2013 PLP 532 (CLC)

SYED MUHAMMAD KAZIM RAZA SHAMSI, J.

This petition, filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, seeks a declaration of ineffectiveness in respect of Notification No.SOP(WL)12-13/2001-11, dated 4-5-2010 issued by Government of Punjab, Forest, Wildlife and Fisheries Department through its Secretary on the ground that the notification is perverse, without lawful authority and has been issued in violation of Article 18 of the Constitution of 1973.

2. This petition has arisen in the circumstances that the petitioners are the wholesale dealers of Quails in Bahawalpur Division for a period spread over more than 10 years. In respect of this dealership they have obtained licences from the Wildlife Department as defined in section 2(b) of the Punjab Wildlife (Protection, Preservation, Conservation and Management) Act II of 1974. The licences were issued by the competent authority after having received requisite fee levied under rules framed under the Act and subsequently enhanced in the year 1997 from Rs.500/- to Rs.2500/- and in 2010 vide impugned notification from Rs.2500/- to Rs.25000/- per annum. This enhancement in the licence fee has given rise to the cause of action to the petitioners to assail the same through the instant constitutional petition.

3. It is the case of the petitioner that impugned notification is not only unreasonable but also amounts to snatch their livelihood and while issuing this notification they were not heard or consulted, which was necessary element because they are going to be affected adversely. It is also argument of the learned counsel that the notification has been issued in violation of fundamental rights as guaranteed by the Constitution.

4. In this respect para-wise comments were requisitioned from the respondents, who contended that the fee has been enhanced as presently the people, are armed with latest weapons and have modern vehicles to reach at a far-flung areas, which was previously inaccessible; that there was a danger of the extinction of the rare species and that the petitioners are not poor persons as they are indulged in the business of dealing with precious birds. It was further submitted by the learned Law Officer appearing on behalf of the respondents that the notification impugned through the instant petition is neither arbitrary nor suffers from unreasonableness, rather the same has been issued keeping in view the financial power of the subject, who are fond of hunting and purchasing valuable birds.

5. I have considered the relevant submissions made by the learned counsel for the parties and have also gone through the record minutely. The petitioners have assailed the impugned notification on the ground that it is unreasonable, oppressive, violative of fundamental rights as well as of principle of natural justice. The impugned notification thus is being considered in view of these submissions of the learned counsel.

6. So far as the question of determination of unreasonableness is concerned, in this respect it is the settled principle that while determining the unreasonableness the material on the basis of which a notification has been issued, is to be taken notice of. That material would determine whether the notification has been issued by the competent authority fairly, justly or it is based upon the mala fide. In the instant case the material, which has been considered by the competent authority before issuing the impugned notification, appears to be that existing fees were not revised since 1997, the charge of the fees at lower side may result in excessive demands of hunting licences and that it is the foremost duty of the Government to preserve extinction of rare species. Although this material relied upon by the authority while issuing the notification is advancing the cause for which purpose Act (ibid) has been promulgated but the authority in this connection did not realize that its licence-holders would be adversely affected in case of increase in the fees, which are essentially stakeholders. This opinion formulated by the authority on the basis of the material thus does not reflect that any stakeholder in this respect was ever taken into confidence or had been provided with an opportunity to place his viewpoint in respect of the increase in the fees. At this stage the principle of audi alteram partem comes into play, which makes it mandatory for any authority to provide an opportunity to a person, who is going to be affected adversely by its judgment or order.

7. Similarly the petitioners enjoy the fundamental right of freedom of trade, business or profession as enshrined in Article 18 of the Constitution of the country. The petitioners are, as per their assertions in their petition, are earning their bread and butter from the profession for which valid licences had been issued to them under the law, thus they may be deprived of their livelihood by increasing the licence fee at an exorbitant rate. The notification issued by the Government, on the one hand, advances the cause of promulgation of the Act itself but on the other hand it has decreased the number of licence-holders as is apparent from a report submitted by the Deputy Director Wildlife, Bahawalpur Range Bahawalpur, thus has substantially reduced the Government revenue as the persons remained involved in the business have been forced to leave profession and trade due to rise in the licence fee. In 2010 only 63 licences were issued by the Authority as compared to the year 2007 when 359 licences were issued. In this backdrop, it can be observed that the impugned notification is not only unjust and unfair but is also violative of fundamental rights and against the principle of natural justice, therefore, it cannot hold field any more.

8. For the foregoing reasons, this petition is allowed and the impugned notification dated 4-5-2010 is declared illegal, unlawful and of no legal consequences, accordingly is struck down. It may be observed at this stage that the competent authority is at liberty to enhance the licence fee after providing an opportunity of hearing to the stakeholders i.e. the licence holders, who have been affected by the impugned notification. KMZ/M-343/L Petition allowed.