2005 PLP 922 (CLC)

The petitioner who is a non-Muslim had a licence to run and undertake the business of liquor. He had two outlets for that purpose in Lahore and Wazirabad known as Cheap Wine Stores and Lucky Wine Stores. The said premises were sealed and licence revoked in the year 1979 with the advent and Enforcement of Prohibition (Enforcement of Hadd) Order, 1979 law in the Country. This led to a long-drawn litigation that ensued thereafter. His petition before this Court (Writ Petition No.23930 of 1997) was heard and decided by Karamat Nazir Bhandari, J., (as he then was), on 25-9-2001 with the direction The petitioner s application will be deemed to be pending with respondent No.1 which shall now be decided in accordance with law after hearing the petitioner . It was thus, that order, dated 12-4-2002 was passed by respondent No.1 whereby his application for licence was declined. It has now been assailed through this petition.

2. Number of grounds have been urged by the learned counsel for the petitioner to assail the impugned order, however, in view of the admitting order of this petition passed by the same learned Judge who had decided the abovementioned petition, I am inclined to restrict my discourse qua the adjudication as to whether the order passed by respondent No.1 was consistent with the direction issued in the abovementioned writ petition.

3. The perusal of the impugned order itself is indicative of the fact that while deciding the matter the Director-General (respondent No.1) did not himself afford hearing to the petitioner as the matter had been entrusted and remitted by him to the Additional Director-General, Excise and Taxation Punjab. It has been noted in the impugned order itself that the undersigned has been directed by the Honourable Court to deem the petitioner s application as being pending and decide the same in accordance with law after hearing the petitioner. In conformity with the directions of the learned Court the applicant was given an opportunity of being heard by the Additional Director-General, Excise and Taxation, Punjab on my behalf on 5-1-2002 . The direction of the Court was to the persona designata and not to any other functionary including the Additional Director-General Excise and Taxation Punjab. It was only respondent No.1 who was to afford the opportunity of hearing to the petitioner and then pass a speaking order. There is no such concept of delegation in the adjudicatory process, i.e. hearing by someone else and decision to be made by someone else. What at the most can be conceived and considered permissible is that such a persona designata can obtain a report as to certain aspects of the matter from the Departmental functionaries but he is obliged to hear and decide the matter on due consideration by himself otherwise a valuable right of hearing of a party can be stultified. Any such exercise that was made by respondent No.1 i.e. delegating his authority to hear the matter to the Additional Director-General Excise and Taxation, Punjab on his behalf was wholly unwarranted and violative of principles of natural justice. In Crescent Sugar Mills and Distillery Ltd., Faisalabad v. Central Board of Revenue, Islamabad and 2 others PLD 1982 Lah. 1 a somewhat similar situation arose as to whether when an officer had heard the matter and left it undecided could his successor take a decision on the basis of the hearing given by his predecessor. The learned Division Bench did not approve of such a course and observed that even the note left by Mr. Hafeez-ud-Din Ahmad on the last hearing on 27-6-1977 for the consideration of passing the order by Mr. Fazalur Rahman on 27-5-1978 cannot be considered to be a fair opportunity of hearing provided to the appellant-Company, for in the first place the officer who heard the matter did not decide it himself . In such view of the legal position, the order passed by respondent No.1 on 12-4-2002 on the basis of hearing given by the Additional Director-General Excise and Taxation Punjab is not sustainable in law and is to be declared as of no legal effect. The merits of the matter, therefore, need not be dilated upon inasmuch as the direction contained in the above judgment of the Court for decision of the application of the petitioner by respondent No.1 after affording opportunity of hearing has not been carried out and still remain to be complied. Resultantly, the application filed by the petitioner which was to be heard and decided in terms of judgment, dated 25-9-2001 in the abovementioned writ petition will still be deemed pending with respondent No.1 who will decide the same afresh by affording due opportunity of hearing to the petitioner by himself. This will be done within three months. The petition is accepted to that extent with no order as to costs. M.B.A./J-66/L Petition accepted.