P L D 1960 Supreme Court (Pak (PLP)

CORNELIUS, C. J.-This petition by the Government of Cornelius, Pakistan and the Chief Controller of Imports and Exports seeks special leave to appeal against an order of the High Court of West Pakistan directing issue of a writ of mandamus to the petitioners directing them to issue to S. Hussain Ali Shah A. Fazlani a licence which had been granted to him on the 12th September 1957, but had been cancelled, without cause shown, on the 25th November, 1957. The licence had been issued under powers for control of import of goods, and had the effect of permitting the respondent to import into Pakistan from India, within a period ending on 14th July 1958, a commercial cinema film, entitled " Naya Andaz." The licence was granted not in mere exercise of the afore said powers of control, but in pursuance of declared policy of the Government, which was in force and operation at the relevant time, and it appears continued upto the 31st January 1960, and was expressed as follows in a public notice dated the '16th November 1955, by which applications were invited for the import of Indian films :- " (6) In West Pakistan import licences will be granted to persons who after the issue of this notice, export Pakistani films to India with the approval of the C. C. I. & E. The value of import licence will depend on the sale proceeds of the Pakistani films exported)." The respondent had exported a cinema film produced by himself, entitled " Umar Marvi " to India in August 1956, but there had been some delay in repatriating the proceeds of the sale, which were eventually received by a Bank in Karachi on the 21st February 1957. The authorities furnished no explanation to the respondent for their act of cancellation of the import licence, which had been issued to him some seven months after the foreign exchange earned by his film in India had been repatriated. He made representations to the President and to the Minister-in-charge, without success. At the hearing of the writ petition, which he then brought to secure his rights, the plea put forward was that his application for an import licence had not been accompanied by a Banker's certificate showing that the money earned by the film he exported had been repatriated. The learned Judges in the High Court held that the scheme of exchange through trade channels of commercial films between Pakistan and India had been continued, with extensions, but without interruption, upto the 16th January 1960, and there was no force in the contention that when the respondent made his application, the last date for import of Indian films was the terminal date of expiry of the trade, agreement then in force, viz. the 31st August 1956, by which date the proceeds of sale of the exported film had not been received in Pakistan.They expressed the opinion that the Government, by issuing the import licence long after the 31st August 1956, must be deemed to regard the submission of a Bank certificate along with the application as not being sine qua non.As to the argument that no legal right to the grant of an import licence had been made out, the learned Judges noted that it was only upon fulfilment of certain conditions by the petitioner that he became entitled to, and was granted, the import licence which was later cancelled, and observed : " Having acted upon the invitation of the respondents and having fulfilled the conditions which involved financial commit ments, he did acquire a legal right to an import licence of equivalent value." Accordingly, the writ was issued requiring that the cancelled icence should be restored to the respondent " with necessary odification as to the period of validity." We agree entirely with the views of the learned Judges. The pretext of non-compliance with the rule requiring submission of Bank certificate with the import application is clearly an after thought, and in the light of the fact that a licence had actually been issued, after proof of the receipt of the sale proceeds of the respondent's film from abroad, it would appear to be merely colourable. The licence granted was no mere act of discretion or unilateral act on the part of the Government. It was granted in fulfilment of an undertaking, which imposed certain prior cond tions upon the applicant, which conditions he had fulfilled, and thereby there had accrued in his favour, something in the nature of a legal right to an import licence of equivalent value. That Pakistan right had been respected, and in so doing the Government had performed no bare uncontrolled act of discretion under their powers, but had exercised the relevant power as a matter of obligation in favour of the respondent. Consequently the issue of the writ was in order, and seeing no ground for interfering with it, we dismiss this petition. Petition dismissed