21/03/2021
اسلحہ لائسنس کی منتقلی کے بارے لاھور ہائیکورٹ کا تفصیلی فیصلہ۔
2021 LHC 581
W.P. No. 2051/2019
Syed Yasir Hassan vs Home Secretary etc.
19.02.2021
Mr. Omer Farooq Khan, Advocate for the petitioners.
Mr. Fayyaz Ahmad Mehr, AAG with Tahir Farooq, Section Officer, Home Department, Lahore.
Through this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 petitioner has challenged the order dated 12.12.2018 passed by respondent No.2/Additional Chief Secretary (Home) with the further prayer to allow the application of the petitioner dated 16.01.2016 and transfer the license No. 19-x-1983 dated 08.08.1983 issued by the District Magistrate, Lahore in the name of the petitioner No.1 as petitioner No.2 has no objection.
2. Brief facts giving rise to the filing of this Constitutional petition are that on 06.11.2006 petitioner No.1 entered into partnership agreement with petitioner No.2 whereby the later transferred his license of the business in the name of “Sports Arms” to the petitioner No.1 while retaining the rights of only 1% of the profit.
The petitioner No.2 also executed power of attorney in favour of petitioner No.1 of selling arms, ammunitions, exchange the license etc. Ever since, the petitioner No.1 had been conducting the business successfully and also been paying the yearly renewal fee and taxes. Meanwhile, the address of the licensee was also changed to 16 YMCA Building, Mall Road, Lahore and the new name was given as “Arsenal Company”. Additionally, he was appointed as Sales Agent on 16.10.2006, before the said agreement was executed. In the year 2014, The Punjab Arms License Rules, 2014 were promulgated and in view whereof, the petitioner filed application on 14.01.2016 for the transfer of license in his name. A report was requisitioned by respondent No.2 from respondent No.3; i.e. Home Department on the transfer of the arms business whereupon respondents No. 4 to 7 i.e. Deputy Commissioner, CCPO, SP Civil Lines Division, Sub-Registrar Data Ganj Bakhsh Town, Lahore issued the NOC. Surprisingly, on 23.05.2018 petitioner No.1 was called by respondent No.2 who directed him to appear before respondent No.8/Assistant Commissioner (City) Lahore where he explained his view that since he had applied for the transfer of arms license under The Punjab Arms Rules, 2014, therefore, his case should be dealt with under the old Rules but respondent No.8 observed that under new Rules of 2017 in vogue the license could not be transferred in his name since he is not the “prospective legal heir” of petitioner No.2. He explained to the said authority that Majeed & Sons, National Traders, Imran & Company, Aadil Arms and Haider Arms etc. were transferred the arms license under the old Rules, therefore, petitioner may also be granted the same relief, but it was turned down, since these examples pertained to the years before 2017 when the new rules were not promulgated. The petitioner had to file Writ Petition No. 218752 of 2018 which was disposed of by this Court on 27.07.2018 directing respondent No.1 to decide the matter in accordance with law. On 12.12.2018, the impugned order was passed rejecting the application of the petitioner on the grounds that arms dealership license could not be transferred at that belated stage on “non-inheritance basis” though it was transferable under The Punjab Arms Rules, 2014, hence this writ petition.
3. In the report and parawise comments, the position taken in the impugned order was reiterated by the respondents.
4. Arguments heard.
5. File perused. Admittedly, petitioner No.2 is the licensee of Arsenal Company and petitioner No.1 is the major partner who is running the shop ever since the inception of the business and, therefore, has been paying all the taxes and dues and even the license has been continuously renewed up-todate at his instance under The Punjab Arms Rules, 2017. In other words, he has been at the forefront of the business called “Arsenal Company.” Importantly, none of the prospective legal heirs of petitioner No.2 have come forward to contest the prayer of petitioner No.1 rather petitioner No.2 is supporting such transfers.
6. Under Part “E” of The Punjab Arms Rules, 2014, arms licenses are non-transferable but under Rule 22 thereof, in case of death or incapacitation of the licensee or “on account of other compelling circumstances”, the transfer of
license was possible through a No Objection Certificate by the prospective legal heirs. However, under part “C” titled “Transfer of license or place of business” in The Punjab Arms Rules, 2017 it has been provided under Rule 45 that transfer of the business arms license in cases other than death is possible only if a transferee has a legal heir and that too after fulfilling the requirements and eligibility criteria prescribed in Rule 35 of the 2017 Rules. Under Sub Rule 4 of Rule 45 of Rules of 2017, the original licensee shall remain responsible for compliance of the provisions of the Ordinance and Rules, terms of the license and instructions issued by the Government from time to time and shall also be held responsible for any violation thereof. Interestingly, under Rule 44 of the Rules of 2017, in case of death of licensee, a license can be transferred to a legal heir if an affidavit is submitted subject to fulfilment of the criteria under Rule 35 of The Punjab Arms License Rules, 2017. For the convenience, rule 22 of The Punjab Arms Rules, 2014 and Rules 44 and 45 of The Punjab Arms Rules, 2017 are reproduced as under for ready reference:-
22. Transfer of license in case of death or incapacitation.– (1) Subject to sub-rule (2), the Government may, in case of death of a licensee or his being incapacitated to carry out business on account of mental or physical health or some other compelling circumstance, transfer his license in the following manner:
(a) in case of death or incapacitation of a licensee due to loss of mental faculties, to a legal heir or any other person as may be authorized by all legal heirs through a no objection certificate on a stamp paper in the amount of not less than Rs.100/- duly certified by a Notary Public; and
(b) in case of an incapacitated licensee who retains full mental faculties, to such person, including a legal heir, as may be authorized by him through a no objection certificate in the manner provided in clause (a).
(2) Transfer of license under sub-rule (1) shall be subject to the following conditions:
(a) all transfers shall be made on an application which shall not be considered unless a non-refundable processing fee, as may be prescribed by the Government, has been deposited;
(b)the legal heir or any other transferee shall meet the same eligibility criteria as specified under rules 7 and 8; and
(c) no application for transfer of license shall be considered if on the date of making that application a period of more than three hundred and sixty five days has elapsed since the death or incapacitation of the licensee.
(3) The transfer of license under this rule shall not be construed as a right and as such may be denied on any reasonable grounds.
44. Transfer of license in case of death.– (1) A business arms license may be transferred to a legal heir of a deceased licensee, as may be authorized by all legal heirs in the form of an affidavit attested by a judicial or revenue authority, subject to fulfillment of the eligibility criteria as mentioned in section (35) of the rules and subject to prescribed fee (Schedule-I).
45. Transfer of the business arms license in cases other than death.- (1) A business arms license may, in cases other than death of a deceased licensee, be transferred to a legal heir, subject to the fulfillment of the eligibility criteria as mentioned in section (35) of the rules, and personal appearance of the original licensee, subject to prescribed fee (Schedule-I).
(2) An application for transfer of the business arms license under sub-rule (1) shall be submitted in writing to the Government on Form-V, along with the following documents:
(i) Copy of the business arms license;
(ii) all documents mentioned in subrule (2) of rule 43 in respect of the proposed transferee; and
(iii) any other document that the Government may specify from time to time.
(3) The Government may, after ascertaining the eligibility of the proposed transferee and obtaining the report as to his credentials, general conduct, and criminal record, present as well as past, from the local police and, if required, from any other appropriate agency, may approve the transfer and forward the case to the DC/ NRC for further processing.
(4) The original licensee, where living, shall remain responsible for compliance of the provisions of the Ordinance and the rules, terms of the license, and instructions issued by the Government from time to time, and shall be held responsible for any violation thereof, till the completion of transfer process in the prescribed manner.
(5) The transfer of license under this rule shall not be construed as a right and as such may be denied on any reasonable grounds.
7. A comparative analysis of the above said Rules of 2014 and 2017 reveals that during the lifetime of the licensee, a license can be transferred to a legal heir without the authorization by the other legal heirs. However, it is nowhere prohibited that if prospective legal heirs or legal heir(s) may not agree to transfer the license to a person already conducting business in partnership. Obviously, the inheritable right can be transferred with the consent of the prospective legal heirs. To put up an argument that a sui juris and legally competent person cannot transfer or attorn during his lifetime to some other person, would be a false argument. Prospective legal heirs are nothing but a heir in the waiting who may enjoy some rights with the contingency of the death of predecessor and until that fact is materialized. They cannot have any right except that of an advisor or a consultant. In the present case, as already stated the actual licensee has consented to the transfer of the license in the name of petitioner No.1. In other words, there is nothing on record to have adverse conclusion that petitioner No.2 has consented the transfer. 8. Another aspect of this case is that when the petitioner No.1 has applied for the transfer of arms license in his favour, The Punjab Arms Rules, 2014 were in existence and the Rules of 2017 were promulgated during its pendency. The reports/NOC has already been issued on the request of the petitioner No.1. It was after the promulgation of the said Rules of 2017 that impugned order was passed that too without giving any reference to any rule of The Punjab Arms Rules, of 2017. In such like situations, reference can be given to WATER AND POWER DEVELOPMENT AUTHORITY, LAHORE THROUGH Chairman and another versus Haji ABDUL AZIZ and others (2012 SCMR 965), in which it was held that rules operated prospectively and if a right was created in favour of a person under the old rules, it could not be taken away on the grounds that rules were now against him, therefore, any amendment depriving a person of his right has to be construed prospectively. Relevant extract of para 7 is reproduced as under:-
“7. We have heard the learned counsel and have also perused the record. It is an established law that the rules operate prospectively and if a right is created in favour of an employee under the old rules, it cannot be taken away, inter alia, on the ground that the amended rule has allowed others to compete………..Any amendment which deprives a person of his right has to be construed prospectively…….”
9. In the present case, the way the petitioner No. 1 has been conducting the business as a major partner by not only investing money but also by giving his precious and valuable time, his vested right has been prejudiced, therefore, reliance is placed upon MUHAMMAD TARIQ BADAR and another versus NATIONAL BANK OF PAKISTAN and others (2013 SCMR 314), in which it was held that change in substantive law, which divested and adversely affected the vested rights of the parties should always have prospective application, unless by express word of the legislation and/or by necessary intendment/implication such law had been made applicable retrospectively. Perusal of The Punjab Arms License Rules, 2017 does not reveal that it should operate retrospectively. Similarly, in SHAHIDA BIBI and others versus HABIB BANK LIMITED and others (PLD 2016 Supreme Court 995), it was categorically observed that unless the legislature enacted a new law with specific intention to operate retrospectively, that too with great particularity of language the courts were not to assume the effect of that law retrospectively.
10. Significantly, the present writ petition has been jointly filed by the actual licensee and the major partner who had applied for transfer of arms license in his name, therefore, in my humble view respondent No.1 could not possibly refuse the transfer of license and was required to grant it of course within the parameters of the Rules.
11. For the foregoing reasons, this writ petition is allowed impugned order dated 12.12.2018 is set aside and respondents are directed to transfer the arms license in the name of petitioner No.1 within the scope of rule 45 of The Punjab Arms Rules, 2017.
(ALI BAQAR NAJAFI) JUDGE
Approved for reporting.
