MUSHIR ALAM, J. -- The petitioner has impugned the order dated 22.6.1999 passed 'by the 'respondent No. 2, Director General/Collector, Excise and Taxation Sindh, whereby the license granted to the petitioner was cancelled.
2. Briefly stated the facts giving rise to the above petition are that the petitioner was granted a license dated 22.6.1991 which was being renewed from time to time for operating a Wine Shop in District Khairpur. It appears that on an. Application of the petitioner, he was allowed to shift the said licenced premises from Chundko, Taluka Nara, District Khairpur to Rangiwara, lyari Quarters, Karachi, by the respondent No 2 on fulfilling the coda' I formalities and on payment of Excise Fee of Rs. 50,00b/-. However, through a show-cause notice dated , 5.12.1998 petitioner was called upon to show why the licence may not be cancelled for breach of conditions of licence, followed by sealing of licenced premises. The action was impugned by way of Suit No. 225/1999 before this Court. The order of sealing the shop was set aside and the respondent No. 2 was directed to decide the matter after hearing the petitioner, judicially inaccordance with applicable law. Consequently, the respondent No. 2 heard the petitioner and passed the impugned order dated 22.6.1999 operative part of the same reads as under:- "While it is correct that the request of the plaintiff for changes of venue was, allowed on payment of requisite fee of Rs. 50,000/- yet the fact remain that the request in itself was not legal because the rules on the subject do not provide inter-District change of venue of shop. Further, the record shows that before shifting of venue from Chundko Khairpur to lyari objections were duly invited from the area people but these were not taken into consideration so much so that the provisions of law which bar such shifting were ignored. Under the circumstances, the very order of the then Director General, Excise and Taxation in allowing the change of venue of shop was legally wrong and in contravention of rules. Thus the license was rightly cancelled on 17.2.1999."
3. Above order of respondent No. 2, has been assailed in this petition. During pendency Of this petition matter was agitated in appeal before the Secretary, Government of Sindh, which appeal was also dismissed and the impugned order was maintained.
4. Contention of learned counsel for the petitioner, Mr. Neel Keshav was that permission of shifting of the licensed premises from Khairpur to Karachi, was granted by the respondent No. 2, after fulfilling all the formalities in accordance with Excise Rules and Regulations. According to him once decisive step had been taken, creating right then the same cannot be taken away arbitrarily. It was contended that if subsequently, it was found that shifting of licenced premises was not permissible under the rules than at the best such permission could have been recalled and withdrawn but the licence could not be cancelled. It was submitted that petitioner had not violated any law, Rules, or Regulations. In this regard learned counsel had drawn our attention to Annexure 'P/2' dated 3rd November, 1998 whereby the Excise Officer notified the permission for the change of venue of Retail "OFF" Liquor License and after necessary requirement, same was allowed by the respondent No. 2.
5. Mr. Sarwer Khan, learned AAG appearing on behalf of the State contended that under pare 100(8) of the Sindh Excise Manual Volume-1, the change in the premises of the Excise Shop cannot be allowed beyond 200 yards of the old shop whereas in the instant case the venue was allowed to be changed from one District to another which is not permissible. According to learned AAG authority empowered to pass an order can also withdraw the order.
6. We have heard the arguments and perused the record.
7. License, privilege, or concession granted by the State confers valuable rights on citizen and once such right is conferred then the same cannot be taken away save, strictly in accordance with law.
In the instant case, it appears from the record that the respondent No. 2 after fulfilling the codal formalities as required under paras 100 and 282-A of Sindh Excise Manual Volume-I approved the shifting and change in venue of the petitioner's shop from District Khairpur to Karachi on payment of the prescribed fees of Rs. 50,000/- which fee was also recovered. However, licence was cancelled, relying on para 100(8) of, Sindh Excise Manual Vol. 1 which reads as follows:- Para 100(8). "The Collector may themselves sanction the change (either from one building to mother in the same street or within the limits of the same town or village) in the location of 'shops.
In sanctioning such changes the local feeling should receive due consideration. All changes in the premises of Excise shops within or beyond 200 yards of the old shops should be referred to the Excise Advisory Committees for their opinion."
From the bare perusal, it appears that sanction to change in venue could be allowed within same Town or village and it did not provide for inter district transfer/change.
8. In the instant case, admittedly change in the venue of licenced premises was allowed by the respondent No. 2 from one District to another, which was apparently not permissible in view of the above noted para of Sindh Excise Manual Vol. 1.
9. It may be noted that the change in the venue of the licenced premises was approved by the respondent No. 2, on 3.11.1998 on payment of Rs. 50,000/-. It is settled position in law that authority having power to make an order, also has the power to undo it, subject to the exception that where the order has taken legal effect and in pursuance thereof certain rights have been created in favour of any individual such an order normally cannot be withdrawn or rescinded to the detriment of the right created by virtue of such order. The rule is not absolute, if an order has been passed by a functionary in exercise of purported authority under misconception of law or for any other extraneous consideration than even if pursuant to such order any decisive step is taken or the order is implemented no right is created or vests in the beneficiary. On discovery of such illegality the successor functionary can always retrace the steps after due notice, undo the wrong, and restore the state and position as it was before passing of such illegal order and not beyond.
10. In the instant case, the respondent No. 2, though concluded that petitioners request for change in the venue of licenced premises, itself was not legal, therefore, the very order of then Director General, Excise & Taxation in allowing the change of venue of shop was legally wrong and in contravention of rules. Thus, the licence was rightly cancelled on 17.2.1999.
11. If for any reason the respondent No. 2 was of the opinion that such permission/sanction allowing change of the venue was not in accordance with the Rules and Regulations as applicable thereto.
Permission to the extent of illegality could have been retraced or revoked to that extent only.
12. It can be seen, that the successor in office, in a zeal to undo a wrong has exceeded the authority and instead of rescinding the wrong step alone, proceeded further to cancel the very licence, for which action there appears to be no justification. As observed above, state functionary, can undo and rescind the order to the extent it is wrong or illegal and nothing beyond.
13. Admittedly the respondent No. 2 had realized fee of Rs. 50,000/- for granting permission to change the venue, and if he was of the view that under the prevalent rules inter district change of venue of licenced premises could not be allowed, then in all fairness, while retracing and rescinding the wrong step, ought to have ordered for the refund of such licencee fee in view of equitable principle enshrined under Section 65 of the Contract Act. But looking at the circumstances of case, since the petitioner had enjoyed some benefit on account of change in venue of licenced premises we do not deem appropriate to issue any such direction.
14. For the foregoing discussion, we are of the view that the impugned order to the extent of cancellation of license is unwarranted and uncalled for. Learned counsel for the petitioner while extending his arguments had conceded that if such sanction and per mission for the change of venue is withdrawn or recalled he will be satisfied and contended to carry on his business in terms of the license granted for Khairpur District.
Under facts and circumstances of the case there will be no order as to costs..