P L D 1982 Lahore 153 (PLP)

The Government of the Punjab, vide its letter No. 6‑8‑H APL III/80‑1, dated 21‑10‑1980, issued instructions to the Commissioner, Lahore Division, Lahore, in connection with the issuance of Muharram Licence.

2. The petitioner challenged the validity of impugned instructions inter alia on the ground that the District Magistrate, in the exercise of his powers, under section 30 of the Police Act, ought to have performed his statutory duty, cast upon him independently and should not have been influenced by the instructions issued by the Government which were extraneous to the provisions of the said Act. The petition was admitted to regular hearing. During the pendency of the writ petition, the District Magistrate passed a second order on 5th of December, 1981, and again rejected the application of the petitioner for the grant of licence in view of the following factors (a) There are 193 houses of the total population of village Tapiala out of which only 16 houses belong to Shias ; (b) The route on which the petitioner has applied for the licence, there are five houses occupied by the Shias whereas 29 houses are occupied by the Sunnis who are opposing the grant of licence ; (c) In the Sialkot District, there are 119 licensed processions and 22 unlicensed/precedent processions i. e. who are taking out procession on the said route without any permission for the last 15 years or so and that the taking out of those processions were never objected to by any quarter whatsoever ; and (d) The grant of licence is also against the instructions issued by the Chief Secretary to Government of the Punjab vide its memorandum No. 6‑16‑H‑SPL‑II1‑81, dated 17th of September, 1981, which has been reproduced in the impugned order. It is further stated in the impugned order that the case of the petitioner is covered by clause (b) which provides that no innovation/amendments or deviation from the existing Muharram licences be permitted and status quo must be maintained, and also under clause (i) which provides that no ‑departure from old routes and timings of the procession should be made. Mr. Khakan Babar, learned counsel for the petitioner submitted that the Chief Secretary has no authority, under the law, to issue any such instructions and that the District Magistrate is under statutory obligation to dispose of the application made to him justly, fairly, equitably and strictly in accordance with law, without being influenced by any extraneous instruc tions like the one issued by the Chief Secretary. Apparently the District Magistrate has passed a very comprehensive order while turning down the request of the petitioner for the grant of the licence but when the order i read in its entirety, it gives the impression that while passing the impugned order, the District Magistrate was mainly influenced by the confidential instructions issued by the Chief Secretary which on the face of it are ultra vires of the Police Act. The learned Advocate‑General has frankly conceded that the instructions issued by the Chief Secretary are not binding on the District Magistrate and that, under the law, the District Magistrate is duty bound to apply his independent mind in the discharge of his statutory duties under the said Act irrespective of any instructions issued on the executive side.1 I am also inclined to agree with the submissions of the learned Advocate General. There is no express or implied provision in the Act which confers any powers on the Chief Secretary to issue the instructions, in question. The instructions issued by the Chief Secretary are ex facie ultra vires.

3. In view of the above, the impugned order is quashed and the case is remanded to the learned District Magistrate, Sialkot, for disposing of the application of the petitioner afresh on merits and strictly in accordance with law. The writ petition is accepted with costs. The counsel's fee is determined at Rs. 500. s. A. H. Petition accepted.