P L D 1966 (W (PLP)

ANWARUL HAQ, J.‑The 156 petitioners who are residents of village Lawa in Tehsil Talagang, District Attock, are aggrieved by an order served upon them by the Local Union Council to the effect that the Deputy Commissioner, Campbelipur, has directed that the date for keeping of goats has been extended till only 30th May 1966, and thereafter the offenders shall be prosecuted. This order purports to have been passed by the Deputy Com missioner in pursuance of several notifications which had been issued by the Provincial Government under section 3 of the West Pakistan Goats (Restriction) Ordinance, 1959 (hereinafter referred to as the Ordinance). The notifications as well as the Ordinance itself have been challenged on the following grounds:‑ . (i) That the Ordinance has not been validly made by the Governor of the Province for the following reasons:‑ (a) That the 1956‑Constitution having been abrogated by the Proclamation issued on 7th October 1958, the provisions made in paragraph 5 of the President's Order (Post‑Proclama tion) No: 1 of 1958, better known as the Laws (Continuance in Force) Order, 1958, to the effect that "the powers of a Governor shall be those which he would have had the President directed him to assume on behalf of the President all the functions of the Government of the Province under the provisions of Article 193 of the late Constitution and such powers of making Ordinances ‑as he would have had and within such limitations had Article 106 and clauses (1) and (3) of Article 102 of the late Constitution been still in force," was a meaningless provision and did not in fact confer any power at all on the Governor, and (b) That in any case there was no urgency requiring the promulgation of this Ordinance as is apparent from the fact that even 7 years after its promulgation action has not yet been complete thereunder. (2) That section 3 of the Ordinance amounts to excessive delegation of legislative power inasmuch as it confers an unfettered and arbitrary discretion on the executive authorities to specify any area they like for the purpose of enforcing the prohibitions contained in this section without prescribing any guiding principles, standard or norms. (3) That the notification issued on 29th September 1961 suffers from several infirmities, namely‑ (a) that it was not published in two local papers as required by law; and (b) that it does not conform to the language employed in section 3 of the Ordinance inasmuch as it does not declare as to what is being prohibited.

2. The learned counsel also sought to challenge the vires of the Ordinance by reference to Fundamental Right No. 15 of the Constitution, but dropped this contention on his attention being drawn to a notification issued on the 16th September 1965 by which this Fundamental Right was suspended by the President on account of Proclamation of Emergency in the country.

3. We regret we do not see any force in the contentions advanced on behalf of the petitioners. The argument regarding the powers conferred on .the Governor by the Laws (Continuance in Force) Order, 1958 is clearly misconceived. It is true that the 1956 Constitution was abrogated by the Proclamation of the 7th October 1958, yet it was open to the relevant authority, namely, the President acting in conjunction with the Chief Martial Law Administrator to lay down the manner in which the country was to be governed. This is precisely what has been done in the very first Order issued after the Proclamation. In paragraph 2 of this Order, it is clearly stated that notwith standing the abrogation of the Constitution of the 23rd March 1956, Pakistan shall be governed as nearly as may be in accord ance with the late Constitution. Having made this clear in paragraph 2' of this Order, the President has then proceeded, in paragraph 5, to indicate what powers shall be exercised by the Governors of the two Provinces. This paragraph lays down that while exercising law‑making powers the Governor shall make Ordinance in accordance with the relevant Articles of the 1956 Constitution. It is clear, therefore, that. notwithstanding the abrogation of that Constitution, the Governor continued to enjoy the executive and legislative powers as granted to him by paragraph 5 of the Post‑Proclamation Orders.

4. The next contention that there was no urgency in 1959 for promulgating the Ordinance, which we are considering here, proceeds on the basis that there was an alternative force of legislation available at that time, but that assumption is clearly incorrect. On 16th July 1959 when the Ordinance was promulgated, the Legislature stood dissolved and accordingly the only means of law‑making left open to the Governor in accordance with paragraph 5 of the Post‑Proclamation Order I of 1958, was to promulgate Ordinance. It is, therefore, clear that it is not a case where it could be said that at the time of making the Ordinance there was no urgency and accordingly the Governor could have waited until the Provincial Legislature met in session, because there was no Provincial Legislature which could have met at that time.

5. In any case, the question of urgency is one which .has to be decided by the competent authority namely, the Governor in this case, as laid down by their Lordships of the Privy Council in the case of Benoari Lal Sarma (72 I A 57). While referring to this case, his Lordship the Chief Justice observed in Mr. Fazlul Qader Chowdhury and others v. Mr. Muhammad Abdul Haque (P L D 1963 S C 486), that if, however, the elements of danger had not been found to exist, the Courts may well have considered whether a declaration, contrary to the facts that an emergency existed, could be allowed to stand. Now, in the present case the petitioners to show that there was no emergency in 1959 making it necessary to restrict the number of goats so as to prevent the destruction of forests and the erosion of soil have placed no facts on the record. A mere assertion by the petitioners that action has not been completed under this Ordinance even after 7 years does not prove that it was not necessary to take action in this behalf in 1959. It seems to us therefore that the validity of the Ordinance cannot be challenged on this ground as well.

6. Coming now to the validity of section 3 of the Ordinance, the main attack is that it amounts to excessive delegation of legislative power. The learned counsel has drawn our attention to several authorities laying down principles in this behalf, but it is sufficient to refer to Messrs East and West Steamship v. Pakistan and others (P L D 1958 S C (Pak.) 41) and Haji Ghulam Zamin and another v. A. B. Khondkar and others (P L D 1965 Dacca 156). In the first mentioned case, Muhammad Munir, C.J. cited with approval the following observation of an American Author:‑ "If a statute declares a definite policy, there 'is a sufficiently definite standard for the rule against the delegation of legislative power, and also for equality if the standard is reasonable. If no standard is set up to avoid the violation of equality, those exercising the power must act as though they were administering a valid standard. For this reason there is a need for a judicial review to see whether or not power delegated has been exercised arbitrarily."

7. In the case from East Pakistan, the learned Chief Justice considered exhaustively the question of delegated legislation and observed that "delegation by the Legislature is permitted within prescribed limits in order to execute the legislative norms and provisions that have been enacted. Thus a restricted delegation in aid of the proper functioning of legislative power has not been regarded as unconstitutional."

8. In the present case, the object of the Ordinance is clearly stated in the Preamble, namely, that it is expedient in the public interest to restrict the number of goats in the Province of West Pakistan. Section 3 prescribes definitely the steps which may be taken by the Government in the areas to be specified by notifica tion. The first step consists in declaring that after twelve months of the publication of the notification it shall be unlawful to graze or pasture goats on any land and the second that after eighteen months of the publication of the notification it shall be unlawful to keep goats. The proviso to this section contemplates that Government may in any area permit the keeping of goats subject to such conditions as may be prescribed. It seems to us that section 3 of the Ordinance read with its Preamble gives sufficient indication of the policy and intention of the Legislature regarding the steps that it desires the executive to take and the stages by which these steps should be completed. There is thus no question here of vesting uncontrolled power in the executive Government. While considering this very Ordinance in Muhammad Bakhsh and others v. West Pakistan Province and another (P L 6 1964 Pesh, 173), we had occasion to remark, in paragraph 7 of that judgment, that "we can take judicial notice of the fact, and this is also conceded by the learned counsel for the petitioners, that the Ordinance has been promulgated with a view to preventing soil erosion and destruction of forests which have resulted from the grazing of goats". It is, therefore, clear that the object of this legislation is ascertainable, and the means by which it has to be achieved are also clear. Section 3 is, therefore, clearly a valid piece of legislation and cannot be said to suffer from excessive delegation simply on account of 'the fact that it is left to the executive authorities to specify the areas in which the restrictions shall come into force. Such specification is clearly necessary for the achievement of the object underlying the Ordinance.

9. The next ground of attack is regarding the validity of the notification itself. As already stated, it is urged in the first place that the formalities regarding the publication of the notification have not been complied with. As official acts' are presumed to have been validly and properly done, and as there is no evidence before us, to show that this presumption should not obtain in the present case, we do not consider it necessary to say anything more on this point. We consider that in the absence of positive evidence to the contrary, we must presume that the notification must have been published in the regular manner as prescribed by law.

10. The second objection to the notification is that' it does not specify the acts which has been declared unlawful in terms of section 3 of the Ordinance but this contention of the learned counsel is based only on the latest notification of 29th September 1961 which shows that it was issued merely in partial modification of previous notification on the subject. The original notification issued in September 1959 has not been placed on the record by the learned counsel for the petitioners, not is it readily avail able in our library. In these circumstances, we cannot hold that the original notification was not in conformity with the language employed in section 3 of the Ordinance. In fact, there is an indication in the impugned notification itself that even rules have been framed as long ago as 1961. In these circumstances, we are not persuaded that there is any illegality attaching to this notification.

11. For the foregoing reasons, we see no justification to interfere and accordingly the petition is dismissed in limine. S. Q Petition dismissed in limine.