P L D 1960 (W (PLP)

(20) Criminal Miscellaneous No. 746 of 1955 (Hamid Ali Khan v. The State). (21) Criminal Miscellaneous No. 747 of 1955 (Hamid Ali Khan v. The State). (22) Criminal Miscellaneous No. 748 of 1955 (Hamid Ali Khan v. The State). . (23) Criminal Miscellaneous No. 749 of 1955 (Hamid Ali Khan v. The State). (24) Criminal Miscellaneous No. 763 of 1957 (Haji Muhammad Siddiq v. The State). (25) Criminal Miscellaneous No. 764 of 1957 (Haji Muhammad Siddiq v. The State). (26) Criminal Miscellaneous No. 765 of 1957 (Haji Muhammad Siddiq v. The State).

2. Rule 26 of the West Punjab Cotton Control Rules, 1949, the alleged contravention of which resulted in the proceedings impugned in the petitions, reads as follows :‑ "Fees‑(1) Government may by general or special notification impose fees on the occupiers of factories, the managers of companies and the cotton dealers to cover the cost of the staff appointed under the Act or for the improvement of agriculture relating to the cotton crop grown in West Punjab. (2) The occupier of every factory, the manager of every firm or company and every cotton dealer shall keep a daily account of all cotton or cotton‑seeds purchased in the form given in Appendix XX, in bound and machine paged registers which shall be produced before an Inspector on demand and shall be preserved for three years from the close of the last cotton year to which the last entry relates. (3) Within a fortnight of the close of each month, a return in the form given in Appendix XXI shall be sent by every occupier of a factory, every manager of a firm or company and every cotton dealer to the Chief Cotton Inspector of the range. The treasury receipt to show that the amount of the fees has been duly credited in a treasury shall be attached to this return. (4) On receipt of the return prescribed in sub‑rule (3), the Chief Cotton Inspector concerned shall verify that the fees have been correctly calculated and that the full amounts due on that score have been credited in a treasury. (5) If an occupier of a factory or a manager of a firm or company or a cotton dealer ; (a) fails to pay into a treasury by the due date the full amount payable on account of the fees, or (b) credits an amount less than the full amount due, or (c) fails to keep a correct and up‑to‑date account as pres cribed in sub‑rule (2) or (d) fails to send the return as prescribed in sub‑rule (3), he shall be punishable with imprisonment not exceeding one month or fine which may extend to Rs. 500 or both. These rules were made by the Provincial Government in exercise of the powers conferred on it by section 30 of the West Punjab Cotton (Control) Act, 1949. It is necessary for the purposes of the present cases to reproduce the preamble to the Act which runs as follows:‑ "The West Punjab Cotton (Control) Act, 1949 (a) to provide for the licensing of cotton ginning and pressing factories ; (b) to regulate supply of cotton (kapas) to the factories for ginning and to prevent the mixing of different varieties ; (c) to plan the production of cotton on a regional basis ; (d) to ensure the supply of pure seed to the cultivators ; and (e) to provide such other matter as may be incidental thereto." The Act of 1949 as amended by the Punjab Cotton (Control) Amendment Act, 1953, provided for most of the matters mentioned in the preamble, while the 30th section gave the Provincial Government the power to make rules. The part of section 30 of the Act which was relied upon by the learned counsel for the State reads as under :‑-- "The Government may, by notification, make rules consistent with this Act to give effect to the provisions of this Act. Such rules may in particular provide for all or any of the following matters, namely :‑ (o) any other matter for which provision is deemed necessary in order to carry out the purposes of this Act ; (p) the fees to be paid by the companies of Cotton Ginning, Cotton Pressing, or Cotton Seed Oil Factories, by the cotton dealers or by the Managers of Companies to cover the expenditure incurred by Government on the administration of the Act."

3. It is common ground between the parties that the West Punjab Cotton (Control) Act, 1949, does not by any of its provisions provide for punishment of the omission of which the petitioners in these petitions are stated to have been guilty. The stand on behalf of the State, however, is that the offence was validly created by Rule 26 of the West Punjab Cotton Control Rules; 1949. There is no denying the fact that the rules were made by an authority which had been authorised by section 30 of the Act to make rules and the only question that falls for determination is whether or not rule 26 is intra vires the authority which made it. Rule 26, by its first clause, provides that the Government may by general or special notification impose fees on the occupiers of factories, the managers of firms and companies and, the cotton dealers to cover the cost of the staff appointed under the Act and for some other purposes mentioned in the Act which need not be detailed here. Clause (2) of rule 26 enjoins on the occupies of factories, the manager of every firm or company and every cotton dealer to keep daily account of all cotton and cotton seeds purchased. Clause (3) of the rule is to the effect that within a fortnight of the close of each month a return in the form given in Appendix XXI to the rules shall be sent by every occupier of a factory, every manager of a firm or company and every cotton dealer to the Chief Inspector and the return has to be accompanied by a treasury receipt showing that the fee payable had been duly credited in the treasury. Clause (4) deals with the duties of the Chief Cotton Inspector. Clause (5) of rule 26, which is the one to which the arguments of the learned counsel for the parties related, provides punishment for omission to do certain things mentioned in the previous clauses of the Rule. The contention of Sh. Khurshid Ahmad, Advocate, who appeared for the petitioners in all these cases but two was that while the other clauses of rule 26 of the West Punjab Cotton Control Rules, 1949 dealt with matters with which the Provincial Government had been authorised to deal by means of rules, its fifth clause went beyond the field envisaged by section 30 of the West Punjab Cotton (Control) Act, 1949, and was, therefore, entirely illegal and void. His argument was that by clause (p) of section 30 of the West Punjab Cotton (Control) Act, 149, the Provincial Legislature authorised the Provincial Government to make rules for charging fees and when the Provincial Government provided in the rules a punishment for non‑payment of fees, it travelled far beyond the scope of the provision of law under which they could and purported to act. The learned counsel went on to say that non‑compliance with the rule could be visited with punishment only if the Legislature had made it an offence and added that even if the Legislature which passed the West Punjab Cotton (Control) Act, 1949, had in clear terms authorised the Provincial Government to make non‑compliance with the rules an offence, it would have been a case of delegated legislation which would have been bad in law and the rule which prescribed punishment would have been entirely ineffective on that ground.

4. It is clear from clause (p) of section 30 of the West Punjab Cotton (Control) Act (IV of 1949), which has been reproduced in an earlier paragraph, that though the Provincial Government had been authorised by the Provincial Legislature which passed the Act to make rules with regard to the fees to be paid, the Government had not been given the power to make non‑payment of the fees an offence punishable by Criminal Courts. It is, therefore, obvious that by purporting to act under clause (p) of section 30, the Provincial Government could not declare the non payment of fees to be a criminal offence punishable by Courts. Clause (o) of section 30 is, no doubt, couched in very wide terms and the point for determination is whether clause (5) of rule 26 o' the West Punjab Cotton Control Rules, 1949, could be brought within the four corners of clause (o) of section 30 of the Act. It: will be noted from the preamble of the West Punjab Cotton (Control) Act, 1949, that realization of fees is not one of the objects for which the Legislature enacted it and it would, there fore, appear that clause (o) of section 30 has not as wide a scope as it appears at first sight to have. I have given the matter my most anxious consideration and have arrived at the conclusion that clause (5) of rule 26 of the West Punjab Cotton Control Rules, 1949, does not fall within clause (o) of section

30. My reason for this conclusion is that the Legislature had declared some acts and omissions to be offences by sections 9, 10, 11, 12, 13, 14, 15, 16 and 17 and if it had intended that the non‑payment of fe‑.s to be imposed by the Provincial Government should entail punishment by a Criminal Court; it would have made a provision to that effect in the Act itself. In view of the enormity of the power which the Provincial Government would be exercising if it were to have the power to make non‑compliance with a rule made by itself to be a criminal offence, I am unwilling to hold that the Provincial Legislature intended to give the Provincial Government the power which it sought to exercise by making clause (5) of rule 26 of the West Punjab Cotton (Control) Rules, 1949 and yet did not consider it necessary to make its intention clear by plain unambiguous words.

5. The fifth clause of rule 26 of the West Punjab Cotton Control Rules, 1949 is vulnerable on another point also. At the time the West Punjab Cotton (Control) Act, 1949, was passed, the Government of India Act, 1935, (as adapted) was the Constitution of Pakistan. By the 7th Schedule of the Act the Provincial Legislature had been authorised to legislate on certain matters and by virtue of the 37th entry in Part 11 of the Schedule could make laws regarding offences against laws with respect to any of the o matters in the Provincial Legislative list. The Provincial Legislature was not a sovereign body and could not, therefore, delegate the powers given to it by the Government of India Act, 1935, to any other authority. If what was urged on behalf of the State to have been done by the Provincial Legislature had been actually done it would amount to delegated legislation and not merely conditional legislation which it was claimed to be. The distinction between these two kinds of legislations was brought out t by the Federal Court of Pakistan in Sobho Gyanchandani v. Crown (PLD 1952 FC 29). In that case their Lordships of the Federal Court are stated at page 35 of the report to have, remarked as follows :‑ When a law is made to take effect on the happening of a certain event, the Legislature in effect declare the law but leaves it to an external agency to bring it into force, whenever it considers it expedient to do so. A law may be regarded as inexpedient in certain events, but expedient if certain events should take place. In passing conditional legislation, the Legislature completely performs the duties which are imposed by the constitution upon it. That is, it places legislation on the Statute Book, and the only function' that it 'delegates to an external authority is to bring the legislation into force if certain events should happen and the enforcement of the legislation should be considered necessary. Even if the legislation is not brought into force, it remains on the State Book to be utilized, when and if necessary. If, however, a temporary Act is passed by the Legislature for one year, it dies a natural death after the lapse of one year from its commencement. Thereafter, it ceases to be a law. In these circumstances, can it be said that the external authority that gives a new lease of life to an enactment is merely bringing the legislation into force in accordance with the wishes of the Legislature ? The case before their Lordships of the Federal Court was stronger for the Government than the present one because the legislative measure considered by their Lordships had been passed by the Legislature and all that was left to the Government was that it could keep the legislative measure alive after the period. which the Legislature had in the first instance fixed as its life had expired and yet the action of the Government was held to amount to delegated legislation which could not be resorted to. In the present case what the Provincial Government did was to create an offence where none had been created by the Legislature. 1 have held that none of the provisions of the Act authorised the Provincial Government to declare that non‑compliance with any of the rules made by itself would be an offence and that if the Legislature had authorised the Provincial Government to do what it purported to do by making the fifth clause of rule 26 of the West Punjab Cotton Control Rules, 1949, it would have amounted to delegation of legislative powers, a delegation which the law does not allow. This makes the fifth clause of rule 26 of the rules defective on two grounds. But even if only one of these two grounds existed, the fifth clause of rule 26 will remain as unenforceable as it would be if it suffered from another defect also. I would, therefore, hold that clause (5) of rule 26 of the West Punjab Cotton Control Rules, 1949, was ultra vires the Act under which the Provincial Govern ment purported to make the rules.

6. In view of what I have. said above, it is clear that non payment of fees imposed by the Provincial Government could not be made an offence by a rule made by the Provincial Government. The result, therefore, is that non‑payment of fees imposed under the West Punjab Cotton Control Act, 1949, was not punishable as an offence and consequently I accept all the petitions. The convictions of the petitioners in (i) Criminal Revision No. 82 of 1956, (2) Criminal Revision No. 83 of 1956 and (3) Criminal Revision No. 84 of 1956 are set aside and the fines, if paid, shall be refunded, and the proceedings attacked by this Criminal Miscellaneous petition and those mentioned in paragraph 1 above are quashed. A.H. Petitions accepted.