ABDUL GHAFFAR BHUNDI VS FEDERATION OF PAKISTAN, 2006 PTD-KARACHI-HIGH-COURT-SINDH 670 (2005)

(a) Customs Rules, 2001---

----Rr.103 & 104(3)---General Clauses Act (X of 1897), S.24-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Customs Agent Licence, suspension of---Misconduct, charge of---Impugned order bereft of any reason---Validity---Such order would be treated as arbitrary and result of misuse of authority vested in public functionary---No room existed for such arbitrary orders in any system of law---Material reflected in show-cause notice could not be read with impugned order---Impugned order would not be sustainable in law for being violative of basic principles of good governance and mandatory requirements of S.24-A of General Clause Act, 1897---High Court accepted constitutional petition and quashed the impugned order.

(b) General Clauses Act (X of 1897)---

----S.24-A---Order not containing any reason and showing its passing on objective consideration---Validity---Such order would be treated as arbitrary and result of misuse of authority vested in public functionary---No room existed for such arbitrary orders in any system of law.

Ch. Muhammad Iqbal for Petitioner.

S. Tariq Ali, Federal Counsel for Respondent No.1.

Raja M. Iqbal for Respondent No.2.

ORDER

The petitioner is proprietor of Messrs Bhundi Corporation, Karachi, and is engaged in the business of Customs Agent under Licence No.1256. The petitioner is aggrieved with the suspension of his licence through Circular dated 1-11-2005, which reads as follows:

"GOVERNMENT OF PAKISTAN APPRAISEMENT COLLECTORATE

CUSTOM HOUSE, KARACHI

No.APPG/LA/1-795/89(Part-II)Dated 1-11-2005

CIRCULAR

SUBJECT:- SUSPENSION OF CUSTOMS AGENT LICENCE NO.1256 OF MESSRS BHUNDI CORPORA TION, KARACHI

Prima facie there exists a case of misconduct against Customs Agent Messrs Corporation, Karachi Licence No.1256. The Licensing Authority, Appraisement, therefore, in exercise of powers vested in him under Rule 104 of Chapter VIII of Customs Rules, 2001 is pleased to suspend the operation of their Licence No.1256 with immediate effect and until further orders.

2. As such no document filed by Messrs Bhundi Corporation, Karachi Customs Agent Licence No.1256 be accepted/processed. The documents already filed/manifested shall, however, allowed to be processed, after submission of particulars of the same to Licensing section (A).

(Sd.)

(Rizwan Mehmood)

Assistant Collector of Customs

& Licensing Authority

(Appraisement)"

The contention of the petitioner is that the above circular is illegal, void being bald, without reason and violative of the fundamental rights guaranteed under the Constitution, as the petitioner has been condemned unheard and is also violative of the provisions contained in section 24-A of the General Clauses Acts, 1897.

The respondent No. 2, who issued the impugned order has filed the summary of the case and comments: On account of the order, which we intend to make presently, we would not like to hear the merits of the case at this stage. Along with the comments, the respondent No.2 has filed the copy of show-cause notice dated 23rd of November, 2005.

We have heard the learned Advocates for the parties.

We have asked the learned Advocates for the respondents, if the impugned circular conforms to the requirement of section 24A of the General Clauses Act, which reads as follows:

"24A. Exercise of power under enactments.---(1) Where, by or under any enactment, a power to make any order or give any direction is conferred on any authority, office or person such power shall be exercised reasonably, fairly, justly and for the advancement of the purposes of the enactment.

(2) The authority, office or person making any order or issuing any direction under the powers conferred by or under any enactment shall, so far as necessary or appropriate, give reasons for making the order or, as the case may be, for issuing the direction and shall provide a copy of the order or, as the case may be, the direction to the person affected prejudicially."

Mr. Raja Muhammad Iqbal, learned counsel for the respondent No.2 has submitted that the impugned order contains the reasons for suspension of the petitioner's licence, by it stating that prima facie there exists of case of misconduct against the petitioner. He has further submitted that the impugned order dated 1st November, 2005, is to be read with show-cause notice dated 23rd of November, 2005.

Mr. S. Tariq Ali, learned Federal Counsel has supported the impugned order and has submitted that the material was available with the respondent No.2, reflected in the show-cause notice for issuance of the impugned order.

We are not impressed with the contention of Mr. Raja Muhammad Iqbal, because, by no stretch of imagination a show-cause notice issued on 23rd of November, 2005 can be read with the impugned order passed on 1st of November, 2005. A bare perusal of the impugned order shows that this a bald order, bereft of any reasons, and does not conform to the mandatory requirements of section 24A of the General Clause Act, 1897. Any order which does not contain any reason and does not show that it is passed on objective consideration shall always be treated as arbitrary and result of misuse of the authority vested in the public functionary. There is no room for such arbitrary orders in any system of law.

The impugned order being violative of the basic principle of the good governance and mandatory requirements of section 24A of General Clauses Act, is not sustainable in law and is hereby quashed.

The petition is allowed accordingly.

However, we would like to observe that the respondent No.2 shall be at liberty to initiate proceedings in pursuance of the show-cause notice dated 23rd of November 2005 and shall be at liberty to pass any speaking order strictly in accordance with the provisions contained in Rules 103 and 104 of the Customs Rules, 2001.

S. A. K. /A-12/KPetition accepted.