P L D 1966 (W (PLP)

"Subject to clause (2) of this Article, the Constitution shall come into force on the day on which the first meeting of the National Assembly is held." Relying upon this provision of the Constitution, the learned Advocate submitted that the first meeting of the National Assembly was held on 8-6-1962 and, therefore, the Constitution came into force from 8-6-1962. After having made the point as to when the Constitution came into effect, the learned Advocate relied, in the second place, on sub-clause (1) of Article 225 of the Constitution, which reads as under: -- "Except as provided by this Article, all existing laws shall, subject to this Constitution, continue in force, so' far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature." The learned Advocate submitted, relying upon the above provision of the Constitution, that the Constitution came into force on 8-6-1962 and the amendment of section 31 of the Act by Ordinance XVIII of 1965 could not be given retrospective effect beyond 8-6-1962. He submitted that the Legislature derives its power from the Constitution, and the Constitution having come into force on 8-6-1962, it could not legislate so as to take away the vested rights beyond 8-6-1962. In order to support his submission the learned Advocate relied upon the Commentary by Mr. A. K. Brohi on Fundamental Law of Pakistan (1958 Edition). The relevant portion appears at page 2 60, and reads as under: -- "It has been held in India that the Legislatures that have been created by the Constitution have the power to enact retro-active laws so as to reach even matters in the Pre-Constitution period. (See A I R 1954 S C 158, the case of the Union of India v. Madan Gopal). It would, however, be noticed upon the perusal of the judgment in that case that although some observations have been made in support of the proposition that the Legislatures established under the Indian Constitution have the power to pass legislation touching and concerning pre-Constitution matters, it was held, on the facts of that case, that the impugned legislation, namely, the Finance Act of 1950 was not, as a matter of construction, a retro-active piece of legislation. The Court remarked that the Act was prospective in operation in that it levied a certain charge of income-tax and super tax at specified rates for the year beginning on the 1st of April 1950; it said. `The case is thus one where the statute purports to operate only prospectively, but such operation has, under the Scheme of the Indian Income-tax Law, to take into account income earned before the statute came into force. Such an enactment cannot, strictly speaking, be said to be retro-active legislation, though its operation may affect acts done in the past. Their Lordships of the Supreme Court relied on the case of Queen v. St. Marry Whitechapal (1848) 12 Q, B 120: 116E R 811 in support of this view. If this view as to what retro-active legislation is, be regarded as correct, the dicta referred to above would become obiter since the reason for deciding the case will then be entirely a different one altogether. It is the view of the present writer that the Legislatures established by the Constitution cannot pass laws affecting acts and omissions that have taken place before the coming into force of the Constitution. 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."

4. The short question, therefore, is whether the President by Ordinance could legislate so as to give retrospective effect to a legislation beyond the date when the Constitution came into force. In this connection, reference may usefully be made to some of the provisions of the Constitution. In the first place, what has to be considered is the power that the Legislature has. The relevant provision is Article 131 of the Constitution. In this connection I may reproduce only sub-clause (1) of the said Article, which runs as under: - "The Central Legislature shall have exclusive power to make laws (including laws having extra-territorial operation) for the whole or any part of Pakistan with respect to any matter enumerated in the Third Schedule." Ordinance XVIII of 1965 has been promulgated in exercise of the powers given to the President under Article

29. The relevant provision is sub-clauses (1) and (2), which are to the following effect:

"(1) If, at a time when the National Assembly stands dissolved or is not in session, the President is satisfied that circumstances exist which render legislation necessary, he may, subject to this Article, make and promulgate such Ordinances as the circumstances appear to him to require, and any such Ordinance shall, subject to this Article, have the same force of law as an Act of the Central Legislature. (2) An Ordinance made and promulgated under this Article shall, as soon as is practicable, be laid before the National Assembly." Reading Article 131 and Article 29 of the Constitution together, one thing is clear that no limitation has been put on the 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 from the Constitution itself. The President has 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.

5. The next point that Mr. Almas raised before me was about the Fundamental Right relating to equality clause. We contended that the Ordinance violates the principle of equality inasmuch as prior to the amendment wherever a Settlement Authority has exercised delegated authority it has been held to be final, while in the case of the petitioner by virtue of this Ordinance, the exercise of the delegated authority has been held to be subject to appeal or revision, as the case may be. He submits that the proceedings should remain in abeyance by virtue of the order passed by the President under clause (9) of Article 30 of the Constitution on. 6-9-1965. The relevant provision reads as under:

"All proceedings pending in Courts for the enforcement of the said Right shall remain suspended for the period during which the said promulgation is in force." I am of the view that there is no proceedings pending in respect of the said Fundamental Right as the same point has not been taken in the petition before me. It was open to the petitioner to have amended the petition so as to include the Fundamental Right about equality. The mere submission at the Bar at the time of arguments could not, in my opinion, amount to proceedings pending in Court.

6. For the reasons given above, I dismiss the petition but make no order as to costs. K. B. A. Petition dismissed.