P L D 1964 (W (PLP)

S. A. MAHMOOD, J.‑This Letters Patent Appeal under clause 10 of the Letters Patent by M. Rafi‑ud‑Din and others is against the judgment of a learned Single Judge of this Court, dismissing a writ petition filed by him under Article 2(4) of the Laws (Continuance in Force) Order, 1958, read with Article 170 of the abrogated Constitution, for quashing the order of the Chief Settlement Commissioner, dated the 16th of May 1960, transferring the Regal Cinema to Mr. W. Z. Ahmad, respondent No. 3. 2. The facts necessary for the determination of this appeal are these. One Meraj Din sought refuge in Pakistan, leaving some property in Amritsar, which now forms part of India. He died. in the year 1952. M. Rafi‑ud‑Din and the other petitioners‑appellants are his heirs. In May 1954, they along with Mr. W. Z. Ahmad respondent and others were allotted Regal Cinema, Lahore. Its management was put to auction, and as M. Rafi‑ud‑Din petitioner and Mr. Ishaq Qureshi, were the highest bidders, the management of the Cinema was entrusted to them. Mr. Ishaq Qureshi however, retired from the manage ment on the 22nd of February 1955, leaving M. Rafi‑ud‑Din petitioner as the sole managing allottee. The petitioners appellants' claim in respect of the property left in India was verified for a sum of Rs. 28,61,000 on the 31st of July 1959. The value of their claim verified in respect of machinery installed in the industrial concern was only Rs. 3,000, though the sum claimed was Rs. 5,500. On the 29th of August 1959, the petitioners appellants applied for the transfer of Regal Cinema under paragraph 15 of Schedule I of the Displaced Persons (Compensa tion and Rehabilitation) Act, 1958 (hereinafter called the Act). The claim was based on the family having left in India a joint concern known as "Feroze Din & Sons, Feroze Road, Amritsar," said to be a registered concern, under the Factories Act, 1934. The application for transfer was accompanied by a certificate, showing the extent of their verified claim and another certificate from the Labour Officer for the Chief Inspector of Factories, West Pakistan, to the effect that it appeared from the list of registered factories received from the Chief Inspector of Factories East Punjab, that the petitioners‑appellants' premises known as Feroze Din & Sons, Feroze Road, Amritsar, stood registered under the Factories Act, 1934, on the 14th of August 1947. A certified copy of the order verifying their claim was not, however, filed along with the application for transfer of the cinema. On the 17th of November 1959, the petitioner‑appellants sent a letter to the Secretary, Industries Rehabilitation Board, and submitted along with it a copy of the verified claim under Schedules I, III and VI, and intimated to him that they had appealed against the verification of their claim to the Additional Claims Commissioner and that as they were sanguine about the success of their appeal regarding the enhancement of their claim, their case be decided in the light of the appellate order. This obviously amounted to a request to await the decision of the Additional Claims Commis sioner in the appeal before deciding the question of transfer of the cinema. 3. Mr. W. Z. Ahmad respondent and three others had also applied for the transfer of the Regal Cinema to them. He had a verified claim for Rs. 4,00,537.00, out of which Rs. 2,52,875.00 represents the value of machinery. The Chief Settlement Commissioner made an order that he would like to hear the parties before deciding the case and directed that they should be called upon to appear before him on the 7th of January 1960 at 10 a.m. All the applicants for the transfer of the cinema appeared before him on that date. The appellants raised objec tions against the verification of the claim of Mr. W. Z. Ahmad, and the latter's counsel also intimated to the Chief Settlement commissioner that the petitioners‑appellants' claim was also under the scrutiny of the Chief Claims Commissioner. He directed that the necessary verification be made about the claim of the petitioners‑appellants and the respondent. After obtaining the necessary information, the Chief Settlement Commissioner passed the impugned order on the 16th of May 1960, transferring the property in favour of Mr. W. Z. Ahmad, as recommended by the Settlement Commissioner, Industries. The application of the appellants was rejected on the ground that the value of the claim of Mian Rafi‑ud‑Din for the machinery left by him in India was not more than Rs. 5,500 and his claim had been verified for Rs. 3,000 only, while under the orders of .the Central Government, the value of the machinery of a factory or cinema left by a claimant in India should constitute at least one‑third of the value of the entire concern to entitle him to ask for its transfer. The appellants were duly informed that their application for transfer of the cinema was rejected as the value of the machinery left by them in India was less than Rs. 66,000 or one- third of their verified claim under Schedule 111, and that the cinema was being sealed in pursuance of the orders of the Chief Settlement Commissioner. Mr. Rafi‑ud‑Din, petitioner‑appellant, surrendered possession of the cinema under protest, and its possession was handed over to Mr. W. Z. Ahmad, with the direction that he was to run it on behalf of the Chief Settlement Commissioner. The appellants then moved this Court in writ jurisdiction on the 26th of May 1960. They also moved the Chief Settlement Commissioner for the review of his order. Before the learned Single Judge an objection was taken that the petitioner-appellants could not have availed of two remedies simultaneously, but the learned Single Judge did not give effect to it as to the Chief Settlement Commissioner had taken a definite stand before him that the cinema was properly transferred to Mr. W. Z. Ahmad. The writ petition was dismissed. Hence the petitioner‑appellants have moved this appeal under clause 10 of the Letters Patent. 4. In this Letters Patent Appeal, the main questions raised by the learned counsel for the appellants are that the appellants' application had to be decided in accordance with paragraph 15(2) of the Schedule to the Act and not according to paragraph 15‑A, and that, in any case, the notification of the Central Government under para. 15‑A, which disentitled the petitioners‑appellants from transfer of the cinema, not being retrospective, could not be used against them, and, secondly, that, at any rate, it was excessive delegation of power and, therefore, ultra vires. 5. Before dealing with the questions raised before us, it is necessary to trace the relevant changes in the Act and its Schedule. Section 10 of the Act was slightly modified by section 7 of Ordinance I of 1959, and paragraph 15 of the Schedule was recast. The Displaced Persons (Compensation and Rehabilitation) (Second Amendment) Ordinance, (1,111 of 1959) also amended section 10 of the Act and paragraph 15 of the Schedule. Under paragraph 15(2), as amended, if an industrial concern or a cinema house allotted by the Industries Rehabilitation Board constituted under the Pakistan Rehabilitation Act (XLII of 1956), is in the possession of a claimant, who has left in India or any area occupied by India a registered industrial concern or a cinema house or whose verified claim under Schedule III to the Registration of Claims (Displaced Persons) Rules, 1955, is of the value of rupees one lac or more, then the industrial concern or the cinema house in the possession of such claimant shall, in case he applies in that behalf, be transferred to him o n payment immediately of the prevailing market value minus the investment made, if any. Under this paragraph, the appellants having left an industrial concern and having a verified claim of over one lac under Schedule III, were eligible to apply to have the cinema transferred to them. Section 10 of the Act, as amended, reads as follows:- "Power to transfer property from the compensation pool.‑-- Subject to the provisions of this Act and the rules made there under, the Chief Settlement Commissioner may transfer or dispose of any property out of the compensation pool‑ (a) on evaluation basis, or by sale by means of auction or otherwise, in accordance with the provisions of the Schedule; or (b) in such other manner as may be approved by the Central Government." (It has further been amended by Displaced Persons (Com pensation and Rehabilitation) (Amendment) Ordinance (II of 1962). Therefore, the Chief Settlement Commissioner could transfer the properties in accordance with the provisions of the Schedule under clause (a) of section 10 of the Act, or, under clause (b), in such other manner as may be approved by the Central Government. As I shall presently show, such manner of disposal was not confined to the manner laid down in the Schedule. This D. P. Ordinance (No. LIII of 1959) was published in the Gazette on the 28th of September 1959, but under subsection (2) of section 1, it was to have effect on and from the twenty‑sixth day of March 1958, i.e. from the date on which the Act was enacted. The notification by which the appellants are really aggrieved was issued by the Central Govern ment on the 14th of December 1959 under paragraph 15‑A of the Schedule. Its relevant portion is as follows:‑ (3) If an industrial concern or a cinema house allotted by the aforesaid Industries Board is in the possession of a claimant whose claim in respect of a registered industrial concern or cinema house left by him in India has been verified for an amount less than rupees thirty‑three thousand, then the industrial concern or cinema house in the possession of such claimant shall, subject to the rights of any other person who may otherwise be entitled to retain it, be sold in an unrestricted public auction: Provided that if the value of the industrial concern or cinema house in the possession of such claimant does not exceed three times the amount of his verified claim in respect of the registered concern or cinema house left by him in India, the Chief Settlement Commissioner may transfer the Industrial concern or cinema house in the possession of such claimant to him on payment immediately of the prevailing market value. (4) If an industrial concern or a cinema house allotted by the aforesaid Industries Rehabilitation Board is in the posses sion of claimant who has left in India a registered industrial concern or whose claim in respect of an unregistered industrial concern left by him in India has been verified under Schedule III to the Registration of Claims (Displaced Persons) Rules, 1955, for an amount of rupees one lakh or more, then unless the value of the machinery installed in the registered or unregistered industrial concern left by him in India, has been verified for a sum of rupees sixty‑six thousand or constitutes at least one -third of its total value, the industrial concern or cinema house in the possession of such claimant shall, subject to the rights of any other person who may otherwise be entitled to retain it, be sold in an unrestricted public auction." In view of this notification, the cinema was not transferred to the petitioner‑appellants, because the notification under para graph 15‑A is to take effect notwithstanding paragraph 15 of the Schedule. The appellants have, therefore, challenged the vires of the notification, paragraph 15‑A of the Schedule as well as section 10(b) of the Act. 6. It is contended by the learned counsel for the appellants that by enacting paragraph 15‑A in the Schedule and section 10(b) in the Act, the Legislature has abdicated its legislative functions and given unbridled and unrestricted powers to the Central Government, without laying down any policy or guiding principles for the disposal of this class of property, and that this amounts to excessive delegation of its powers. It is also argued that as on the making of the application on the 29th of August 1959, the appellants acquired a vested right to the transfer of the cinema, the notification of the Central Government under section 15‑A of the Schedule, which was promulgated sub sequently and which could not be retrospective in operation, could not have affected their vested right, and their application had to be decided in accordance with the law as it existed before the notification. 7. For the contention that the petitioners‑appellants had a vested right to obtain transfer of Regal Cinema, their learned counsel relied on Sh. Rahmatullah v. The Deputy Settlement Commissioner, Centre `A' Karachi and others (P L D 1963 S C 633) where it was observed that claimants are vested beneficiaries qua the compensa tion pool. From this observation it was concluded that a vested right had accrued to the petitioners to obtain transfer of the cinema on their making the application, since they fulfilled the qualification laid down in paragraph 15 (2) of the Schedule, but their Lordships, have not held what the learned counsel contends, but have observed in the same case that upon a true construction of the provisions of section 4 of the Act, it is impossible to conclude that once a property enters into the compensation pool, it becomes a part of the pool irreterievably. Their Lordships also observed that by addition of subsection (2) to section 10 of the Act, a marked change had been effected, namely, that whereas previously the authorities under the Act were obliged to apply all property in the compensa tion pool for the payment of compensation to claimants, and for relief to other, as provided by the Schedule and the Scheme, as from the date of the amending D. P. Ordinance II of 1962, the Central Government was given power to transfer any property out of the compensation pool in the public interest. I shall show presently that the Central Government had similar power under section 10(b) of the Act. I cannot accept the contention that the appellants, on making an application, acquired a vested right to the transfer of Regal Cinema. As claimants, they were vested beneficiaries to be compensated out of the compensation pool, but had no vested right in any particular property. Under subsection (2) of section 4, the Central Government had the power to exclude any property from the compensation pool, and in such a case, even a claimant in possession could not claim transfer of the property under the Act. Furthermore, it is now well‑settled that under clause (b) of section 10, the Central Govern ment had been empowered to transfer property otherwise than in the manner provided for in the Schedule. In Mian Muhammad Rashid v. The Chief Settlement and Rehabilitation Commissioner, Lahore and another (P L D 1962 Lah. 217), I took the view that while the Chief Settle ment Commissioner could, under clause (a), transfer properties in accordance with the provisions of the Schedule, on the true construction of clause (b) of section 10 of the Act, the Central Government could authorise the disposal of any property out of the compensation pool in a manner approved by the Central Government, not necessarily in accordance with the Schedule to the Act. The same case in appeal came up before a Fall Bench of this Court. Their decision is reported as M. M. Rashid v. The Settlement and Rehabilitation Commissioner and another (P L D 1963 Lah. 227). Their Lordships held that if the Chief Settlement Commissioner wanted to make a transfer in conformity with the provisions contained in the Schedule, to the Act, he was at liberty to do so, but the Central Government had been given the power to permit, approve of or direct a sale in a manner which could be in contravention of the Schedule by clause (b) of section 10 of the Act, as it stood at the time of each of the impugned sales. There was nothing unreasonable in that reservation of power in the Central Government, because the property belonged to it, and the Central Government would have the right of any other owner of property to dispose of it in any manner the owner liked. The judgments in these cases were based on an unreported decision by the Supreme Court in Qazi Asadul Haq v. Miss R. A. Money and seven others (Civil Appeal No. 57 of 1960) decided on the 21st of February 1961, where the question for considera tion was whether transfer by sale of evacuee property in respect of which Central Government had directed the Chief Settlement Commissioner to execute sale deeds under section 10 (b) of the Act, was valid. Their Lordships of the Supreme Court observed as under :‑ "We are satisfied that clause (b) of section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, and the subsequent amendments empower the Central Government to accord approval of transfer of evacuee property and to authorise the Chief Settlement Commissioner to execute the necessary sale deeds." 8. The preamble to the Act makes it clear that it is intended to provide for payment of compensation to certain displaced persons for the losses suffered by them on account of expropria tion by the Government of India of their rights in property in India or in any area occupied by India, and the rehabilitation of others, and for matters incidental thereto or connected therewith. Section 15 of the Act provides for the mode of payment of compensation. The provision is that a claimant shall be entitled to receive payment out of the compensation and rent pools to the extent of the amounts shown in the certificates issued to him under subsection (2) of section 12, subject to such scale of compensation, if any, as may be prescribed from time to time. Its subsection (3) provides for the various forms in which compensation may be paid, namely, either in cash, by sale or by any other mode of transfer to the claimant of any immovable property out of the compensation pool, setting off the purchase money of the valuation of the property, as the case may be, against the compensation payable to him, or in such other form as may be prescribed. Section 16 enables the Central Govern ment to require the Chief Settlement Commissioner to prepare schemes:- (a) for the grant of interim compensation to widows, orphans or old or infirm persons against verified claims in accordance with the prescribed scale ; (b) for the transfer of immovable property on evaluation basis or otherwise to claimants, non‑claimants or locals in accordance with the provisions of the Schedule; or (c) for the making of deferred payments, in accordance with the provisions of the Schedule, by persons to whom property is transferred under this Act. Under the provisions of the Act, therefore, a claimant only acquires a right to be compensated out of the compensation pool. The payment may, however, take one of the forms stated above. The property is transferable not only to claimants, but also to non‑claimants and locals. The following observations of the learned Judges of the Supreme Court in Syed Abdur Rashid v. Pakistan and others (P L D 1962 S C 42), relating to the Act, clearly brings this out :‑ "The preamble of the Act, however, clearly states that the purpose of the said Act is to provide for the payment of compensation to certain displaced persons for the losses suffered by them on account of expropriation by the Government of India of their rights in property in India or in any area occupied by India, and the rehabilitation of others, and for matters incidental thereto or connected therewith. It will be noticed that the purpose of even the (latter) Act is neither to grant properties in lieu of the properties expropriated in India nor to limit the benefits of the scheme to such expropriated displaced persons but its purpose extended to the rehabilitation of others also who did not fall in the above category. This was, therefore, not a case in which a displaced person was entitled as of right to get properties in Pakistan equivalent to properties left by him in India, but it was a measure designed purely to alleviate the hardship and misery of as large a number as possible of displaced persons, who had been compelled as a result of the disturbances consequent upon the setting up of the two Dominions of India and Pakistan to migrate from India, by compensating them." Their Lordships have held that this was not a measure under which a displaced person was entitled as of right to get properties in Pakistan. The contention that the appellants had acquired a vested right to the transfer of the Regal Cinema has no substance. 9. Though on the 29th of August 1959, when the appellants applied for the transfer of the cinema, they were eligible under paragraph 15(2) of the Schedule to make an application for its transfer, Ordinance LIII of 1959 amended section 10 of the Act and introduced paragraph 15‑A in the Schedule with retrospective effect from the twenty‑sixth day of March 1958, the date on which the Act was enforced. The amendment is clearly retros pective in operation, and it has not been contended that the amendment could not be made retrospectively. Therefore, by operation of law section 10(b) of the Act and paragraph 15‑A of the Schedule had to be deemed to be in existence from the 26th of March 1958, i.e. a date prior to the making of the application. Consequently, Regal Cinema could be disposed of by the Chief Settlement Commissioner in accordance with the directions of the Central Government under clause (b) of section 10 of the Act according to a mode other than the one provided in the Schedule, or according to the order of the Central Government under paragraph 15‑A of the Schedule. 10. The learned counsel for the appellants, to begin with, merely contended himself with challenging the vires of para graph 15‑A of the Schedule and the notification of the Central Government made under it, but when he was faced with the powers conferred on the Central Government under clause (b) of section 10 of the Act, he was led to argue, in order to be logical, that that power was also invalid, being excessive delegation of the legislative power to the Central Government by the Legislature. He had, however, to concede that in view of the weight of authority, it was not possible for him to contend that the Central Government had not the power to authorise the Chief Settlement Commissioner to dispose of the property from the compensation pool in a manner other than that provided in the Schedule. 11. No doubt, it is a well‑settled principle or law that a notification of a Central or Provincial Government cannot be retrospective in operation, but as the appellants had not acquired a vested right in the property, and though the notification under paragraph 15‑A was made subsequent to the application, the decision of the application in accordance with the notification did not amount to giving retrospective effect to the notification. I do not consider this at all a case of the notification having been given retrospective effect. As M. Rafi‑ud‑Din and other appellants did not acquire a vested right to the transfer of the property on the date they made the application, they could not claim transfer of the property in accordance with the provisions of paragraph 15 (2) of the Schedule, as it then existed. In view of the amendment in section 10 of the Act and introduction of paragraph 15‑A in the Schedule with retrospective effect, their application could be disposed of in accordance with these provisions. On the date on which their application was disposed of, not only clause (b) of section 10 of the Act gave power to the Central Government to authorise the Chief Settlement Commissioner to dispose of Regal Cinema in a manner other than that provided in paragraph 15(2) of the Schedule, but the manner of disposal had also been provided for otherwise under paragraph 15‑A of the Schedule by the Central Government's notification, dated 14th of December 1959, the relevant portion of which has already been reproduced in paragraph 5 above. The Chief Settlement Commissioner did not find the case of the appellants falling under any of the clauses of the notification made under section 15‑A of the Schedule, and, therefore, declined to transfer the cinema to them. The appellants' contention before us is not that they fulfilled the requirements of the notification. They challenge the vires of the notification as well as contend that the notification could not be given retrospective operation and that their case had to be decided in accordance with para graph 15 (2) of the Schedule. It is unnecessary for me to mention the authorities that have been cited on the question of retrospec tivity. So far as section 10 (b) of the Act and paragraph 15‑A of the Schedule are concerned, there is no dispute that they are retrospective in operation and their retrospectivity is not invalid. With regard to the notification, its application is only prospective, because a pending application has been decided in accordance with the order of the Central Government issued under para graph 15‑A of the Schedule. In Halsbury's Laws of England, Third Edition, paragraph 643, on page 423, it is even stated that a statute is not retrospective merely because it affects existing rights, nor is it retrospective merely because a part of the requisites for its action is drawn from a time antecedent to its passing. I am not impressed by the contention that the notifica tion was given retrospective effect, because, in my view, no vested right was affected by it, and all that happened was to dispose of pending application for transfer. I am fortified in this view by the decision of the Supreme Court in Syed Abdur Rashid v. Pakistan and others. In this case an application for verifica tion of a claim had been made. Subsequent thereto a circular letter was addressed by the Claims Commissioner, Pakistan, that the Government of Pakistan had decided that for the purpose of claims, the children of a person who had died in the lifetime of his/her father, were to be treated as rightful claimants to the share which their father would have inherited. The claims were decided in 4ccordance with this direction, It was argued that even if such instructions could be issued, the instructions should not have retrospective effect, and the rights of the parties should have been decided on the basis of the position prevailing on the date on which the claim was filed and not on the date when it was disposed of. It was held by the learned Judges of the Supreme Court that there was no substance in that argument, for if the filing of the claim, as had been held, did not create any right at all, there was nothing to prevent a person from filing a claim after the instructions were issued. The objec tion to the retrospective application of an order or other like instructions was founded on the ground that it affected vested rights, but where no rights had accrued or vested, that objection had no substance. In the case before their Lordships, further more, it was not contended that any order of any officer or authority under the said Act had acquired any finality under its provisions and could not, therefore, have been reopened. Their Lordships further observed that the directions came when the inquiry into the claim filed was pending and, as such, the claim could have been decided in accordance with those instructions. These observations are, in my view, fully applicable to this case, and rebut the contention raised by the learned counsel for the appellants, as I have come to the conclusion that no vested right in the property accrued to them. The disposal of the appellants' application for transfer of the cinema was subsequent to the notification, which was not thus given retrospective operation. It may be mentioned that no fresh applications for cinemas were invited. The intention behind amending section 10 (b) and introducing paragraph 15‑A in the Schedule was to apply the changed law to the applications which had not been disposed of. Explaining the general policy, the then Rehabilitation Minister, General Muhammad Azam Khan, stated that the object was to ensure that the industrial concerns (which include cinema houses) were transferred only to those persons who had really left some substantial industry in India. The only criterion to determine whether an undertaking left in India was really industrial concern or not, was to find out the value of the machinery which was installed in it. He stated that the changes were considered necessary in order to ensure that the remaining industrial concerns were disposed of equitably and in a just manner. There is, therefore, no force in the contention that retrospective effect has been given to the notification of the Central Government. 12. A subsidiary contention may be disposed of here. It was argued that under paragraph 15‑A of the Schedule, the Central Government could make an order for disposal of "any class" of cinema houses, and not their manner of disposal, and that the notification was not in accordance with the provision of the Schedule. I see no force in this contention. The words "any class" have to be read with industrial concerns and not with cinema houses, which are independent of industrial concerns. Paragraph 15‑A merely means that notwithstanding what is contained in paragraph 15, the Central Government may make an order for the disposal of cinema houses or any class of industrial concerns in such manner as may be specified Therein, 13. There now remains to consider the question of excessive delegation of legislative powers. Several cases have been cited before us‑some from America‑, but the background against which prohibition against delegated authority must be found in our country is that of the English Constitutional Law. The important cases on this question are Queen v. Burah ((1878) 51 A C 178), Charles Russel v. The Queen ((1882) 7 A C 829), Hodge v. The Queen ((1883) 9 A C 117) and Emperor v. Bunwari Lal Sharma (AIR 1945 PC 48). I shall not attempt to notice these cases or In re Art. 143 Constitution of India and Delhi Laws Act (1912) etc. A I R (38) 1951 S C 332, or the American cases, namely, Panama Refining Company v. Ryan (293 U S 388) and A. L. A. Schechter Poultry Corporation v. United States (295 U S 495), but would content myself with mentioning some of the important cases that have been decided in this country. B: Z. Kaikaus, J. in the Gujrat‑Punjab Bus Ltd. v. The Province of the Punjab and others (P L D 1957 Lah. 345) expressed the following principle :‑ "The limitations on the delegation of legislative power to the executive are well known. If the policy and framework are provided in an Act by the Legislature and the details are to be filled in by the executive, there is no defect in the delegation of legislative power. It is only in a case where the Legislature abdicates or effaces itself that the delegation ultra vires. The tendency of modern legislation is to leave more and more to the executive for the process of legislation by the Legislature is cumbersome. The rule‑making power granted by the Motor Vehicles Act does not conflict with the principles of delegation of legislative powers." The limitation to the delegation of power on the ground of its violating the "due process provision" in the Constitution of America is brought out in the judgment of the Supreme Court in Messrs East and West Steamship Company v. Pakistan and others (P L D 1958 S C (Pak.) 41). The principle is so stated :‑ "The conferment of vast powers or discretion on an officer who administers an Act may be wise or unwise legislation, but the question before the Courts where the validity of conferment of such powers is questioned always is whether the provision granting such power is contrary to any direction of the Constitution. In the United States of America such grant is sometimes invalidated on the ground that it offends against the due‑process provision of the Constitution or that it delegates excessive legislative powers or that it denies equal protec tion of the law to the citizens, but as pointed out in Jibendra Kishore's case, nowhere in our Constitution is the Concept of due process of law to be found in the sense in which it has been understood in American Jurisprudence. . . . . . . . . . . . . . . But . . . . . . in this respect the generally accepted position . . . . . . . . is that no provision of law can fall within the rule against delegated legislation if it is based on a policy, discoverable from the provision itself, which has to be implemented by the person against whom the charge of unauthorised legislation is made. The Federal Court of Pakistan in Sobho Gyanchandani v. Crown (P L D 1952 F C 29) held that vesting in the Central Government the power to extend the life of an Ordinance confers legislative powers on an external authority, and, therefore, being delegation of legislative powers, is invalid. Abdur Rashid, C. J. observed as follows :‑ "A Legislature cannot delegate its powers of making, modify ing, or repealing, any law to an external authority. If it does so, it would be creating a parallel Legislature. The power of extending the duration of an enactment, which would have terminated but for the interference of the external authority, is the exercise of legislative powers by an external authority and is invalid. Extension of the life of an Act is tantamount to re‑enactment. It is open to the Legislature to delegate powers relating to the enforcement of the Act, or its applica tion to particular areas if certain conditions prevail therein, as that merely amounts to conditional legislation. . . . . . . . . If any Legislature delegated legislative functions to an external authority, such delegation would be invalid . . . . . . ." "It is the nature of the power rather than the manner of exercising it which determines whether the delegation is proper or invalid. If the Legislature gives the power to extend the life of an enactment to the Central Government, the nature of the power which is to be exercised by such Government is Legislative power, as without the exercise of the power the legislation would have a natural death and would no longer have remained on the statute book. If on the other hand, the body on which the authority has been conferred by the legislature has discretion as to the manner of the execution of the powers to be exercised, and in pursuance of the law the external authority is not making or unmaking the law but is performing its administrative functions in respect of matters which have been finally determined by the Legislature itself, it is not exercising legislative functions. These underlined observations are very pertinent to the case in hand, A. S. M. Akram, J. expressed himself thus:

"I think it cannot be denied that a substantial delegation of powers becomes necessary in the ever-growing complexities of a modern State, but the question arises ‑what should be the limits of such a delegation. In my opinion, matters of a fundamental nature or of general policy or of great importance, cannot be delegated, though powers may be assigned within reasonable limits and scope, such as, the determination of time, place, persons, dutiable commodities etc., so that rules, regulations, schemes and bye‑laws may be made by anyone empowered to do so, within the framework of the main legisla tion ; the main legislation itself, however, cannot be dictated or its contents revived under the delegated powers; to say otherwise would virtually amount to permitting an abdication or a surrender of the legislative authority itself reposed in the person delegating it." A. R. Cornelius, J. observed as follows : "The placing and keeping of a law on the statute book, and the removing of a law from the statute book are legislative functions . . . . . . ." "The true criterion is whether by an act of an outside authority a change is 'brought about in the network of laws which have validity in the country and are on the statute book It is axiomatic that these laws interact on each other and the. provisions of any one of these laws in. some respect are operative in addition to parallel provisions in other laws and in some respects in derogation of such provisions. The complete removal of a particular law from the statute book creates an effect which goes beyond the mere termination of the particular provisions of such law There is also an effect upon other laws as well, whose own provisions thereby are either restored to full force or deprived of supplementary force as a result of the disappearance of the repealed law. A repeal has, therefore, a wider effect upon the legislative structure of the country than the mere disappearance of the particular law might appear to produce. It cannot be denied that to act so that such a result is produced is to act legislatively in the fullest sense. There is no difficulty in perceiving the distinction between producing an effect of such a fundamental kind on the one hand and on the other either bringing into operation a statute which is already on the statute book or applying the provisions of a law which is on the statute book in particular place or to particular persons or things . . . . . ." "Of the functions which are conferred by a written constitu tion, the legislative function is by far the most important. I cannot conceive that the constitution‑making authority when providing for the establishment of a Legislature and conferring powers on that Legislature, should have intended otherwise than that the powers so conferred should be exercised exclusively by that Legislature. The difficulty which, under the increasing complexity of modern conditions, is felt by all Legislatures in making provisions for every case which may arise within the contemplation of a statute, renders it necessary for some measure of ancillary power to be delegated to executive authorities to make statutory rules and regulations for carrying into effect the provisions of the statute in matters of detail. Delegation to this extent has been universal practice for a great many years, and such provision will be found in a great number of statutes." The distinction between legislative functions and delegation of ancillary power to the executive authorities has, with admirable clarity, been brought out above. Thus the essential legislative function must exclusively be performed by the Legislature, and is incapable, of being constitutionally delegated. The Legislature cannot efface itself or abdicate its legislative function to an outside agency, but short of delegating its essential legisla tive power, the Legislature can, within the framework of the policy laid down by it, delegate to a subordinate agency the power to carry into effect by making detailed rules the policy laid down by it. The subordinate agency must not be made a parallel Legislature. Thus delegation of legislative authority is permissible, but only as ancillary to or in aid of the exercise of law‑making powers of the Legislature, the enunciation of policy being in the exclusive competence of the Legislature. But, it is not unconstitutional to entrust to special bodies or the executive the carrying out of policies declared by an Act, and, to clothe them with authority, to frame regulations within the framework of the Act. The words underlined above clearly bring out that under the increasing complexity of modern conditions, the legislators have felt the necessity of delegating ancillary powers to the executive authorities to frame regulations to carry into effect the provisions of the statute in matters of detail and delegation to this extent has become a universal practice and is becoming increasingly necessary.

13. Paragraph 15‑A of the Schedule of the Act, which is impugned as unconstitutional delegation of power, runs as follows :‑ "Notwithstanding anything contained in paragraph 15, the Central Government may make any order for the disposal of any class of industrial concerns or cinema houses in such manner as may be specified therein." The objection is two‑fold, firstly, that it is excessive delegation of power and, secondly, that even if delegation is in permissible limits, the notification is in excess of the delegated power, as it is opposed to the provisions of the Act and the Schedule. The latter objection may be disposed of first. It has already been held above that section 10 (b) of the Act conferred power on the Central Government to dispose of any property otherwise than in accordance with the provisions of the Schedule, and that that power was similar to the power under paragraph 15‑A of the Schedule, and, therefore, the notification empowering the Central Government to dispose of cinema houses otherwise than as provided in paragraph 15 (2) of the Schedule was not conferment of a power outside of and against the provisions of the Act. It may also be mentioned that section 10 (b) of the Act was amended by the same Ordinance which introduced para graph 15‑A of the Schedule. Therefore, simultaneously powers of like nature were conferred on the Central Government. The first objection has equally no force. All that paragraph 15‑A of the Schedule provided was to empower the Central Government to order disposal of cinema houses in the specified manner, despite the manner laid down in paragraph 15 (2) of the Schedule. Conferment of this power cannot be said to be a conferment of legislative power by which the Legislature effaced itself and created a parallel Legislature. In the body of the Act itself, the framework of the policy was laid down. In view of the variety of claims and the different nature of properties left by claimants in India and the complexity of the problem involved, it is obvious that the framer of the law thought it necessary to leave it to the Central Government to decide what was the best manner of disposal of the cinema houses. The amending Ordinance was brought in by the President of Pakistan when there was no Legislature in existence. It is not surprising, therefore, that section 10 (b) of the Act was amended and power was conferred, under paragraph 15‑A on the Central Government. The delega tion was merely of ancillary powers. The preamble of the Act and sections 4, 8, 10, 12, 15, 16, 16‑A and 16‑B are provisions relating to the policy which is laid down by the framer of the law. The manner of disposal was provided for in the Schedule. The fact that the matters of detail were left to schemes to be framed by the Chief Settlement Commissioner with the approval of the Central Government is an indication of the fact that with regard to the manner of disposal, the Legislature also did intend to leave it to the executive authorities to work out the details.

14. When we examine the evacuee laws and the laws which came subsequent to it, it becomes apparent that the Central Government was invested with overriding powers. The situation was a complex one. The Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949), was itself a legislation of extraordinary nature, which provided a special machinery dealing with an extraordinary situation as held by the Federal Court in the Punjab Province v. Lala Sita Ram and another (P L D 1956 F C 156). There are numerous provisions in this Ordinance which confer special powers on the Central Government. Section 3 conferred the final power of decision on the Central Government as to whether or not a person was an evacuee. For requisitioning and acquisi tion, the approval of the Central Government was necessary under section 12 (2). The Central Government had power under section 15 to prohibit transfer of any property or class of property or the creation of any right or interest therein or encumbrance thereon in any area. A certificate under section 18 by the Central Government authorised the restoration of the evacuee property. Under section 45‑A, the Central Government had the power to make an order or give directions to regulate the administration of evacuee property. What is most important of all is that the Central Government had the power under section 55 of Act (XII of 1957), to exempt, by a notification in the official Gazette, any person or class of persons, or any property or class of property, from the operation of all or any of the provisions of the Act. Why should, therefore, the power conferred by section 10 (b) of the Act or paragraph 15‑A of the Schedule be considered to be illegal by reason of excessive delegation of power. It is obvious that the Central Government was a trusted representa tive of the Legislature with regard to the administration of evacuee property, and if there was only the President of Pakistan to frame laws in the days of Martial Law when Paragraph 15‑A of the Schedule was enacted, can it be said that it is excessive delegation of power? It may even be mentioned that the Full Bench in M. M. Rashid v. The Settlement and Rehabilitation Commissioner and another, has gone so far as to hold that the Central Government as owner of the property had the right to transfer it in any manner the owner liked.

15. In the case Syed Abdur Rashid v. Pakistan and others, already mentioned, the Central Government had by issue of instructions directed that for purposes of verification of claims the children of a person, who had died in the lifetime of his/her father, are to be treated as rightful claimants of the share which their father would have inherited. It was argued that these instructions, directed as they did a mode of verification of claims opposed to the rule of succession in Muslim Personal Law (Shariat) Application Act, was a case of excessive delegated legislation. In dealing with the objection, the learned Judges of the Supreme Court observed that what the Government had done by issuing an executive direction as to the manner of the verification, was to instruct the Claims Officers and Deputy Claims Commissioners, who had acquired jurisdiction under the Act, to inquire into the claims and to pass orders after such inquiry as they thought fit, and the Government could do so, since under the scheme of the said Act, the Claims Officers were to act under the general superintendence end control of the Central Government. This was not a case in which the Government could be said to have either legislated as to the category of persons entitled to claim or interfered with the decisions of the Claims Officers in any particular case, but it was a case where merely a general direction had been issued laying down principles upon which Claims Officers were to verify cl4ims and register the same. This the Government could legitimately do under the Act, as the claims were invited with a view to rehabilitation of as large number of displaced persons as possible, in the implementation of the policy of the Legislature, which is also the purpose of the Act. It was further observed that the Legislature itself having determined that claims were to be filed in respect of the properties left in India by displaced persons, the instructions merely provided as to who from amongst the class should be treated as entitled to launch such a claim in the process of verification in the event of a displaced person dying before filing his claim. The present case does not fall outside these observations.

16. There are innumerable cases in which the Legislature has left the exercise of ancillary powers to outside agency, parti cularly the executive. We have the example of the Defence of India Rules under the Defence of India Act, the Arms Act Rules under the Arms Act, the Motor Vehicles Rules under the Motor Vehicles Act, and a host of other rules. In the District Magistrate, Lahore, and another v. Syed Raza Kazim (P L D 1961 S C 178), it was argued that section 17 of the Arms Act was ultra vires of the Legislature, so far as it purported to delegate to the Central Government legislative functions without laying down any policy or fixing any criterion for the ordinance of the rule‑making authority. The validity of rule 43 of the Arms Rules, 1924, was challenged on the ground that it was in excess of the rule‑making power granted by section 17 of the Arms Act so far as it purported to vest the licensing authority with the absolute discretion to refuse a licence. Hamoodur Rahman, J., repelled the contention, holding as follows:‑ "In enacting section 17 of the Arms Act, the legislative authority could in no sense of the term, be said to have abdicated or effaced itself or created a new legislative body or legislated beyond its competence. Having regard to the nature of the object sought to be achieved by the legislation, it was impossible for the Legislature to attempt to provide for every detail and machinery to carry it into effect; hence the Legisla ture, whilst retaining its legislative powers intact and maintain ing its full legislative control authorised the executive merely to determine the manner of carrying it into effect by rules framed in that behalf. It is clear from the examination of the provisions of sections 13 to 18 of the Arms Act that the policy of the legisla tion clearly discernible therein is that no one should have any right to possess or carry any kind of arm or ammunition except when permitted to do so by the appropriate authority, and even then upon such terms and conditions as the said authority might consider it necessary to prescribe by rules, having regard to the conditions prevailing in a given area where the arm in question was to be possessed or carried. The arguments relating to the unfettered discretion said to have been given by rule 43 of the Arms Rules to the executive authority to refuse a licence appear in this context to be no longer pertinent. Once it has been found that the Legislature was competent to make the legislation concerned and had not thereby created a subordinate Legislature or abdicated its powers, the Courts are precluded from enquiring any further, or, as observed by Lord Selborne in the case of Queen v. Burah `to enlarge constructively those conditions and restric tions'. The Legislature could, therefore, in the absence of any constitutional provision or other superior legislation restricting the powers of such a Legislature, validly give a discretion of this nature within the limits indicated above." The above observations again bring out the same principles which have been stated already. These observations are partinent to the question before us. As stated already, the framer of the law did no more than to empower the Central Government to provide for a manner of disposal of industrial concerns, including cinema houses, which, in the exigencies of the case, were best suited to the requirements of the situation, namely, the Rehabilitation of Displaced Persons and others and to compensate the claimants. In these matters, the Central Government was conferred overriding powers, as mentioned already, even by the Legislature, when it existed, as clearly appears from the Pakistan (Administration of Evacuee Property) Act (XII of 1957) and Registration of Claims (Displaced Persons) Act (III of 1956). The Act clearly lays down guiding principles in much greater details than the two Acts referred to above, and if it provided for a manner of disposal of one class of properties according to the instructions of the Central Government, it cannot be held to be excessive delegation.

17. The learned counsel for the Chief Settlement also argued that as the President of Pakistan had enacted Ordinance (LIII of 1959) during Martial Law, When he had unfettered powers, the rule of excessive delegation has no application. It is true that the President was then the sole law‑making authority, but the position as regards Ordinances, as was pointed out by the learned Judges of the Supreme Court in case Mian Iftikhar‑ud‑Din and another v. Muhammad Sarfaraz and another (P L D 1961 S C 585), is that while promulgating Ordinances, the President acted under powers conferred on him by the late Constitution, though in promulgating Orders, he exercised super‑constitutional powers. The question of constitutionality of the Ordinance for reasons of lack of power is not involved in this case. The principle of excessive delegation of power is applicable to legislative function, which is usually attributed to a Legislature, and in the Martial Law days, the Legislature, as such, was not in existence. The President of Pakistan was the law‑giver, and though he had to exercise his powers in enacting Ordinances under the late Constitution, he had, to a large extent, to depend upon the Central Government for the administration and disposal of evacuee property and for compensating the claimants, under the Act, but I do not think that it is necessary to` go to the extent of holdings that some departure from strict adherence to the rule of excessive delegation of power is feasible. In the circumstances of the case, I am clearly of the opinion that neither paragraph 15‑A of the Schedule nor section 10 (b) of the Act are unconstitutional on the ground of excessive delegation of power by the Legislature to an outside agency, namely, the Central Government.

18. The argument that the notification was arranged or managed by Mr. Riaz‑ud‑Din Ahmad for the benefit of his brother Mr. W. Z. Ahmad, was not seriously pressed before us. The learned Single Judge has given good reasons to hold otherwise. We do not find it necessary to repeat what has been said already. We are of the view that it cannot be held that the notification was issued with the mala fide or ulterior object of helping Mr. W. Z. Ahmad respondent.

19. No other question was raised before us. For reasons given above, there is no force in this Letters Patent Appeal, which is dismissed with costs. MUHAMMAD YAQUB ALI, J.‑I concur with the order proposed to be delivered in the case by my learned brother. K. B. A. Petition dismissed.