Some more Pakistani Case Law - Miscellaneous

RIGHTS OF LICENSEES

2010 CLC 625 @ 628

Prima facie, legal right of the Petitioner under the licence agreement is of a limited nature as a licensee. The transitory nature of such a right is explained in Zaidi Enterprises v. C.C.A. PLD 1999 Kar. 181.

PLD 1953 Supreme Court (Pak) 41 @ 45

(g) License – definition and general nature.

In its specific sense, to license means to confer on a person the right to do something which otherwise he would not have the right to do. A License is in the nature of a special privilege rather than a right common to all, and is often required as a condition precedent to the right to carry on business or to hold certain classes of property within the jurisdiction.

American jurisprudence, volume 33, page 32.

(h) Constitution of Pakistan, Art. 12 – Regulation ( of trade) – meaning – licensing system – scope.

(per majority, judgment by Muhammad Munir, C.J.) The power to regulate means the power to limit and restrain at pleasure.

The power to regulate implies a power to foster, protect, control and restrain.

Where the constitution gives to the legislature the power to regulate trade, that power includes in it the power to limit and restrain.

If the constitution gives to the legislature the power to regulate a trade by a licensing system, it must follow that the power to prohibit vests in the legislature in so far as the trade under such system may only be carried on by the licensed persons or corporations.

[Page 45]

That Article is as follows:-

“Every citizen, possessing such qualifications, if any, as may be prescribed by law in relation to his profession or occupation, shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business’

Provided that nothing in this article shall prevent.

(a)                the regulation of any trade or profession by a licensing system, or

(b)               the carrying on, by the Federal or a Provincial Government or by a corporation controlled by any such Government, of any trade, business, industry or service to the exclusion, complete or partial, of other persons.

[Page 56]

In our constitution the right given by Article 12 has to be read subject to clause (a) of the proviso which expressly states that a trade may be regulated by a licensing system, and if the affect of a licensing system be prohibition as it was so held in Hughes’s case, then it follows that prohibition of a trade by a licensing system was contemplated by the farmers of the Constitution. The definition and general nature of a license is thus stated at P.32 of the 33^rd Volume of American Jurisprudence.

“In its specific sense, to license means to confer on a person the right to do something which otherwise he would not have the right to do. A license is in the nature of a special privilege rather than a right common to all, and is often required as a condition precedent to the right to carry on business or to hold certain classes of property within the jurisdiction.” [Page 60-61]

And Johnson, J. said in that case that the power to regulate means the power to limit and restrain at pleasure. In National Labour Relations Board V. Jones and Laughlin Steel Corporation (4) Hughes’s C.J. observed that the power to regulate implies a power to foster, protect, control and restrain.  [Page 61]

PLD 2011 Supreme Court 44 @ 101

Let we make it clear that “quid pro quo” literally means; “What for what; something for something”. According to the Black’s Law Dictionary this term is used in law for giving one valuable thing for another and further that it is nothing more than mutual consideration which passes between the two parties to a contract, and which renders it valid and binding.  [Page 101]

In so far as article 24 of the Constitution is concerned it recognizes as a matter of fundamental right and the sanctity of private property which is not the issue in question. Admittedly Pakcom is a Licensee which in our opinion is only an incidental right attached to a substantive interest it will not be property for the purpose of Article 24. In this regards reference can be made to case titled A.B. Awan V. Government of Punjab (PLD 1983 FSC 23).

PLD 2003 Lahore 73 @ 77

Art. 18 --- Power of the State to regulate trade, business or profession --- Scope.

The right to regulate businesses and functioning thereof is governed and regulated under a Licensing system which contained limitations/restrictions. The said Licensing system contained reference in the Article 18 of the Constitution of Islamic Republic of Pakistan, 1973.

REASONABLENESS

2000 CLC 170 @ 180

That in the matter of fee, the Government has always to offer an explanation vis a vis reasonableness and as long as there is reasonableness the requirements of quid pro quo get satisfied.

FEE AND TAX

2006 CLD 1523 @ 1532

It is clear that fee is charged for services rendered by the statutory functionaries and for the conferment  of a benefit or a privilege as well.

1999 M L D 3001 @ 3007&8

In view of the above we agree that a levy of this kind could be struck down if it was shown to be palpably unreasonable, unconscionable or confiscatory in nature. Nevertheless keeping in view relevant circumstances particularly the fact that the additional liability does not exceed 2 percent of the value of the imported goods, a privilege to import goods is conferred upon the license which is not available to other citizens and the burden is cast upon the more affluent section of the people, we find it difficult to hold the same exfacie unreasonable.