P L D 1962 (W (PLP)

S. A. MAHMOOD, J.‑This writ petition by Mohammad Bachal was instituted in this Court on the 22nd of November 1961, and was admitted to a regular hearing on the 22nd of February. 1962, before the present Constitution came into force. The petitioner has thereby prayed for the issue of a writ of certiorari or other appropriate writ 'to quash allotment orders confirmed by the Deputy Rehabilitation Commissioner, in his order dated the 25th of February 1959, and the revisional order of the Settlement and Rehabilitation Commissioner Karachi dated the 17th of February 1961, on the ground of their being illegal and without jurisdiction, and ultra vires of the Act. It has been referred by Inamullah, J. to a Division Bench to decide the question, on the ground that it is bound to arise in the writ petitions pending since before the enforcement of the present Constitution, whether the writ petitions filed under Article 2 (4) of the Laws (Continuance in Force) Order, 1958 (President's Order I of 1958) have to be decided in accordance with that provision or under Article 98 of the Constitution of Pakistan. 3. The power to issue writs which existed in the High Courts was preserved under Article 170 of the Constitution which came into force on 23rd March, 1956. When it was abrogated by the President's Proclamation of 7th October, 1958, the Laws (Continuance in Force) Order, 1958 was promulgated on the 10th October, 1958. Its Article 2 (4) provided that the Supreme Court and the High Courts shall have power to issue the writs of habeas corpus, mandamus, Prohibition, quo warranto and certiorari. This is the power which the High Courts have continued to exercise ever since. The present Constitution of Pakistan came into force on 9th June 1962 and its Article 225 (2) repealed the Laws (Continuance in Force) Order, 1958. The power `to issue writs is now provided in Article 98 of the Constitution of Pakistan, which enacts as follows :‑ "98 (1) A High Court shall have such jurisdiction as is conferred on it by this Constitution or by law. (2) Subject to this Constitution, a High Court of a Pro vince may, if it is satisfied that no other adequate remedy is provided by law‑ (a) on the application of any aggrieved party, make an order‑ (i) directing a person performing in the Province functions in connection with the affairs of the Centre, the Province or a local authority to refrain from doing that which he is not permitted by law to do, or to do that which he is required by law to do; or (ii) declaring that any act done or proceeding taken in the Province by a person performing functions in connec tion with the affairs of the Centre, the Province or a local authority has been done or taken without lawful authority, and is of no legal effect ; or (b) on the application of any person make an order‑ (i) directing that a person in custody in the Province be brought before the High Court so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner ; or (ii) requiring a person in the Province holding or purporting to hold a public office to show under what authority of law he claims to hold that office. (3) An order shall not be made under clause (2) of this Article‑ (a) on application made by or in relation to a person in the Defence Services of Pakistan in respect of his terms and conditions of service, .in respect of any matter arising out of his service or in respect of any action taken in relation to him as a member of the Defence Services of Pakistan ; or (b) on application made by or in relation to any other person in tote service of Pakistan in respect of his terms and conditions of service, except a term or condition of service that is specified in this Constitution. (4) Where‑ (a) application is made to a High Court for an order under paragraph (a) of clause (2) of this Article ; and (b) the Court has any reason to believe that the making of an interim order would have the effect of prejudicing or inter fering with the carrying out of a public work or of otherwise being harmful to the public interest, the Court shall not make an interim order unless the pre scribed law officer has been given notice of the application and the Court, after the law officer has been given an oppor tunity of being heard, is satisfied that the making of the interim order would not have the effect referred to in para graph (b) of this clause." No one will deny that the present Constitution does not confer precisely' the same writ powers as the High Courts as existed under Article 2 (4) of the Laws (Continuance in Force) Order, 1958. The powers are not the same and one noticeable difference is that Article 98 does not mention the prerogative writs mentioned in Article 2(4) of the Laws (Continuance in Force) Order, 1958. If there was no difference, it would not have been necessary to refer the question to a larger Bench. It is not necessary for the purpose of this Order to notice what difference there is in the power of the High Courts to issue writs under the two enactments. All that is necessary is to answer the question posed for decision. 4. For the determination of this question, it is enough to notice Articles 225 (2) and 250 of the present Constitution. These two Articles provide as under :‑ "225(2). The Presidential Proclamation made on the seventh day of October, One thousand nine hundred and fifty‑eight, is revoked with effect as from the commencing day, and the Orders specified in the table to this clause (and any Orders amending those Orders) are repealed with effect as from that day, but this clause shall not affect any existing laws made under those Orders. Number Title No. 1 of.1958 The Laws (Continuance in Force), Order, 1958. No. 2 of 1958 The Government (Presidential Cabinet) Order, 1958. No. 2 of 1959 The Legislative Powers Order, 1959. No. 8 of 1959 The State Arrangements Order, 1959. 250. Where a law is repealed, or is deemed to have been repealed, by, under, or by virtue of this Constitution, the repeal shall not‑ (a) revive anything not in force or existing at the time at which the repeal takes effect ; (b) affect the previous operation of the law or anything duly done or suffered Wider the law (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the law ; (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law ; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the law had not been repealed." 5. It will be noticed that sub‑Article (2) of Article 225 repeals the Laws (Continuance in Force) Order, 1958. What is the effect of the repeal is provided in Article 250 of the Con stitution, which provides in substance that where a law is repealed by this Constitution, the repeal shall not affect any right or liability or privilege acquired or accrued, or affect any legal proceedings or remedy in respect of such right or privilege, and such legal remedy or proceeding mad‑ be continued or enforced as if the law had not been repealed. Article 250 is similar to section 6 of the General Clauses Act, which is also a provision relating to the effect of repeal of a statute, but it will be noticed that the words of limitation: "unless a different intention appears" which find place in section 6, have been omitted in Article 250 of the Constitution. Thus Article 250 of the Con stitution expressly provides for continuance of legal proceeding already instituted under the Laws (Continuance in Force) Order, despite the repeal, and the writ petition filed under its provisions shall continue to be decided under it. 6. In view of the express provision in Article 250 of the Constitution that pending legal proceedings or remedies in respect of any right or privilege may be continued or enforced as if the law had not been repealed, it is not necessary to discuss the question any further. It may, however, be stated that the general principle is that where a statute affects existing rights, its provisions are not to be held as retrospective in operation, unless a clear intention to the contrary is manifest. This principle is laid down by the Privy Council in The Colonial Sugar Refining Co. Ltd. v. Irving (1905 A C 369). The learned Judges of the Supreme Court of India in Garikapaci Veeraya v. N. Subbiah Choudhry and others (AIR 1957 S C 448), held that in construing the Articles of the Constitution, Courts must bear in mind a cardinal rule of construction that statutes should be interpreted, if possible, so as to respect vested rights The golden rule of construction is that, in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed. It has been shown already that the Constitution not only does not expressly provide otherwise, but provides for the continuance of the pro ceedings. The learned Judges of our Supreme Court in Muhammad Ishaq v. The State (A I R 1927 P C 242), in interpreting clause (a) of Article 159 of the abrogated Constitution of 1956 also came to the conclusion that it was not of retrospective effect, and observed that where a statute affects a substantive right in absence of express words or necessary intendment, it has to be construed prospectively and not retrospectively. In so holding, their Lordships relied on Delhi Cloth and General Mills Co. Ltd. v. Income‑tax Commissioner, Delhi and another (P L D 1956 S C (Pak.) 256), in which their Lordships of the Privy Council held that while provisions of a statute dealing merely with matters of procedure may pro perly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. Maxwell in his book "Interpretation of Statutes" observed: "No rule of construction is more firmly established than this that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, other wise than as regards matters of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only. But if the language is plainly retrospective, it must be so interpreted. At the same time, regard must be paid to the dominant intention." Craies on Statute Law similarly states that the general rule of law is that statutes are not to operate retrospectively, unless there is some declared intention of the Legislature, clear or unequivocal, or unless there are some circumstances rendering it inevitable that we should take the other view, that the new law ought to be construed so as to interfere as little as possible with vested rights, but that the presumption against the retros pectivity can be rebutted by express enactment or by necessary implication from the language employed by the amending statute. Therefore, on general principles also, Article 98 cannot be interpreted as having retrospective effect, and it is not to affect the writ petitions which were pending before the present Constitution came into force on the 8th of June 1962. This is our answer to the question referred to us for opinion. 7. The parties agree before us that the question of law alone was referred to us for opinion. The Writ Petition will, therefore, be laid before the learned Single Judge for decision on merits. A. H. Reference answered.