P L D 1965 Dacca 156 (PLP)

MURSHED, C. J.‑These two applications were heard together inasmuch as they raise identical points and this judgment will dispose of both of them. The facts with regard to them, in so far as they are material for the purpose of their disposal, may be briefly stated as follows:

2. The petitioners in these applications are dealers in the business of Pan and they carry Pan from East Pakistan to West Pakistan and, in such a sense, export the same from one Wing of Pakistan to the other. One of the petitioners, namely, Haji Ghulam Zamin, has been carrying on such business ever since Independence. The other petitioner, Abul Hussain, claims to have carried on such business since 1959. They have been both doing business in Pan carrying this commodity from East Pakistan to West Pakistan by air through the Pakistan International Airlines Corporation (here after called P I A C). The only means of transport is by air since there is no communication by train which, of necessity, has to run through India.

3. The P I A C is a statutory corporation and carries on the business of carriage of passengers as well as freight in various parts of the world and between Dacca and various other places in West Pakistan. Under section 5(2) of the P I A C Ordinance the Central Government is entitled to issue instructions on the P I A C with regard to matters of policy and carriage of goods.

4. On the 31st of August 1957, the Government of Pakistan issued a Press‑note purporting to regulate the transportation of Pan from East to West Pakistan. But, the operation of the above notification was withdrawn as is evident from an order passed by the West Pakistan High Court, Karachi Bench, in Writ Petition No. 494 of 1957.

5. Annexure `E' to the Petition No. 25 is a notification which appeared in Morning News on the 21st of November, 1959, inviting applications from bona fide Pan dealers for allocation of air space for the year 1960 on P I A C flights from Dacca to Karachi and Lahore. The petitioners had been carrying on their aforesaid business in the background mentioned above under contract with P I A C.

6. On the 2nd of January, 1964, there appeared in the Dawn a notification said to be issued by the Central Government (Commerce Ministry), which is Annexure `F' to the Petition No. 25 and Annexure `B' to Petition No. 86 and which reads as follows: "Centre To Regulate Betel Leave Trade: Rawalpindi Jan. 1: The inter‑regional trade in betel leaves (Pan) between the two wings of Pakistan has so far been controlled by the Pakistan International Airlines Corporation. As trade and Commerce between the Provinces is the respon sibility of the Central Government under the Constitution and it is necessary to re-organise this trade on efficient and rational lines, the Ministry of Commerce, which is responsible for inter-provincial trade, will henceforward handle this work. According to a Press‑note of the Ministry of Commerce, it has been decided to set up, with immediate effect, a committee to devise procedure for the allotment of quotas of the Pan for transportation from East to West Pakistan by air, and to actually allocate quotas to deserving parties. The composition of the committee will be as follows: Committee Members: (i) Mr. A. B. M. Khandker, Controller of Imports and Ex ports, Government of Pakistan, Chittagong (Chairman) (ii) Mr. Helaluddin Ahmad, Director, Trade and Commerce, Government of East Pakistan (Member). (iii) Mr. Siddiqur Rahman, Deputy Director, Export Promo tion Bureau (formerly Department of Trade Promotion and Commercial Intelligence), Government of Pakistan, Dacca (Member‑Secretary). The existing arrangements for the inter‑regional trade in Pan will continue till February 1, 1964, by which time the Pan allocation committee would have taken decisions with regard to the reorganisation of this trade. All correspondence on the subject should be addressed to the Deputy Director, Exports Promotion Bureau (formerly Depart ment of Trade Promotion and Commercial Intelligence), Government of Pakistan, Pakistan Secretariat, Ramna, Dacca PPA."

7. In pursuance of the aforesaid notice the Pan Allocation Committee issued the following public notice (Annexures 'G' & `C' to the petitions respectively) which reads thus: "PAKISTAN OBSERVER. Date, 12‑1‑1964. "Public Notice In accordance with the recent Government decision to re -organise the inter‑regional trade in Pan between East and West Pakistan, applications for allotment of quotas of Pan for which air space would be available with P I A C for transportation from East to West Pakistan, are invited to the Pan Allocation Committee set up by the Government of Pakistan. Applications are required to fulfil the following conditions: (i) Applicants should be the nationals of Pakistan. (ii) They should hold assets in the country ; and (iii) They should produce some evidence to show that they have traded in some agricultural and commercial items.

2. Applications along with evidence in support of the above conditions must reach the Secretary, Pan Allocation Committee (Deputy Director, Exports Promotion Bureau, formerly Depart ment of Trade Promotion and Commercial Intelligence), Government of Pakistan, Dacca‑2 on or before the 22nd January,1964.

3. Every application should contain the name and full address of the applicant and the word `Pan Quota' should be written on the top of such application.

4. Applications received before the publication of this Notice or after 22nd January, 1964 will not be considered as valid.

5. No legal right of any nature whatsoever shall accrue to any application by merely applying for space for the transporta tion of Pan on `the basis of this notice'.

6. Allotment of space will rest entirely with the Pan Allocation Committee. C‑2873." (We may state in passing that all the under linings have been done by us.)

8. The aforesaid notice (marked Annexures `G' and `C' res pectively) has been impeached before us and is the ,subject‑matter of these applications. The petitioners have challenged the notice as void and illegal on various grounds and have obtained the present rules Nisi from this Court.

9. The hearing of these rules commenced before a Division Bench and, inasmuch as the Division Bench felt that these applications raised important questions as to the interpretation of the Constitution, a reference was made for their disposal by a Special Bench and this Bench was constituted under the said circumstances.

10. The original notifications have not been produced by the respondents but the learned Advocate‑General, who appeared on their behalf, admitted their correctness.

11. So far as the facts of these cases are concerned, there is hardly any serious dispute. In any event, on a perusal of the same we accept the averments of the petitioners as they are corroborated by the probabilities of the case before us.

12. Mr. Hamidul Huq Choudhury, who has appeared on behalf of the petitioners, has argued that the impugned order could not be passed by virtue of Article 2 of the Constitution which reads as follows: "2 (1) To enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan. "(2) In particular‑ "(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law; (b) no person shall be prevented from, or be hindered in, doing that which is not prohibited by law; and (c) no person shall be compelled to do that which the law does not require him to do." It was submitted, inasmuch as the impugned notice required the petitioners and other persons engaged in Pan business between East Pakistan and West Pakistan to submit certain applications before a certain committee at the risk of their not being able to carry on such trade, it was hit by the aforesaid Article 2 on the ground that the impugned notice was not referable to any law which had been passed in this country.

13. In reply to this argument learned Advocate‑General, who appeared for the respondents, did not contest the contention that the impugned notice must have the sanction of Law as required by Article

2. He has rightly conceded that such is the requirement of the Constitution and that, although the impugned notice does not expressly impose any obligation to make the required application, in effect, when read, as a whole, it does amount to a compulsion to do so for those who wish to carry on trade in Pan between the Provinces or to continue in such trade because they would otherwise lose such business. He, however, pointed to an Ordinance promulgated by the President of Pakistan, subsequent to the above notification, on the 30th of June, 1964, which is called the Inter‑Provincial Trade Ordinance (Ordinance No. IV of 1964). He has submitted that the aforesaid Ordinance has given legal validity to the impugned notice. The question is: Can the aforesaid ordinance confer legal validity to the said notice, which was published prior to the passing of the said ordinance?

14. The Ordinance is a short one and was published on the 30th June, 1964. We quote its main provisions as follows: "Whereas it is expedient to make provision for enabling the Central Government to regulate trade and commerce between the Provinces and for matters connected therewith; And whereas the National Assembly is not in session and the President is satisfied that circumstances exist which render immediate legislation necessary; Now, therefore, in exercise of the powers conferred by clause (1) of Article 29 of the 'Constitution, and of all other powers enabling him in that behalf, the President is pleased to make and promulgate the following Ordinance:‑

1. Short title, extent and commencement.‑(1) This Ordi nance may be called the Inter‑Provincial Trade Ordinance, 1964. (2) It extends to the whole of Pakistan. (3) It shall come into force at once. (2) Power of the Central Government to regulate Inter Provincial Trade,‑(1) Notwithstanding anything contained in the Essential Commodities Act, 1957 (I1I of 1957), or any other law for the time being in force, the Central Government, if it so deems necessary or expedient, may, by general or special order, regulate the movement and transport of any commodity or class or description of commodities including imported commodities, between the Provinces. (2) Without prejudice to the generality of the powers conferred by subsection (1), an order made thereunder, may provide,‑ (a) for regulating by licences, permits or otherwise the transport and movement of any commodity or any specified class or description of commodities; (b) for allocating or directing any person or authority to allocate in such manner as may be specified in the order, space on any ship or aircraft for the carriage of any commodity or any specified class or description of commodities; (c) and (d) for any incidental or supplementary matters, including, in particular, the entering, and search of premises, vehicles, vessels and aircraft, the seizure by any person authorised to make such a search of any articles in respect of which such person has reason to believe that a contravention of the order has been, is being or is about to be committed, or any records connected therewith, the grant or issue of licences, permits or other documents. "

3. Delegation of powers.‑The Central Government may, by order in writing, direct that the power to make orders under section 2 shall, in relation to such matters and subject to such conditions, if any, as may be specified in the direction, be exercisable also by (a) such officer or authority subordinate to the Central Government, or (b) such Provincial or such officer or authority subordinate to a Provincial Government, as may be specified in the direction. Thereafter come sections 4, 5, 6, 7 and 8 which provide for penalty for breach of any order made under the aforesaid provisions and for its trial and punishment. Section 10 reads as follows: "

19. Validation.‑Any such order as is referred to in section 2 made by the Central Government before the promulga tion of this Ordinance shall be deemed to have been validly made as if this Ordinance were in force at the time of making such order, but nothing in this Ordinance shall have the effect of creating any offence retrospectively."

15. It has been contended by the petitioners that the afore said Ordinance is ultra vires of the Constitution as it amounts to an abdication of legislative power by the Central Legislature and the vesting of such power on the Central Government. This argument is based on a well‑established constitutional principle that a Legislature cannot completely divest itself of its legislative function.

16. The exclusive powers to make laws have been vested in the Central Legislature by Article 131 of the Constitution which reads as follows: "131. (1) 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." The Third Schedule, which has been mentioned in the aforesaid Article, enumerates various items which constitute the exclusive legislative field of the Central Legislature.

17. It cannot be denied that there is no inherent power in the Executive, except what has been vested in it by law, and that law is the source of all power and duty.

18. It is unnecessary for us to cover the entire field of Jurisprudence to explain the nature of legislative function and we would not have discussed this topic at such a length but for certain arguments which were addressed to us in disregard of well established concepts of Law. It is useful to refer to some dicta from Halsbury's Laws of England (Hailsham Edition), Volume VI. We quote some extracts from that volume as follows: "

424. The structure of the machinery of Government, and the regulation of the powers and duties which belong to the different parts of this structure, are defined by the law, which also prescribes, to some extent, the mode in which these power are to be exercised or those duties performed." "

425. From the ail‑pervading presence of law, as the sole source of governmental powers and duties, there follow these consequences:‑ (1) The existence or non‑existence of a power or duty is a matter of law and not of fact, and so must be determined by. reference to some enactment or reported case . . . . ." (4) . . . Consequently there are no powers or duties insepar ably annexed to the executive Government."

19. This Court, on another occasion, in the case of Muhammad Hossain v. General Manager, E. B. Railway (P L D 1961 DACCA 730), expressed this basic concept in the following terms: "The argument advanced on behalf of the respondents pre supposes that a vague, indefinite and wide power has been vested in the executive to invade upon the proprietary rights of citizens and that such invasion cannot be subjected to judicial scrutiny if it is claimed that it is a mere executive order. This is not the position in law. Any invasion upon the rights of citizens by anybody, no matter whether by a private individual or by ail public official or body, must be justified with reference tot some law of the country."

20. The aforesaid principle is embodied in Article 2 of our present Constitution. The said Article 2 is a codification of the ever‑growing and elastic concept of "due course of law", as con ceived in the American Constitution, and is now embedded in our Constitution as a doctrine which cannot be altered by the ordinary machineries of legislation. It is only a constitutional amendment which can effect an alteration in the said provisions. We shall revert to it hereafter.

21. To the aforesaid constitutional guarantee a bill of right has been now added and Article 6 (2) of the Constitution reads thus: "(2). The State shall not make any law which takes away or abridges the rights so conferred, and any law made in contraven tion of this clause shall, to the extent of such contravention be void."

22. Article 142 (1) of the Constitution puts an embargo upon the Provincial Legislature to legislate in the field of Inter Provincial trade and thereby lays down, inferentially, that such legislation is the province of the Central Legislature.

23. Article 131 of the Constitution, as noticed above provides that the legislative items in the Third Schedule is the exclusive legislative field of the Central Law‑making powers ane item 5 of the said Schedule specifies: "

5. Trade and commerce between the Provinces and with other countries including . . . . ."

24. It is thus patent that the requirement of our Constitution is that regulation of trade and commerce, and more particularly, (1) P L D 1961 Dacca 730 that of Inter‑Provincial Trade and Commerce, is the exclusive responsibility of the Central Legislature and the execution of such regulation is the primary responsibility of the Central Executive.

25. In this connection, certain misconceptions, which have also crept into the arguments that were addressed to us, require clarification. The notification issued by the Commerce Ministry of the Government of Pakistan, dated, January 2, 1964, is prefaced thus: "Trade and Commerce between the Provinces is the respon sibility of the Central Government under the Constitution." The statement quoted above is correct in a very limited sense anon is not, strictly speaking, accurate. On the contrary, "trade and commerce between the Provinces" has been specifically made the exclusive responsibility of the Central Legislature by the Constitu tion. (See Article 131, Third Schedule, Item 5). The execution of legislative provisions with regard to Inter‑Provincial Trade is the primary responsibility of the Central (Executive) Government] Regulation of Inter‑Provincial trade and commerce can only be effected by legislation alone. The Executive Government is only entrusted with the responsibilities of carrying into effect legislative policies and provisions. This is also the true effect and import of Article 135 when it says that "The executive authority of the Republic extends‑(a) to all matters with respect to which the Central Legislature has exclusive power to make laws under clause (1) of Article 131.

26. There should be no difficulty in construing this plain and simple provision. It relates to the execution of the mandates and requirements of Central Laws. The executive authority must be derived from law.

27. It is in the aforesaid context that one speaks, in a general way, of Inter‑Provincial trade and commerce as being the responsibility of the Central Executive. This only means that the Central Government, in its executive branch, is entrusted wit the execution of regulations imposed by the Central Legislature which is not precluded from imposing such responsibility of execution on other bodies as well.

28. Regulation is a matter for legislation; execution of such, regulation lies in the executive field and adjudication of contests as to what amounts to regulation is the function of the Judiciary.

29. In the same way, when it is said that maintenance of "law and order" is the responsibility of the Provincial Government, what is meant is that the making of law in respect thereof is the business of the Provincial Legislature and the execution of legislative policy is a matter for the Provincial Executive Government.

30. There is a trichotomy in the division of sovereign powers in our Constitution as also in the Constitutional Laws of England, America and India, as embodied in the well‑known doctrine of separation of powers which divides the functions of the legislative, executive and judicial branches of state‑sovereignty.

31. It is true that the respective spheres of this "triumvirate" do occasionally overlap, in varying degrees, but the concept of separation is well‑recognised, notwithstanding its shifting and sometimes, vanishing frontiers at several points.

32. Thus, regulation being the exclusive province of the Legislature, the question is: how far legislative function can be delegated to the executive or to any other agency by the Legislature?

33. Broadly speaking, such delegation bifurcates into two main divisions, namely, Delegated Legislation and Subordinate Legislation. The classic examples of subordinate legislation are the bye‑laws and regulations o (Municipal Corporations and various other statutory bodies. At the present moment we are not concerned with Subordinate Legislation.

34. We will now turn to what is known as delegated legislation. Can the Legislature totally abdicate its function? Implicit in the principle of separation of powers is the concept that legislation cannot be delegated to any authority other than B the Legislature. Secondly, so far as we are concerned, it is a constitutional provision that legislation is the exclusive field of the Legislature.

35. Locke in his famous treatise entitled, "Civil Govern ment", has observed as follows: "The Legislative neither must nor can transfer the power of making laws to anybody else, or place it anywhere but where the people have (so placed it).‑the parenthesis is ours. Cooley in his famous work, "Constitutional Limitations", has observed, at page 137 of his book (6th Edn.) as follows: "One of the settled maxims in constitutional law is, that the power conferred upon the Legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of the State has located the authority, there it must remain; and by the constitutional agency alone the laws must be made until the constitution itself is changed. The power to whose judgment, wisdom, and patriotism this high prerogative has been entrusted cannot relieve itself of the responsibility by choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom, and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust." In the aforesaid work Cooley has again, at page 137, observed as follows "But it is not always essential that a legislative act should be a completed statute which must in any event take effect as law, at the time it leaves the hands of the legislative department. A Statute may be conditional, and its taking effect may be made to depend upon some subsequent event."

36. Manifestly, therefore, the Legislature is not permitted] to abdicate, or to transfer to others, the essential legislative function with which it alone is vested by the Constitution. This is clear from the requirement of the Constitution itself and, as such, this proposition is undeniable and it cannot be contested. It is thus established that essential legislative function cannot be delegated or assigned to any extraneous authority, for example, the Executive.

37. It is also undeniable that legislation must also be adapted to the complex conditions involving a host of details with which the Legislature cannot deal directly. The Legislature, therefore, having formulated the norms of its main legislative policy, must, of necessity, leave the working of details, with which it cannot deal directly, to other agencies, in the proper fulfillment of its legislative duty, that is, to perform its essential law‑making function. In this background, the Constitution has never been regarded as denying to the Legislature the necessary resources of flexibility and feasibility in laying down policies and establishing standards, while leaving it to selected functionaries the making of D incidental and auxiliary provisions, within prescribed limits and the determination of facts to which the policy as declared by the Legislature is to apply. Without such power of assignment the Legislature would face the anomaly of being called upon to exercise a legislative power, which, under various circumstances, would be but a futility. The Legislature is not allowed to become impotent, but the necessity and validity of such delegated legisla tion, and the wide range of administrative authority which has been developed thereby, cannot obscure the limitations of authority to 'delegate.

38. Delegation by the Legislature is permitted within prescribed limits in order to execute the legislative norms an E provisions that have been enacted. Thus a restricted delegation in aid of the proper functioning of legislative power has not been regarded as unconstitutional. There are innumerable decisions to support the aforesaid proposition and before we discuss some of them, we would like to observe that the principles we have discussed above resolve themselves thus: (1) Legislation being the exclusive function of the Legislature, it cannot abdicate such function. (2) The Legislature, after having enunciated the essential legislative principles and standards, is, however, entitled to delegate to outside agencies such functions which are essential to an effective exercise of the legislative power with which it has been endowed by the Constitution. (3) The Legislature, however, cannot efface itself and delegate all its functions to an extraneous agency.

39. The justification for such a delegation is that the Legislature, being the exclusive machinery for legislation, cannot be allowed to be paralysed if and when an ancillary delegation becomes a physical necessity for its proper function. In the United States of America, under the Constitution itself, the power is specifically provided, but in the context of our Constitu tion such a power is implied in the exclusive legislative function with which the Legislature is vested.

40. It is not, however, permissible for a Legislature to substitute in its place any other authority. It cannot ask anybody else to perform its function. There is a positive embargo upon self‑effacement and a total abdication of legislative function.

41. In this background, it is useful to discuss a few leading decisions to illustrate the point which has been indicated above. We shall deal with the case of Panama Refining Co. v. Ryan (79 Law Ed. 446). This is a well‑known decision in which hundreds of decisions have been cited. It arose out of certain provisions of the National Industrial Recovery Act, 1933, authorising the President of the United States of America to prohibit transportation of petroleum withdrawn from storage in excess of the amount permitted to be produced by the State Legislature. In the aforesaid case it was held that delegation of legislative power was not permitted by the Constitution. In the majority judgment which was pronounced by Hughes, C. J., there occurs the following observation at page 459: "The Constitution provides that `All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives' (Art. 1 S. 1). And the Congress is empowered `To make all laws which shall be necessary and proper for carrying into execution' its general powers. (Art. 1, Ss. 8, 18). The Congress manifestly is not permitted to abdicate, or to transfer to others, the essential legislative functions with which it is thus vested. Undoubtedly legislation must often be adapted to complex conditions involving a host of details with which the national Legislature cannot deal directly. The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicability, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordi nate rules within prescribed limits and the determination of facts to which the policy as declared by the Legislature is to apply. Without capacity to give authorizations of that sort we should have the anomaly of a legislative power which, in many circumstances, calling for its exertion, would be but a futility. But the constant recognition of the necessity and validity of such provisions, and the wide range of administrative authority which has been developed by means of them, cannot be allowed to obscure the limitations of the authority to delegate, if our constitutional system is to be maintained." At page 462 it has been observed: "The principle that `Congress cannot delegate legislative power to the President is universally recognized as vital to the integrity and maintenance of the system of Government ordained by the Constitution . . . ." Later on it has been observed: "Applying that principle, authorizations given by Congress to selected instrumentalities for the purpose of ascertaining the existence of facts to which legislation is directed, have constantly been sustained. Moreover, the Congress may not only give such authorizations to determine specific facts but may establish primary standards, devolving upon others the duty to carry out the declared legislative policy, that is, as Chief Justice Marshal expressed it, `to fill up the details' under the general provisions made by the Legislature." At page 464 there occurs the following passage: "Thus, in every case in which the question has been raised, the Court has recognized that there are limits of delegation which there is no constitutional authority to transcend. We think that section 9 (c) goes beyond those limits. As to the transportation of oil production in excess of state permission, the Congress has declared no policy, has established no standard has laid down no rule. There is no requirement, no definition of circumstances and conditions in which the transportation is to be allowed or prohibited. ". . . The question is not of the intrinsic importance of the particular statute before us, but of the constitutional processes of legislation which are an essential part of our system of Government."

42. We would emphasise that, in the single dissenting judgment pronounced by Cardozo, J. he expressed no dissent from the well‑settled principles noted above and has, in fact, concurred in such view. He has, however, on the special and particular facts of the case, arrived at the conclusion that there was sufficient formulation of principles and standards by the Legislature to save the case from being hit by the doctrine of abdication of essential legislative functions. In the case discussed, hereafter, he has not merely reaffirmed the aforesaid principles but also applied them to the facts of that case.

43. We may observe that the passages which have been underlined above apply, in all force, to the impugned ordinance which we have set out above. The laying down of policy is conspicuously absent; it has simply transferred to the Central Government all powers, which necessarily includes law‑making and other powers in respect of movement and transport of commodities between the Provinces. Only the subject‑matter has been selected and everything else has been left to the executive. It should be remembered that the main provision is in section 2 (1) which has conferred upon the Central Government unlimited powers, including by obvious implication, law‑making, rule making and all other kinds of power relating to the specified subject‑matter. Subsection (2) expressly states that its provisions are subject to the generality of powers conferred by section 2 (1).

44. In the same volume, mentioned above, namely, 79 Law Ed. there is a very learned Article which begins from page 475 of the report, in which the principles which we have discussed have been dealt with at great length.

45. The next case we would like to discuss is the case of Schechter v. United States (19 Law Ed. 1570). In this case the aforesaid National Industrial Recovery Act was considered in respect of a provision therein which had for its object regulation of trade in poultry. This case also discusses the question, whether legislative function can be delegated and, if so, to what extent? At page 1580 of the report it has been observed: "We have repeatedly recognized the necessity of adapting legislation to complex conditions involving a host of details with which the National Legislature cannot deal directly. We pointed out in the Panama Ref. Co. case that the Constitution has never been regarded as denying to Congress the necessary resources of flexibility and practicability, which will enable it to perform its function in laying down policies and establishing standards while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determina tion of facts to which the policy as declared by the Legislature is to apply. But we said that the constant recognition of the necessity and validity of such provisions, and the wide range of administrative authority which has been developed by means of them, cannot be allowed to obscure the limitations of the authority to delegate, if our constitutional system is to be maintained. Id. p. 421. "Accordingly, we look to the statute to see whether Congress has overstepped these limitations‑whether Congress in authorising `Codes of Fair Competition' has itself established the standards of legal obligation, thus performing its essential legislative function, or, by the failure to enact such standards, has attempted to transfer that function to others."

46. Thus failure to enact standards for guidance has been equated to transferance of essential legislative function. At page 1591 Cardozo, J., in the concurring judgment that he pronounced observed thus: "The delegated power of legislation which has found expres sion in this code is not canalized within banks that keep it from overflowing. It is unconfined and vagrant, if I may borrow my own words in an earlier opinion. Panama Ref. Co. v. Ryan 293 U. S. 388, 440, ante, 446, 55 S. Ct 241. "This Court has held that delegation may be unlawful though the act to be performed is definite and single, if the necessity, time and occasion of performance have been left in the end to the discretion of the delegate. Panama Ref. Co. v. Rayan, supra. I thought that ruling went too far. I pointed out in an opinion that there had been `no grant to the Executive of any roving commission to inquire into evils and then, upon discover ing them, do anything he pleases' 293 U. S. at p.

435. Choice, though within limits, had been given him as to the occasion but none whatever as to the means ibid. Here, in the case before us, is an attempted delegation not confined to any single act nor to any class or group of acts identified or described by reference to a standard. Here in effect is a roving commission to inquire into evils and upon discovery correct them.

47. We may observe that this is precisely what has happened in the case before us. In the impugned ordinance the Central Legislature has "declared no policy, has established no standard, has laid down no rule. There is no requirement, no definition of circumstances in which powers are to be exercised or in which transportation is to be allowed or prohibition." The Central Executive's discretion has "not been canalized within banks to keep it from overflowing. It is unconfined and vagrant". Here is an unlimited Charter to the Executive "to do anything it pleases." The Ordinance is an undisguised transfer of all the functions of the Central Legislature to the Executive. The Legislature has completely effaced itself.

48. We may now discuss the case of Archibald G. Hodge v. The Queen (L R 9 A C 117), decided by the Privy Council. In that case the Liquor Licence Act of 1877 which is a Canadian Act, was challenged with regard to some of its provisions as being ultra vires of the Canadian Constitution. While dealing with the aforesaid provision, the Privy Council, in delivering its judgment, has observed thus at page 132 of the report: "It is obvious that such an authority is ancillary to legislation, and without it an attempt to provide for varying details and machinery to carry them out might become oppressive, or absolutely fail. The very full and very elaborate judgment of the Court of Appeal contains abundance of precedents for this legislation, entrusting a limited discretionary authority to others, and has many illustrations of its necessity and convenience."

49. Again in Strong's well‑known work on "American Constitutional Law," there is a reference to the case of J. W. Hampton, Jr. & Co. v. United States (276 U S 394). This case has been discussed at length at page 1113 of Strong's book. We will, however, quote three passages from the judgment delivered by Taft, C. J., which can be found at page 1116 of the book, which run thus; "Congress may feel itself unable conveniently to determine exactly when its exercise of the legislative power should become effective, because dependent on future conditions, and it may leave the determination of such time to the decision of an Executive . . . . "The true distinction, therefore, is, between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made. ". . . The Congress may not delegate its purely legislative power to a commission, but, having laid down the general rules of action under which a commission shall proceed, it may require of that commission the application of such rules to particular situations and the investigation of facts, with a view to making orders in a particular matter within the rules laid down by the Congress."

50. The above‑mentioned case also reiterates and repeats the well‑established principle that the Legislature itself must lay down general rules and policies for guidance of its delegate before leaving such delegate to apply them to particular situations according to its judgment. The Ordinance which we have been asked to examine has left everything to its nominee to do whatever such nominee wishes to do.

51. Certain instances of ancillary legislation by the Legisla ture were provided by the following cases:‑

52. The case of Harishankar Bagla v. The State of Madhya Pradesh (1954 S C A 824), relates to a challenge as to the vires of certain provi sions of Essential Supplies (Temporary Powers) Act, 1946, where it was held that there was sufficient definition of legislative policy in the Act and that there was also sufficient guidance to the delegate as to how it should act. It was held by the Supreme Court of India that the enactment was a valid piece of legislation, and in delivering the judgment of the Supreme Court, Mahajan, C. J., has observed, at page 831, as follows: "The next contention of Mr. Umrigar that section 3 of the Essential Supplies (Temporary Powers) Act, 1946, amounts to delegation of legislative power outside the permissible limits is again without any merit. It was settled by the majority judgment in the Delhi Laws Act case (1951 S C R 747) that essential powers of Legislation cannot be delegated. In other words, the Legislature cannot delegate its function of laying down legislative policy in respect of a measure and its formula tion as a rule of conduct. The Legislature must declare the policy of the law and the legal principles which are to control any given cases and must provide a standard to guide the officials or the body in power to execute the law. The essential legislative function consists in the determination or choice of the legislative policy and of formally enacting that policy into binding rule of conduct. In the present case the Legislature has laid down such a principle and that principle is the maintenance or increase in supply of essential commodities and of securing equitable distribution and availability at fair prices. The principle is clear and offers sufficient guidance to the Central Government in exercising its powers under section

3. Delegation of the kind mentioned in section 3 was upheld before the Constitution in a number of decisions of their Lordships of the Privy Council, vide Russel v. The Queen (7 A C 829), Hodge v. The Queen (9 A C 117) and Shannon v. Lower Mainland Dairy Products Board (1938 A C 708) and since the coming into force of the Constitution delegation of this character has been upheld in a number of decisions of this Court on principles enunciated by the majority in the Delhi Laws Act case (1951 S C R 747) (Supra). As already pointed out, the preamble and the body of the sections sufficiently formulate the legislative policy and the ambit and character of the Act is such that the details of that policy can only be worked out by delegating them to a subordinate authority within the frame‑work of that policy. Mr. Umrigar could not very seriously press the question of the invalidity of section 3 of the Act and it is unnecessary therefore to consider this question in greater detail."

53. It would be a rewarding effort to analyse the ratio decidendi of the case discussed in the preceding paragraphs (1954 S C A 824) because the Ordinance relating to our present case appears to be modelled on the Essential Supplies (Temporary Powers) Act, 1946. Mahajan, C. J., in delivering the judgment in the aforesaid case, has accepted the proposition that "the Legislature must declare the policy of the law and the legal principles which are to control any given case and must provide a standard to guide the officials and the body in powers to execute the law." If we pause here for a moment, it is patent (and the principle is settled and beyond dispute) that the Legislature must declare a policy and provide a standard for guidance of its delegate. This is the minimum requirement of legislative function. Without such formulation of a policy and declaration of legal principles which will furnish a norm for guidance, any delegation of power would tantamount to legislative suicide.

54. In this background, the learned Chief Justice, after an elaborate examination of the enactment, has observed: "In the present case the Legislature has laid down such a principle and that principle is the maintenance or increase in supply of essential commodities and of securing equitable distribution and availability at fair prices. The principle is clear and offers sufficient guidance to the Central Government in exercising its powers under section 3." We may add that in the present case the impugned Ordinance does not declare any principle and has given no standard for guidance of its delegate. We shall hereafter return to the aforesaid decision and the enactment concerned.

55. In the case of Joylal Agarwala v. The Union of India (1952 S C 127), again the vires of certain rules framed under the Essential Supplies (Temporary Powers) Act were impeached on various grounds. The legality of the said provision was upheld on the ground that the power delegated to an agency outside the Legislature was the power to bring into operation the provisions of law at a point of time to be selected by such agency. Such a delegation comes under the category of conditional legislation. and it has been consistently held that it is incidental to the effective exercise of legislative power by the Legislature. This has nothing to do with the case before us. There is no question before us of any conditional legislation.

56. In the case of Messrs East and West Steamship Company v. Pakistan (P L D 1958 S C (Pak) 41), the Supreme Court of Pakistan was called upon to examine the vices of certain provisions of the Control of Shipping Act (XXVI of 1947). One of the attacks on the aforesaid legisla tion was made on the ground that it involved unconstitutional delegation of legislative power to extraneous agency. Munir, C. J., in the judgment which he gave, discussed, in details, the provisions of the aforesaid enactment in the light of its preamble, its statement of objects and its policy. He came to the conclusion that the enactment had defined the main legislative policy of the Legislature and had also provided the norm and the standard to be followed by its delegate. In such a context, it was held that delegation of even wide powers to an executive body was not illegal because delegation of a substantial discretionary power was essential to the effective functioning of the enactment. The learned Chief Justice has observed thus: "From these provisions it seems to be perfectly clear that the Act proceeds on a definite policy, namely, the policy of placing the ships, for the period of the emergency, substantially at the disposal of the Government to enable it to direct what classes of cargo or passengers may be carried, to claim priority for Government cargo and passengers, to fix rates and freights, and to know the exact position of a Pakistan ship at a particular time so that if any urgency arises it may be called back for home service. This policy could successfully be carried out only if full powers which could not be controlled by rules, were given to the Shipping Authority, and the licensing system contemplated by the Act is merely a means for the Shipping Authority to requisition shipping space to satisfy urgent and exceptional trade needs of the country. Financial injustice to the owners is avoided by the provision for a Board to advise the Central Government in respect of rates. "Acting within the framework of the Act the Shipping Authority can protect Pakistan shipping against foreign competition, by regulating the rates can avoid cut‑throat competition between Pakistan shipping companies on the one hand and prevent them from pooling together with a view to raising the rates to abnormal heights on the other. In the same manner the Authority can regulate exports and imports and maintain trade in essential goods and commodities between the two wings of the country which are separated by a distance of 1,500 miles and between which trade by air is impracticable and transport by rail can only be through a foreign country. If these were the objects intended to be attained by the Act, it was not possible for the Legislature to define in meticulous detail how the Shipping Authority was to act in particular circumstances, and it was rightly considered to be necessary to leave him a large field of discretion so that he could act freely to meet a situation as it arose." The learned Chief Justice proceeds to observe: "In the present case, the Legislature thought that the control of shipping was necessary in the interest of public welfare and from the very nature of the trade to be regulated it was necessary that the Shipping Authority should have abundant discretion if the policy and purposes of the Act were to be carried out. The Act is not, therefore, ex facie bad either on the ground of excessive delegation of legislative authority or on the ground that the Shipping Authority if it were so minded could administer it in a discriminatory manner. Objection on the first ground must fail because the Act lays down a policy which the Shipping Authority has to implement by the exercise of powers given to him, while objection on the second ground must be repelled because the petition does not allege any discrimination in practice."

57. In the judgment pronounced by Munir, C. J., at pages 47, 48, 49 and 50 and also subsequently thereafter there is a discussion of the wide and extensive declarations of principles, policies and standards which the Control of Shipping Act had itself provided leaving the working of its details with reference to situations, which could not be anticipated in advance, to various constituted authorities. It has been said (at page 55): "From these provisions it seems to be perfectly clear that the Act proceeds on a definite policy."

58. It is, therefore, clear that the view taken was that there had been no delegation of essential legislative function and the wide powers which were conferred upon other agencies were necessary for the working of the legislation itself. Sometime considerable discretionary powers have to be conferred upon executive bodies, none‑the‑less, the test is the same, namely, is it an ancillary function? But the Legislature, under no circum stances, is permitted to transfer all its power to another authority, it must itself perform the essential legislative function delegating only such auxiliary function as may be necessary for the effective working of the legislative policy in accordance with‑ specified standards.

59. Cornelius, J. (Cornelius, C. J. as he then was), has given a separate judgment which we shall discuss hereunder when dealing with the concept of "regulation by a system of licensing". We would only emphasise that there has never been any dissent by anybody to the "universally accepted" principle that essential legislative function cannot be delegated under any pretext and that the Legislature is not permitted to vanish into nothingness by bringing another authority to perform a function with which it alone has been entrusted by constitutional requirement.

60. In the case of Sobho Gyanchandani v. The Crown (P L D 1952 F C 29), it was held that the power to extend duration of an enactment after its expiry was an essential legislative function and could not, therefore, be delegated. The judgments that have been delivered in the aforesaid case further elucidate the principles discussed above.

61. The case of the Queen v. Burah (L R 5 I A 178), is a case where the main principles were enacted by the Legislature and it was left to the Executive Government to work out the details of the provisions. It was, therefore, held that such delegation was a valid constitutional delegation. To similar effect is the case of King‑Emperor v. Benoarilal Sarma (L R 72 I A 57).

62. It is unnecessary to discuss further cases. A wholesale delegation of legislative power amounts to an abdication by the Legislature of its main function and is, therefore, not permissible. This has been described in the Panama Ref. Co. v. Ryan (supra) as a principle which is "universally recognised as vital to the integrity and maintenance of the system of Government ordained by the Constitution."

63. We would now turn to the impugned Ordinance which has been extensively quoted above. The preamble only says that "it is expedient to make provision for enabling the Central Govern ment to regulate trade and commerce between the Provinces and for matters connected therewith". The preamble merely states that legislative provisions have to be made in order to enable the Central Government to regulate trade and commerce between the Provinces. In fact, it makes no provision except vesting the Executive Government with the power of doing anything it deems G fit and proper, for regulation of movement and transport of any commodity between the provisions. Then comes the main provision namely, section 2, subsection (1), which is the only provision material to the point which we are discussing. We may re‑quote it as follows: "2 (1) Notwithstanding anything contained in the Essential Commodities Act, 1957 (III of 1957), or any other law for the time being in force, the Central Government, if it so deems necessary or expedient may, by general or special order, regulate the movement and transport of any commodity or class or description of commodities, including imported commodities, between the Provinces.

64. Thus, the Legislature has merely made a choice of a subject, that is regulation of movement of commodities between the provinces. What law has it enacted for movement and H transport of goods? What policy has it laid down? What standard has it formulated? What yard‑stick has it given? What principles has it formulated? What limitation has it imposed? What guidance has it given? None whatsoever! We repeat that sub section (2) is merely a subsidiary clause and its introduction expressly says so. It merely gives further unrestricted, unrestrained and unlimited powers in certain specified matters. It does not` govern subsection (1). The main enactment, and, in fact, the heart of the Ordinance is in subsection (1). Is this legislation or self‑effacement?

65. There is no provision other than empowering the Central Government to pass any order it likes, general or special, whenever it deems it necessary or expedient to regulate the movement and transportation in the Provinces of any commodity whatsoever.

66. Is this not a mere instrument of abdication rather than a piece of legislation? What has the Central Legislature done? Nothing but to empower the Central Executive to do whatever it g likes, whenever it thinks fit and proper, in respect of any commodity or class or description of commodity with a view to making unfettered and unrestricted regulation of movement of commodities between the Provinces.

67. Does it not sound like saying: "I propose to do nothing and I authorise the Central Government to do anything it pleases in order to regulate movement of commodities between the Provinces. I substitute the Central Government for myself." The Legislature, in the words of Hughes, C. J., "is manifestly not permitted to abdicate, or to transfer to others, the essential legislative functions with which it is vested". The Ordinance constitutes an undisguised self‑annihilation. No legislative norm has been stated, but, instead, a general power of attorney in favour of the Central Government has been executed. The Legislature has left everything to be done by the Central Government. The power to make laws necessarily postulates a power to state what the L law shall be. This is the distinction and, indeed, the differential between what is known as essential legislative function and the assignment or delegation of powers to execute the law which has been stated and declared.

68. Mahajan, C. J., has said (1954 S C A 824) that "essential legislative function consists in the determination or choice of legislative policy and of formally enacting that policy into a binding rule of conduct".

69. What rule of conduct has been enacted in this legislation?

70. Taft, C. J. (Clarumet venerabile nomen) has, in 276 U. S. 394, observed: "The Congress may not delegate its purely legislative power to a commission, but having laid down the general rules of action under which a commission shall proceed, it may require of that commission the application of such rules to particular situations."

71. What rules and policies have been laid down in the impugned Ordinance with a view to guide the legislative delegate in their application to particular situations in so far as they relate to movement and transport of commodities between the Provinces?

72. We may now, by way of illustration, refer briefly to some relevant provisions of the Essential Supplies (Temporary Powers) Act, 1946, which is an extreme instance of delegation of wide powers under the stress of an unprecedented situation which followed in the wake of the last World War. (A) The Act purports to last for "a limited period" which has bee specified in section 1 (3). The legislative mandate is that no executive order can be passed beyond the period specified in section 1 (3). (B) "Essential commodity" has been defined in section 2 wherein about eight commodities of vital interest to the nation have been specified. (C) This is another salutary rule for guidance of the delegate, namely, that no order can be made under the Act in respect of commodities other than "essential M commodities" specified in section 2. (D) Section 3 (1) deals with the policy of the Legislature that an order under the Act must be confined to certain defined objectives, namely, (i) for maintaining and increasing supplies of any essential commodities; or (ii) for securing their equitable distribution and (iii) for making them available at fair prices. (E) Again, in section 3 (l), there is a further vital directive which requires that an order under the Act must be by a "notified order". Thus notification of the order is also an essential legislative requirement.

73. In the aforesaid background, Mahajan, C. J. in 195 S. C. A. 824, has said: "The principle is clear and offers sufficient guidance to the Central Government in exercising its powers under section 3."

74. In the case before us, the Ordinance is completely mute and silent. There is no attempt to give any legislative guidance or mandate to the delegate. The Legislature has substituted the judgment of its assignee for that of its own. There is no division of essential legislative function and the delegation of ancillary power. The Central Government may choose "any commodity" for complete control of Inter‑Provincial traffic in goods. It may even control normal passenger‑baggage of any description and, in addition to the general and unlimited power conferred by subsection (1), under subsection (2), even the bed‑rooms of citizens are not immune from intrusions. Any obstruction in this behalf would be a crime.

75. It is no answer to say that an ordinance directed towards `control' of Inter‑Provincial transportation of commodities is expedient. The point for our consideration is not one of motives but one of constitutional authority for which even the best motive is no substitute. The question before us is not the expediency of the Ordinance, but the constitutional process of legislation which are essential to our system of Government. By one swing of a revolving door the Ordinance has effected the N exit of legislative machinery as also the entry of Executive Government into the seat of the Legislature.

76. The Ordinance has vested the Central Government with a1 complete charter of authority, including, unlimited law‑making powers, with regard to Inter‑Provincial transport of commodities.) In these circumstances, we are constrained to hold that, since section 2 constitutes the very foundation of the enactment, the entire Ordinance is ultra vires of the Constitution of Pakistan. The maxim, "salus populi est suyrema lex," cannot be prayed p in aid in order to override the Constitution and, even if public interest is to be consulted, it is patent that public good demands that the Constitution should not be disregarded. It is the "Shariat" of State‑government and State‑activities. We shall see, hereafter, that it is possible to make effective and potent provision for regulation of traffic in Inter‑Provincial trade and commerce by legally unimpeachable legislation and by keeping to the spirit and letter of the Constitution.

77. It was next argued that the penal provision of the Ordinance, as embodied in sections 4, 5 and 6 thereof, is also invalid on the ground that it is too vague, too wide, too undeter mined and too volatile for anybody to understand and anticipate what acts are being prohibited by the Legislature. The argument is founded on the proposition that the expression "law", as embodied in Article 2 and all other Articles of the Constitution, connotes intelligible comprehensible, understandable and tangible laws. To make penal provisions in advance and to leave them to be applied to a maze of an undefined mass of individual orders which may be made without even a "public notification" is to leave the liberty of citizens to the mercy of the gambling freaks of unforseeable dooms. Each order served on an individual would be a code by itself. There can be thousands of such orders. This principle is specially important because under the Ordinance there is no requirement that orders made thereunder should be under a "notified order" as is the case in respect of the Essential Supplies (Temporary Powers) Act or similar enactments. An unanticipated order can, under the Ordinance, be made in any individual case and a breach thereof would attract the penal provisions of the Ordinance. In the following cases it has been held that the Act is too indefinite and uncertain as a penal statute, as it does not classify or define, with any degree o certainty, those who are subject to the operation of the Act. (See United States 195 F. 663; Todd v. United States (158 U S 282, 39 Law Ed. 82). There is a good deal of force in the aforesaid contention, but we refrain from giving any final decision on this point as it is unnecessary to do so at this moment.

78. Similarly, our attention was drawn to section 10 of the Ordinance which seeks to validate various ante‑dated and pre Ordinance orders passed by the Central Government and its nominee. We would like to observe that the provision of section 10, quoted above, even if the Ordinance is deemed to be valid, would be ultra vires of the Constitution in so far as it pretends to permit the validation of any order which militates against the provision of the Constitution, particularly, the constitutional guarantees in respect of the rights of the citizens. It is not enough merely to prevent ex post facto penal legislation; infringe ment of other kinds of constitutional protection cannot also be validated by mere ex post facto legislation, unless the Constitution itself permits such measures. Probably, there can be no objection to the validation of an Allocation Committee constituted prior to the passing of the Ordinance since such validation, by itself, does not involve any infringement of fundamental right.

79. It was also contended that the Ordinance as well as the impugned notice are ex facie discriminatory and that they are, therefore hit by the "equality clause" of the Bill of Rights. A vigorous and forceful argument was addressed to us on behalf of s the petitioners. As we have extensively dealt with all other points pressed before us, and since we have said enough to dispose of the present applications, we do not propose to prolong this judgment by any further discussion on this point.

80. Our attention was also drawn to ‑ subsection (2) of section 2, particularly, to clauses (a) and (b), of the Ordinance, which runs thus: "(2) Without prejudice to the generality of the powers conferred by subsection (1), an order made thereunder, may provide,‑ (a) for regulating by licenses, permits or otherwise the transport and movement of any commodity or any specified class or description of commodities; (b) for allocating or directing any person or authority to allocate in such manner as may be specified in the order, space on any ship or aircraft for the carriage of any commodity or any specified class ‑or description of commodities. (c) * * * * * (d) * * * * *

81. The language of section 2 (2) (a) seems to be a near copy f section 3 (2) of the Essential Supplies (Temporary Powers) Act without the principles of policy which were formulated under the latter Act. It has been pointed out to us that the regulation of trade and commerce is not permissible except in so far as the Constitution has sanctioned it. The permissible limits of such regulation are incorporated in the 8th clause of the Bill of Rights, the relevant provision whereof, under the title "Freedom of trade, business or profession" has a proviso which runs thus: Provided that nothing in this paragraph shall prevent, (a) the regulation of any trade or profession by a licensing system ; or (b) the regulation of trade, commerce or industry in the interest of free competition therein; or (c) the carrying on, by the Central or Provincial Government or by a corporation controlled by any such Government, of trade, business, industry or service to the exclusion, complete or partial, of other persons." It is clear that the Constitution does not permit an unfettered unguided and unrestricted regulation of trade and commerce. It only permits regulation by a "licensing system" or in the interest of free competition or for allowing the carrying out of business by the state and for no other purpose. It has been vigorously argued that section 2 (2) (a) of the Ordinance is, on the face of it, invalid in so far as it pretends to permit the Central Government or its nominee to regulate trade and commerce by licenses, permits or otherwise. If the expression "permit" has been used as a synonym of the word "licence", it is innocuous although redun dant and vacuous. But‑ the expression "permit" has a distinct connotation of its own, as distinguished from "licence" and the context of the sub‑clause denotes such distinct acceptation of the term. But there can be no such regulation under the Constitution. The expression "otherwise" would be harmless if it means regulation directed towards the securing of free competition; but, there is no indication to that effect. It has, therefore, beet contended that even subsection (2) has transgressed the frontiers of regulations set up by the Constitution. We need not, at present, pursue this argument any further than what has been said above.

82. We now come to the impugned order itself (Annexures G, and C in the respective petitions). Inasmuch as we have held that the impugned ordinance is ultra vires of the Constitution, it necessarily follows that the order is also illegal and void. However, since elaborate arguments were addressed to us from the bar, attacking the vires of the order itself, we would give our decision on this contention as well. The impugned notice (Annexures G and C) invites applications for the allotment of quotas for transportation of Pan from East Pakistan to West Pakistan and proceeds to run thus: "Applications are required to fulfil the following conditions: (i) Applicants should be the nationals of Pakistan; (ii) They should hold assets in the country ;and (iii) They should produce some‑ evidence to show that they have traded in some agricultural and commercial items. "

5. No legal right of any nature whatsoever shall accrue to any application by merely applying for space for the trans portation of Pan on the basis of this notice." From the above it will be clear that any national of Pakistan holding any asset (how little that may be) who can produce evidence of having carried on some trade in agricultural and commercial items, is qualified to make the application. How wide has the door been opened, making the elbowing out of established traders in `Pan' possible.

83. But as to how the application will be disposed of or who will be the recipient of the quotas concerned, and what norms or standards will be applied in giving effect to the allotments, there is a complete black‑out in the aforesaid notice. The refusal or granting of allotments with regard to such quotas has been left to the unguided and unfettered discretion of the Allocation Committee, who may, if they are so minded, allot all the quotas to persons who had hitherto done no business in `Pan' trade and thus completely stifle the existing trade in `Pan'. It has been contended that this does not amount to regulation. It is clear that the scheme, as set out in the impugned notice, does not amount to regulation by a "licensing system". It patently contemplates the issuance of "permits" on an ad hoc basis and not the granting of licenses. Moreover, there is a complete lack of a "system". It expressly eliminates a "system" and there is neither any scheme of licensing nor of regulation.

84. What, then, is understood by the expression "regulation"? It is a term which is incapable of exact definition but is easily understood. We would like to discuss a few cases which will throw a considerable light as to what is understood by the expression "regulation". We may start off with two oft‑quoted decisions of the Judicial Committee of the Privy Council which have discussed the question. First is the case of Municipal Corporation of the City of Toronto v. Virgo (1896 A C 88), where under clause 184 of the Revised Statutes of Ontario, 1887, section 495 conferred a power upon a municipal council to make bye‑laws for regulating and governing trade. In that case it was held that, in so far as the municipal council had attempted to prohibit hawkers from plying their trade in an important part of the municipality, it could not be said that such prohibition amounted to "regulation". Lord Davey, in pronouncing the opinion of the Privy Council, has observed, at page 93 of the report, as follows: "No doubt the regulation and governance of a trade may involve the imposition of restrictions on its exercise both as to time and to a certain extent as to place where such restrictions are in the opinion of the public authority necessary to prevent a nuisance or for the maintenance of order. But their Lordships think there is marked distinction to be drawn between the prohibition or prevention of a trade and the regulation or governance of it, and indeed a power to regulate and govern seems to imply the continued existence of that which is to be regulated or governed. An examination of other sections of the Act confirms their Lordships' view, for it shows that when the Legislature intended to give power to prevent or prohibit, it did so by express words."

85. To similar effect is the decision in the case of Attorney General for Ontario v. Attorney‑General for the Dominion (1896 A C 348). At page 363 of the report Lord Watson has observed: "In that view, their Lordships are unable to regard the prohibitive enactments of the Canadian statute of 1886 as regulations of trade and commerce. They see no reason to modify the opinion which was recently expressed on their behalf by Lord Davey in Municipal Corporation of the City of Toronto v. Virgo (Ante p. 93) in these terms: `Their Lordships think there is marked distinction to be drawn between the prohibition or prevention of a trade and the regulation or governance of it, and indeed a power to regulate and govern seems to imply the continued existence of that which is to be regulated or governed."'

86. In the case of East and West Steamship Co. v. Pakistan (P L D 1958 S C (Pak.) 41), Cornelius, J. (as he then was) in the light of the provisions of the Control of Shipping Act, 1947, has made some observations which illustrate the concepts of "regulation", "licence" and "licensing system". At page 65 of the report he has observed: " . . . . I consider that the law constitutes a violation of the main provisions under Article 12, guaranteeing a right to conduct a lawful trade, and I consider also that a law expressed in the terms of the Control of Shipping Act relating to any trade cannot fall within the saving clause provided for regulation of trade by a licensing system . . . . ."

87. We may note that the Article referred to above is practically, word for word, the same as the 8th clause of our Bill of Rights incorporated in the present Constitution, and quote his further observations at page 69 thus: "A system, in my opinion, would in the relevant respect mean an arrangement by way of regulation, applicable to a complex whole, namely, the trade of shipping in general. It would provide for rules applicable uniformly, subject to suitable classifi cation in relation to the entire trade of shipping. Again, it is inherent in the use of the expression `licensing system' that the actions of the State in respect of trade should be in the nature of permissions granted to do certain acts provided certain conditions are satisfied; it goes entirely beyond the meaning of the expression `licensing' to interpret it as a check upon even the primary processes involved in the trade which is being licensed . . . ."

88. Thus, uniformity of rules, norms and conditions applicable to every case is the gist of the implication of the expression "licence" and those that answer the conditions so laid are entitled to obtain the said licence. A "system" postulates, that there should be not merely uniformity but that there should be no room for any discrimination in the awarding of the "licence" to eligible applicants. We may add that the aforesaid observations apply with greater force to the impugned notice: which lacks even a "system", which lays down no standards and which does not even amount to a "licence"; it constitutes a naked and undiluted "control" of `Pan' trade by discretionary and un regulated grants of "permit‑quotas".

89. At page 72 the learned Judge observes: "The freedom which the citizens had guaranteed to themselves is thus placed entirely at the disposal of the Executive to respect or destroy as it pleases." If we may say so, with respects, this is exactly what has happened in the present case. The dictum quoted above goes to the very root of the concept of fundamental rights as guaranteed by the Constitution. Where is the guarantee if it can be so lightly and so summarily wiped out? The Ordinance has placed guaranteed rights at the disposal of the Central Government and the impugned notice, under a prentended delegated authority, purports to assume an unlimited and unadulterated "control" of Inter‑Provincial `Pan' trade. This is opposed to the very idea of regulation and is completely foreign to it.

90. With regard to interpretation of a proviso, it has been observed at page 72: "The people of Pakistan cannot be thought to have declared a Fundamental Right only to provide, immediately after, for its destruction by the Executive authority at its unrestrained discretion. Therefore, it is necessary in interpre ting Article 12 that the substantial Fundamental Right of freedom of lawful trade should be preserved in the `push‑and pull' of interpretation, as against the powers vested in the Executive." Again, at page 73, it has been said: "In principle also, the words of a proviso are to be construed strictly and confined to the special case which its. words enact; it would be wrong to construe those words as being co‑extensive with those used in the purview, particularly, where the effect might be of bringing about a repeal of the purview." We may‑comment, and again with respect, that the statements quoted above accurately sum up the canon of interpretation applicable to the present case. We would only add that the rest of the judgment pronounced by Cornelius, J., in the aforesaid case which relates to reasonable restrictions on proprietary rights is not relevant to the point under our consideration. No infringe ment or restriction of "proprietary right" is involved in this case.

91. In the case of C. S. S. Motor Service v. Madras State (A I R 1953 Mad. 379), the provisions of Motor Vehicles Act, 1939, were examined as to their legal validity. In the judgment of the Division Bench there occurs the following illuminating passage: "(27) Section 42 is attacked on the ground that it prohibits the carrying on of the business unless a permit is obtained. . ." "The question then is whether section 42 is bad as offending the above principles. It is necessary in this connection to bear in mind the distinction between permit and licence. The law might confer on the administrative authority an absolute discre tion to grant or withhold permits for carrying on business or it may empower it to issue licence to the applicants imposing appropriate conditions for the conduct of business. The word `permit' may appropriately be used for the former and the word `licence' for the latter. While it is well established that a permit system is unconstitutional in so far as it relates to the exercise of fundamental rights, it is equally well settled that a system of licensing which has for its object the regulation of trade is not repugnant to Art. 19 (1) (g)." The aforesaid case clearly brings out the distinction between granting "permits" or quotas and regulation by a "licensing system". Under a "licensing system" anybody who fulfils the terms and conditions for the issuance of such licence is entitled to have it, unless otherwise disentitled by law.

92. Again in the case of Bhola Prasad v. Emperor (AIR 1942 F C 171), Gwyer, C. J. in delivering the judgment of the Federal Court, quoted with approval the aforesaid Privy Council decision and observed at page 20 of the report thus: "Attention was also drawn to other sections of the Act which gave power to make bye‑laws `preventing or regulating' or `preventing or regulating and licensing', thus indicating that a power to prohibit, when it was intended that it should be given, was always given by express words. The observations of Lord Davey were quoted with approval by Lord Watson, delivering the judgment of the Judicial Committee in 1896 A C 348 at page 363 in which it was decided that the power given to the Dominion Parliament by section 91 (2), British North America Act, to make laws for the regulation of trade and commerce did not enable the Dominion Legislature to enact legislation to prohibit the traffic in intoxicating liquors. We see no reason to dissent from the view that a power to regulate does not include a power to prohibit; but since neither the word `regulation' itself nor any other comparable expression appears in entry No. 31, it does not appear necessary to pursue the argument further."

93. In the aforesaid context, it will be useful to refer to another decision of the Privy Council in the case of Hughes v. State of New South Wales ((1954) 3 All E R 607). The opinion of the Privy Council was delivered by Lord Morton of Henryton and a large number of decisions of Australian Courts have been discussed. The case gyrates round the provisions of section 92 of the Commonwealth of Australian Constitution Act, 1900 which guarantees an absolute freedom of inter‑state trade. It would be correct to say that the decision is based upon the particular facts of that case with reference to a peculiar context. But the observations that were made by the Judicial Committee as well as the cases discussed by them throw a flood of light on the connotation of the concept of "regulation" as such. An unfettered discretion to grant or refuse a licence cannot amount to "regula tion" by a licensing system and it ins immaterial whether such a "permit" is called a "licence." It is not so much the name by which the granting of a permission is called as the essence of the transaction which would govern a decision on this point.

94. Thus, it is evident that "regulation" is distinct from "restriction". It is also distinct from "prohibition". It is furthermore distinct from the expression "control". It is practically the antithesis of an unguided system of permits and quotas. Regulation, therefore, is not synonymous either with the term "prohibition" or the expression "restriction" or with the word "control". Although regulation may involve a certain amount of prohibition, restriction and control, but the concept of regulation is totally distinct from the connotation of the terms "prohibition", "restriction" and "control". Regulation carries with it the idea of guidance for the proper functioning of a state of affairs. It carries with it a concept of imparting a suitable course and direction to a thing. Furthermore, regulation is co related to an objective and anything which lacks point and direction and is governed by an unrestricted discretion is not regulation but unmitigated "control".

95. The concept of regulation was fully discussed in a decision of the West Pakistan High Court in the case of Shahabud din v. Pakistan (P L D 1957 Kar. 854). In that case certain order made under the provisions of the Karachi Cattle Slaughter (Control) Act was attacked as being violative of the constitutional right to freedom of trade. The order made provisions with regard to slaughter of cattle such as, goats and dumbas, and also provided a regulated restriction popularly known as‑ "meatless days". It is unnecessary for us to travel to the various provisions of the order. But the discussion as to what amounts to regulation, as distinct from control, is very useful. We would quote some observations from the judgment delivered by Qadeeruddin Ahmed, J: "Regulation is different from control. The word `control' only means dominance of a superior authority. The meaning of the word does not necessarily imply a purpose other than the subjection of the subordinate. It is not so with the expression `regulation' because regulation is not an antithesis of disorder liness. It is more than orderliness. It means orderliness with an object in view. The Attorney‑General referred to new English Dictionary, Volume VIII for the meaning of this word and it was found that some of the meanings given in it are as follows `To adapt to circumstances or surroundings'. `To adjust, in respect of time, quantity, force etc.; with reference to some standard or purpose' . . . . . . . . . Regulation of trade for the sake of regulation, may amount simply to the control of trade . . . . . ". . . It is also equally true to say that the exercise of some restraint is implicit in it. How much of restriction is consistent with the idea of regulation can be determined only with reference to the object with which a situation, things or actions are regulated. It is the purpose of regulation which can provide the measure of permissible restraint." As to what is meant by licensing system the learned Judge observes: "He has explained that the word `regulation' is aptly used in Article 12 of the Constitution with the expression `licensing system' because licensing is a well‑known form of regulation. According to `Words and Phrases' (Second Series) by the Editorial Staff of the National Reporter System, Volume IV, page 235, the power to license is included in the word `regulate'. This aptitude of the expression itself should lead us to note the real emphasis which is on the expression `licensing system'. According to the learned counsel, the Karachi Cattle Slaughter (Control) Act, 1950 and the Rules made under it do not constitute a licensing system and merely lays down a method on ad hoc basis for permitting or not permitting the petitioners' trade at the discretion of the authorities. The difference between a permit and a licence, as indicated in C. S. S. Motor Service, Tenkasi and others v. The State of Madras (A I R 1953 Mad. 279), is that permits are granted in exercise of absolute discretion, while licences are granted subject to fulfillment of conditions. It follows logically from this differentiation that once the conditions‑which may be laid down for granting a licence are fulfilled, a licence cannot be refused. The difference between a method and a system is that a method is a device or a procedure which aims at the achievement of an object; while a system is an organised scheme capable of serving, more or less fully, as functionally self‑contained unit. This meaning of the word `system' is found in one form or the other in almost all good disctionaries."

96. Let us now turn back to the notice which has been impeached before us. The impugned notice has been attacked on the ground that it does not amount to an attempt to regulate inter‑Provincial trade and commerce by a system of licensing. What it seeks to do is to make allotment of quotas by methods of granting permits to parties on an ad hoc basis.

97. We have somewhat elaborately discussed the permissible limits of regulation of trade and commerce within the meaning of the Constitution. From what we have stated above, the contention of the petitioners directed against the impugned notice must be upheld. Furthermore, it will be seen that there is another grave objection in respect of the impugned notice. It purports to impose a complete "control" of Inter‑Provincial `Pan' trade. But to what purpose and to what end? There seems to be no indication whatsoever. If reference may be made to a Press Note (Annexure F) issued by the Ministry of Commerce and published in the Dawn, dated January 2, 1964, it would be found that there is an announcement with regard to the setting up of a "Committee to devise procedure for the allotment of quotas of Pan for transpor tation from East to West Pakistan by air and to actually allocate quotas to "deserving parties". There is no attempt to define, specify or classify such "deserving parties". The purpose is to "re‑organise this trade on efficient and rational lines". "Re- organisation" does not necessarily mean "regulation" and "allotment of quotas" to undefined "deserving parties" is not "regulation by a system of licensing". The impugned notice (Annexure G) merely speaks of "re‑organisation". Furthermore, in the impugned notice applications are invited from traders "in some agricultural and commercial item" who need not be necessarily dealers in `Pan' business. The order amounts to an exercise of an undiluted power of "control" with regard to a particular business. It is true that the word "regulation" has been used at some places in the Ordinance. But there has been no pretence in the impugned notice to any regulation in accordance with what is understood by that expression in the Constitution. We, therefore, hold that the impugned notice is void and illegal and ultra vires the provisions of the 8th Clause of the said Bill of Rights guaranteeing freedom of trade and commerce.

98. In passing, we may mention another ground upon which the impugned notice is open to a serious objection, although it is hardly necessary to mention it for, it is ancillary to what we have stated above. It is this, that the said notice is a delegated exercise of a statutory power and it stands on the footing of a bye‑law. It is a well‑settled doctrine that orders made under a delegated authority should not be unreasonable and manifest against the spirit of the delegation. There are innumerable instances where the Courts have declared a glaringly unreasonable exercise of a delegated direction as invalid. If a bye‑law is manifestly unreasonable, it is the duty of the Court to declare it invalid. (See Maxwell, p. 291, 11th Ed.); Stiles v. Galinski ((1904) 1 K B 621(2)) per Lord Alverstone, C. J. Besides, statutory power must not be used for a purpose collateral to the objects of the Act. (See Craies, `Statute Law', 5th Ed. p. 261 ; Stockton, etc. Ry. v. Brown ((1860) 9 H L C 246, 256). We need not, however, pursue this point any further at the present moment.

99. But the most formidable objection to the impugned notice is that it has no legislative backing as required by Article 2 of our Constitution. The respondents have, in this Court, pointed to the impugned Ordinance. We have held that the Ordinance is ultra vires the Constitution, but, even if the Ordinance is taken to be otherwise valid, its validation clause, as embodied in section 10 thereof, would be valid in a qualified sense, that is, .Subject to the limitation that it would not be permissible to, validate an order which would require a citizen to do something at a time when such order had no legal efficacy in the sense than there was no contemporaneous law to support such a kind of infringement of a "present" right.

100. In this behalf it is essential to note a vital provision of the impugned notice directing that applications of all intending candidates should reach the Secretary of the `Pan' Allocation Committed on or before the 22nd of January 1964. Paragraph 4 of the notice reads thus "Applications received before the publication of this Notice or after 22nd January 1964, will not be considered as valid." The result of the aforesaid paragraph is that the guillotine had already fallen on those `Pan' dealers who had not applied for allocation of quotas on or before the 22nd of January 1964. It is important to remember the date, for the heart of the matter is that admittedly on the. said date there was no law which could justify an order directing the submission of applications to an Allocation Committee on pain of losing one's business. The order on that day was obviously illegal, being hit by Article 2 of the Constitution. It is said that the applications submitted by the petitioners after the expiry of the 22nd of January 1964, have been entertained. This is, however, immaterial in considering the legality of the impugned notice, for unless it is cancelled, the applications made after the aforesaid date may be rejected on the ground that they are barred in accordance with the expressed terms of the notification, namely, the impugned notice. It is claimed that by virtue of section 10 of the Ordinance, the aforesaid notice issued on the 12th of January 1964, has been validated although the same was invalid at the time when it was issued for want of requisite legislative sanction. The legal sanction is supposed to be derived from an Ordinance which was brought into existence several months after the issuance of the impugned notice by a simple process of putting the hand of the clock behind. The petitioners have contended that a constitutional right cannot be destroyed by such a manner of shift and contri vance. It has been argued on behalf of the respondents that a retrospective legislation is not necessarily invalid. That is so. If a Legislature is competent to legislate upon a subject prima facie it has authority to legislate prospectively as well as retrospectively. This is not the point on which the petitioners have joined issue. The argument canvassed on their behalf is based on the proposition that the Constitution has guaranteed that a right of a citizen shall not be invaded upon, except by law, and that the term "law", in such a context, means a contemporaneous law. It has, therefore, been contended that a subsequent legislation cannot validate or revive that which, under the expressed terms of the Constitution, was invalid and dead at the relevant time without a constitutional amendment in this behalf. The argument is not quite as simple as understood by the respondents. We are not concerned with such a broad proposition that a legislation can be retrospective. The argument that has been advanced before us is not that a retrospective legislation is invalid as such, but that a constitutional protection cannot be destroyed in the manner in which it has been sought to be retroactively accomplished in this case.

101. We may again revert back to the terms of Article 2 of the Constitution. What does it provide? It furnishes a citizen with d constitutional guarantee that he will not be called upon to do something or to refrain from doing anything without a valid provision of law to that effect. This means that there is a constitutional protection in praesenti; or, in other words, whenever an order is made, which invades upon the rights of a citizen o requires him to do something, there must be, in existence, contemporaneously, a law which would authorise such a course,. If there is no such contemporary law in existence, the order would fall there and would become tainted with illegality as it would come within the mischief of a guaranteed constitutional protection. The impugned order was a still‑born order and no life can be imparted to it by a subsequent legislation without a constitutional amendment. The law or legislation as contemplated by Article 2 must, of necessity, mean a contemporaneous law. To hold otherwise would tantamount to rendering Article 2 nugatory and ineffective. The said Article is not a mere rope of sands. Article patently gives a constitutional protection; that is a protection in praesenti. Can there be any doubt that the term, law, as mentioned in Article 2, means a co‑existent law? The invasion, and the law which is supposed to justify it, must be co‑related and co‑existent. They must go together contemporaneously. The guarantee that has been given by the Constitution cannot be washed away by an ingenuous legislative device which can wipe out an illegal invasion of today by an artful enactment of to‑morrow, pretending to act retrospectively, without any constitutional change to that effect. Suppose that an order is passed by which a citizen is restrained from exporting jute‑product to West Pakistan without any law to justify the said order. It is evident that according to the Constitution the said citizen has been illegally prevented from carrying on trade in jute textile, if there is no law to justify the prevention. Can it be said that it would become legal if years later a central legislation purports to validate, retroactively, the said illegal order? Can an order, illegal in the sense that it comes into conflict with the provisions of a Constitution, be validated at a later date by a mere legislative contrivance? A constitutional right cannot be taken away by a legislative "fiction" without a constitutional amendment which would perm t such a course. There is a world of difference between a legislative immunity and a constitutional guarantee. The Constitution, by its very nature, creates the distinction. A constitutional immunity cannot be wiped out by such a simple method. The hand of a constitutional clock is incapable of manipulation by a simple legislative contrivance, as opposed to constitutional amendment. Article 2 of our Constitution is nothing but a constitutional protection. The impugned notice is, therefore, void and illegal as it violates the protection given by the said Article.

102. Our decision may be summed up thus: (i) We have held that the impugned Ordinance is ultra vires the Constitution inasmuch as it has left the regulation of the movement and transport of any commodity between the Provinces to the Central Executive and has done nothing else. It has thus abdicated its essential legislative function. The impugned notice, therefore, falls there. (ii) The impugned notice is illegal and void (a) because, what it has done neither amounts to regulation by "a system of licensing", nor does it come within the proviso to the 8th clause in the Bill of Rights which guarantees freedom of trade and commerce ; and (b) because, application for quotas having been excluded on the expiry of January 22, 1964, such infringement of a constitutional protection cannot be retroactively validated by the impugned Ordinance. Notwith standing the Ordinance, it would still come within the mischief of Article

2. We have also expressed our opinion on various other points, but have not given a final decision on them.

103. Before parting with this case, we would like to observe that it is, probably, desirable that Inter‑Provincial `Pan' trade should be regulated by a licensing system, particularly, in view of the fact that air‑transport is the only means of communication between the two wings of Pakistan in respect of such trade. An Allocation Committee appointed by the Central Government is also, probably, the most competent body to do so. We should X not, therefore, be taken to have expressed any disapproval of the constitution of the said Allocation Committee, which appears to be a well‑selected body. But, such an objective, as has been discussed above, can be achieved by an appropriate and valid legislation with due regard to the provisions of the Constitution. An effective and efficient legislation could easily be passed to meet the exigencies of the situation within the framework of the Constitution. The Constitution is not unworkable in this behalf. If a valid law had been passed, it could have started functioning from the date on which such law had come into existence. We should not be understood to hold that we do not consider such a legislation to be desirable or expedient, but the essential condition of a valid law is that it must be confined within the limits set by the Constitution. It should not be allowed to "burst the banks" and the protective barrage set up by our Fundamental Law, namely, the Constitution. There can be a selection of commodities for regulation of transport. There may be a specification of means of transport sought to be regulated. Frontiers of regulation may be defined. Standards and norms can be laid down for such regulation of movement. The objects and purposes of regulation can be set out. It would be a salutary provision to require orders in this behalf to be made under a public notification. The Constitution requires, and it is possible to do so, that reasonable direction and guidance should be given in various ways under which the Executive may be vested with substantial discretionary powers to work out the details of legislative policies and norms. The powers of "search" should be kept within reasonable bounds.

104. The result, therefore, is, that the rules nisi issued by this Court are made absolute with regard to the aforesaid applications. It is declared that the impugned notice, dated the 12th of January 1964, as embodied in Annexure `G' to Petition No. 25 of 1964 and Annexure `C' to Petition No. 86 of 1964, is void, illegal and inoperative. In view of the debatable and controversial questions of law, which have been raised in these applications, we make no order as to their costs. A. S. CHOWDHURY, J.‑I agree. ABDULLA, J.‑I agree. A. H. Rule made absolute.