P L D 1959 (W (PLP)

(b) if the Provincial Assembly is not in Session. He admitted that according to this view an Ordinance could become a per petual law, provided the conditions expressly stated in the Article were satisfied. He cited section 72 of the Government of India Act, 1915‑1919 under which Ordinances could be pro mulgated which remained in force initially for six months and could be revived by succeeding Ordinances of six months' duration each. The Calcutta High Court in A I R 1933 Cal. 278 rules that under, that provision an Ordinance could be revived, or continued in force, by another Ordinance after the expiration of every six months from the promulgation of the previous Ordinance. The reading of Article 102 of the Constitution no doubt shows that there is no prohibition in its language against the revival of an expired Ordinance by another Ordinance. That Article laid down conditions under which Ordinances could be promulgated and killed. But if at the time of the expiry of an Ordinance promulgated under section 102 it was found that the circumstances were still in existence which could be combated by the provisions of the expiring Ordinance, or that they had arisen immediately after its expiry, and the Legislature was not then in session, another Ordinance could be promulgated. A step of this kind does not involve the violation of the language .of Article 102 or of any other Article of the Constitution. If per mission for this purpose is clear from the language of the Article, and the language is not ambiguous, no prohibition against the adoption of that course should be read into the Article. We think that there is some force in the contentions of the Attorney General and we are for this reason of the opinion that this case should be placed before a Full Bench of this Court, so that if this view is found to be correct, there may be no obstacle in the way of the Court in revising the view expressed by a Division Bench of this Court in P L D 1957 Kar.

283. The question for the consideration of the Full Bench will be "whether an Ordinance promulgated under section 102 of the Constitution of 1956 could be revived or continued in force, by another Ordinance promulgated under that Article". QADEERUDDIN AHMAD, J.‑I agree with my brother and wish to add that I was a party to the judgment given in 1kh1as Ahmad's case (P L D 1958 Kar. 283) and had heard the learned Attorney General on the question which has been raised again in the present reference. We would not have required him to appear before us in this reference if the situation had not changed due to the abrogation of the Constitution. He appeared before us at our request and did not contend that the abrogation had made any difference for the purposes of this reference but argued that under the Constitution itself an Ordinance could be validly revived by subsequent Ordinances. He contended that the pro visions of a Constitution contain the wisdom of its makers and that they should not be interpreted with a suspicion that they are liable to be misused because whatever is expressly per mitted by them has the sanction of their makers. If there is anything in them which conflicts with the essence of pure democracy then the presumption is that the Constitution allows that impurity to exist. Article 102 of the late Constitution em powered the Governors to do things which the supporters of pure democracy might loathe and detest yet those powers should be upheld as constitutional powers unless the language of any pro vision of the Constitution curtails them. I agree with my brother that there is force in the contention that the language of Article 102 does not prohibit the re‑issuance at any time of an Ordinance provided the conditions expressly laid down in the Article are satisfied. I have a feeling that my reluctance to concede it was founded on my sub‑conscious desire to uphold democracy as I understood had been provided by the other provisions of the Constitution. The learned Judge who wrote the judgment in Moulvi Tamiz‑ud‑Din Ahmad v. The Province of East Bengal (P L D 1949 Decca 1), were also influenced by the same desire and that their observation viz: " . . for otherwise Government by Ordinances could be continued indefinitely". reveals their reluctance to concede that the Government of India Act, 1935 gave such vast powers of legislation to a Governor as to make the representative legislature helpless against his insistence to have a law of his own choice subject only to his own declara tion that circumstances existed which rendered immediate action necessary. I may respectfully add that the same trend of mind is disclosed by the following observation of my brother "If power of permanent legislation were to remain in the keeping of the Governor, occasions could arise on which the Governor could promulgate ordinance after Ordinance, even in the teeth of opposition from the legislature and keep the country under his own laws." The conclusion to be drawn from such a conflict as is contemplated by my brother may be that the Governors were not given vast powers of legislation but may also be, as suggested by the learned Attorney General that in such an event the Constitution placed more trust in the wisdom of the Governors than in that of the representative legislature. It is true that a Governor may not be cent per cent honest if and when he disregards the views and the legislative authority of the representative legislature but this problem only poses the question as to what is the constitutional remedy of such insecurity ? The seriousness of the question assumes a formidable aspect when we see that a Governor may legislate retrospectively as held in the United Provinces v. Mst. Atiqa Begum (A I R 1941 F C 16) and may enact an Ordinance after the representative legislature has been prorogued so as to extend it to that period also during which it was in session as held in J. P. Das Gupta and another v. The Province of West Bengal (A I R 1949 Cal. 1). The Governor of Madras went to the length of proroguing the Provincial Legislature in order to be able to enact an Ordinance and S. Rao and B. A. Sayeed, JJ. held that he had the power to prorogue the legislature at any time he pleased and that it was not open to a Court to canvass and find out whether in fact the Governor was satisfied that immediate action was necessary because "both the Privy Council and the High Courts" had held repeatedly with reference to Sch. 9, section 72 and section 88 of the Government of India Act, 1935 that "the Governor‑General (or a Governor) was the sole Judge for deciding the existence of emergency which justified the issue of an Ordinance". They justified the prorogation of the legislature for issuing the Ordinance on the ground that a legislature which was constituted democratically was slow to move and was unsuited when quick action was needed. They were probably guided by the conception of that kind of democracy which they found in the Government of India Act, 1935. The Judges of the Dacca High Court appear in Tamizuddin's case to have found a different kind of democracy in the same Act of 1935. The contrast is remarkable and proves how very difficult is the task of extracting the essence of a big document without allowing it to be sullied with personal taints and predelictions. If the Courts cannot question the existence or otherwise of the circumstances which render it necessary that action should be taken by a Governor by issuing an Ordinance, then the scope of the criticism of the exercise by a Governor or his legislative power is restricted to extremely narrow limits, and it may even be said to be non‑existing because as held by the Federal Court in The Punjab Province v. Malik Khizar Hayat Khan Tiwana (P L D 1956 F C 200) it is not for the Courts to "question the motives or policy of the Legis lature". One of the circumstances in which an Ordinance can be certainly held to be invalid is that it should run counter to any provision of the Constitution. The practice of issuing "Ordinance after Ordinance" in strict compliance with the language of Article 102 is not inconsistent with the provisions of that Article. Nor can it be said to be inconsistent with the language of any other provision of the Constitution. But can it be said to be inconsistent with the scheme or any main part of the scheme of the Constitution, or the central object or any one of the main objects of the Constitution ? These considerations are different from the "considerations of jurisprudence or of policy" which have been excluded as incorrect by the Privy Council in Benoari Lal's case (A I R 1945 48). My brother has suggested that the Governors could not issue Ordinances so as to permanently govern the country by his own legislation because the permanent legislature according to the Constitution was the representative legislature which was also the main repository of legislative power. Assuming that this proposition is correct, the question arises whether the revival of an Ordinance, or two, made in strict compliance with the language of the Constitution, can be regarded to be an encroachment on the authority of the representative legislature ? Various questions and considerations which are involved in the reference before us have a close connection with each other and are of obvious importance. In view of them and in view of the Division Bench decision of this Court in Ikhlas Ahmed's case I agree with my brother that the question framed by him should be referred to a Full Bench. OPINON OF FULL BENCH KAIKAUS, J.‑Tirathmal, Jairamdas and Chandanmal, the petitioners before us, were being prosecuted in the Court of the Magistrate 1st Class, Kotri, for contravening the provisions of the West Pakistan Paddy and Rice (Control) Order, the allegations against them being that they were removing paddy without a permit, from the town of Kotri. The West Pakistan Paddy and Rice (Control) Order had been promulgated by the Governor of West Pakistan on the 25th of October 1957, by virtue of the powers vested in him by section 3 of the West Pakistan Foodstuffs (Control) Ordinance, 1957. This Ordinance had been promulgated by the President of Pakistan by virtue of his powers under Article 102 read with Article 193 of the Constitution. On the 21st of March 1957, there had been a Proclamation by the President under Article 193 of the Constitution declaring a state of emergency in the Province of West Pakistan. By virtue of the Proclamation the functions of the Government of the Province had been assumed by the President and the powers of the Provincial Assembly had been vested in the Parliament. By an amendment of the Proclamation of the 29th of March 1957, the powers which a Governor possessed under Article 102 had been assumed by the President himself. The Proclamation by the President was to remain in force only for a period of two months, but its duration could be extended by the National Assembly up to a maximum period of four months. On the 21st of May 1957, the duration of the Proclamation had been extended by the National Assembly by four months, but the Proclamation had been withdrawn by the President himself on the 15th of July 1957.

2. On the 6th of April 1957, the President promulgated Ordinance No. I of 1957 called the West Pakistan Foodstuffs (Control) Ordinance, 1957. The Session of the West Pakistan Assembly began on the 21st of September 1957. On the 23rd of September, the Assembly was prorogued. The Ordinance was not placed before the Assembly. Ordinance No. I of 1957 not having been adopted by the Legislature expired after six weeks from the commencement of the Session of the Assembly. On the 23rd of October, 1957, i.e. before six weeks expired, an other Ordinance, also called the West Pakistan Foodstuffs (Control) Ordinance, 1957, was promulgated by the Governor. It is almost in the same words as Ordinance No. I of 1957 and it was to come into force on the expiry of Ordinance No. I of 1957. The West Pakistan Paddy and Rice (Control) Order was promulgated on the 25th of October 1957.

3. An objection was raised in the Court of the learned Magistrate to the continuance of the prosecution on the ground that the Ordinance under which the West Pakistan Paddy and Rice (Control) Order had been promulgated was ultra vires. The learned Magistrate rejected this contention and there was an application in revision to the Sessions Judge, Dadu, who made a reference to this Court under section 438, Cr. P. C.

4. The matter came up before Abdul Hamid and Qadeer udddin Ahmad, JJ. One of the points argued before the learned Judges was that Ordinance No. I of 1957 having expired, there was no power in the Governor to revive that Ordinance by means of Ordinance No. XI of 1957 in view of the fact that according to Article 102 (2) of the late Constitution an Ordinance ceases to operate after the expiry of six weeks from the com mencement of the Session of the Assembly. Having regard to the importance of the matter involved, the learned Judges referred the case to a Full Bench. Following is the question which has been referred :‑ "Whether an Ordinance promulgated under Article 102 of the Constitution of 1956 could be revived or continued in force by another Ordinance promulgated under that Article?" This question is intended to cover not only a case when the second Ordinance simply provides for the extension of the life of the expiring Ordinance, but also a case when the second Ordinance re‑enacts the provisions of the expiring Ordinance. The relevant portion of Ordinance No. XI of 1957, whose validity is being considered, runs‑ Preamble.‑Whereas it is expedient in the public interest to provide for the continuance of powers to control the supply, distribution and movement of, and trade and commerce in, foodstuffs in West Pakistan ; And whereas the Provincial Assembly of West Pakistan is not in Session and the Governor of West Pakistan is satisfied that circumstances exist which render immediate action necessary ; Now, therefore, in exercise of the powers conferred by Article 102 of the Constitution, the Governor of West Pakistan is pleased to make and promulgate the following Ordinance :‑ 1. (1). . . . . (2) . . . . . (3) It shall come into force on and from the date of expiry of the West Pakistan Foodstuffs (Control) Ordinance, 1957."

6. Article 102 of the Constitution whose interpretation is in question is in the following words :‑ Legislative Power of the Governor "102. (1) If at any time, except when the Provincial Assembly is in Session, the Governor is satisfied that circum stances exist which render immediate action necessary, he may make and promulgate such Ordinances as the circumstances appear to him to require, and any Ordinance so made shall have the like force of law as an Act of the Provincial Legis lature ; but the power of making Ordinances under this clause shall be subject to the like restrictions as the power of the Provincial Legislature to make laws, and any Ordinance made under this clause may be controlled or superseded by any such Act . "Provided that the Governor shall not, without previous instructions from the President, promulgate any such Ordinance if an Act of the Provincial Legislature containing the same provision would, under the Constitution have been invalid unless it had received the assent of the President. (2) An Ordinance promulgated under clause (1) shall be laid before the Provincial Assembly and shall cease to operate at the expiration of six weeks from the next meeting of the Assembly, or if a resolution disapproving it is passed by the Assembly, upon the passing of that resolution. (3) At any time when the Provincial Assembly stands dis solved, the Governor may, if he is satisfied that circumstances exist which render such action necessary, make and promulgate an Ordinance authorizing expenditure from the Provincial Consolidated Fund, whether the expenditure is charged by the Constitution upon that Fund or not, pending compliance with the provisions of Articles 96, 98 and 99. (4) As soon as may be after the date of the reconstitution of the Provincial Assembly, any Ordinance promulgated under clause (3) shall be laid before the Assembly ; and the provisions of Article 96, 98 and 99 shall be complied with within six weeks from that date."

7. The words of this Article are prima facie quite clear. There are two conditions precedent for the exercise of power of promulgating an Ordinance. The first is that the Assembly should not be in Session. The second is that immediate action should appear to the Governor to be necessary. Two other conditions are mentioned in clause (1) which are not conditions precedent but are limitations on the exercise of the power that is granted. The first is that the Ordinance is to be such as circumstances appear to the Governor to require. The second is that the power of promulgating an Ordinance is subject to the same restrictions as the power of the Legislature to enact laws.

8. If the conditions precedent be these, that is, the Assembly is not in Session and the state of emergency as mentioned in the Article exists, then on the wording of clause (1~ of the Article, it does not appear to be of any consequence that a previous Ordinance to the same effect bad been promulgated and bad expired.

9. There are, however, two arguments that are to be con sidered. The first is the argument that is based on the second clause of Article

102. According to that .clause, an Ordinance ceases to operate on the expiry of six weeks from the time when the Provincial Assembly meets. It is urged that this provision by necessary implication negatives the power to continue the life of the Ordinance for if the Ordinance must cease to operate, it means that its life cannot be extended by a provision to that effect in another Ordinance and it is further urged that there is also an implied prohibition against promulgating another Ordinance to the same effect because to allow this to be done would be to defeat the prohibition placed on the extension of the life of the Ordinance.

10. The first part of this argument I accept. When the law says an Ordinance shall cease to operate, the Governor cannot, by another Ordinance, say "it shall continue". But this part of the argument will apply only to an Ordinance by which the life of an expiring Ordinance is extended and has no application to a case of re‑enactment of the provisions of an expiring Ordinance by another Ordinance, whether with or without an interval between the two Ordinances. A provision as to the expiry of an Ordinance does not necessarily imply the absence of power (in the authority promulgating the Ordinance) to promulgate another Ordinance with the same or similar context. Such a provision may simply be a provision as to the duration of a particular Ordinance. That is what I regard clause (2) of Article 102 to be. The Constituent Assembly had to provide a period for which an Ordinance promulgated by the Governor was to remain in operation and it has provided that period in this clause. There is no ground for holding that this clause was intended not only to provide for the duration of an Ordinance but also to provide a limitation on the re enactment of the content of the expiring Ordinance. If such was the intention there is no reason why it should not have been added in Article 102 (2) that the Ordinance which has expired shall not be re‑enacted. Or, while stating the restrictions on the power of the Governor to promulgate Ordinances in Article 102 (1) it could have been added that his power of promulgating Ordinances was subject to the restriction that an expiring Ordinance could not be re‑enacted. It is to be observed that clause (1) of Article 102 states the restrictions on the power of the Governor to frame Ordinances. The restrictions, it says, are the same as those of the power of the Provincial Legislature. This was a proper place to add any further restriction that was intended. We are dealing with a Constitution which is, by presumption, a carefully prepared document. If it was present to the minds of those who framed the Constitution that the Governor would not be entitled to re‑enact an Ordinance there is no reason why they should not expressly have said so.

11. Another consideration is that if we accept the inter pretation put forward by learned counsel for the petitioner, there will ensue a result which could not possibly have been intended. Once an Ordinance has expired the Governors could not, on this interpretation, promulgate an Ordinance with the same content even after the expiry of a hundred years. The argument is that a provision as to expiry of an Ordinance necessarily involves that the Ordinance (or the content of the Ordinance) cannot be re‑enacted. There would be no time limit on the prohibition against re‑enacting an Ordinance if the argument is accepted. If the Ordinance cannot be re‑enacted one day after it has expired, it cannot be re‑enacted even after a hundred years. But this obviously cannot have been the intention. Learned counsel for the petitioner has not explained how his argument will not cover a case of re‑enactment after a long time.

12. The second argument put forward is that there would be, if we accept the contention of. learned counsel for the State, two Legislatures exercising concurrent jurisdiction which may be in constant conflict and this could not be the intention. It is urged that according to the scheme of the late Constitution the authority for the framing of laws vests in the representatives of the people and the power that is granted to the Governor is only intended to meet an emergency. That is why during the Session of the Provincial Assembly the Governor is not entitled to promulgate an Ordinance at all. It is pointed out that if the Legislature were of the opinion that circumstances did not call for any legislation and the Governor was of the opinion that they did call for legislation it is the opinion of the Legislature that is to prevail for during the Session of the Legislature there is no power of promulgating an Ordinance at all. If the Governors were granted power to promulgate Ordinances even after the previous ones had expired the result would be that the Legislatures may go on disapproving an Ordinance promulgated by the Governor and the Governor may after the conclusion of the Session promulgate the Ordinance again. The Legislature may even enact a law which was inconsistent with and opposed to the provisions of the Ordinance and the Governor may, when the Session of the Assembly comes to an end, repeal the Act and frame an Ordinance in direct conflict With it so that there would be in the country continuously one law during the Session of the Assembly and a law in direct conflict with it during the time when the Assembly is not in Session. Such state of affairs, it was urged could not be contemplated by the framers of the Consti tution.

13. The assumption of this argument that there will be a constant conflict between the Legislature and the Governor is not well‑founded though, even if it was correct, it would not have supported the argument of learned counsel for the petitioners. Under Article 71 (7) of the Constitution, the Governor was bound to act, while promulgating an Ordinance, on the advice of the Cabinet. Although apparently the power of promul gating an Ordinance vests in the Governor, the effect of Article 71 (7) is that it vests in the Cabinet. If the Cabinet. wants the Governor to promulgate a particular Ordinance he i4 bound to promulgate it, and as I have already explained in Qaseemud Din v. The Province of West Pakistan (P L D 1959 Lah. 76), he cannot promulgate an Ordinance at all unless requested by the Cabinet,] for the obligation to act on advice implies, in the circumstances; an obligation not to act except on advice. There is not much apprehension therefore of any conflict between the Governor and; the Legislature for the Cabinet generally fully represents the Legislature. Also if the Governor acts mala fide his action can be challenged in a Court of law. I have already held in Qaseemud Din v. The Province of West Pakistan that if the Governor acts mala fide the Court has jurisdiction to declare the Ordinance void. I have discussed the matter at length in that case and will not repeat the discussion here.

14. It is to be remembered that the power of the Governor to promulgate an Ordinance is ultimately to be decided on the wording of the first clause of Article

102. The conditions of the exercise of his power having been mentioned in that clause any limitation on his powers must be based on an interpretation of that clause. The conditions precedent for the exercise of this power, as already stated, are only two, that is, the Assembly should not be in Session and the Governor should consider Immediate action necessary. If the Assembly be not in Session at the time when the Governor promulgates an Ordinance, the objection to the exercise of his power must be found in the words "if the Governor is satisfied that circumstances exist which render immediate action necessary". But it is not possible for learned counsel for the petitioners to interpret these words so as to prohibit a re‑enactment of an Ordinance. The other two con ditions (not conditions being precedent) which are mentioned in that clause obviously do not stand in the way of the re‑enactment of the provision of an expiring Ordinance.

15. The difficulty in the way of the learned counsel for the petitioners is that he is not in a position to put forward a specific contention as to what are the powers of a Governor in respect of the enactment of provisions which exist in an expired Ordinance. He cannot put forward a contention that the Governor can never promulgate an Ordinance which contains the same provisions as existed in an Ordinance which has expired and if it be held that there cannot be a permanent bar to re‑enactment, then what is the extent to which the bar does exist ? Learned counsel was unable to state what exactly would be the limitations and how they could be brought within the four corners of the second condition precedent stated in the first clause of Article

102. A suggestion was made that the second condition precedent implied that the power of promulgation of an Ordinance was to be exercised only once in an emergency. This interpretation too is open to obvious objections. The Governor may have tot enact a number of Ordinances to meet an emergency and may have to amend them if he subsequently finds they are inadequate,' or unsuitable.

16. It was conceded that in case there was fresh emergency, the Governor could re‑enact the provisions of an Ordinance. This had to be conceded for otherwise, as already mentioned, the Governor would never be able to re‑enact those provisions. But if it is only in a fresh emergency that the Governor can re‑enact an Ordinance, then the validity of the new Ordinance would have to be decided on a determination by the Court of the question as to whether there was fresh emergency. Is that a fit subject for determination by the Court ? It is very difficult to say whether the emergency has just continued or has occurred again after an interval and it could not be the intention of the Constituent Assembly that Courts should determine whether the emergency was fresh or continuing and should decide the validity of an Ordinance on this ground. If such was really the intention there would be clear words to indicate it.

17. In Moulvi Tamiz‑‑ud‑Din Ahmad v. The Province of East Bengal (P L D 1949 Dacca 1), the facts were that an Ordinance relating to preventive detention had been promulgated by the Governor and a Bill which made the Ordinance an Act of the Legislature had been passed by the Provincial Assembly. The Bill had been reserved by the Governor for the assent of the Governor‑General and the Governor was apprehensive that assent would not be received before the expiry of six weeks from the beginning of the Session of the Assembly with the result that orders of detention passed under the Ordinance would not remain enforceable. In order to cover the possible interval between the expiry of the Ordinance and the commencement of the Act the Governor promulgated an Ordinance which simply continued the life of the expiring Ordinance. The learned Judges held that there was no power in the Governor to extend the life of an expiring Ordinance. The following passage in the judgment contains the whole of the reasoning for the decision of the point :‑ "The question here, however, is not the same. Mr. Suhrawardy claims that the impugned Ordinance would expire on the 22nd of April 1949, and the Governor had no power to continue its life by another Ordinance specifically designed for that purpose. Under the scheme of the Act the Ordinance must die. There is no provision in section 88 for its continuance by another Ordinance and rightly so far other wise Government by Ordinance could be continued indefinitely. In his support is the undisputed fact that the Legislature cannot extend the life of an Ordinance. That is why it legislates to continue in operation the provisions of an Ordinance, as was done by the East Bengal Ordinances Temporary Enactment and Re‑enactment Act, 1949. Mr. Suhrawardy contends that as the Legislature could not extend the impugned Ordinance, so the Governor had no power to do so. We are inclined to agree with him on this point."

18. The only ground of the invalidity of the Ordinance was that the Governor has no power to continue the life of an expiring Ordinance, and considering the wording of the Ordinance this technical objection did exist. The Ordinance was in conflict with subsection (2) of section 88 of the Government of India Act, 1935, which corresponds to the second clause of Article 102, because according to that subsection an Ordinance had to expire and the impugned Ordinance said that the previous Ordinance was not to expire but was to continue. I have already accepted the proposition that the life of an expiring Ordinance cannot be extended by an Ordinance. This case goes no further and is no authority for the proposition that the provisions of an expiring Ordinance cannot be re‑enacted. The learned Judges appear, on the other hand, to be making a distinction between continu ance of an Ordinance and re‑enactment of its provisions. At first sight it may appear unreasonable that while the life of an Ordinance cannot be extended, its provisions can be re‑enacted. But this is only a superficial view. On careful con sideration I have reached the conclusion that this distinction which appears technical has to be made. We can neither hold that the life of an Ordinance can be extended for that would bed inconsistent with Article 102 (2) nor can we hold against the power of re‑enactment for there is strong argument in its support. At the same time it should be noted that the distinction is not merely technical for the effect of re‑enactment of the provisions of an Ordinance and of the continuance of the life of an Ordinance is not the same. There are certain effects which attach) to the expiry of a statute. According to the view accepted by a Full Bench of the Lahore High Court in Crown v. Haveli (P L D 1949 Lah. 550), a temporary statute which has expired is deemed never to have existed except for transactions past and closed. If the life of an Ordinance be extended, it will not expire at all while if its provisions are re‑enacted, it does expire except for transactions past and closed. The argument that by re‑enacting the' provisions of an Ordinance we are doing indirectly that which we~ are debarred from doing directly has really no force though it may attract us in the first instance. Even if there be no difference between the effect of extending the life of an Ordinance and that of re‑enacting its provisions, I would, in view of what I have said above, hold one as valid and the other invalid.

19. Moulvi Tamiz‑ud‑Din Ahmad v. The Province of East Bengal incidentally provides an illustration which supports the view that the Governor should have power to re‑enact the provisions of an Ordinance. Here was a case where the Governor and the Legislature both regarded the continuance of the provisions of the Ordinance necessary. Yet if the power of the Governor to promulgate an Ordinance to the same effect as the expiring Ordinance did not exist the situation could not be met. The orders of detention passed under the expiring Ordinance would have become void. In that particular case the Governor promulgated an Ordinance which was open to a technical objection, but he could very well, on my interpretation of the law, re‑enact the previous provisions and at the same time provide for the validity of orders already passed.

20. In re Anukul Chandra (A I R 1933 Cal. 278), a question arose whether the Governor‑General could re‑enact the provisions of an Ordinance which had expired. The Governor‑General had power under section 72 of the Government of India Act, 1919, of promulgating Ordinances which would remain in force for six months. It was held in that case that there was no bar to the Governor‑General promulgating an Ordinance which was in the same terms as the Ordinance which had expired. There is a great difference between the power of the Governor‑General to promulgate Ordinances under section 72 of the Government of India Act and the power of a Governor under Article 102 of the late Constitution. The power of the Governor‑General was not subject to the control of the Legislative Assembly. No bill affecting an Ordinance could be introduced in the Assembly without the permission of the Governor‑General. An interpretation of section 72 of the Government of India Act cannot, therefore, be of help in deter mining the effect of Article 102 (2). But the case is relevant because of the argument which was put forward and rejected. It was urged that the provisions relating to expiry of an Ordinance after six months would prohibit the repetition of the Ordinance because this would amount to continuing the life of the Ordinance beyond six months. The argument was rejected on the ground that there was no bar in the Government of India Act to the repetition of an Ordinance.

21. Ikhlas Ahmad v. Noorun Nabi Ahmad (P L D 1958 Kar. 283), Constantine and Qadearuddin Ahmad, JJ., had held, relying upon P L D 1949 Dacca 1, that the provisions of an expiring Ordinance could not be re enacted. The learned Judges regarded the words "cease to operate" as implying that its provisions could not be re‑enacted. I have already stated my reasons for not agreeing with this conclusion. Qadeeruddin Ahmad, J. has in the order of reference doubted the correctness of the view he took. My reply to the question framed is that there is no bar to the re‑enactment of the provisions of an Ordinance though there is a technical bar to an Ordinance making provisions for continuing` the life of an expiring Ordinance. QADEERUDDIN AHMAD, J.‑Announced in open Court with my agreement to the opinion. A. H. Reference answered.