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Writ Petition No. 3770 of 1979, decided on 13th October, 1979.

S. 26 read with S. 12 (2)-Validation-Petitioners granted valid licences under Emigration Rules, 1959 having furnished requisite security-Emigration Act (VII of 1922) repealed by Emigration Ordinance (XVIII of 1979)-Government thereafter, issuing notice to petitioners to deposit fresh securities-No new fee or security, held, required for validation of previous licences.

-- S. 26 read with S. 12 (2)--Validation of previous licences-No specific power, held, provided in Ordinance to increase amount of security in respect of validated licences.

-- Ss. 12 (1) (2) & 16 (2) (r) read with Emigration Rules, 1979 R.ule 8 (6)--Rule empowers Federal Government to change amount of security money-Rule, held, would only apply to licences issued under Ordinance.

-- S. 26-Validation-Non-compliance of impugned notices though entails cancellation of validated licences yet no express provision of law, held, authorises interference with vested rights retrospectively.

Malik Mohammad Qayyum for Petitioner

Zia Mahmood Mirza for Respondents.

Date of hearing : 7th October, 1979

This order shall also dispose of Writ Petitions Nos. 3771/79, 3999/79, 3809/79, 3965/79, 3716/79 and 5244/79, which involve the same question as is being raised here.

2. The facts common to all these petitions are that the petitioners had been granted valid licences under the Emigration .Rules, 1959.' They had also deposited or furnished security in the sum of Rs. 20,000 as provided therein. The Emigration Act, 1922, under which the previous rules had ,been framed was repealed by the Emigration Ordinance, 1979 (hereinafter called the Ordinance), with effect from 23rd March, 1979. New rules known as Emigration Rules, 1979, were ,framed and published in the Gazette of Pakistan, dated 29th May, 1979. Rule 8 (3)--(6) relevant to these cases may be reproduced below :-

"8(3) The Director-General, on being satisfied that the applicant has complied with the provisions of sub-rules (1) and (2) shall forward the application alongwith the relevant documents and his recom mendations to the Federal Government for consideration.

(4) The Federal Government may, after such inquiry as it may deem fit, approve the grant of licence and direct the applicant to deposit licence fee of five thousand rupees and a security of one lac rupees for good conduct in any branch of the bank.

(5) On furnishing evidence of deposit of fee and security referred to in sub-rule (4), the Federal Government may grant the licence in Form 1, which shall be non-transferable.

(6) The Federal Government may, at any time, change the amount of security money."

3. Acting under rule 8(4) the respondent vide its letters dated 26th June, 1979. required of the petitioners to deposit a sum of Rs. 1,00,000 each in cash by 12th July, 1979. It was further clarified that the security already deposited will not be adjustable against that amount and will be refunded in due course of time. The petitioners now challenge those orders.

4. The learned counsel) for the petitioners referred to section 26 of the Ordinance to say that the licences of the petitioners issued under the previous rules stand validated and that no further security could be demanded till the expiry of those licences. To distinguish their cases they referred to section 12(2) which states that the Federal Government may after such inquiry as it may deem necessary, grant licence applied for on such terms and conditions, if .any, and oh payment of such fee and on such security as may be prescribed.

5. The argument raised on the basis of the above provisions of law is that whereas no new fee or security is required for validation of pre vious licences, the deposit of fee and furnishing of guarantee is a condition precedent to the grant of licences under the Ordinance. No exception can be taken to this position. However, the case in hand is about enhance ment of the existing security as stated in the impugned notices. The learned counsel for the respondent sought support from section 16(2)(r) of the Ordinance read with rule 8(6).

6. It is to be noted that- section 26 of the Ordinance validated the licences, issued to the petitioners under the previous rules. No specific power is provided in the Ordinance entitling or authorising the respondent B to increase the amount of the security in respect of those licences. Even the new rules do not spell out such a power in these cases.

7. Section 12(2) and rule 8 (4) apply' to the securities in respect of licences issued under the Ordinance as is very clear from the wording. Section 16(2)(r) read with the definition of Overseas Employment Pro moters' as given in section 2 (1) (I) also confers powers to frame rules for depositing of fees and securities only in respect of licences issued under section 12. There is no provision empowering the Federal Government to bring about any change in the licences validated under section 26. rule 8 (6) no doubt empowers the Federal Government to change, at any time, the amount of security money but this. provision would only apply to the licences issued under the Ordinance. This is evident from section 12(1)(2) read with section 16(2)(r) as said above..

8. Another point raised was that as violation of the impugned o notices would entail cancellation of the petitioners licences, the Federal Government as a subordinate Legislature and the respondent as an execu tive authority, shall be deemed to be affecting vested rights or taking action retrospectively.

9. Undoubtedly, the licences of the petitioners enable them to carry on their business. These would have been liable to cancellation if the petitioners failed to comply with the impugned notices. It does, therefore, mean that the directions as contained in the impugned orders seek to vary the very licences validated under section 26. The respondent shall thus'i be interfering with the validity of licences and that too retrospectively .

Such a power, however. would be available only if it is expressly provided in law.

The net result of the above discussion is that there is no power in the respondents to enhance the amount of security in respect of licences validated under section 26. The impugned notices are therefore, declared' to be without lawful authority and of no legal effect. The parties are however, left to bear their own costs.

M. A. K.

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