P L D 1960 (W (PLP)

SHABIR AHMAD, J.‑

This order will govern not only this writ petition but also Writ Petitions Nos. 416 of 1959, 417 of 1959, 418 of 1959, 478 of 1959, 525 of 1959, 576 of 1959, 582 of 1959, 583 of 1959, 592 of 1959, 594 of 1959, 603 of 1959, 648 of 1959, 657 of 1959, 44 of 1960, 50 of 1960, 162 of 1960, 174 of 1960 and 197 of 1960, because the main question that requires determination in all these petitions is the same. That question is whether machines for ginning cotton which are run by means of diesel engine or other than those which require the use of water, steam or electrical power, cannot be run without a licence for their running and to payment of the fee prescribed for such licences by the Provincial Government. The necessity for putting in these petitions arose because the persons who have put in these petitions were called upon to pay licence fee for running their machines for ginning cotton. This order purported to have been passed under the West Punjab Cotton (Control) Act, 1949, (West Punjab Act IV of 1949), read with the West Punjab Cotton Control Rules, 1949. The petitions were based on the assertion that it was not necessary for persons other than those who did the business of cotton ginning by machinery the working of which involved the use of water, steam or electrical power to get a licence or pay fee for it. The petitions were resisted on behalf of Government, it being asserted that the licence fee was validly demanded, and the petitioners were liable to pay it and in default of payment to suffer the penalties prescribed for such defaults. Mr. M. Bashir, Advocate, appeared for the petitioners in all the petitions except in Writ Petition No. 162 of 1960 in which the petitioners were represented by Chaudhri Muhammad Hanif, Advocate, and Writ Petition No. 174 of 1960 in which the petitioner was represented by Mr. Qaisar Mustafa, Advocate. The Government wa3 represented in some petitions by Mr. Zaki- ud‑Din Paul, Advocate, in some by Sheikh Muhammad Bashir, Advocate and in others by Mr. Muhammad Asif, Advocate.

2. The West Punjab Cotton (Control) Act, 1949, which was subsequently amended by Act V of 1950, Punjab Act I of 1954, an 9 Punjab Act XV of 1955, and which will be referred to in the sequel as the Act, was brought on the statute book on the 24th of March 1949. It was enacted by the Governor of West Punjab on the 24th of March 1949 in exercise of the powers of the Provincial Legislature which under the proclamation of the Governor‑General of Pakistan, under section 92‑A of the Govern ment of India Act, 1935, he had assumed on behalf of the Governor‑General. In exercise of the powers given to the Provincial Government by section 30 of the Act, the Governor issued the West Punjab Cotton Control Rules, 1949, on the 8th of October 1949, which were published in the Official Gazette as Notification No. 455‑D (A), Development Department, and which will be referred to in the sequel as the Rules. Rule 8 of the Rules reads as follows:‑-- "8 (1) No cotton ginning, cotton pressing or cotton seed oil factory shall be worked without a licence. (2) Applications for the grant of licences to work factories, as mentioned in sub‑rule (1), for the next cotton year shall be made to Government, through the Chief Cotton Inspector of the range, in the form given in Appendix I before the first July. The Chief Cotton Inspector shall forward all such applications to the Director of Agriculture, West Punjab, before the fourteenth of July and licences shall be issued before the cotton year starts ; Provided that Government may in its discretion order that applications shall be received after the prescribed date. (3) When the Chairman of the Board has ordered a factory to‑ (a) engage any kind of staff, or (b) install seed openers or decorticators or delinters or any other device or machinery connected with the handling of cotton or cotton seeds, or (c) re‑arrange, modify or alter the layout of the machinery or its installation or adjustment no licence shall be granted till the orders given have been carried out to the satisfaction of the authority competent to issue such orders. (4) A licence granted under sub‑rule (2) shall be in the form prescribed in Appendix II to these rules and shall be‑ (a) valid for the cotton year; and (b) subject to the conditions specified therein." and Rule 24 in the following terms :‑ "24 (1) Any person contravening any of the provisions or directions of these rules, for which no penalty has been provided in these rules, or any person not complying with the lawful order or direction conveyed to him in writing, which the Chairman of the Board or the Chief Cotton Inspector or an Inspector is authorised to give or issue, shall be punishable with imprisonment not exceeding three months or fine which may extend to one thousand rupees or both: Provided that such occupier or manager or purchaser shall also be liable to similar punishment for a breach of the provisions of these rules committed by an agent or employee of a factory or of a firm or by anyone else connected with the purchase or sale of cotton or cotton seeds under his orders or with his connivance and for his benefit. (2) When it is made to appear to the satisfaction of the Inspector at any time prior to the initiation of a prosecution that‑ (a) an occupier of a factory has used due diligence to enforce the execution of these rules ; and (b) the offence has been committed without the knowledge or consent or connivance of the occupier ; the Inspector shall proceed against the person whom he believes to be the actual offender, without first proceeding against the occupier, and such person shall, if found guilty, be liable to the same punishment as the occupier otherwise would have been liable to. (3) No prosecution shall ordinarily be initiated under these rules unless the party complained against has been given an opportunity to show cause within a specified time why that party should not be prosecuted, and in the case of rule 22 unless the complainant has made his demand in writing or the Chief Cotton Inspector of the range is satisfied that there is a general complaint of non‑payment of prices within the prescribed time. (4) No Court shall take cognizance of any offence under these rules without the sanction of the Chief Cotton Inspector of the range in writing for the prosecution of the offender." It appears that it was mainly by virtue of rule 8 that the licence fee to which objection has been taken by these writ petitions was sought to be recovered by the Provincial Government. Some other provision3 of law, which are relevant for the present discussion, are clause (f) of section 2 of the Act, which defines "cotton ginning factory" as any premises including the precincts thereof where cotton is ginned or where cotton fibre is separated from cotton‑seed, by any process whatever involving the use of steam, water or of electric power, clause (h) of the same section which defines "cotton pressing factory" as any factory as defined in the Factories Act, 1934, in which cotton is pressed into bales, clause (i) of the section which defines "cotton‑seed oil factory" as meaning any place or building where cotton‑seed is pressed, by any mechanical means, for the extraction of oil, whether or not the same machinery is used for the extraction of oil from any other type of seed, when situated within the premises of a cotton ginning or cotton pressing factory, and clause (1) which defines "factory" as meaning a cotton ginning or cotton pressing factory as the context may require. Another provision of the Act which has a good deal of relevancy for the purposes of these writ petitions is section 9 of the Act. This section reads as follows :‑

"(1) No cotton ginning or cotton pressing factory shall be worked without a licence granted to the occupier thereof by such authority, in such form, subject to such conditions and on payment of such fees as may be prescribed. (2) A licence granted under this section shall be valid for such period as may be prescribed. (3) The grant or renewal of a licence shall be liable to be refused if the occupier of the factory in respect of which an application is made for a licence or its renewal has been con victed, within 5 years next preceding, of an offence punishable under this Act. (4) A licence shall be liable to be immediately suspended or cancelled by the authority competent to grant it on the ground that the occupier of the factory in respect of which the licence was granted has been convicted of an offence punishable under this Act. (5) If any person works a factory in respect of which a licence has not been granted or has been suspended or cancelled, he shall be punishable‑ (i) on a first conviction, with fine which may extend to five hundred rupees, and, if the offence has continued for more than one day, with an additional fine which may extend to one hundred rupees for each day subsequent to the first day during which the offence has continued ; and (ii) On every subsequent conviction, with fine which may extend to fifteen hundred rupees, and, if the offence has continued for more than one day, with an additional fine which may extend to two hundred rupees for each day subsequent to the first day during which the offence has continued."

3. The first question that was raised by Mr. M. Bashir, Advocate, the learned counsel for almost all the petitioners was that the Act was an ultra vires piece of legislation and, therefore, neither the Act nor the rules made thereunder had any validity. The argument was that as at the time when the Act was brought on the statute book, the Government of India Act, 1935, as adapted for Pakistan, which governed the Constitution of Pakistan, did not contain any section which empowered the Governor to make a law, as section 90 which existed in the original Govern ment of India Act, 1935, had been deleted by the Governor‑General's Order No. 4 of 1947, known as the Pakistan (Provisional Constitu tion) Order, 1947, issued by the last Governor‑General of British India on the 14th of August 1947, the Governor of a Province in Pakistan could not enact Acts. This argument has absolutely no force because it is based on an entire misapprehension of the correct legal position. The Act in its preamble indicates very clearly that it was passed by the Governor in exercise of the powers vesting in or exercisable by the Provincial Legislature which had been assumed by him on behalf of the Governor General of Pakistan, because of the Proclamation of the Governor‑General under section 92‑A of the Government of India Act, 1935. Now, the Proclamation under section 92‑A, which was issued with regard to the Province of West Punjab on the 24th of January 1949, made it clear that the Governor of that Province was to exercise all the powers vested in or exercisable by any Provincial body including a Provincial Legislature under the A Government of India Act, 1934. The Governor‑General had authorised the Governor of West Punjab to assume, on behalf of the Governor‑General, all powers vested in or exercisable by the then Provincial Legislature, and because the Provincial Legislature' could pass an Act, the Governor of the Province could also do sod subject to the conditions laid down by the Proclamation. It was not the case of the learned counsel‑and indeed it could not reasonably have been‑that the subject legislated on did not fall within the Provincial Legislative List contained in the Seventh Schedule of the Government of India Act, and, therefore, it is clear that the contention of the learned counsel, that the Act was a nullity, has absolutely no force.

4. The main question to consider is whether the licence fee was properly demanded by the Provincial Government from the petitioners in the writ petitions dealt with by this judgment. The case on behalf of the Government was that section 9 of the Act and rule 8 of the Rules authorised the imposition of licence fee and, therefore, the petitioners could not ask for a writ against the imposition of that fee. This argument would be unassailable if it can be established either that section 9 of the Act had application or that rule 8 of the Rules under the authority of which evidently the licence fee was demanded had binding force, that is to say that the Rule was made by an authority competent to make it, and related to a matter about which that authority had been authorised to make rules. The rule‑making power, as I have already said, was given to the Provincial Government by section 30 of the Act and as the reliance of the counsel who appeared for the Government was in this regard on‑and it could not have been on any other clause‑clauses (o) and (p) of that section, it appears desirable to reproduce these clauses. At the time when the Rules were made, the relevant part of section 30 of the Act ran as follows:‑-- "

30. The Government may, by notification, make rules consistent with this Act to give effect to the provisions of this Act. Such rules may, in particular, provide for all or any of the following matters, namely :‑- (o) any other matter for which provision is deemed necessary in order to carry out the purposes of this Act ; (p) the fees to be paid by the occupiers of Cotton Ginning, Cotton Pressing or Cotton Seed Oil Factories, by the cotton dealers, or by the managers of companies to cover the expenses incurred by Government on the staff appointed under this Act." By section 2 of Punjab Act I of 1954, however, the last five words of clause (p) were changed to "administration of the Act" and section 3 of the Act of 1954 enacted that any liability incurred or imposed, fees realized or action taken under clause (p), as it originally stood, shall be deemed to have been incurred, imposed, realized or taken under the clause (p) which was substituted.

5. In support of the contention that section 9 of the Act had application, it was urged by the learned counsel who appeared for the Government that water was used in running the engines used by the petitioners because a tank round the engine contained water to keep it cool., I have only the word of the learned counsel who addressed this argument that diesel engines used for ginning cotton, which are under consideration in these petitions, are cooled by water, but even if I assume that this is so, I do not see how this use of water can bring diesel engine cotton ginning machines within the meaning assigned to cotton ginning factories by clause (f) of section 2 of the Act. I have no doubt in my mind that reference in that clause to the use of water in relation toy factories is to those factories which are run by water, just as R water mills are run by water, and the mere fact that water may be used in some connection in the use of a machine does not attract the provisions of clause (f) of section 2 of the Act. If the use of water, to which reference has been made in clause (f) of section 2 of the Act, were to be any use of water, as the learned counsel for Government argued it was, it will not be easy to exclude those machines from the definition of "cotton ginning factory" given in the clause in question in which the only use to which water is put is that the person moving a wheel which makes the machine work drinks water. This, it is clear, was not the intention of the law‑making authority, nor can this meaning be given to the language used in clause (f ) of section 2 of the Act.

6. Another contention on behalf of Government with regard to section 9 of the Act may be noticed here. It was argued that the law‑making authority should be held to have inadvertently omitted including in the definition given in clause (f) of section 2 of the Act machines used for ginning‑ cotton which were run by diesel engines, because exclusion of such machines from section 9 of the Act would defeat the purpose of the Act. I am not un alive to the fact that an Act made by a Provincial Governor cannot be said to have been as carefully considered as an Act passed by the Legislature and subsequently assented to by the Provincial Governor, because while in the case of latter Acts the matter is discussed in the Assembly, in the case of the former the matter is not discussed by as many persons as it is in the Legislature and what generally happens is that the Governor and a few officers under him take part in the discussion relating to the legislation. In the case of every legislative measure, be it passed by the Legislature or by a Governor, however, the law presumes that expresses exactly what the law‑making authority intended to say. I cannot bring myself to accept the contention that from the fact. that clause (f ) of section 2 would not cover all kinds of machines which could be used in ginning cotton, the Court should presume that there had been an inadvertent omission and should supply that omission. If this contention raised on behalf of Government were accepted, and it was held that though the machines for ginning cotton run by means of diesel engines were not specifically mentioned in clause (f) of section 2 of the Act, which defines a' cotton ginning factory, such machines were still included in the definition, the Court would be traveling beyond the powers and functions of a Court which is to interpret the law and would be performing functions of the law‑making authority, namely, the making or the amendment of laws, and as this is a thing which is prohibited by all laws, it is obvious that the Court will not do it I would, therefore, hold that on the language used in section 9 of the Act, the petitioners could work their engines for ginning cotton without obtaining a licence and the licence fee demanded from the petitioners for running the diesel engines could not be demanded from them.

7. I will now take up the question whether rule 8 of the Rules, which has been reproduced in paragraph 2 of this judgment, validly made it necessary for machines like those used by the petitioners for ginning cotton to have a licence on payment of a licence fee. That the rule was made by the authority mentioned in section 30 of the Act is clear, and was not denied by the learned counsel for the petitioners, and, therefore, all that has to be determined is whether the rule fell within the ambit of the power given to the rule‑making authority by the Act. It will be noticed that so far as a licence required for working a cotton ginning factory goes, the words used in the rule are precisely the same as those used in section 9 of the Act, because like subsection (1) of section 9 of the Act, sub‑rule (1) of rule 8 enjoins that no ginning factory shall be worked without a licence. However, rule 8 becomes different from section 9 when one looks at sub‑rule (7) of rule 2 of the Rules, wherein "factory" has been defined as meaning a place wherein steam, water or other mechanical power or electrical power is used and where‑-- (a) cotton is ginned or where cotton fibre is separated from cotton seed (cotton ginning factory), or (b) cotton is pressed into bales (cotton pressing factory), or (c) oil is extracted from cotton seed (cotton seed oil factory). The‑effect of sub‑rule (7) of rule 2 is that rule 8 would apply to all factories wherein steam, water, electrical power or any other mechanical power is used for ginning cotton. It will be noticed that sub‑rule 7 of rule 2 has widened the definition of cotton ginning factory given in clause (f) of section 2 of the Act. It is a well‑recognised principle of interpretation that unless the statute, under which any rules are made, empowers the rule‑making authority to change the definition of expressions used in the statute itself, she expressions which are used both in the rules and in the statute shall be deemed to have the meaning given to them by the statute, and if that principle is applied to the present cases, it becomes clear that the rule‑making authority transgressed the limits of its power when it changed the definition of "cotton ginning factory" given in the Act. It will also have been noticed that the rule‑making authority provided a severer punishment for working a factory without a licence than the Act itself had‑ done, because while subsection (5) of section 9 allowed imposition of fine, rule 24 of the Rules provided that the breach of a rule was punishable with imprisonment which may extend to three months or with fine which may extend to Rs. 1,000, or with both. It is not necessary for the purposes of the present cases to determine what would be the maximum punishment imposable on a person who by working a cotton ginning factory without a licence has contravened section 9 of the Act as well as rule 8 of the Rules, i.e., if he has, without obtaining a licence, worked a factory which satisfies the definition of that term given in the Act as well as in the Rules, but it is clear that the position would not be devoid of novelty.

8. The learned counsel appearing for the Government tried to support the widening by the Rules of the definition of the expression "cotton ginning factory" as given‑in the Act by urging that the rule‑making authority was merely confining itself to the carrying out the purposes of the Act and, therefore, the power to make Rules was not exceeded. In this connection, the learned counsel for the Government pointed to what was said in the beginning of the Act with regard to the subjects about which the Act had been considered necessary. These are tabulated as "(a) to provide for the licensing of cotton ginning and press ing factories ; (b) to regulate supply of cotton (kapas) to the factories for ginning, and to prevent the making of different varieties ; (c) to plan the production of cotton on a regional basis ; (d) to ensure the supply of pure seed to the cultivators ; and (e) to provide for such other matter as may be incidental thereto." The argument was that as one of the objects of the Act was to provide for licensing of cotton ginning and pressing factories, and as by an oversight the law‑making authority had failed to include in the definition given in clause (f) of section 2 of the Act some of the machines which could be used for ginning of cotton, the rule‑making authority could supply the deficiency. I cannot accept this contention which cannot be supported on any recognized principle of law. Apart from the general principles of law that a rule‑making authority cannot travel beyond the powers given to it by the law‑making authority, there is the fact that section 30 of the Act, the relevant part of which has been reproduced in paragraph 4 above, says in clear terms that the Government could make rules consistent with the Act to give effect to the provisions of the Act. Now, if the rule‑making authority enlarges the definition of an expression used in the Act and thereby wants to make the obtaining of licences by certain factories and payment of licence fees therefore incumbent, it cannot be reasonably urged that the rule making authority is carrying out the purposes of the Act and is acting within the limits of its powers.

9. Another argument of the learned counsel for the Govern ment in support of the validity of rule 8 was that because the Act was passed by the Governor and the Rules were also made by the Governor as is mentioned in the Gazette Notification relating to them, it should be presumed that the Rules were valid, because the Governor, who made the law, knew what powers he had con ferred on the rule‑making authority. On a legal plane, this argument has but little weight, because when making a law the Governor is performing a function which is entirely different from the one which he performs when making Rules under the authority of the Act which he had himself made, and when exercising the power to make Rules he cannot exceed the power given to him by the Act under which he purports to act. Moreover, there are some other considerations which cannot be lost sight of. Though the Act had to bear the signatures of the Governor, because the Government of India Act, 1935, empowered the Governor and no one else to make an Act, it was not necessary that the Rules should have gone to the Governor for his approval. Here my object is to point out that the fact that the notification said 'that the Rules were made by the Governor does not conclusively prove that he himself had anything to do with the making of the Rules‑and it is by no means unlikely that his name was used because it was provided by section 59 of the Government of India Act that all executive acts of the Government of a Province shall be expressed to be taken in the name of the Governor. Section 30 of the Act authorised the Government‑which expression, according to clause (m) of section 2 of the Act, meant the Government of West Punjab‑to make Rules, and though it is true that at the time when the Rules were made the Governor alone could be considered to be the Provincial Government, yet by reason of ‑provisions con tained in section 59 of the Government of India Act, 1935, the power to make Rules could be exercised by an authority other than the one which had made the law. It is obvious that if the Rules had been made by an authority other than the authority which had made the Act itself, no one could have claimed for the rule‑making authority the power to provide that though some ginning factories did not fall within the four corners of the Act and could be worked without a licence, and consequently without payment of the licence fee fixed for such licences, licences on payment of licence fees for working them were necessary and I do not see how this position changes if the rule‑making authority happens to be ‑the same as the authority which made the law. In addition, there is another fact which does not appear to have been within the knowledge of the learned counsel for the Government and this fact is that though the Act was passed by Sir Francis Moodie, the first Governor of West Punjab, the Rules were made in the time of Sardar Abdur Rab Nishtar, the second Governor of that Province, and, therefore, even if it be assumed that the Governor had made the Rules, it cannot be claimed for the rule making, authority that its opinion about the intention of the Act was as unerring as that of the maker of the Act with‑ regard to that matter would ordinarily be presumed to be. However, I am clear in my mind that even if it had been established that the Rules were made by the person who had made the Act, that fact by itself would have been of no avail to the Government because while It was for the Governor to make the Act, the power to interpret the Act lay in the Courts of law, and if the interpretation of the Courts differed from the interpretation of the law‑making authority, the interpretation of the Courts had to prevail, and if the law‑making authority did not agree with that interpretation, it would have had to change the law.

10. I will now examine the contention of the learned counsel for the Government that the Rules were valid because clauses (o) and (p) of section 30 of the Act authorized their making. No doubt clause (o) is so worded that it would appear, at first sight. to have given almost unlimited powers to the rule‑making authority subject to the condition that the Rules were about a matter for which provision was deemed necessary in order to carry out the pur poses of the Act, but the same consideration will apply to clause (o) which applies to what is stated in the beginning of the Act with regard to the subjects to which the Act related. I have given my reasons in paragraph 8 of this judgment for holding that the face that one of the subjects intended to be legislated upon was the licensing of cotton ginning and pressing factories did not confer on the rule‑making authority the power to widen the definition of an expression given in the Act and as the reasons given there apply with equal force to clause (o) of section 30 of the Act, I need not repeat them here.

11. With regard to clause (p) of section 30 of the Act, it was contended that it authorized the imposition of licence fees to which objection has been taken by the petitioners. It will be noticed that the fees mentioned in clause (p) can be made payable by owners of cotton ginning, cotton pressing and cotton seed oil factories or the managers of cotton markets while section 9 of the Act says that licences are to be obtained by the occupiers of the factories and though rule 8 of the Rules does not mention by whom the licence is to be obtained, it cannot be doubted that the occupier will have to obtain the licence and pay the fees therefor under rule

8. It is, however, clear that as the Legislature enjoined on the occupiers the necessity of obtaining licences before working factories, the rule‑making authority would be traveling outside the limits of its powers if it enjoined on the owners the duty of obtaining licences because the rule‑making authority would be amending the provisions of the Act which it does not possess the power to do. It is well settled that a law which imposes on the subjects a duty to pay money should be construed strictly in favour of the Government and liberally in favour of the subjects. That principle of construction cannot be lost sight of in the present case and it follows that clause (p) of section 30 of the Act cannot validate the charging of licence fees from those factories which do not fall within the four corners of section 9 of the Act.

12. It was also pleaded in some of the written statements put in on behalf of the Government that section 16 of the Act made the obtaining of a licence on payment of the prescribed fee necessary, and though no argument was addressed on that point I will deal with that question. It is clear that the factories men tioned in section 16 are those to which reference has already been made in section 9 of the Act, because for the purposes of deter mining what is meant by the expression "cotton ginning factory" used in section 16, one has to turn to the definition of "cotton ginning factory" given in clause (f) of section 2 of the Act, and the diesel engines worked by the petitioners cannot be held to fall under section 16 of the Act.

13. For the reasons given above, I hold that the diesel engines worked by the petitioners for ginning cotton could be worked without the occupier or the owner getting a licence or paying any licence fee. All these petitions must, therefore, be accepted, and as the stand taken by the Government does not appear to have been carefully considered, I would direct that the petitioners shall have their costs. KAIKAUS, J.‑--I agree. Omissions of the legislature cannot be supplied by the rule‑making authority. The rule making authority can only fill in the details when a framework is provided by the legislature and cannot provide any part of the framework itself. A.H. Petition accepted.