, Government of Pakistan and enjoys all the privileges provided under the Unani Ayurvedic and Homoeopathic Practitioners Act, 1965. The petitioner is also running a Pharmacy known as Azam Homoeopathic Pharmacy, Machhli Bazar, Bahawalpur, which is also registered by the Registrar of Firms, Bahawalpur Division, Bahawalpur. The petitioner also runs a Khairati Shifa Khana under the name and style Usmania Khairati Shifa Khana, Bye-pass Road, Ghanipur Bahawalpur, which too is registered by the Registrar of Firms, Bahawalpur. The petitioner is one of the oldest Homoeopathic Medical Practitioner at Bahawalpur and has attained longstanding experience in manufacturing a Homoeopathic Medicines. The petitioner has been granted permit in Form L-42-D by the Excise Commissioner/Director-General, Excise and Taxation, Punjab, Lahore vide letter dated 29-5-1985.
The petitioner always acted in accordance with the terms and conditions of the permit contained in Form L-42-D to the satisfaction of the Excise Department. The petitioner has not violated any of the provisions of law and the conditions of the licence. The quota of the petitioner of rectified spirit was increased from 40 gallons to 100 gallons per annum and Department has been renewing the permit of the petitioner in Form L-42-D up to the year 1998-99. The petitioner's record regarding his Pharmacy and Clinic has always been subjected to detailed scrutiny by the Scrutiny Committee constituted by the Government of Punjab in this respect. The permit of the petitioner at Form L-42- D has been cancelled vide order, dated 13-1-2000 by Director-General Excise and Taxation, Bahawalpur/respondent No,2. The petitioner preferred an appeal before respondent No,1 which too was rejected on 18-7-2000.
2. The learned counsel for the petitioner contended that the petitioner has not violated any provision of law, Rules made thereunder and terms and conditions of the permit; that the Scrutiny Committee had also found the record of the petitioner O.K. In all respects; that no notice has been issued to the petitioner while passing the impugned order cancelling the permit of the petitioner.
3. I have heard the arguments of the learned counsel for the petitioner and perused the record.
4. Before commenting upon further it would be advantageous to reproduce the provisions of section 36 of the Punjab Excises Act, 1914, which has conferred powers on the officers to cancel or suspend the licences, etc:-- "Section 36. Subject to such restrictions as the (Provincial Government) may prescribe, the authority granting any licence, permit or pass under this Act may cancel or suspend it-
(a) if it is transferred or sublet by the holder thereof without the permission of the said authority; or
(b) if any duty or fee payable by the holder thereof be not duly paid; or
(c) in the event of any breach by the holder of such licence, perinit or pass or by his servants, or by anyone acting on his behalf with his express or implied permission, of any of the terms or conditions of such licence, permit or pass; or
(d) if the holder thereof is convicted of any offence punishable under this Act or any other law for the time being in force relating to revenue, or of any cognizable and non-bailable offence or any offence punishable (under the Dangerous Drugs Act, 1930 or), under the Merchandise Marks Act, 1889, or of any offence punishable under sections 482 to 489 (both inclusive) of the (Pakistan)
Penal Code; or
(e) if the holder thereof is punished for any offence referred to in clause (8) of section 167 of the Sea Customs Act, 1878; or
(f) where a licence, permit or pass has been granted on the application of the grantee of a lease under this Act, on the requisition in writing of such grantee; or
(g) at will, if the conditions of the licence or permit provide for such cancellation or suspension."
5. The provisions of above referred section have provided conditions for cancellation or suspension of the licence, permit or pass, etc. This section has empowered the Provincial Government to cancel a licence or permit issued in favour of any person, if his case falls under any of the conditions mentioned in section 36 of the Act. The licence or permit can be cancelled or suspended if the conditions laid down in section 36 of the Act are contravened. No reason has been assigned in the impugned orders as to which conditions mentioned in section 36 has been violated by the petitioner. The power for cancellation of the licence or permit has been conferred on the Government under section 36 of the Act. The orders impugned has been passed by the.
Director, Excise and Taxation on the recommendations of the Scrutiny Committee. The Scrutiny Committee as well as respondent No,2 have not been conferred the powers by the Act or the Government for cancellation of the licence or the permit of the petitioner. The petitioner manufactures and produces different medicines and respondent No,2 without checking the Pharmacy of the petitioner in his absence has passed the impugned order levelling false allegations and malafidely declared the petitioner physically unsound to possess the licence for preparation of Homoeopathic Medicines.
6. It would not be out of place to mention here that physical condition of the licence-holder is not a condition for grant of licence or for cancellation of the same. The licence has been granted to the petitioner on fulfilment of the conditions. Thereafter, the Government has no power to cancel the licence. Reliance in this context can be placed on the case of Pakistan and another v. S. Hussain Ali Shah A. Fazlani PLD 1960 SC 310.
7. Respondent No,2 while cancelling the licence of the petitioner has not issued any show-cause notice to the petitioner to explain as to why his licence be not cancelled. It has been observed in case of Province of East Pakistan and another v. Nur Ahmad and another PLD 1964 SC 451 that no person should be condemned unheard. Principle presumed to be embodied in statute in absence of any provision to contrary. It has been observed in case of Saiyyid Abul A'la Maudoodi and 2 others v. The Government of West Pakistan and another PLD 1964 'SC 673 that opportunity to show- cause must be afforded to the affected party and in case of non-compliance of this principle of natural justice, the action taken or order passed by the judicial, non-judicial, quasi-judicial and the executive authority would tantamount to order passed illegally and without lawful authority.
8. While cancelling the licence of the petitioner for manufacturing of medicines, he was neither heard nor was charged to have violated any ' of the conditions contained in the permit for manufacturing the substance or conditions contained in section 36 of the Punjab Excises Act, 1914. Reference in this context can be have on the case of Murree Burewery Company Limited. v. Director-General Excise and Taxation 1991 MLD 267.
9. The petitioner-company was granted permit to obtain rectified spirit. The condition incorporated in the permit is that the permit-holder will use the spirit solely for the preparation of dilutions from original tractors or from dilution, of less potency in accordance with the direction's laid down for the same in Homoeopathic Pharacoea and it has been mentioned that infraction of any of the conditions will subject to holder of the permit to the forfeiture of his permit and to all or any of the penalties prescribed by the law or rules.
10. The respondents have not been able to show that while cancelling licence of the petitioner, he was issued show-cause notice with regard to the violation of any of the conditions of the permit or provisions of section 36 of the Act. The order being in violation of principle of natural justice i,e, audi alteram partem, is not sustainable in law. Resultantly, this writ petition is accepted. The orders, dated 13-1-2000 passed by the Director, Excise and Taxation, Bahawalpur/respondent No,2 and the order, dated 18-7-2000 passed by Director-General Excise and Taxation, Punjab, Lahore, in appeal filed by the petitioner, are declared to have been passed illegally and without authority. The case is remanded to respondent No,2 for decision afresh after issuing notice to the petitioner for pointing out violation of conditions for grant of licence or for cancellation of the permit under section 36 of the Punjab Excises Act, 1914.