1979 P Cr (PLP)

"Institution.-Meaning of the term "institution". According to the dictionary meaning the "institution" means "a body or organisation of an association brought into being for the purpose of achieving some object". Oxford English Dictionary defines an "institution" as "an establishment, organisation or association, institution for the promotion of some object especially one of public or general utility religious, charitable, educational, etc. "Other dictionaries define the same word as organised society established either by law or the authority of individuals for promoting any object, public or social." The learned counsel next relied on Jwitt's Dictionary of English Law, Vol. I, page 985, 1977 Edition. The word "institution" is defined-as under: - "Institution", laws, rites, and ceremonies enjoined by authority, as permanent rules of conduct or of Government; a society for promoting any public object, as a charitable or benevolent institution." In the Oxford Dictionary the expression "institution" is defined as follows: - "Institution".-An establishment, organization, or association, instituted for the promotion of some object, especially one of public or general utility, religious, charitable, educational, etc., e.g. a church, school, college, hospital, asylum, reformatory, mission, or the like ; as a literary and philosophical institution, a deaf and dumb institution, the Royal National Life-boat Institution, the Royal Masonic Benevolent Institution (instituted 1798), the Railway Benevolent Institution, etc. The name is often popularly applied to the building appro?priated to the work of a benevolent or educational institution." In Saunder's Words and Phrases Legally Defined. Vol. 111, p.' 67 the word "institution" means:- "It is a little difficult to define the meaning of the term "institution" in the modern acceptation of the word. It means. I suppose, an undertaking formed to promote some defined purpose having in view generally the instruction or education of the public. It is the body (so to speak) called into existence to translate the purpose as conceived in the minds of the founders into a living and active principle .........A public library may. I think, be properly called an "Institution" in that sense". [Manchester Corpn. v Mcadam, (1896) A C 500, per Lord Macnaghten, at pp. 511, 512]."

8. The learned counsel for the respondent asserted that the expression "institution" will have to be construed in the sense in which an ordinary person conversant with the word "institution" would use it in contrast to the expression "individual" or "person". According to him the expression, "institution" in the provision would cover an organisation or a society engaged in objects of general and public welfare including promotion of tourism. This would include trusts, societies, clubs and corporations set up by or with the aid or assistance of department of tourism of the Government or any other agency with the object of promoting tourism. He contended that the Government recognised clubs and organizations like Hotel Inter-Continental and Hotel Hilton as being engaged in providing multifarious services to the tourists and cater to a large number of foreigners providing them both boarding and lodging facility, apart from the provision for games and pastimes like golf, swimming pool, travellers requisites, small shopping centres, air passage booking facilities, foreign exchange, recreation and music provision for holding meetings, conferences, etc. The language of Article 17 of the Prohibition (Enforcement of Hadd Order, 1979 is suggestive of the anxiety of the law-giver to restrict the power to issue a licence which is now exerciseable strictly in respect o "any institution whether under the management of the Government or not". In other words persons may be licensed for and on behalf of o for the benefit of an "institution". The word "institution" is used in contradistinction of the word "person" who may be a natural or an artificial person. The word "institution" is not interchangeable with the word "Person", The language of section 17 leaves no room for doubt that the word "institution" is used in contradistinction to the expression "person" which means a natural or juristic person including a joint stock company. It is difficult to agree with the learned counsel that the petitioner company is an "institution" within the meaning of Article 17 for whose benefit a licence could be issued. Even if it be assumed that the petitioner is an "institution" the petitioner shall have to establish that it has a right to acquire a licence which is being unjustifiably denied.

9. The learned counsel for the petitioner relies on Montgomery Flour & General Mills' Ltd., Montgomery v. The Director, Fool Purchase, West Pakistan and 2 others (P L D 1957 Lah. 914); Ikram Bus Service and others v. Board of Revenue, West Pakistan and 2 others (P L D 1963 S C 564) ; Mian Fazal Din v. Lahore Improvement Trust, Lahore and another (P L D 1969 S C 223) ; Dr. A. N. M. Mahmood v. The Syndicate of the University of Dacca (P L D 1970 Dacca 85) and Messrs Shameem Textile Mills, Lahore v. The Republic of Pakistan through the Secretary, Ministry of Industries (P L D 1972 Lah. 572) to contend that subject to the fulfil?ment of the conditions laid down by law every person has a lawful right to acquire a licence under Article

17. According to him it is incumbent on a licensing authority to examine the claim of an applicant in accordance with law and where the applicant fulfils the requirement of law, the licensing authority must grant a licence. In this behalf he relies on Wade's Administrative Law, IInd Edition, p,-tie 148 and also 4th Edition of the same book at page 332 The learned counsel contended that the discretion to issue a licence is to be exercised by licensing authority reasonably, according to rules of justice and fair-play and ought not to be exercised arbitrarily or capriciously. He further relied on the following passage in Halsbury's Laws of England, 4th Ed. Vol. I, page 32 :- "Duty and Discretion" A statutory discretion is not, however, necessarily or, indeed, usually absolute ; it may be qualified by express and implied legal duties to comply with substantive and procedural requirements before a decision is taken whether to act and how to act. Moreover, there may be a discretions whether to exercise a power, but no discretion as to the mode of its exercise; or a duty to act when certain conditions are present, but a discretion how to act. Discretion may thus be coupled with duties. On the other hand, duty unaccompanied by any discretion requires action in a prescribed manner and form to be taken when the conditions precedent exist ; performance of such a duty is a mere ministerial act. The exercise of judicial powers overlays these distinctions, for, although there may be an enforceable ministerial duty to exercise a jurisdic?tion, a judicial body has a limited area of freedom to err in purporting to find facts and apply the law. In certain fields of public conduct, where the duties and powers of a public body in respect of an area of activity are intermingled and questions as to the civil liability of that body arise, it may be more appropriate to analyse that body's functions in terms of control rather than power or duty." The learned counsel further referred to pages 36, 86, 109, 118, 120, 130 and 133 of the same volume in support of the view. The learned counsel next relied on Syed Hadi Ali v. The Government of West Pakistan and others (P L D 1956 Lah. F24) where the following observations appear at page 838 "That even in respect of purely administrative acts there is a duty to act justly, fairly and reasonably, and if the order impugned be one which could not possibly have been passed by a person acting justly, fairly and reasonably, the order will be invalid in law. I am also of the opinion that the duty to act justly, fairly and reasonably necessitated the grant of an opportunity of explanation to the petitioner b3 the Provincial Government before passing the order in dispute," The learned counsel has drawn my attention to the following observations made by the Supreme Court in The Presiding Officer v. Sadrud Din Ansari and another (P L D 1967 S C 569) :- "That it is true a mandamus does not lie where a duty is purely dis?cretionary but from this it does not follow that a party upon whom the duty rests can exercise his discretion in any and every manner: The mere fact that there is an element of dis?cretion in the duty to be discharged is not by itself sufficient to exclude relief by way of mandamus, for, even a discretion must be exercised reasonably and honestly and not arbitrarily or capriciously or in bad faith."

10. The learned counsel for the respondent vehemently argued that the petitioner had no right to acquire a licence under the provisions of Article 17 of the Prohibition (Enforcement of Hadd) Order, 1979 and contended that there is no such thing as a "right to a licence" which is ordinarily in the nature of a privilege and in the discretion of the licens?ing authority. The learned counsel for the respondent relied upon Government of Pakistan through Secretary, Ministry of Commerce and another v. Zamir Ahmad Khan (P L D 1975 S C 667), which in fact is the latest pronouncement of our Supreme Court on this subject. In that case the Supreme Court had the occasion to consider the rights of an applicant for a licence under the provisions of the Imports and Exports (Control) Act, 1950 read with Import Policy Order, 1972. The Court examined a number of judgments including the cases reported as Shanrim Textile Mills v. The Republic of Pakistan (P L D 1272 Lah. 572) Montogomry Flour & General Mills Ltd. v. Director Food Purchases West Pakistan (P L D 1957 Lah. 914) and Ikram Bus Service v. Board of Revenue (P L D 1963 S C 564). The Court quoted with approval a passage from Warr v. London County Council ((1904) I K B 721) where it was held that "?a dispensation or licence, properly passeth no interest, nor alters or transfers property in any thing but only makes an action lawful, which, without it, had been unlawful e. g. a licence to hunt in a man's park and carry away the deer killed to his own use". It was held that the power to issue a licence vested in the Govern?ment being unabridged the Government was the sole arbiter of the exercise of executive authority and the decision taken by it in this behalf fall in the realm of "policy making". The Court expressed the opinion that a mere licence is revokable and where licence has been refused to the respondent, there is no question of any right being created in his favour. The Court observed: "It is wrong to suggest that the respondent had acquired any legal right for the grant of licence by merely applying for the same and deposit of the necessary fee licence remains a privilege until it is actually granted and is accompa?nied by a grant. In the instant case, licence has been withheld ab initio and, therefore, no legal liability is incurred and there is no further question whether licence was coupled with grant". After consideration of a large number of decisions delivered by the superior Courts in this country as well as abroad their Lordships recorded the opinion that "law is well settled that in the generality of cases, licence simpliciter is not a legal right; muchless there is a legal duty for its grant. Therefore, exceptional cases apart mandamus would not issue in such cases. The emphasis on policy and any discretion vested in the authorities is directed towards attaining the police objective. "Their Lordships quoted with approval the following observations from Halsbuy's Laws of England, 3rd Edition, Volume II, at page 100 . "The order of mandamus will not be granted against one who is an inferior or ministerial officer, bound to obey the orders of a competent authority to compel him to do something which is part of his duty in that capacity. Mandamus has accordingly been refused when it was sought thereby to compel a country treasurer to obey in order of quarter sessions; also when it was sought to compel a borough treasurer to pay the costs of a prosecution in obedience to the order of a Judge of assize or a Court of quarter sessions." Following with respect, the judgment of the Supreme Court in Government of Pakistan through Secretary, Ministry of Commerce v. Zamir Ahmad Khan I hold that the provisions of Article 17 of the Pro?hibition (Enforcement of Hadd) Order, 1979, do not confer any right on the petitioner to claim the grant of a licence and consequently the respondents are under no obligation to issue a licence to the petitioned.

11. The learned counsel for the petitioner vehemently argued that the action of the respondent in issuing licences to institution like Islamabad Club, Hotels Intercontinental, Lahore and Rawalpindi and Hilton Hotel and withholding the grant of the licence to the petitioner was mala fide. It is claimed that the petitioner has been in this trade since its incorporation in the year 1946 and before that the shareholders carried on the same business in the capacity of an association of persons. It is, however, admitted that no other vendor of liquor has been granted a licence under Article 17 of the Order. ' The learned counsel for the respondent repudiated the suggestion made by the learned counsel for the petitioner that action of the res?pondent in omitting to grant licence under section 17 of the Prohibition (Enforcement of Hadd) Order, 1979 was mala fide. The learned counsel contended that the expression mala fide was considered by the Supreme Court in the case reported as Federation of Pakistan v. Saeed Ahmad (PLD 1974 SC 150) where the following observations appear at page 170: - "Mala fides" literally means "in bad faith". Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to hurt the person against whom the action is taken or to benefit oneself. Action taken in colourable exercise of powers, that it to say, for collateral purposes not authorised by the law under which the action is taken or action taken in fraud of the law are also mala fide. It is necessary, therefore, for a person alleging that an action has been taken mala fide to show that the person responsible for taking the action has been motivated by any one of the considerations mentioned above. A mere allegation that an action has been taken wrongly is not sufficient to establish a case of mala fides, nor can a case of mala fides be established on the basis of universal malice against a particular class or section of the people. Thus action taken, for instance, to acquire lands or take over industries or banks on the basis of a policy intended for introducing a more socialistic system cannot be characterised as action taken mala fides. But in order to make out a case of mala fides an indivi?dual must establish that his land was taken not for the pur?poses authorised by the law but for the personal aggrandisement of the person empowered with the power to make the order of acquisition, or because the person so authorised to take action bore any personal grudge against the person in respect of whose lands or properties action has been taken." The learned counsel for the respondent maintained that the mere fact that the Government in the exercise of its discretion did not grant a licence to the petitioner is no ground to contend that the act was mala fide when the petitioner is not in a position to show that 'any other person possessing similar qualifications has been granted a licence for vending liquor.

11. There is little doubt that in the context of the prohibition con?templated by articles 3 and 4 of the Order the number of bona fide con?sumers is bound to be small and that while a non-Muslim foreigner who is entitled to consume liquors at his volition may purchase liquor from the licenced institution the non-Muslim national of Pakistan is entitled to consume or possess liquor only upon satisfying the pre-condition of consumption of such liquor "as a part of a ceremony prescribed by his religion".

13. The learned counsel for the petitioner was unable to show that any religion enjoined or encouraged its followers to use liquor as apart of religious ceremony. He attempted to rely on a certificate from the Priest of Partis stating that it is customary for the Parsis to consume liquor during Nauroz celebrations. The certificate, however, falls short of the statutory requirement of use of liquor as a part of religious ceremony. It was open to the State in view of the extremely limited scope o consumption of liquor-to issue such restricted number of licences as the Government considers necessary for tile purpose of Article

17. Thus while distilleries, chemical, pharmaceutical and other industrial companies may be issued licences keeping in view their legitimate requirements for a bona fide medical, scientific industrial or similar other purpose, the vendors and shop-keepers can hardly claim that privilege because they have not to meet the requirements of a business which they are licensed to carry on but are supposed to cater to the requirements of consumers of liquor only. In the context of this state of law it seems that it was legitimate for the Government to make such restricted arrangements as it may consider necessary or reasonable to meet the requirement of non-?Muslim foreigners and the occasional requirements, if any of non-Muslim Nationals of Pakistan. Rule 12 of the Punjab Prohibition (Enforcement of Hadd) Rules, 1979 framed by the Provincial Government under Articles 21 and 31 of the Prohibition (Enforcement of Hadd) Order (P. O. 4 f 1979) enables the Prohibition Officer to issue non-renewable permits to a non-Muslim foreigner for purchase and possession of specified quantity of intoxicating liquor for personal consumption at his residence or a hotel room in his occupation. Likewise non-renewable permits may be issued to a non Muslim citizen of Pakistan not below the age of 21 years to enable p him to purchase, possess or consume such quantity of intoxicating liquor at or about the ceremony prescribed by his religion as does not exceed the quantity specified in the permit. The law thus contemplates a strict control on the ability of a non Muslim foreigner and a non-Muslim citizen to purchase and possess liquor.

14. The learned counsel for the petitioner next urged that the arrangements made for the distribution of liquor for consumption by non-?Muslim consumers were grossly inadequate. He contends that places like Hotel Inter-Continental and Hotel Hilton were hardly meant for poor strata of society. The learned counsel was however unable to substantiate his allegation by showing that the prices charged by these licences which the respondent claims to be controlled by it were, in any manner, exces?sive. In fact no specific case of hardship was brought out. To my mind the question has to be examined in the light of the language of the prohibitory provisions of the Prohibition (Enforcement of Hadd) Order, 1979: The strict control on distribution of liquor for human consumption appears to be in accord with the mischief sought to be suppressed. I am of the view that before a non-Muslim National may be aggrieved of the arrangements made by the Provincial Government to ensure distribution of liquor he shall have to establish that he is entitled to consume liquor as a part of religious ceremony. The petitioner is a Joint Stock Company having an artificial personality but undoubtedly is incapable of either possessing any religion or even the ability to consume liquor and would for that matter have no locus standi to challenge the licensing arrangements.

15. For the foregoing reasons the writ petition fails and is dismissed with costs. Petition dismissed.