ZAMIR AHMAD KHAN vs GOVERNMENT OF PAKISTAN AND Another

ORDER

1. ANWARUL HAQ, C. J.-This petition seeks a review of the Judgment of this Court dated the 3rd of December 1974, by which Civil Appeal No. 21 of 1973, was accepted, the judgment of the Division Bench of the Lahore High Court dated the 23rd of February 1973, was set aside, and the order of the learned Single Judge dated the 2nd of October 1972, dismissing the writ petition in limine was restored.

2. The writ petition bad been moved by the present petitioner to call in question the refusal by the Controller, Imports and Exports, Lahore to issue a licence in favour of the petitioner herein to import certain cinematograph films for which he had made an application on the 4th of August 1972, in accordance with the terms of the Import Policy Order, 1472, issued by the Federal Government on the 15th of May 1972. The films sought to be imported were covered by Item 49 in the Free List.

3. However, on the 9th of August 1972, the said item was amended in material respects, with the result that as from the date of the amendment cinematograph films could be im--ported from abroad only through an official agency to be named by the Ministry of Information and Broadcasting, and private importers were disquali--fied from importing the same. Consequently, the licensing authority declined to authenticate the licence in favour of the present petitioner.

4. Aggrieved by the refusal of the licensing authority the respondent moved a writ petition in the Lahore High Court which, as already stated, was dis--missed by a learned Judge in limine on the ground that the juristic right which the petitioner was claiming and seeking to enforce was dependent on the authentication of the licence, and that by merely applying to the licensing authority no right had accrued in his favour, such as could be enforced through the High Court. In appeal the Letters Patent Bench took the view that by applying on 4-8-1972 for a licence to import cinematograph films and complying with all the conditions in force on that date the petitioner had acquired a vested right to have his application authenticated within two days of the making of the application as contemplated in the Import Policy Order, and that the refusal by the licensing authority to authenticate the licence within two days of the submission of the application was without lawful authority.

5. Civil Appeal No. 21 of 1973, was preferred in this Court by the Government of Pakistan, and it was accepted on the 3rd of December 1974, on the view that the law is well settled that in the generality of cases a licence simpliciter is a privilege and not a legal right; much less there is a legal duty for its grant. Therefore, exceptional cases apart, mandamus would not issue in such matters. It was further held that in such cases the emphasis is on policy, and an discretion vesting in the authorities is directed towards attaining the policy' objectives. Under section 3(i) of the Exports Control Act, 1950, the Central Government enjoyed power of the widest amplitude to prohibit, restrict o control the import of goods. The decisions taken fall within the realm of policy making, and in all such cases orders made must conform to the policy decisions of the Government.

6. Accordingly, the amendment made on 9-8-1972, in Item No. 49 signified a change in policy and the petitioner was informed that he was being refused the licence because of the change in policy and not because of any other reason. On these facts ii was no possible to subscribe to the proposition that a writ of mandamus would lie against the licensing authority so as to have .The effect o defeating the policy competently made by the Federal Government.

7. Mr. Muhammad Nazar Khan, appearing for the petitioner, contends that in coming to the conclusion that the petitioner bad not acquired any vested legal right to have his application dealt with under the amended policy, the Court has overlooked its own decision in Pakistan and another v. S. Hussain Ali Shah A. Fazlani (PLD 1960 SC 310) and has also not correctly appreciated the ratio in Messrs Shamim Taxtile MilL, Lahore v. The Republic of Pakistan (PLD 1972 Lah. 572). He contends that the learned Judges of the Letters Patent Bench in the High Court had rightly held that the petitioner had acquired a vested right, which could not be taken away by the retrospective application of the amended policy.

8. It will be seen that the submissions made by the learned counsel for the petitioner, in fact, amount to an attempt at rehearing of the whole case, for the question raised by him has already been considered and discussed at length in the judgment under review, and answered against the petitioner. The power of review is not intended to permit a rehearing of the whole case.

9. As to the authorities referred to by Mr. Muhammad Nazar Khan, we find that the judgment of the Lahore High Court in case of Shamim Textile Mills was exhaustively discussed by the Court and the conclusion reached was that the facts of that case were rather peculiar, as it was not a case of the initial grant of the import licence, but a case of restoration of a licence which had been wrongfully cancelled by the Provincial Government. It was also observed that the observations of the High Court with regard to the nature of the right in dispute were rather widely worded, and must, therefore, be read as confined to the peculiar facts of the case and not laying down a general proposition. We do not see how it sap be said that this judgment was not properly construed and considered.

10. It is true that the other case referred to by Mr. Muhammad Nazar Khan, does not find mention in the judgment under review, but this was again a case where an import license had first been granted on the fulfillment of certain conditions, but it was later cancelled on the ground that the application for licence was not accompanied by a banker's certificate showing that the money earned by this film exported by the applicant bad been repatriated. In these circumstances the Court held that the licence granted was not mere act of discretion or unilateral act on the part of the Government.

11. It was granted in fulfillment of an undertaking, which imposed certain prior conditions 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 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 applicant.

12. It will be seen that these observations were not directly relevant to the question which had arisen in the instant case. Here the licence had not yet been granted before the Import Policy was changed, and, therefore, the true question was whether the making of an application alone on a certain date for the grant of the licence had created a vested legal right in favour of the applicant. The facts in the precedent case were entirely different, and the observations relied upon by the learned counsel for the petitioner have relevance to those facts, namely, that a licence had been granted at one stage and it was sought to revoke the same on a ground which was found to be in the nature of a pretext or an afterthought.

13. For the foregoing reasons we are of the view that no justification is made out for a review of the judgment delivered by this Court on the 3rd of December 1974. The petition, therefore, fails and is hereby dismissed.