P L D 1963 (W (PLP)

SARDAR MUHAMMAD IQBAL, J.-This is a petition challenging the order of the Commissioner, Lahore Division, dated 28th December 1961, whereby the licence granted to the petitioner for running a beef shop was cancelled, and the petitioner has asked for the quashing of the said order by a writ of certiorari.

2. The relevant facts are that the petitioner applied on the 17th September, 1960, for the grant of a beef licence, in village Uttoki Awan. The Deputy Commissioner (respondent No. 2) sought the report of the. Assistant Director, Animal Husbandry, who was to consider the application in the light of the livestock position of the district, as also keeping in view the larger interests of the maintenance and preservation of cattle wealth in the Province. The Assistant Director recommended that the petitioner be issued a beef licence. The Deputy Commissioner thereupon granted a beef licence to the petitioner on the 5th November 1960, for village Uttoki Awan. Respondents Nos. 3 to 6 and one Allah Ditta held beef licence No. 53/LC for Jallo Mor, which they had been granted on the 15th December 1953. Earlier all of them held five different licences. The Additional Deputy Commissioner (G), Lahore, by his order dated the 16th December 1953, consolidated these five licences into one licence in the name of respondents Nos. 3 to 6 and Allah Ditta. It was expressly provided that no new licence could be issued or transferred (to Jallo Mor) from any other place and this condi tion was incorporated with a view to safeguarding the interests of the respondents. They felt aggrieved by the order of the Deputy Commissioner, dated the 5th November, 1960, aforesaid, and submitted a representation to him (the Deputy Commissioner) on the 26th November 1960. Earlier, when licence No. 122/LC of one Shah Muhammad had been transferred to village Uttoki Awan, respondents Nos. 3 to 6 had represented to the Deputy Commissioner against that transfer as well. Before any decision could be taken, Shah Muhammad died and their representation, dated the 11th October 1958, was filed on the 29th January 1959. The Deputy Commissioner, Lahore, however, issued a directive to the Assistant Director, Animal Husbandry, Lahore, that since the beef licences of the respondents had been combined into one licence No. 53/LC, and they had been given an assurance that no other beef licence would be transferred to Jallo Mor, it should be noted that no beef licence in future was to be recommended for or near Jallo Mor. The respondents in their representation dated the 28th November, 1960, brought out all these facts. The Deputy Commissioner, however, by his order dated the 10th December, 1960, rejected their representation.

3. The respondents filed a revision petition under rule (v) of the Slaughter of Kine Rules (issued under section 4 of the Punjab Laws Act of 1872). It was specifically asked in that petition that the beef licence granted to the petitioner on the 5th November 1960, be cancelled and in the alternative all the five licences which the respondents once held separately be restored to them and they be permitted to carry on business in five different licensed shops instead of one. The Commissioner, by his order dated the 28th December 1961, directed as follows :- "Respondent is absent despite service and the appeal is accepted in view of the Deputy Commissioner's own letter mentioned in the appeal". The Deputy. Commissioner, Lahore, in pursuance of the order of the Commissioner (respondent No. 1), cancelled the licence of the petitioner and ordered that the shop of the petitioner in village Uttoki Awan be closed. The police enforced this order, as a result whereof the petitioner was restrained from using his shop for selling beef.

4. A report as to the allegations made in the writ petition was called for from the respondents. The Commissioner, Lahore Division, respondent No. 1, stated in paragraph 10 (2) of his report:- "The orders attached as Annexures A and B (these are the orders of the Commissioner himself) clearly indicate that the petitioner cannot continue his beef business at village Uttoki Awan, i.e., near Jallo Mor. It does not mean that the licence of the petitioner has been cancelled."

5. It was contended by the learned counsel for the petitioner that a reading of the order of the Commissioner, dated the 28th December 1961, showed that the Commissioner did not apply his mind at all in deciding the proceeding pending before him, and to substantiate his plea he urged- (a) That the respondents had filed a revision against the actual grant of a licence to the petitioner. The Commissioner, however, considered that the respondents had filed a revision petition against the order of the Deputy Commissioner whereby the application of the respondents objecting beforehand to the grant of a licence to the petitioner was rejected. Neither any such revision petition was filed, nor was one competent ; (b) that the Deputy Commissioner passed an order granting 'the licence to the petitioner on the 5th November 1960. The respondents' objections to the grant were rejected on the 28th November 1960. The learned Commissioner was under the impression that the objections of the respondents were rejected on the 4th November 1960 ; (c) in paragraph 4 of the order, the learned Commissioner observed that the appeal was accepted, although no appeal was competent nor one had been filed ; only a revision petition was pending before him; and (d) he could only accept the revision petition against the grant of the licence and cancel the licence : he, however, observed in his report that he only ordered the petitioner not to continue his business in village Uttoki Awan, which did not, according to him, mean that the licence of the petitioner had been cancelled. This according to the petitioner showed his complete ignorance of law.

6. In order to appreciate the contentions raised by the learned counsel for the petitioner, the relevant provisions of the Slaughter of Kine Rules are reproduced: "V. All orders of a Deputy Commissioner

(3) licensing any shop for the sale of beef or refusing to licence the same or withdrawing the licence ;

shall be open to revision by the Commissioner of the Division of his own motion or on application by any person interested and may be modified or cancelled by him, and the Local Government may require the Commissioner "to modify or cancel all such orders or may itself modify or cancel all such orders passed by the Deputy Commissioner or passed by the Commissioner in revision. Effect shall be given to a revised order under this rule as if it had been an original order."

7. A reading of these rules will show that a licence for the slaughter of kine is not given to an individual but only a shop is licensed by the Deputy Commissioner for the purpose of selling beef. The Deputy Commissioner, without giving any reasons, can in his discretion refuse to grant a licence and also by an order in writing withdraw any licence which he considers superfluous or objectionable. The Commissioner can, in the exercise of his revisional powers, modify or cancel the licence of any shop for the sale of beef or refuse or to licence the same. ,,

8. It is clear that in the instant case, the Commissioner under rule (v) could only cancel the licence of this shop and had no jurisdiction beyond that. The Commissioner, therefore, has obviously not applied his mind to the facts of the case before him and the law applicable thereto. The tenor of his order shows him to be under an impression that the grant of the licence was for the person and not for the shop -and that in the exercise of his revisional jurisdiction he could order a person not- to sell beef at a particular place without in any way cancelling the licence. This is contrary to the rules reproduced above. I have, there fore, no doubt that the Commissioner under the circumstances) failed to exercise the jurisdiction vested in him and his order is no order in the eye of law. There are also other errors patent on the face of the order and the learned Commissioner failed to apply his mind to the scope of the revision petition with which he, was dealing. He failed to consider that it was directed against the grant of a licence and instead thought that it was against an order rejecting the prior representation of the respondents, although no such petition was competent.

9. Learned counsel for the State frankly conceded that the order was defective and could not be sustained He, however, contended that it was an executive order and the Commissioner was not performing any quasi-judicial functions for the reason that the petitioner had, no legal right in the licence. He, there fore, argued that notwithstanding the fact that the Commissioner's order was no order in the eye of law, we were not competent to grant any relief in respect thereto.

10. Whether or not the Commissioner was performing quasi judicial functions, we can, under Article 98 of the Constitution. declare that the proceedings taken by him are without lawful authority and are of no legal effect and can further direct that he should act in compliance with rule (v), which he is required by law to do. Clauses (2) (a) (i) and (ii) of Article 98 are reproduced below :- - "(2) Subject to this Constitution, a High Court of a Pro vince may, if it is satisfied that no other adequate remedy is provided by law- (a) on the application of any aggrieved party, make an order- (i) directing a person performing in the Province functions in connection with the affairs of the Centre, the Province or a local authority to refrain from doing that which he is not permitted by law to do, or to do that which he is required by law to do ; or (ii) declaring that any act done or proceeding taken in the Province by a person performing functions in connection with the affairs of the Centre, the Province or a local authority has been done or taken without lawful authority, and is of no legal effect."

11. This Article makes no distinction between administra tive, judicial or quasi-judicial orders. Even if the order be assumed to be purely administrative, I am in no doubt that in the present case we can grant relief under this provision of the Constitution, although the writ petition was filed before the `commencing day'. This Article only provides a new remedy and in no way creates or affects any rights vested in any indivi dual. If a person had a right in himself and some wrong respecting it had been committed before the commencing day, of the Constitution and the wrong is a continuing one, the same, in my opinion, can be remedied under Article 98 of the Constitu tion. If the petitioner for any reason had not been able to file the writ petition till after the Constitution had come into force, no one could validly object that he could not seek a relief through Article

98. Article 98 is in this respect retrospective in operation and can be invoked in all cases where a person can show that he had a right which had been infringed before the Constitution came into force. The provisions of the Constitution creating rights for the first time will, on the other hand, not be retrospective and rights under those provisions cannot be claimed in respect of facts or circumstances which existed before the Constitution came into force. The principle governing the retrospective operation of a statute is explained by Maxwell in his work "on the Interpretation of Statutes" as: "No statute should be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act or arises by necessary and distinct implication."

12. In those enactments which affect only procedure the general principle is that they are retrospective unless the contrary intention appears from the context. I may again with advantage, quote Maxwell, where the principle is given at page 226 in these words: "When the Legislature gave a new remedy by the Admiralty Court Acts of 1840 and 1861 for enforcing rights in the Admiralty, those Acts were held to extend to rights which had accrued before the new remedy had been provided." This principle was also enunciated in Colonial Sugar Refining Company v. Irwing (1905 A C 369), that while provisions of the statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have restrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. According to this decision, some provisions relating to procedure would not be retrospective when, if so applied, they might deprive some orders of the finality which they had gained before the statute came into force.

13. Applying the test in the Colonial Sugar Refinery's case, Article 98 is by all means retrospective in effect. It affords a new method of an extraordinary character for the enforcement of legal rights. A very wide and new jurisdiction has been C conferred on the High Court to remedy all possible kinds of injustice, where there is no adequate remedy under the ordinary law. This Article has created no substantive right but only pro vided a new form of remedy through the High Court.

14. Under the late Constitution the power to issue writs was given by Article

170. A similar power in the Indian Con stitution exists under Article

226. Questions arose in different Courts of Pakistan and India whether these provisions were retrospective in operation. It was the consistent view that the provisions of the Constitution, namely, the fundamental rights which became operative only land from the date of the Constitution, were not retrospective and that therefore no person could challenge any act which took place before the Constitution as one in violation of fundamental rights. On the same premises it was held that no writ could be issued. Since the fundamental rights were held to be prospective and not retrospective, there was no question of the issuance of a writ in respect of them for something which was done before the enforcement of the Con stitution. Provisions dealing with writ jurisdiction, on the other hand, were held to be remedial and as such retrospective in operation. The principles laid down in those judgments are equally applicable to the interpretation of Article 98.

15. I find myself in respectful agreement with the dictum of Kayani, J., in Salamat Ali Jafri v. The Province of West Pakistan (P L D 1956 Lah. 458), where the learned Judge, with reference to Article 170 of the Constitution observed :- "Where a statute creates a new right, it operates prospec tively. Where it provides a new remedy for an existing right, its operation is retrospective. Section 223-A Government of India Act merely provides a new remedy for existing rights. Article 170 of the new Constitution of Pakistan, which contains a provision corresponding to section 223-A is still more extensive in scope. It gives power to High Courts to issue `directions, orders or writs . . . . for the enforcement of any of the rights conferred by Part II and for any other purpose.' The rights in Part II are fundamental rights and to that extent Article 170 cannot be retrospective, but for other purposes envisaged by Article 170, only, a new remedy, as in section 223-A, has been devised."

16. The decision in Salamat Ali Jafri's case was approved by the Supreme Court in Muhammad Tufail v. Abdul Ghafoor (P L D 1958 S C (Pak.) 201), and their Lordships observed :- "There is no quarrel with the propositions of law contained in them that a right which has accrued to a party could not be destroyed by subsequent legislation, unless it was expressly made applicable retrospectively. In the present case, we are not confronted with such a position. All that is material for our purpose is to ascertain whether an illegal order or an order made without jurisdiction ceased to suffer from this infirmity before section 223-A was restored on 3rd of October 1955. If it did not, there is no question of taking away any right, because no right is conferred by an order which in law could not be made. "The order of Syed Ejaz Hussain Shah of 8th of February 1955, having been found to be without jurisdiction and not in accordance with the provisions of the Ordinance, the only question that needs consideration is : What remedy is now available to set it right? It has been indicated above that there was nothing to prevent a Civil Court from declaring that the order was not under the Ordinance or beyond it. This course was not availed of. The aggrieved party, on the other hand, invoked the writ jurisdiction of the High Court and it has not been shown that it could not be so invoked. It may not have existed at the time the impugned order was made, but the " illegality was there and the High Court was invested with the powers to remove it. In Salamat Ali Jajri v. The Province of West Pakistan and others, the learned Judges of the High Court rightly held that `section 223-A, Government of India Act merely provides a new remedy for existing right ; it may, therefore, have retrospective effect'." A similar view was taken in Hindustan Motors Ltd. v. Union of India (A I R 1954 Cal. 151), with reference to Article 226 of the Indian Constitu tion and it was observed: "The Article has created no substantive right, but only provided a new form of remedy through the High Courts, which might well have been done by an act of the appropriate legislature or Legislatures. It follows that where the right asserted or the liability denied is one under the ordinary laws of the country and not one arising out of the Constitution, and as assertion or denial has taken place, after the Constitution has come into force, it cannot be said that the application of Article 226 is excluded by the fact that such right or liability originated before the commencement of the Constitution. If there is a present threat, there is no reason why the present remedy under Article 226 should not be available and where the threat is based on a right, claimed to have arisen under one of the ordinary laws of the country, at some date prior to the Constitution, I can see no reason why Article 226 cannot reach out to that date to see if the right is in accordance with the law, said to warrant it."

17. The Commissioner in this case passed the order before the " commencing day " of the Constitution. The order of the Commissioner has no legal sanctity. It does not affect the licence already granted to the petitioner. In fact the Commissioner himself is of the opinion that he had not by his order cancelled the licence. The petitioner, therefore, is deemed to be a licensee and will be entitled to sell the beef in his shop until the licence is determined in due course of law. The impugned order was passed prior to the commencement of the Constitution, but it interferes with a right in praesenti of the: applicant.

18. The mischievous effect 'of the illegal order gives a sort of continuing cause of action. The petitioner here does not claim that any substantive right created for the first time by the Constitution has been violated. What he claims is that the order challenged in this petition is no order in the eye of law. It was, therefore, be idle for any person to contend that the remedy provided under Article 98 of the Constitution cannot be invoked for the protection of a right which was affected illegally under the existing rule prior to the Constitution. An ultra vires order furnishes a cause of action at any time after the making of it. I am, therefore, of the opinion that in the exercise of the compre hensive power of superintendence over the authorities which are bound to act according to law, we can take action under Article 98 in respect of the impugned order of the Commissioner. We are, therefore, competent to declare that the order of the Commissioner is without lawful authority and of no legal effect, and can further direct that he shall decide the revision petition filed by the res pondents 3 to 6 after fully complying with rule (v) of the Slaughter of Kine Rules.

19. Be that as it may, even if this petition is to be decided under the Laws (Continuance in Force) Order, 1958, I feel no difficulty in giving relief to the petitioner against the impugned order. It was contended by learned counsel for the respondent that the petition was filed under the Laws (Continuance in Force) Order and, that being so, only a writ specified therein could be issued. According to him, it is only by a writ of certiorari that this order could be quashed. He, however, contended that such a writ could not be issued for the following reasons: (a) That the petitioner was only a licensee and that being so; he had no right in the licence and in the absence of a clear right vested in him, no writ of certiorari could legally be issued ; (b) That the Commissioner was acting in an executive capacity and was not performing any judicial or quasi-judicial functions, and for that reason he was not subject to the superintendence of the High Court which could consequently not issue any writ.

20. It is almost an undisputed proposition of law that no person has a right to the grant of a licence. In case one is refused a licence he cannot complain against it, and cannot ask for a writ of certiorari to have the order of refusal quashed. The Deputy Commissioner in this case had the discretion to grant the licence or, without assigning any reasons, refuse it. The refusal by him would not have furnished tile petitioner with any cause of action. The petitioner, however, had been granted a licence. He, therefore, became vested with a legal right in it. It was so held in Franklin v. Minister of Town and County Planning (1948 A C 87), where it was observed that an applicant for a new licence had no right to its grant because by statute Justices granted licence to such persons as they in the exercise of their discretion deemed fit and proper. In their Lordships' opinion, an applicant for a new licence had no right and a question of legal right could not arise. It was, however, laid down in categorical terms that " after he gets the licence he has a legal right because the Tribunal has created it." The view of the House of Lords was cited with approval in Tariq Transport Co., Lahore v. Sargodha Bhera Bus Service (P L D 1958 S C (Pak.) at 437, 459). The licence undoubtedly created a right in the petitioner. He by virtue of that was permitted to carry on his business of selling beef, which he otherwise could not do. After a person is given a licence for a particular business and thereby to profit by it is by all means a right and there is no scope for thinking to the contrary. I am otherwise respectfully bound by the decision of the Supreme Court on this point and feel no hesitation in rejecting the plea of the learned counsel for the respondents that the petitioner has not a justiciable right in his licence.

21. The contention of learned counsel for the respondents that the High Court could not interfere with an order passed by the Commissioner in an executive capacity is equally devoid of force and cannot be accepted. To repel his contention I may with advantage quote from the Tariq Transport Co., Lahore v. Sargodha-Bhera Bus Service (P L D 1958 S C (Pak.) 437 at 462) " The conclusion to be deduced from this discussion is that where an administrative or executive officer acts under a law, the High Court will control the action by an appropriate order if he: (a) goes out of the law, that is, exercises a jurisdiction not vested in him by law ; (b) wrongly denies or omits to exercise a jurisdiction ; and (c) where the law under which he acts prescribes the manner in which he is to act, materially departs from that law. But the over-riding requirement in all the three cases is that the excess or denial of jurisdiction or the irregularity in the pres cribed procedure should have injuriously affected some justici able right of a party."

22. The Commissioner under rule (v) of the Slaughter of Kine Rules was required to exercise a power vested in him by law. He failed to do so. Even if he has acted in an executive or administrative capacity, his action, in view of the Supreme Court decision, is subject to our control. If there had been any doubt as to the jurisdiction of the High Court in this context it was set at rest in Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak (P L D 1959 S C (Pak.) 45) wherein it was laid down that the maxim audi alteram partem-" no man shall be condemned unheard " applies to judicial as well as administrative bodies, especially where the proceedings taken may affect a person or property or other rights of the parties concerned in the dispute. I see no diffe rence between that case and the present one. A writ of certiorari is competent where there is an error apparent on the face of the' record or the principles of natural justice are violated. Whereas in the case of principles of natural justice the injury to a person's property or right is caused by an authority by not affording an opportunity to the persons so affected, the injury in a case like this, where the order does not conform to the law at all, is also caused to the person who is deprived of a right in a manner which is not according to due process of law. If an order can be quashed for violation of the principles of natural justice, there is, a fortiori, no reason why it cannot be quashed when there is a violation of law.

23. Even if, strictly speaking, the remedy by way of a writ of certiorari had not been available we could still, in the exercise of our writ jurisdiction under the Laws (Continuance in Force) Order, grant a relies' in terms as was suggested by his Lordship Mr. Justice S. A. Rehman in similar circumstances in Faridsons Ltd. v. Government of Pakistan (P L D 1961 S C 537) which is - " In the alternative, if that writ (it refers to a writ of certiorari) is strictly not available, I would be disposed to treat the orders of the Chief Controller, as inoperative in law and would issue a mandamus . . . . . . " A mandamus in the present case would be to direct the Commis sioner to hear the revision petition of the respondents Nos. 3 to 6, and dispose of the same in accordance with law. His Lordship, Mr. Justice A. R. Cornelius, (as he then was and now the Chief Justice of Pakistan) in the same case observed:- " The defect lies in the failure of statutory authority to act in the manner required by the statute. The ground is thus laid for the issue of a writ of mandamus to that authority to comply with its duty in the relevant respect, declaring the order already made to be void for non-conforming with the statute."

24. I have, however, no doubt in my mind that in the cir cumstances of the case, a writ of certiorari to quash the impugned order of the Commissioner can be validly issued. In Nakhuda Ali v. Jairatne (P L D 1951 P C 102), it was held by their Lordships of the Privy Council that it was not enough that a body should have legal authority to determine questions affecting the rights of the subjects and that there must be superadded to it a duty ` to act judicially '. The Controller of Textiles in Ceylon had cancelled a licence granted by him. The Controller, however, under the law, could cancel the licence only on reasonable grounds. The cancellation of the licence was held to be an executive and not a judicial action. In view of the decision of the Judicial Com mittee, it could be urged that the cancellation of the licence in the present case was not a judicial act and could therefore not be controlled by a writ of certiorari. Their Lordships of the Supreme Court in Faridsons Ltd. v. Government of Pakistan dissented from that view, and it was observed by Mr. Justice S. A. Rahman, as under:- " Be that as it may, the dictum of the Privy Council laid down therein that it was not enough that a body should have legal authority to determine questions affecting the rights of subjects and that there must be superadded to it a duty ' to act judicially' seems to run counter to a long line of decisions in the English Courts, extending back for more than a century, in which administrative decisions affecting individuals' rights and liberties were quashed if the party concerned had not been given a fair opportunity to make objection . . . . . ". His Lordship Mr. Justice A. R. Cornelius, in the same context observed: " But on the general question, I agree with my learned brother S. A. Rahman, J., that the view of the Judicial Committee (I say so with great respect) goes too far in restricting the power of the superior Courts to control actions of the Executive under statutes which plainly import the performance of a quasi judicial act." The facts in Faridsons' case were that the registration certificate of the appellants had been suspended under clauses 4 (1) (b), (c) and (g) of the Registration (Importers and Exporters) Order, 1952. They sought a writ of certiorari for quashing the orders of the Chief Controller of Imports and Exports by which the import registration certificates were suspended. The High Court dismissed the writ petition and held that the Chief Controller in the matter was not required by law to act judicially. The Supreme Court accepted the appeal and quashed the orders of the Chief Controller of Imports and Exports by a writ of certiorari and directed him by a writ of mandamus to make a fresh order after giving the affected companies a hearing in accordance with the relevant law.

25. In these circumstances I would hold that the order of the Commissioner (respondent No. 1) dated the 28th December 1961, has no existence in the eye of law and we direct that a writ of certiorari should issue to quash this order, whereby the licence of the petitioner was withdrawn. I would further issue a writ of mandamus to respondent No. 1 to hear the revision petition filed by respondents Nos. 3 to 6 and pass an order in accordance with the provisions of rule (v) of the Slaughter of Kine Rules. No order as to costs. ORTCHESON, J.-I agree with the order proposed by my learned brother. A. H.