1968 PLP 1416 (SCMR)

(On review from the judgment and order of this Court in Civil Petitions for Special Leave to Appeals Nos. 143 and 191 of 1968, respectively). - Art. 62‑Review‑Court dis missing Petition for Special Leave to Appeal relying on a previous case decided by Court‑Fact, however, that precedent case had been disposed of on concession made by counsel appearing therein and legal points raised were not considered on merits Petition for review accepted. C. R. P. No. 33 of 1968 ORDER HAMOODUR RAHMAN, J.‑These two petitions have been filed for the review of an order of this Court dismissing Civil Petitions for Special Leave to Appeals Nos. 143 and 191 of 1968 which were heard together as common questions of law were raised in both the said petitions. Those petitions were filed to call in question the correctness of the decision of the High Court in several writ petitions filed in the High Court of West Pakistan for challenging the imposition of certain fees under the West Punjab Cotton (Control) Act (IV of 1949) on ginned and unginned cotton imported into certain districts in the former Punjab and Bahawalpur. The High Court dismissed those petitions on the ground that the questions raised therein were covered by a decision of this Court in the case of the Crescent Textile Mills v. The Province of West Pakistan (Civil Appeal No. 122 of 1965). This Court refused to grant leave under the impression that the petitioners were seeking to challenge the correctness of the decision of this Court in the above‑mentioned case. Learned counsel, appearing in support of these petitions, now contends that in taking this view this Court was under the impression that the decision in the case of the Crescent Textile Mills Limited was a decision on merits, whereas, in fact, the decision therein as to the effect of amendments introduced into the West Punjab Cotton (Control) Act by West Pakistan Cotton Control Ordinance, 1966 (Ordinance No. XX of 1966) rested on a concession made by the learned counsel appearing for the appellants in that case. The relevant portion of the judgment of this Court in the case of the Crescent Textile Mills is to the following effect "In view of deletion of clauses (o) and (p) of section 30 of the Act and the validating provisions set out above, Mr. Khursheed Ahmad, tile learned counsel for the appellants, has been candid enough to say that the points raised by the appellants in their writ petition were no longer available to them. It will, therefore, suffice to say that in view. of the provisions of section 22 read with section 30(1) the. power of the Government to impose fee on the ginned and unginned cotton which were imported into certain districts in the former Punjab and Bahawalpur Region, can no longer be challenged. The learned counsel strenuously contends that the clients cannot be bound by a concession erroneously made by learned counsel appearing in some other case. It is argued that the learned counsel who made the concession in the case of the Crescent Textile Mills overlooked the difference between a saving clause without which lawful action under a repealed law could not continue to be legally effective and a validating clause which seeks to render lawful and legally effective, that which was unlawful and legally ineffective under the law in force at the time. Hence the question of law relating to the validity of the impugned action is a question which still remains to be decided by this Court on merits. We are of the view that there is substance in this contention, for the decision in the Crescent Textile Mills case, as regards the scope and validity of the amending provisions of the Ordinance', of 1966 were not considered on merits but the appeal of the Crescent Textile Mills was disposed of on the basis of the concession of the counsel appearing therein. This concession cannot bind others who were not parties to that appeal. These are fit cases, therefore, in which the order of this Court passed on the 22nd May 1968, may be placed for reconsideration before the Bench which heard the Original Petitions Nos. 143 and 191 of 1968. Petition accepted.