1999 PLP 1597 (CLC)

(1) Sh. Amin Ullah v. Pannu Ram PLD 1967 SC 289, (2) Haider Automobile Ltd. v. Pakistan PLD 1969 SC 623, (3) Karachi Panjrapore Association v. Custodian, Evacuee Property and another PLD 1957 Kar. 147, (4) Maula Bakhsh v. Chairman Federal Land Commission and another 1982 CLC 37, (5) Mst. Saeeda Begum v. Government of Pakistan etc. PLD 1977 Kar 226, (6) Inamur Rehman v. Federation of Pakistan PLD 1977 Kar. 524.

6. The effect of Al‑Samerz's case 1986 SCMR 1917 was negated by enacting section 31‑A in the Customs Act, 1969, in the year 1988 and the said provision was given retrospective effect in Molasser Trading Export Ltd. v. Federation of Pakistan 1993 SCMR 1905. It was held that the Legislature has full plenary powers to legislate retrospectively and, therefore, vested rights can be taken away. It was held in Mst. Farida and others Rehmatullah etc. PLD 1984 Pesh. 117 that the Legislature having a sovereign authority in sphere of legislation, is competent to enact certain provisions of statute with retrospective and certain provisions with prospective effect.

7. The legal position as discussed hereinabove is not in any measure different in other countries of the world. Higgins, J., observed:‑‑ "The British Parliament admittedly has power to make laws retrospectively and I know of no instance in which a legislation enacted by the British Parliament has been held to have overstepped its power by making the legislation retrospectively." Kin v. Kidman 20 CLR 424 ‑ 451 ‑552, Jada Ram v. Fasiullah Khan AIR 1934 Pesh. 30.,

8. According to the Supreme Court of India every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. Keshavan Madhava Menon v. The State of Bombay AIR 1951 SC 128.

9. In France there is a general presumption established by Article 2 of Civil Code that the statute is not retrospective, the statute must be interpreted so as not to be retrospective, unless it has explicitly stated otherwise. (Interpretation of Statute‑‑‑"A compactive study by D. Neil Mac Cormick and Robert Summer‑‑‑ page 196).

10. In United Kingdom the presumption is that the legislation is not to be retrospective but this would be rebutted by a clear and unambiguous legislative provision to the contrary. (Statutory Interpretation in U.K.) (i) Payne v. Lord Harris of Greenwhich (1981) 2 All ER 842 at 145, (ii) Re‑Athlumney (1892) 2 Queen Bench 547 at

551. The same position was re‑affirmed in Gopal Vakta and another v. Gopal Munshi AIR 1941 Cal. 432 wherein it was held that when‑the intention is clear that the Act shall have retrospective operation, it must unquestionably be so construed even if the consequences may appear unjust and hard.

11. The aforesaid legal position as to the retrospectivity of the law was re affirmed in the following judgments:‑‑

(1) Salim Akbar v. Government of Sindh PLD 1984 Kar. 358, (2) Ghulam Haider Shah v. The Chief Land Commissioner and. 2 others 1983 CLC 1585, (3) Messrs Zaman Textile Mills Ltd. v. Messrs Anwar & Company 1981 CLC 685, (4) Kunir Mondal v. Paramatha Nath Chowdhary PLD 1963 Dacca 886, (5) Harjina & Co. (Pak.) Ltd. v. Commissioner of Income‑tax (Central) Karachi PLD 1963 Kar. 996, (6) Noor Muhammad v The Province of West Pakistan PLD 1966 ‑ Baghdad‑ul‑Jadid 19, (7) Sh. Fazal‑ur‑Rehman v. Dr. Abdur Rashid PLD 1967 Lah. 828, (8) Sukut Lakpat Ram v. Raghu Koeri and others AIR 1928 Pat. 109, (9) B. Chint Ram v. Firm Kirpa Ram Dhani Ram AIR 1946 Lah. 209 (11) Ghote Lal Nand Kishore Nath Shah v. Tula Singh and others AIR 1926 Pat.

561. In which it was held that a statute touching a right in existence at the time of passing of an Act would not operate retrospectively unless Legislature had either by express enactment or by necessary intendment had , given legislation retrospective effect.

12. There being no doubt as to the applicability of the Punjab Finance Act, 1997 from a back date yet the learned counsel for the petitioner insisted that notwithstanding the aforesaid position of the law in question, this Court should strike it down on the ground that it was made applicable retrospectively. In other words what the learned counsel for the petitioner asked this Court was to hold contrary to the clear intention of this piece of legislation. Such, however, could not be done by this Court. For, the duty of the Court is to enforce the law as it is. It is not for the Court to decline to give effect to a valid piece of legislation. IG Reliance for the view as to this is placed on Bengal Oil Mills Ltd. v. Dada Sons PLD 1964 (W.P.) Kar. 18.

13. The net‑ result of the above discussion is that there being an express provision in the Punjab Finance Act, 1997 making it applicable from a back date, the same could not be struck down on the ground that it purported to impair the so‑called vested rights of the petitioner. The respondents have, therefore, unquestionable right to demand of the petitioner the payment of the Luxury Tax sought to be evaded by the petitioner through the instant petition. The Constitution petition in view of the reliefs sought, is clearly misconceived and untenable at law. The same is accordingly dismissed as being without any merit. Parties are, however, left to bear their own costs.

14. Before parting with this judgment, I must place on the record my deep sense of appreciation for the hard labour put in by Malik Muhammad Kabir, learned A.A.‑G. in attending to the questions raised in the instant Constitution petition. Q.M.H./M.A.K./A‑44/1 Petition dismissed