ABDUL HAYEE KURESHI, J.-Since all these petitions involve common question of law and fact we propose to dispose of the same by a single judgment.
2. Briefly stated the facts are that the, petitioners were holders of licences for sale of foodstuffs.
Such licences were granted to each one of the petitioners under clause (4) of the West Pakistan Foodstuff Distribution Orders. While the petitioners in Petitions Nos. 778, D-779 and D-780 of 1978 carried on business at Hyderabad; the petitioners in Petitions Nos. D-942 and 953 of 1978 carried on business at Sukkur and the remaining petitioners carried on business at Karachi.
3. On 9-3-1978, the Martial Law Administrator, Zone "C", promulgated "Martial Law Order No. 57 entitled as Foodstuff Distribution Order, 1978" The object underlying the said Martial Law Order was to provide efficient functioning of foodstuff distribution agencies and also "to review the indiscriminate allotment of ration depots over past number of years, in some cases even to non-deserving persons". Paragraph 3 of the said Martial Law Order provided a criterion of eligibility for the grant of authorization or licence to deal in foodstuff distribution and the same reads as follows :- "3. Eligibility.-Notwithstanding anything contained in the said order, the following persons shall not be eligible for grant of authorization, namely :-
(a) Persons below 18 years ;
(b) Persons convicted of an offence involving moral turpitude during the period of 10 years immediately preceding the making of application for grant of authorization ;
(c) Persons having a bad character on police record or connected with undesirable elements for which sufficient proof is available ;
(d) Persons who sub-let or sub-lease the authorizations ;
(e) Persons already holding authorization in their own names or in the names of any of their dependents or having any interest in any form or manner in any authorization in the same District ;
(f) Persons who could not register one thousand units in urban areas of Karachi Region and seven hundred units in Urban Areas of Hyder--abad and Sukkur Regions, within the stipulated period ;
(g) Persons who have any of their relatives working in the Food Department ;
(h) Persons who have been allotted depots as a result of political favour."
Paragraph 4 provided for review of eligibility in relation to existing depots. The said Paragraphs reads as follows :- "4. Review of Existing Depots.-All authorizations issued during the period between 1st day of January, 1972 and 5th day of July, 1977, in favour of persons mentioned in para. 3 shall be immediately reviewed by Allotment Authority and if covered under the said para. Shall be cancelled and such other -authorizations cancelled based on the above parameters before coming into force of this order by a District Magistrate, District Food Controller or Rationing Controller shall be deemed to have been validly cancelled."
Paragraph 9 of the Martial Law Order provided that the provisions of the West Pakistan Foodstuffs Distribution Order, 1967 to the extent to which the same were not in conflict with the order would remain in force. The said Martial Law Order was amended on 2-9-1978, viz. After the date of filing of these petitions, by Martial Law Order No. 75 whereby paragraph 4 of the original Martial Law Order (reproduced above) was numbered as sub-paragraph (1) and a new sub-paragraph (2) was added to provide for an appeal against the order of cancellation passed under paragraph 4 (1) to the Commissioner or Additional Commissioner of the Division. Sub-paragraph (2) of paragraph 4 of Martial Law Order No. 57 as the same stands now reads as follows "(2) Appeal shall lie against the order of cancellation made under sub--para. (1) to the Commissioner/Additional Commissioner of the Division within thirty days of the order Provided that in case of cancellation made before enforcement of this sub-para. Appeal may be filed within thirty days of such enforcement."
4. Paragraph 3 of the Martial Law Order No. 57 contemplates that such persons who had been allowed ration depots as a result of political favour were ineligible for the grant and the licences were liable to cancellation on such ground. It seems in the implementation of the said provision same difficulties arose so that the Government of Sind by a Letter No. S. O. (F-III)-9 (9)/78 dated 28-5-1978 issued a clarification addressed to the Deputy Commissioner, who acted as Chairman of the District Allotment Board in the various Districts of this Province. Such clarification is to the effect that a mere recommendation made by a politician or a Minister for the allotment of a Ration Depot would not by itself be construed as "political favour" within the meaning of paragraph 3 of Martial Law Order No. 57. The relevant portion is reproduced hereunder :- "The recommendation made by a politician or a Minister for the allotment of a Ration Depot by itself may not be construed as 'political favour' unless it is proved that--
(a) either there was no necessity for a new depot in that locality and still authorization was issued, or
(b) the depot was sanctioned to a person suffering from a disability under the existing Rules, or
(c) merely on political consideration."
5. Immediately on the promulgation of Martial Law Order No. 57 a process of review in regard to the existing Ration Depots started in pursuance of a direction by the Government of Sind on 13-3-1978.
The various officer of the Food Department were asked to take immediate action under paragraph 4 of Martial Law Order No 57 in consonance with the provisions of paragraph 3 of the said Martial Law Order. Without any notice to any of the petitioners orders were issued cancelling the authorization of the depots of the petitioners. In most of the cases the order of cancellation did not state the reasons for cancellation but in some out of these cases it is stated that the cancellation was in pursuance of clause (h) or (e) or (g) of paragraph 3 of the Martial Law Order No. 57.
However, it is stated in each one of the petitions and not controverted by any of the respondents that no show-cause notice was given nor was any enquiry in presence of the petitioners held before the issuance of the cancellation orders.
6. We have heard Messrs Muhammad Ali Shaikh and Raja Haq Nawaz for the petitioners. 'Ale have also heard Advocate-General for the respon--dents. No counter-affidavit has been filed but comments have been submitted in Petition No. D-778 of 1978. The learned Advocate-General has relied on these comments in each one of the cases.
7. On behalf of the petitioners it has been contended that Martial Law Order No. 57 was not a valid piece of legislation. It is further contended that the Martial Law Order does not provide for any right of hearing or any notice before the order of cancellation and for such reason the legislation was bad. On the lower plane it has been contended that despite the absence of any provisions regarding notice, such provision has to be read in the statute as paragraph 4 of Martial Law Order No. 57 seeks to divest the petitioners and persons in their category of existing and vested rights. It is also contended that no remedy by way of appeal had been provided when Martial Law Order No. 57 was initially promulgated but to such extent the learned Advocate-General has pointed out that on 2-9-1978 the Martial Law Order No. 57 has been amended so as to provide for an appeal. The learned Advocate-General has, on such premises, contended that since an appeal had been provided the petitioners could or could have availed of such remedy. In short, the argument is that an alternate remedy by way of appeal exists and the petition was, therefore, not maintainable. On the factual plane the learned Advocate-General has not controverted that no opportunity was afforded to the petitioners before cancel--lation of the licences.
8. There can be no doubt that the petitioners being licence-holders have a vested right in the holding of the licences for the purpose of carrying on a profitable business. Such licences had been granted in accordance with law and the cancellation without any notice appears to be open to serious objection. Even though Martial Law Order No. 57 does not specifically provide for a right of hearing before cancellation of licence we are clear of the view that in spite of such absence a provision for opportunity to A show-cause notice against the cancellation of licence has necessarily to be imputed to the statute for as otherwise the very foundations of the rules of natural justice stand shaken. We are, therefore, clear in our mind that the action of the respondents in regard to cancellation of the licence without hearing was illegal and of no legal effect. If authority is needed for the proposition reference may be made to the cases of Faridsons Limited v.
Government of Pakistan (PlD1961 SC 537) and Chief Commissioner, Karachi v. Dina Sohrab Katrak (PLD 1959 SC 45). The first out of these cases directly relates to cancellation of a licence.
9. We must, however, not overlook the argument advanced by the learned .Advocate-General to the effect that Martial Law Order No. 57 as it stands today provides for an appeal and since each one of the petitioners could avail of that remedy which would provide them with a right of hearing, the more omission of the Allotment Committee to issue notice or to hear the petitioners before cancellation would not render the impugned action invalid in law. No case-law was cited before us but we have recalled the case of Muhammad Ishaque and another v. Dr. Saeeduddin and another (PLD 1964 SC 673), a Full Bench judgment. In this case a party was not heard by the Court of first instance before the adverse order was passed but he was heard by the appellate or revisional authority. The question that arose was whether the order was liable to be set aside as void for failure to observe principles of natural justice. Mr. Justice Kaikaus with whom Mr. Justice Waheeddudin agreed, case to the conclusion that the question of compliance with the principles of natural justice has to be determined in each case on the facts of the same. The relevant passage appearing in that judgment is reproduced below "The answer to the question appears to us to be simple. Whether the principle of natural justice, that no order is to be passed affecting the rights of a party without giving him an opportunity to show cause, has or has not been violated, depends upon the particular facts of each case and it is not possible to lay down any general rule. We will have to consider the proceedings as a whole. The question to be decided would be whether any prejudice has been caused by the fact that the party was not heard by the authority that passed the original order. If the objections to his ejectment be of a kind that can very well be disposed of by an appellate or revisional Court the order should be held to be valid. If on the other hand it is found that on account of the lack of any opportunity to show cause before the officer who passed the original order some relevant fact which may have been proved was not proved and this affected the order passed there would be good ground for setting aside the order. Prejudice to the petitioner would be there if the petitioner could show a reasonable possibility of the order having been different had he been allowed to raise a plea before the first Officer."
10. It would seem that omission to hear a party and obtain his defence before taking adverse action would not in each case be cured by an opportunity of hearing at a subsequent stage of the case. There may be cases where prior hearing may be impracticable or inappropriate or may cause frustration of the very objects of adverse action. Such cases would indeed be rare and even then ex post facto opportunity has been held to be necessary in these cases. Reference may be made to Abul Ala Maudoodi v. Government of West Pakistan (PLD 1964 SC 673). One has to distinguish between cases when contemplated adverse action is circumscribed by findings on allegations of facts. In such cases the party must as of necessity have an opportunity to rebut and disprove the allegations even by leading evidence in appropriate circumstances. Such opportunity is rarely available at the appellate forum. The difficulty becomes glaring and prejudice manifest in matters where the original order discloses no material forming the basis of satisfaction result in adverse action. It is in those cases that the difficulties in substantiality of hearing at the next stage arise, for often the person availing of the remedy of appeal is left bewildered as to what grounds he would urge and what material he may produce to avoid the adverse order. Such situations are frequent in cases of administrative orders as distinct from judicial or quasi judicial orders.
11: In the present cases we find that the impugned orders give no data for the action nor any reasons. It is only in three out of these eleven cases that reference is made either to clause (e) or
(g) or (h) of paragraph 3 of the Martial Law Regulation. In such cases the remedy provided by appeal is virtually illusory. While dealing with the impugned orders we may also state clearly that paragraph (4) of the Martial Law Orders is couched in a language which makes hearing or notice obligatory. The use of the words "reviewed" and "covered" under the said para. Clearly point. To the observance of the rule of notice and hearing.
12. We are of the view that it may be that at the time of hearing of the appeal the cancelling authority may come forward with some allegations and the petitioners may have no time or opportunity to rebut the same. In such circumstances, following the principles laid down in the case of Muhammad Ishaque v. Dr. Saeeduddin Swalleh, we are of the view that even the hearing that may be afforded to the petitioners at the stage of appeal would not be sufficient compliance with the principles of natural justice in the circumstances of the present cases.13. The other points in regard to the vires of validity of Martial Law Order No. 57 have not been pressed by the learned Advocates for the petitioners and it is not necessary for us to enter into this question for the purpose of disposal of these petitions.
14. In the result we declare the impugned order in each one of these petitions, whereby the licence issued in favour of the petitioners was cancelled, to be illegal and of no legal effect. It shall, however, be open to the respondents to proceed with the action after compliance with the principles of natural justice, viz. To give notice of the grounds on which the licence is sought to be cancelled, to hear the petitioners, to examine any evidence which the petitioners may produce and then to pass an order by reference to the rival cases set up by the Department and the petitioners in regard to their entitlement. The parties are left to bear own costs.