P L D 1956 Federal Court 200 (PLP)

MUHAMMAD MUNIR, C. J.-This is a certified Consti tutional Appeal from a decree passed by the High Court of Lahore in the exercise of its extraordinary original civil jurisdiction. The appellant is the Province of West Pakistan while the respondent is Malik Khizar Hayat Khan Tiwana. The suit in which the decree was made was instituted by the respondent against the defunct ' Province of Punjab in the Court of the Senior Civil Judge, Sargodha, but it was transferred to the High Court because of an important constitutional question being involved in it, where it was heard and determined by Kayani, J. Between 1860 and 1871 some inundation canals were constructed in the district of Shahpur by Malik Sahib Khan Tiwana, grandfather of the respondent. These were (1) Malik Sahib Khanwala, also known as the great Kalra Canal, (2) Chaharmiwala, (3) Piranwala, and (4) Tootanwala, the total expenditure involved ' in their excavation being about Rs. 20,

000. Each of these canals had its source in the river Jhelum-and was dug on private land belonging to the excavator or third parties. The owner of the canals charged rate for the sale of water to the owners of the land irrigated, and himself paid a royalty to the Government. With the exception of Tootanwala, these canals were mentioned in Schedule II of the Punjab Minor Canals Act, (Act III of 1905), hereinafter referred to as the Act of 1905. It is common ground , that if the Government acquired any one of these canals or stopped the flow of water in it, the owner was entitled to compensation under the combined operation of the provisions of the Act of 1905 and the Northern India Canals and Drainage Act, (VIII of 1873) hereinafter referred to as the Act of 1873. In 1952 the Provincial Legislature of the Punjab passed the Canal and Drainage (Amendment) Act, (XIV of 1952) and the Punjab Minor Canals (Amendment) Act, (XVII of 1x52), and later in the same year the Governor of the Punjab promulgated the Punjab Minor Canals (Amendment) Ordinance I of 1952. These laws materially affected the amount of compensation payable under the original law to the respondent, who had inherited these canals, if the Government ever acquired or stopped the flow of water to them, and the virtual effect of this amending legislation was to convert the owner who, on acquisition or stoppage of water by Government, was under the original law an admitted claimant into an accounting and an owing party. The disastrous effect of these amending laws on the owner's rights is thus described by the learned Judge :- "It is true that sections 11 and 12 of the Land Acquisition Act have not been touched by the amendments. They provide for an enquiry by the Collector and the making of an award. The deletion of section 15, however, robs the Collector of the benefit of section 23, with the result that, long as the amending bill of 1952, does not receive the assent .of the Governor-General, there exists no procedure by which the Collector should guide himself. And when the, bill does receive such assent, the Collector will take into consideration the market value of land at the date of construction (not acquisition) and the expenditure incurred on it, which may total upto Rs. 20,000, deducting there from the profits already made during the last eighty or ninety years, which should be' any amount upwards of a lakh of rupees; deducting also interest at four per cent. on these profits. Whatever be the ethics of the matter, it is not in good taste to pretend that this measure has not inflicted a severe blow on compensation. In the result, it is the Government, not the plaintiff, that will have to be compensated". It may be mentioned here that. Ordinance I of 1952 was adopted by the Provincial Legislature as a Bill, but that Bill never received the assent of the Governor-General, and there fore, by reason of section 88 of the Constitution Act ceased to operate at the expiration of six weeks from the reassembly of the legislature. In April 1952, the Punjab Government issued a notifi cation under section 48 of the Act of 1905 declaring that Malik Sahibkhanwala and Piranwala canals had been acquired by that Government. In the same year, a new canal, called the Shahpur Branch, was constructed by the Punjab Government, which cut across the Chaharmiwala and Tootanwala channels and thus stopped the flow of water to them from the river. The suit instituted by the respondent was based on the allegation that the aforesaid amending legislation of 1952 was, inasmuch as it affected his claim to compensation for the acquisition of, and stoppage of water to the canals, ultra vires the Provincial Legislature by reason of section 299 of the Constitution Act, and that he was entitled to compensation under the law as it stood before its amendment. Of course, the defence to the suit was that each of the impugned pieces of legislation was intra vires. The issue raised was examined in all its ramifications in the High Court where a desperate effort was made by the learned counsel for the Government to support the offending legislation. By an exhaustive judgment the learned Judge who tried the case negatived the defence, held the legislation to, be ultra vires and decreed the suit. The decree passed by him which followed the judgment declared that both the Acts and the Bill of 1952 were ilt excess of the legislative powers of the Province' and therefore, invalid and directed a permanent injunction to issue restraining the Punjab Government, acting through the Collector of from assessing compensation in accordance with the amending enactments and a mandatory injunction directing the Government to award compensation in accordance with the original Acts for (1) the acquisition of Pirgnwala and Malik Sahibkhanwala and (2) the stoppage of flow of water from the Jhelum into Chaharmiwala and 'Tootanwala. The Punjab Government was also ordered to pay the' plaintiff's costs. A certificate under section 205 of the Constitution Act, however, was granted to the Punjab Government to appeal to this Court. The Punjab Government accordingly appealed to this Court, but before that appeal came up for hearing the Constituent Assembly on 29th February 1956, passed an Act called the Validation of Laws Act, 1956, which came into force immediately. By that Act sections 88 and 299 of the Constitution Act were retrospectively amended, the former by inserting to clause (a) of subsection (2) the proviso "Provided that nothing in this clause shall apply to the Punjab Minor Canals (Amendment) Ordinance, 1952, (I of 1952)" and the latter by substituting "Provided that such law has been made or passed within a period of five years next after the establishment of the Federation" for the proviso to clause (a) of subsection (4A). Sections 4 and 5 of the Act provided 4. "Declaration of validity.-The laws set out in column (1) of the Schedule to this Act are hereby declared to be valid and shall be deemed to have had the force and effect of law on and from the dates mentioned against them in column (2) of that Schedule, and anything done there under in accordance with the provisions thereof shall be deemed to have been validly done, and any rights declared or acquired in derogation of the provisions of those laws whether by decree or order of a Court of civil or revenue jurisdiction or by any other means are hereby declared to be void and of no effect". 5. "Bar of Jurisdiction.--The validity of any law to which section 4 applies shall not be called in question in any Court". Among the laws set out in the Schedule to the Act are (1) the Canal and Drainage (Amenment) Act, 1952, (Punjab Act XIV of 1952) ; (2) the Punjab Minor Canals (Amend ment) Act, 1952 (Punjab Act XVII of 1952) ; and (3) the Punjab Minor Canals (Amendment) Ordinance, 1952 (Punjab Ordinance I of 1952), which were declared to have come into force from 4th February, 7tb February and 27th May 1952, respectively. It is apparent that if this Act is good and no objection can be successfully urged against it the decree of the High Court must be set aside and the respondent's suit dismissed. The chief attack on the validity of this Act is Mr. Sleem's assertion that none of its enacting provisions is a "provision as to the constitution of the Dominion" within the meaning of subsection (1) of section 8 of the Indian Independence Act, 1947 and that therefore, the Constituent Assembly exercising the powers of the legislature of the Dominion was not compet ent to enact it. Sections 4 and 5, which declare the impugned Provincial Legislation to be retrospectively valid and bar the jurisdiction of all Courts to inquire into their validity, are challenged on the further ground that sections 88 and 299 of the Constitution. Act having been retrospectively amended, the subject-matter of these two sections fell within the sphere of the Provincial Legislature and during the period of a Proclamation of emergency also within the scope of Federal Legislature and not within the field of legislative functions of the Constituent Assembly when it acts under subsection (1) of section

8. The sole question,, therefore, that falls for determination in this appeal is whether we have the jurisdiction to question the validity of the Validation of Laws Act. By the non obstante clause added to sub section (I) of section 8 of the Indian Independence Act by the Constitution (Amendment) Act, 1954 the power of the Constituent Assembly exercised under that subsection cannot be called in question in any Court of law. If, therefore, it be held, as it must be, that in passing the Validation of Laws Act the Constituent Assembly acted under subsection (1) of section 8, this Court is precluded from entertaining any objection to the competency of the Constituent Assembly to pass that law. Now there can be no manner of doubt that whether the Validation of Laws Act be considered to be a provision "as to the constitution of the Dominion" or not, the Constituent Assembly in passing that Act did not act under subsection (1) of section 8 because at the time of the passing of that Act that Assembly was not functioning as the Federal Legislature but only as the Legislature of the Dominion engaged in making provision as to the constitution) of the Dominion. This was conceded by Mr. Sleem, but he contended that it is for the Court to determine whether the legislation passed by the Constituent Assembly did in fact amount to making provision as to the constitution of the Dominion, and that if the Court held otherwise the newly added clause to subsection (1) of section 8 would not bar the jurisdiction of this Court to declare the legislation to be ultra vires. I find it impossible to accept this argument because the words of the newly added clause are so wide and all-embracing that if the Court once holds that in passing a law . the Constituent Assembly purported to act under subsection (1) to section 8 the Court's jurisdiction to call in question the power of that Assembly to act under that subsection is immediately ousted. In fact, it seems to me that this clause was added to avoid the precise objection that Mr. Sleem has raised because the Constituent Assembly being supreme legislative body without any limitations of its power when it acts under subsection (1) of section f its action cannot be challenged on the ground that while so acting it was not exercising the powers of making a provision as to the constitution of the Dominion. In law there is no precise definition of the matters that may be included in a constitution, and the range of the subjects that may be so included is so wide that what is a constitutional matter according to one constitution may not at all be a constitutional matter according to another, though for the purposes of political science - or constitutional philosophy it may be possible to enum9rate the matters that may properly be provided in a constitution. No Judge, lawyer or writer, however, has ever ventured to assert that certain matters cannot as a matter of law be enacted in a constitution Act. Thus while the constitution of one State may provide that its nationals shall or shall not wear a particular dress or shall or shall not be entitled to certain rights, that of another may completely omit such matters and confine itself only, to the distribution of governmental powers among the various organs of the State. Indeed, a constitution may say no more than this that all sovereign powers of the State shall vest and be exercisable by a particular person who shall not only be the law-giver of the State but also the executive head and the Chief Justice of that State. It seems to me, therefore, to be perfectly plain that if a body is invested with the power of making provision as to the constitution of a State, it is on any general principle or theory of constitutional law impossible to circumscribe its constituent powers. If it decides to say C that a certain provision has to be 'considered as a constitu tional provision, that is the end of the matter and the legality of that provision cannot be questioned on the ground that it did not properly fall within the domain of constitutional law as understood by constitutional lawyers or writers. In the present case, I have not the slightest doubt that the Constituent Assembly when it passed the Validation of Laws Act was professing to make provision as to a constitutional matter and once that position is accepted the jurisdiction of this Court to question the competency o: the Assembly D to legislate as to that matter is barred by the notwithstanding clause of subsection (1) of section 8 of the Indian Independence Act, which was added by the Constitution (Amendment) Act of 1954. The same result follows from section 5 of the Validation of Laws Act itself- Section 4 of that Act declares that laws, the validity of which is being called in question before us are retrospectively valid, that all acts done under them shall be deemed to have been validly done, and that any rights declared or acquired in derogation of their provisions, whether by a decree or order of a Court or otherwise, are void and of no effect. Section 5 then proceeds to enact that the validity of none of these laws is to be called in question in any Court. The section does not define the grounds on which the validity of those laws may not be called in question and in its ousting intention it certainly includes all objections which could be taken to the validity of those laws. Mr. Sleem admits that if sections 4 and 5 had been amalgamated in a single provision' to the effect that the laws covered by section 4 were, notwithstanding anything in section 299 of the Government of India Act, to the contrary, to be deemed to be retrospectively valid and that no Court shall call in question their validity, the provision would be a constitutional provision properly falling within the limits of subsection (1) of section 8 because in that case the protanto subordination of section 299 would give to such provision the status of a constitutional provision. On this admission the conclusion is unavoidable that if in the circumstances these two sections be held to mean that the laws in question shall have effect despite section 299, they must be held to be a constitutional provision. Mr. Sleem is, therefore, on the horns of a dilemma when he seeks to get out sections 4 and 5 because if he gets over one he immediately falls within the grip of the other, and in order to succeed he must leap over both. If section 4 is invalid on the ground that its subject-matter was properly a matter for the Provincial or Federal Legislature to enact and not for the Constituent Assembly functioning under subsection (1) of section 8, then section 5 is immediately attracted to the situation and ousts the Court's jurisdiction to question the legislation on the ground of ultra vires. It cannot be disputed for a moment that if section 5 had expressly stated that the laws in question having- been declared by the Constituent Assembly to be valid their validity shall not be called in question on the ground that they were ultra vires the Constituent Assembly the objection to their validity would have fallen within the scope of the ousting provision. And if section 4 was within the competency of the Constituent Assembly, the objection to its validity disappears and it becomes wholly unnecessary to resort to the succeeding section. The true position, however, is that both these sections are valid. Section 4 is valid for the reason that it seeks to make unconstitutional legislation constitutional, and this is essentially a constitutional matter. Where a law is invalid on the ground that it is in excess of the powers of the legislature passing it, its validation by a constituent authority must .ex-hypothesi be deemed to be constitutional legislation, and any objection to the manner in which such validation is affected is an objection to the form of that legislation and not to the power of the validating authority. In the present case, the laws in question could be validated by the Constituent Assembly by so amending sections 88 and 299 of the Constitution Act as to bring the objected legislation retrospectively within the competency of the Provincial Legislature or by the Assembly's itself enacting that legislation retrospectively. The Assembly having done both, no objection can consequently be taken to the manner in which it has chosen to proceed. It is true that having retros pectively amended sect46,ns 88 and 299 the subject-matter of section 4 and partly of section 5 of the Validation of Laws Act fell within the Provincial List, but this does not mean that for that reason it went out of the legislative authority of the Constituent Assembly. A constituent authority, like the Constituent Assembly, with no limitations on its powers may at any time encroach upon the sphere of a legislature which is subject to its constituent authority, and all such encroachments, whether they take the form of validation of the laws of, or the making of laws for that legislature are in substance provisions as to the constitution of the State and properly fall within subsection (1) of section 8 of the Indian Independence Act. Similarly, section is a provision as to constitution because it (1) bars objections to legislation on the ground of ultra vires, and (2) ousts the jurisdiction -of all Courts, including the Federal Court whose jurisdiction in certain matters is guaranteed by the Constitution Act. I have, therefore, no doubt in my mind that both under subsection (1) of section 8 of the Indian Independence Act and section 5 of the Validation of Laws Act, we cannot entertain any objection to the validity of the laws which have deprived the respondent of the right of compensation to which he was entitled under the unamended laws and which was recognised by the decree of the High Court. In such matters the Courts are not to question the motives or policYl of the legislature or to refuse to give effect to legisla tion merely because it appears to be harsh or unreasonable or vindictive. Their plain duty is to ascertain the intention of the legislature and to carry it out irrespective of the consequences that may ensue to a particular party. I, there fore, hold that the Validation :of Laws Act, 1956, has the effect of rendering the decree of the High Court ineffective and that it is the duty of this, Court not only to so declare but also to vacate the decree. I would, therefore, accept the appeal of the Government, reverse the decree of the High Court, and dismiss the respondent's suit. I would, however, allow to the respondent his costs throughout because after a strenuous battle he . won in the High Court and lie is defeated here, not because the judgment of the High Court was wrong on the date that it was delivered, but because the Legislature without waiting for this Court's decision on the merits of the appeal came to the rescue of the Punjab Government and deprived the respondent of, the benefit of a decree. SHAHABUDDIN, J. -I agree. CORNELIUS, J.-I agree. MUHAMMAD SHARIF, J.-So do I. A. H. Appeal accepted