P L D 1969 Lahore 860 (PLP)

2. The point which was canvassed before us wits that the petitioner was not liable to pay for the years in question any cotton fee in excess of annas four per maund. The Provincial Government by its notification, dated the 10th of October 1952, issued in pursuance of rule 26 of the West Punjab Cotton Control Rules, 1949, framed under section 30 (p) of the West Punjab Cotton Control Act, 1949, imposed cotton fee of annas four per maund on unginned cotton. By four notifications, all of which were issued on the 29th of December 1961, enhanced cotton fee was imposed retrospectively for the years in question. It was con tended that the imposition of cotton fee with retrospective effect at rates in excess of annas four was without lawful authority. The precise question was considered in S. M. Illahi & co. v. The Government of West Pakistan (Civil Appeal No. 87 of 1965, decided on the 19th of May 1967) and it was held by the Supreme Court that the imposition of enhanced fee through notifications having retrospective operation was not valid. The petitioner is; therefore, not liable to pay any cotton fee in excess of annas four per maund.

3. It was next contended that the, petitioner being a co. allottee could not be called upon to pay the whole fee assessed on the factory. In Muhammad Ismail & Co. v. Chief Cotton Inspector (P L D 1966 S C 388) a similar question was raised and it was held that a co‑allottee was undoubtedly an occupier of the factory and no law or rule had been contravened by the demand made, It was, however, made clear that the co‑allottee can pay the whole fee and ask for contributions from the other co‑allottees.

4. The petitioner was occupier of the factory prior to 1954. He was served with a demand notice to pay cotton fee under ordinance XIII of 1966. Learned counsel contended that the Ordinance was not a valid piece of legislation and the demand made in pursuance thereof was without any lawful basis. The petitioner has not raised any question in the writ petition as to his liability for this period nor did he claim any relief. It was only during the arguments that the learned counsel put forward this question. We could on this short ground refuse to entertain plea at such a late stage of the proceedings. We, however, find no merit in this contention. The West Punjab Cotton (Control) Act (IV of 1949) was promulgated on the 5th of April 1949. It was provided in section 30 (p) of the Act : "The Government may, by notification, make rule, consistent with this Act to give effect to the provisions of this Act. Such rules may, in particular, provide for the fees to be paid by the owners of Cotton Ginning Factories, Cotton Pressing Factories and Cotton Seed Oil Factories and by the Managers of any Cotton Market to cover the cost incurred by Government on the staff appointed under this Act." The Govern ment in pursuance of clause (p) ibid framed the West Punjab Cotton Control Rules, 1949, rule 26 (1) whereof, which is relevant to the issue, reads : "Government may by general or special notification impose fees on the occupiers of factories, the Mana gers of companies and the cotton dealers to cover the cost of the staff appointed under the Act or for the improvement of agriculture relating to the cotton crop grown in the West Punjab." The Provincial Government in the exercise of the power so conferred issued notifications from time to time imposing fee, the last in point of time for the purposes of this case being of the 10th of October 1952 which imposed a fee of annas four per maund on unginned cotton on occupiers of cotton ginning, cotton pressing and cotton seed oil factories. In Muhammad Ismail v. Chief Cotton Inspector it was held by the Supreme Court that rule 26 and the notifications issued in pursuance thereof imposing fee on the occupiers of the factories being beyond the scope of clause (p) of section 30 were ultra vires. It was observed that the "expression `owners' occurring in the original clause (p) is much narrower than the term `occupiers' used in the new clause." In dealing with the contention that the word `owners' occurring in clause (p) of section 30 should be equated with `occupiers', it was observed by S. A. Rahman, J : "I do not, however, see any strong ground for adopting that course. The word `occupier' also occurs in other sections of the original Act, but in this clause, specifically, the word `owner' has been used and it must be construed according to its ordinary meaning as no artificial meaning has been assigned to this term in the Act itself." By Punjab Act I of 1954, clause (p) of section 30 was amended and it provided "the fees to be paid by the occupiers of Cotton Ginning, Cotton Pressing or Cotton Seed Oil Factories, by the cotton dealers, or by the Managers of companies to cover the expenses incurred by Government on the administration of the Act." The Amending Act also sought to validate the fee which had previously been realized from the occupiers. As to validating clause it was held in Muhammad Ismail v. Chief Cotton Inspector : "it was not realised that without a deeming provision such as could give effect to the substituted clause from the date of the original Act, the new clause would be operative only from the date of the amendment. Any fee, therefore, realized prior to this amendment, from persons who may be described as `occupiers' but not `owners', would have no legal sanction behind it." The legal position thus crystallized was that an occupier (allottee of the premises was held to be an occupier and not the owner) was not liable to pay any cotton fee for the period before the Amending Act (I of 1954) and the recovery of cotton fee from him was invalid. To render the occupier liable for the period prior to the Punjab Act I of 1954, West Pakistan Cotton Control (Validation of Levy of Fees) Ordinance (XIII of 1966) was promulgated on the 27th of April 1966. The intention of the Ordinance was "to validate the levy, charging, collection and realization of fees from the occupiers of cotton ginning, cotton pressing and cotton seed oil factories, cotton dealers and Managers of companies, for the period from 24th March 1949 to 3rd January 1954." It was provided in section 2 of the aforesaid Ordinance "Notwithstanding anything contained in clause (p) of section 30 of the West Punjab Cotton (Control) Act, 1949 (Punjab Act IV of 1949), before its amendment by the Punjab Cotton (Control) (Amendment) Act, 1953 (Punjab Act I of 1954), or any judgment or decree of any Court, the fees levied, charged, collected or realised from the occupiers of cotton‑ginning, cotton pressing or cotton seed oil factories, cotton dealers or Managers of companies for the period from 24th March 1949 to 3rd January 1954, in accordance with the provisions of the said clause (p) as substituted by the Punjab Cotton (Control) (Amendment) Act, 1953, shall be deemed to have been validly levied, charged, collected or realized, as the case may be, and where any such fees have not been paid or realised before the coming into force of this Ordi nance, the same shall be recoverable in accordance with the provisions of the said clause (p) as substituted by the Punjab Cotton (Control) (Amendment) Act, 1953." The Supreme Court in Muhammad Ismail's case had observed that clause (p) of section 30, as was substituted by Act I of 1954, could be given effect to only by a deeming provision from the date of the original Act. Section 2 of Ordinance XIII of 1966 is a deeming provision. By virtue of this, the new clause (p) of section 30, as was added on the 4th of January 1954, became operative from the 5th of April 1949 when Punjab Cotton (Control) Act (IV of 1949) came into force.

5. It was, however, contended that by Ordinance XIII of 1966 the imposition of cotton fee on occupiers for a period prior to Punjab Act I of 1954, was not backed by any law then in existence and the Ordinance could not validate the same. The precise contention was that it was not permissible for the Legisla ture to validate the imposition of the cotton fee for a period when there was no valid law for such an imposition. He relied on Article 2 of the Constitution which provides "2 (1) To enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan. (2) In particular‑ (a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law ; (b) no person shall be prevented from, or be hindered in, do ing that which is not prohibited by law ; and (c) no person shall be compelled to do that which the law does not require him to do." Learned counsel in aid of his argument cited before us a Full Bench decision of Dacca High Court reported as Ghulam Zamin v. A. B. Khondkar (P L D 1965 Dacca 156) where it was observed by Murshed C. J: ". . . .even if the Ordinance is taken to be otherwise valid, its validation clause, as embodied in section 10 thereof, would be valid in a qualified sense, that is, subject to the limitation that it would not be permissible to validate an order which would require a citizen to do something at a time when such order had no legal efficacy in the sense that there was no contemporaneous law to support such a kind of infringement of a `present' right." Inter preting Article 2 of the Constitution, it was observed : "It furnishes a citizen with a constitutional guarantee that he will not be called upon to do something or to refrain from doing any thing without a valid provision of law to that effect. This means that there is a constitutional protection in praesenti ; or in other words, whenever an order is made, which invades upon the rights of a citizen or requires him to do something, there must be, in existence, contemporaneously, a law which would authorise such a course. If there is no such contemporary law in existence, the order would fall there and would become tainted with illegality as it would come within the mischief of a guaranteed constitutional protection. The impugned order was a still‑born order and no life can be imparted to it by a sub sequent legislation without a constitutional amendment." Based on this judgment, the contention raised was that rule 26 and the consequent order made by the Punjab Government imposing cotton fee on the occupiers for the period prior to Punjab Act I of 1954, were void and could not be validated by subsequent legislation, i.e., Ordinance XIII of 1966. In this behalf, it was observed in Ghulam Zamin's case : "The law or legislation as contemplated by Article 2 must, of necessity, mean a contempor aneous law. To hold otherwise would tantamount to rendering Article 2 nugatory and ineffective." It was further observed "The guarantee that has been given by the Constitution cannot be washed away by an ingenious legislative device which can wipe out an illegal invasion of today by an artful enactment of tomorrow, pretending to act retrospectively, without any con stitutional change to that effect . . . . A constitutional right cannot be taken away by a legislative `fiction' without a constitu tional amendment which would permit such a course."

6. Article 2 of the Constitution only gives a statutory recognition to the principle of the rule of law. In dealing with this Article, M. Munir, former Chief Justice of Pakistan, in his book "Constitution of the Islamic Republic of Pakistan," says "What the Article declares is that any public functionary or person taking any action affecting the life, liberty, body, property or reputation of a person, or affecting his profession, trade or business, must rely on some law to justify his action. Thus, a hangman must be equipped with a legal authority to hang, a jailer or a whipper with a legal warrant to imprison or whip, an officer or other person seizing another person's property with a legal warrant to seize or confiscate, and a person who interferes with another person's right to carry on his trade, profession or business, with a legal power to regulate or stop such activity. Similarly, a person requiring another period to do something, as for instance, a jailer requiring a person to work, must show tot the law gives hide the authority to compel the person to do the particular act. To put tile rule in other words, every public functionary or person must show a legal authority for his inter ference with the right of another person. Thus, a direction or order by the Executive, which infringes a present right, would be invalid, if it does not have the backing of a valid contemporaneous law." Thus if any person charged with the duty of collecting cotton fee had given a direction to collect fee on unginned cotton from an occupier of a factory for the period prior to the 4th of January 1954, i.e., before. Punjab Act I of 1954, his action would be invalid because it did not have the backing of a law. In the absence of any law, the fee could not be imposed on him. The position, however, changed when Ordinance XIII of 1966 was enacted. It validated the levy of all fee on the occupies of cotton ginning, cotton pressing and cotton seed oil factories, cotton dealers and managers of companies, for the period from 24th March 1949 to 3rd January 1954. By virtue of the pro vision so enacted, an occupier of a factory for the said period can be asked to pay cotton fee so imposed and the demand will be in accordance with law. So long as the law is not held invalid or void, a citizen cannot complain that he has been treated otherwise than in accordance with law. To hold that the law must be contemporaneous with the action to be taken is correct. There was no law when the fee for this period was collected. The collection of the fee was, therefore, not backed by any law. The action, in the circumstances, was void. It is, however, within the competence of a sovereign Legislature to make laws with retrospective effect, subject, of course, to the constitutional limitations. The only limitation placed by the Constitution is contained in Fundamental Right No. 4 under which "no law shall authorise the punishment of a person . . . (a) for an act or omission that was not punishable by law at the time of the act or omission; A or (b) for an offence by a penalty greater than, or of a kind differ ent from, the penalty prescribed by law for that offence at the time the offence was committed." The Constitution has provided a pro hibition against ex post facto legislation. By its terms, it applies to the creation of penalties for offences which at the time of such act or omission were not punishable by the law then in force. There is a distinction between the terms "retrospective laws" and "ex post facto laws", in that, the former term is applied only to laws relating to civil matters. In the absence of a prohibition, the lacy can be made to relate back to an earlier transaction and give to it some legal effect different from that which it had under the law when it occurred. It is a fundamental principle and the basic need that a sovereign Legislature should be vested with the power to take away or affect vested rights, impose a new disability or confer a new right. If we apply the principle laid down in Ghulam Zamin's case in terms, it will mean that Article 2 has completely taken away the power of the Legis lature to make laws to affect past transactions, which is far from being so. In Mir Ahmad Nawaz Khan v. Superintendent Jail, Lyall par (P L D 1966 S C 357) while interpreting Article 2 of the Constitution, Kaikaus, J.., observed : "So far as the effect of Article 2 on retrospective legislation is concerned the argument in the form in which it has been put on behalf of the appellant is not acceptable for as we have pointed out, all legislation deals with rights and liabilities." It was further observed : "All legislation affects rights or liabilities the words being used in their widest sense. Legislature either creates a right or takes away aright or restricts or enlarges a right or similarly affects liabilities. It should be clear that if the contention of learned counsel is accepted there could be no retrospective legislation." In Amin Ullah v. Pannu Rant (PLD 1967 SC 289) it was observed by Muhammad Yaqub Ali, J., that "the established rule is that subject to any constitutional bar there is no legal limit to the making and unmaking of laws by a Legislature to appoint a date for Vic commencement of the laws made by it including a date preceding the making of the laws. In short the authority to legislate includes the authority to legislate with retrospective effect. The doctrine stems from the sovereignty of a Legislature .. ..." One of us (K. E. Chauhan, J.) in Muhammad Sharif v. Muhammad Saeed‑a‑ Zaman (PLD 1968 Lah. 122) observed : "Article 2, in nay opinion, does not place a fetter on the power of Legislature to pass retrospective laws with regard to subjects and items over which it has authority to pass laws. Rio check on the powers of the Legislature cane be carved nut merely from the provisions of Article

2. In Dacca Authority, there is one inherent conflict acid that is that though it recognises that retrospective laws can be made, yet it says, that in that given case, law could not leave been made retrospective. It has not been pointed out that‑(apart from Article 2)

‑if retrospectively power is not doubted then why is it doubted when it is used to cover past civil transactions. It may be emphasised that it is well‑known that a statute should not be ordinarily interpreted to be retrospective unless it is expressly declared to be so or there is a necessary intendment to this effect, the reason being that Courts should not incline towards touching rights accrued or vested under old laws. But this has never been doubted that when a law is specifically made retrospective, it may touch past transactions as well so long as there is a remedy forum, machinery and provision to touch them." In United Province v. Atiqa Begum (AIR 1941 FC 16) it was held that the "legislation for the purpose of `validation of executive orders' must necessarily be regarded as subsidiary or ancillary to the power of legislating on the particular subjects in respect of which the executive orders may have been issued. The remission of rent is a matter covered by item

21. The impugned Act is an Act with respect to the remission of rent, and it was within the competence of the United Provinces Legislature to enact it." J. K. Jute Malls v. State of U. P. (AIR 1961 SC 1531) is a case from Indian Jurisdiction. The State of Uttar Pradesh by a notification dated March 31, 1956, imposed a tax of one anna in the rupee on the sale proceeds of jute. The High Court of Allahabad struck down the notification as unauthorized and inoperative. The State Legis lature enacted an Act validating the aforesaid notifications as from the 31st of March 1956. Before the Supreme Court. It was contended that notwithstanding the Validation Act, the notification in question continued to be void and inoperative, because it had not in fact been validated, and because the Act itself was ultra vires. In dealing with this contention, it was observed by the Supreme Court of India : "The point for decision stating it succinctly, is whether the Validation Act is within the ambit of entry 54 in List II of the Seventh Schedule to the Constitution. That entry confers on the States authority to enact a law with respect to tax on sales of goods. Now what is the extent of that authority? There must be in fact a sale as recognized by law. It is only then that a tax could be imposed. But if the transaction sought to be taxed is not a sale, a law which seeks to tax it, treating it as a sale, would be ultra vires . . . . . . But where the transaction is one of sale of goods as known to law, the power of the State to impose a tax thereon is plenary and unrestricted subject only to any limita tion which the Constitution might impose, and in the exercise of that power, it will be competent to the Legislature to impose a tax on sales which had taken place prior to the enactment of the legislation". It was further observed : The power of a Legislature to enact a law with reference to a topic entrusted to it, is, as already stated, unqualified subject only to any limitation imposed by the Constitution. In the exercise of such a power, it will be competent for the Legislature to enact a law, which is either prospective or retrospective". The case of Ghulam Zamin was considered by the Supreme Court very recently in Muhammad Yusuf v. Chief Settlement and Rehabilitation Commissioner (PLD 1968 SG 101). The contention raised was that by the effect of Article 2, no person could be treated in respect, inter alla, of property, other wise than in accordance with the law in force at the time of such treatment, in other words, in accordance with contemporaneous law, and in support of the contention reliance was placed on the judgment in Ghulam Zamin's case which was followed in another Dacca case that of Ghulam Sabir v. Pan Allotment Com mittee (PLD 1967 Dacca 607). In dealing with the contention it was observed by Cornelius, C. J: "To give the fullest effect to this argument would operate as a prohibition against the making of laws with retrospective effect in respect of all matters that are specified in Article

2. We do not conceive that the Article was intended to produce so wide an effect in relation to the well‑established practice of retrospective or retroactive legislation. It is difficult to construe Article 2 as conveying a fundamental right in every citizen of Pakistan and every person for the time being within Pakistan against the making of laws by the established Legislatures which expressly operate retrospectively or retroactively against his interests. Reference may here be made to the Fourth Funda mental Right which gives protection against retrospective punishment and the argument was raised on the basis of this Funda mental Right that the express protection against retrospective effect being provided in one particular case, is to be construed as having the effect of maintaining the ordinary power of Legislatures to legislate with retrospective effect in cases not specified. These considerations have weight . . . . . "

7. The power to amend and repeal legislation as well as the power to enact it, is vested in the Legislature. A legislative act does not bind a subsequent Legislature. It has the right to pass the laws even to have a retrospective effect, with reference to any matter covered by law of an earlier Legislature unless it is forbidden by the Constitution. We know of no principle of construction by which the legislative act may be made irrepar able, because if any legislation is given a permanent character it would give rise to most injurious consequences, affecting both the citizens and the State. Balckstone says : "Because the Legislature, being in truth the sovereign power, is always of equal,) always of absolute authority ; it acknowledges no superior on earth, which the prior Legislature must have been if its Ordinances could bind a subsequent Parliament." He further observed "Acts of Parliament derogatory from the power of subsequent Parliaments, bind not ; so the Statute II Henry VII, c.i., which directs that no person for assisting a king de facto shall be attained of treason by act of Parliament or otherwise, is held to be good only as to common prosecution for high treason, but it will not retain nor clog any parliamentary attainder." Thus, every legislative body, unless restricted by the Constitution, may modify or abolish the acts of its predecessors ; whether it would be wise to do so shall always depend upon the legis lative descretion which, according to the accepted principles, in order to receive the appreciation of the people for the Governance of which the law and the Constitution exist, must conform to the principle of rule of law. Waite, Chief Justice, in Stone v. Mississippi (25 L. ed. 1079) observed The power of governing is a trust committed by the people to the Government, no part of which can be granted away. The people, in their sovereign capacity, have established their agencies for the preservation of the public health and the public morals, and the protection of public and private rights. These several agencies can govern according to their discretion, if within the scope of their general authority, while in power ; but they cannot give away nor sell the discretion to those that are to come after them, in respect of matters the government of which, from the very nature of things, must vary with varying circum stances. On the above view of the matter, we find no force in the con tention that the West Pakistan Cotton Control (Validation of Levy of Fees) Ordinance (XIII of 1966) was violative of Article 2 of the c Constitution.

8. It was next contended that the Provincial Legislature which enacted Ordinance XIII of 1966 was a creation of the Constitution of 1962 and did not possess the power to enact the laws with retrospective effect as to deal with matters prior to the Constitution. The precise argument was that the Legis lature even if it could make retrospective laws, it did not have the power to legislate with retrospective operation beyond the 8th of June 1962 when the Constitution of the Islamic Republic of Pakistan 1962 came into being. Reliance was placed on the observations of Mr. A. K. Brohi in his book "Fundamental Law of Pakistan" where at page 217 he observed : "It is the view of the present writer that the Legislature established by the Con stitution cannot pass laws affecting acts and omissions that have taken place before the coming into force of the Constitu tion. And before such an abnormal power could be suffered by Courts to be assumed by the Legislatures, it must be shown that it was expressly conferred upon them. Once it is conceded that the Legislatures established by the Constitution are new legal institutions deriving their powers from the terms of the Constitution itself, it would be difficult to justify the assumption of the power by such newly created institutions to pass laws affecting acts and omissions countenanced by subjects during the pre‑constitution period." The precise observations were considered in Riaz‑ud‑Din Ahmad v. Chief Settlement Commis sioner (PLD 1966 Lab. 43) and it was held : "Reading Article 131 and Article 29 of the Constitution together, one thing is clear that no limitation has been put on tile power of the Legislature except that the Central Legislature cannot legislate with respect to any matter not mentioned in Article 131 of the Constitution. The Central Legislature is a sovereign body and, in my opinion, there is no reason to put any fetter or limitation on its power, and none can be construed front the Constitution itself. The President had the same power to legislate under Article 29 of the Constitution, as the Central Legislature when it is not in session. I am of the view that Ordinance XVIII of 1965 cannot be questioned on the ground that it has been given retrospective effect beyond 8‑6‑1962." Union of India v. Madan Gopal (AIR 1954 SC 153) is a case from foreign jurisdiction. It was contended in that case that Finance Act of 1950 in so far as it purported to authorise such levy was ultra vires and void as Parliament was not competent under the Constitution to make such a law, so as to be operative retrospectively. While repelling this con tention, it was observed : "It is not correct to say that in bringing into existence new Legislatures and conferring on them certain powers of legislation, the Constitution operated retrospectively. The legislative powers conferred upon Parlia ment under Article 245 and Article 246 read with List I of the Seventh Schedule could obviously be exercised only after the Con stitution came into force and no retrospective operation of the Constitution is involved in the conferment of those powers. But it is a different thing to say that Parliament in exercising the powers thus acquired is precluded from making a retroactive law. The question must depend upon the scope of the powers conferred, and that must be determined with reference to the terms of the instrument by which affirmatively, the legis lative powers were created and by which, negatively, `they were restricted'." We are of the view that unless there is a restriction imposed by the Constitution itself on the exercise of the, power by, the Legislature, it has, as a sovereign body, unfettered authority) to make laws to affect acts and omissions which have taken place before the Constitution. If it were not so, then each Legislature or the Constitution making authority could declare that certain laws or certain provisions of the Constitution shall not be amended. It was held in Vaudhall Estates Ltd. v. Liverpool Corporation ((1932)1 K B 733). "In other words, we are asked to say that by a provision of this Act of 1919 the hands of Parliament were tied in such a way that it could not by any subsequent Act enact anything which was inconsistent with the provisions of the Act of 1919. It must be admitted that such a suggestion, as that is inconsistent with the principle of the constitution of this country. Speaking for myself, I should certainly hold, until the contrary were decided, that no Act of Parliament can effectively provide that no future Act shall interfere with its provisions." We feel no hesitation in repelling the second conten tion raised on behalf of the petitioner.

9. In the view of the matter we take, we are of the opinion that the West Pakistan Cotton Control (Validation of Levy of Fees) Ordinance (XIII of 1966) is intra vires the Constitution and the occupiers are liable to pay cotton fee for the period prior to Punjab Act I of 1954. The petition is accepted to the extent indicated in paragraph 2 of this judgment. There shall be no order as to costs. A. E./S. A. H. Petition accepted.