P L D 1967 Dacca 607 (PLP)

SALAHUDDIN AHMED, J.‑On an application under Article 98 of the Constitution, this Rule nisi has been issued on respondent No. 1 only, viz., Pan Allotment Committee, to show cause why certain public notice published in the `Pakistan Observer', Dacca, dated the 21st of April 1966 (Annexure 'F' to the petition) 'should not be declared to have been made without any lawful authority and of no legal effect. The petitioner is a resident of West Pakistan and his case is that he is a bona fide merchant carrying on wholesale trade in betel leaf (Pan) since the year 1917. Ever since December 1959, he has been applying in vain to the Pakistan International Airlines Corporation (hereinafter called the PIAC) for allotment of air space for carriage of Pan from East to West Pakistan. In response to several reminders and representations to the PIAC, the petitioner was informed by PIAC, Karachi, by their letter dated the 2nd of August 1961 that the allocation of air space was not in the hand of the PIAC and that it was controlled by Pan Allotment Committee, Dacca (hereafter called the Committee) consisting of representatives of the Central and Provincial Governments and of the Martial Law Authority in East Pakistan (Annexure `A' to the Petition). By another letter dated the 29th of September 1961 (Annexure `B' to the petition), the petitioner was informed by the Area Manager (East), PIAC, Dacca that the Committee had decided, in its meeting held on the 25th September 1961, that the petitioner's application for space quota would be considered when fresh allotments would be made for the year 1963. The matter rested there, and in spite of further representations made by the petitioner‑the last of such represen tation having been made in the year 1963‑the petitioner filed to receive any favourable response to his application for allotment of space in the PIAC for transport of Pan from East to West Pakistan. Finally, a notice issued by the Committee appeared in `Pakistan Observer', Dacca dated the 21st April 1966 (Annexure `F' to the Petition), which is as follows: "Applications are invited for allotment of very limited Pan space from the residents of East Pakistan only for exporting of Pan to West Pakistan. The following categories will be eligible to apply: (1) Pan Growers. (2) Small Pan dealers of Outlying Areas. (3) Co‑operative Societies dealing in Pan. Applicants should state the quantity of Pan per week and place from where export to West Pakistan is desired. The place in West Pakistan where export is intended should also be mentioned. The Pan Allotment Committee, however, reserves the right of finally determining the Import Centre for each allottee. Those who are already quota‑holders must not apply. Only new comers should apply. Selected applicants will be required to sign an agreement with PIAC pro forma of which and other details will be available from all their offices in East Pakistan. All applications should be accompanied by a certificate from a competent Authority of the Area regarding his/her, bona fide and sent under registered cover addressed to the Secretary, Pan Allocation Committee, PIA Building, Motijheel Dacca. The applicants should clearly mention on the top of the cover from which District application is made and should also mention category. Applications received prior to this notice shall not be considered. The last date for receipt of applications in Dacca shall be 2nd May 1966 up to 3 p.m." This notice is the subject‑matter of dispute between the parties. The petitioner bas submitted that the notice is illegal and it has violated the Constitutional guarantees provided to a citizen in Article 2 of the Constitution. The main grievance against the impugned notice is that it is arbitrary and invites applications from residents of East Pakistan only and in effect rejects the petitioner's application previously made. On behalf of respondent No. 1, an affidavit‑in‑opposition sworn by its Secretary has been filed. The sum and substance of this affidavit is that at the instance of the Government of Pakistan, Pan Allotment Committee was formed for the first time in May 1959 with the approval of the Managing Director of PIAC and that it consisted of six members, two of whom were representatives of the Government of Pakistan, one of Martial Law Administration and three of PIAC. Since then, the Committee has been allotting space and doing other incidental matters connected with exportation of Pan from East to West Pakistan. At present, however, the Committee consists of only three members, two of whom are representatives of the Govern ment of Pakistan and one of them is a representative of the PIAC. The Committee is neither a person nor an authority within the meaning of Article 98 of the Constitution and there fore no relief can be sought against it. The publication of the impugned notice is entirely an administrative act and it has not affected any right of the petitioner referable to any law or Statute. The Committee is not subordinate to the Central or Provincial Governments and derives no power from Ordinance 1V of 1964, namely, the Inter Provincial Trade Ordinance. Appearing on behalf of the petitioner, Mr. Khurshid Ahmed, Advocate, has challenged the legality of the impugned notice on several grounds. He has contended, in the first place, that the impugned notice, inviting applications from the residents of East Pakistan only for allotment of space in the PIAC for exporting Pan to West Pakistan, is illegal, for it is not referable to any law. It is pertinent to note that respondent No. 1, in its affidavit‑in‑opposition, has not claimed that either the existence of the Committee or the impugned notice owes its existence or authority to any law. On the contrary, emphasis has been laid on the fact that the impugned notice is entirely an administra tive act and is therefore beyond the jurisdiction of the Court under Article 98 of the Constitution. It is desirable to mention here that in a similar case which came up for decision before a Special Bench of this Court, namely, Haji Ghulam Zamin and another v. A. B. Khondkar (P L D 1965 Dacca 156) a similar argument was advanced against the petitioner in that case, and the Special Bench, which heard and decided the matter, disposed of the argument thus; "(17) It cannot be denied that there is no inherent power q in the Executive, except what has been vested in it by law, and that law is the source of all power and duty. (18) It is unnecessary for us to cover the entire field of jurisprudence to explain the nature of legislative function and we would not have discussed this topic at such a length but for certain arguments which were addressed to us in disregard of well‑established concepts of law. It is useful to refer to some dicta from Halsbury's Laws of England (Hailsham Edition), Volume VI. We quote some extracts from that volume as follows: "(424) The structure of the machinery of Government, and the regulation of the powers and duties which belong to the different parts of this structure, are defined by the law, which also prescribes, to some extent, the mode in which these powers are to be exercised or those duties performed. (425) From the all‑prevading presence of law, as the sole source of governmental powers and duties, there follow these consequences: (1) The existence or non‑existence of a power or duty is a matter of law and not of fact, and so much be determined by reference to some enactment or reported case (4) . . . . . Consequently there are no powers or duties inseparably annexed to the executive Government." "(19) This Court, on another occasion, in the case of Muhammad Hossain v. General Manager, E. B. Railway P L D 1961 Dacca 730 expressed this basic concept in the following terms: "The argument advanced on behalf of the respondents pre supposes that a vague, indefinite and wide power has been vested in the executive to invade upon the proprietary rights of citizens and that such invasion cannot be subjected to judicial scrutiny if it is claimed that it is a mere executive order. This is not the position in law. Any invasion upon the rights of citizens by anybody, no matter whether by a private individual or by a public official or body, must be justified with reference to some law of the Country." (20) The aforesaid principle is embodied in Article 2 of our present Constitution. The said Article 2 is a codification of the ever growing and elastic concept of "due course of law", as conceived in the American Constitution, and is now embodied in our Constitution as a doctrine which cannot be altered by the ordinary machineries of legislation. It is only a constitutional amendment which can effect an alteration in the said provisions . . . . . " Article 31 of the Constitution, too provides that the executive authority of the Republic shall be exercised in accordance with the Constitution and the law. Since no law has been claimed in support of the impugned notice unless the notice is referable to any existing law, it has no legal existence and authority, and therefore, cannot create any discrimination in the matter of invitation of applications for allotment of space in the PIAC. It is true that an Ordinance, namely, Inter‑Provincial Trade Ordinance (Ordinance No. IV of 1964) (hereinafter called the Ordinance) was promulgated on the 30th of June 1964, for the purpose of enabling the Central Government to regulate trade and commerce between the Provinces and for matters connected therewith and by section 2 of that Ordinance, the Central Government was authorised to make orders regulating the movement and transport of any commodity or class or description of commodities including imported commodities between the Provinces. This Ordinance might have been prayed in aid of the impugned notice but for fact that the Special Bench had struck it down on the ground of excessive delegation of legislative functions to the Central Government. The result is that no law is claimed or can be claimed in support of the impugned notice. The argument advanced on behalf of the respondent that the impugned notice is merely an administrative act not required to be referred to any law, has been effectively answered by the Special Bench in the aforesaid case, and we need not dilate on the matter any further. Mr. Khurshid Ahmed has next contended that Article 2 of the Constitution has given certain guarantees to a citizen and these Constitutional guarantees cannot be affected by any enactment other than an amendment of the Constitution itself. He has, therefore, argued that the petitioner's right to trade in Pan and export it from East to West Pakistan cannot be inter fered within anyway without recourse to a law, and as the respondent has not pleaded any law in support of the impugned notice affecting the petitioner's right, the impugned notice is illegal and must be so declared. A similar argument advanced before the Special Bench in the case under report was readily accepted by the learned Advocate‑General who appeared on behalf of the respondents in that case. The learned Advocate- General, however, had contended unsuccessfully that the Ordinance afforded full legal cover to the impugned notification in that case. Article 2 of the Constitution states as follows:‑ "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, reputa tion or property of any person shall be taken except in accordance with law; (b) no person shall be prevented from, or be hindered in, doing 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." It is abundantly clear from the terms of the Article that the petitioner must be treated only in accordance with law and that he shall not be prevented from or be hindered in doing that which is not prohibited by law. In other words, there can be no arbitrary act on the part of the Executive Government limiting the allocation of space in the PIAC for the purpose of exportation of Pan from East to West Pakistan to residents of East Pakistan only without the authority of a law to that effect. I may be mentioned that an appeal before the Supreme Court from the decision of the said Special Bench has not yet been disposed of. We are, however, told by Mr. Khurshid Ahmed, that the appeal has been indefinitely adjourned as there is a question of fundamental right involved which has been suspended for the present and that no stay of the operation of the High Court's order has either been sought for or granted. In these circumstances we feel we should abide by the decision of the Special Bench until it is decided otherwise by the Supreme Court. We, therefore, do not think that the impugned notice can in any way interfere with the petitioner's right to carry on his trade in Pan between East and West Pakistan. Mr. Khurshid Ahmed has further contended that even if the aforesaid Ordinance could be invoked, the impugned notice is ultra vires the Ordinance inasmuch as the Ordinance merely professes to regulate the movement and transport of any com modity or class or description of commodities including imported commodities between the Provinces, and no further. It does not authorise anybody to create any discrimination in these matters in the manner it has been done in the present case on the pretext of regulating by a licence or permit such transport and movement. We do not find any substance in the contention advanced on behalf of the respondent that the Committee is not amenable to the jurisdiction of this Court under Article 98 of the Constitution. On the facts of the case put before us, which find support from the facts disclosed in the aforesaid Special Bench case (Haji Ghulam Zamin and another v. A. B. Khondkar and others), we are satisfied that the Committee owes its origin to the Government of Pakistan and it is entirely controlled by that Government. It is, therefore, undoubtedly a "person" within the meaning of the term given in Article 98 (5) of the Constitution. It is an admitted fact that since the creation of the Pan Allotment Committee it bas been allotting space and doing other incidental matters connected with the exportation of Pan from East to West Pakistan. That being so, it is undoubtedly an Authority under the control of the Central Government. The question is; whether the Committee is performing in East Pakistan functions in connection with the affairs of the Centre. The function assigned to the Committee is in respect of item 5 of the Third Schedule of the Constitution which reads as follows: "(5) Trade and commerce between the Province and with other countries, including‑ (a) import and export across customs frontiers; and (b) standards of quality of goods to be exported out of Pakistan." This matter is undoubtedly within the exclusive jurisdiction of the Central Legislature under Article 131 of the Constitution and therefore of the Executive Authority of the Islamic Republic of Pakistan (Vide Article 135 of the Constitution). We have therefore no doubt that the Committee is fully amenable to the jurisdiction of this Court under Article 98 of the Constitution. On the facts of this case, we are satisfied that the petitioner is an aggrieved person within the meaning of Article 98 of the Constitution. It needs be mentioned that the petitioner has made it clear that it seeks no relief on the basis of contravention of any fundamental right under the Constitution. For the reasons stated above, this Rule is made absolute with costs which is assessed at five Gold Mohurs. We declare that the impugned public notice published in the `Pakistan Observer', Dacca dated 21‑4‑66 (Annexure `F' to the petition) has been made without any lawful authority and is of no legal effect. A. M. SAYSM, J.‑I agree. K. B. A. Rule made absolute.