P L D 1959 (W (PLP)

SHABIR AHMAD, J.

‑This order will govern not only this writ petition but 111 others, details of which are given in the appendix attached herewith) (Appendix omitted‑Ed.). The main question that falls for determination in these writ petitions is whether or not a ginner of cotton is a manufacturer or a producer for the purposes of Sales Tax Act (III of 1951). A number of writ petitions had been filed to question the decision of the Sales Tax authorities that a ginner of cotton was manufacturer within the meaning of section 2, clause (II) of the Sales Tax Act, and to have that interpretation declared erroneus. Some of these petitions were heard by my brother Habibullah Khan, J. of the Peshawar Bench, when he worked here some time ago, and myself. I had completed the judgment and would live, after making necessary corrections therein, sent it on to my brother Habibullah Khan, J. for his approval before its annoucement, but, before that could be done, the Sales Tax Act was amended by Ordinance XXV111 of 1959 issued by the President and Chief Martial Law Administrator of Pakistan on the 9th of May 1959. By means of this Ordinance two amend ments were made in the Sales Tax Act. The first of these amendments was made in clause (11) of section 2 of the Sales Tax Act (No. III of 1951) and was to the effect that a person engaged in the ginning of cotton was to be covered and was to be deemed to have always been covered by the definition of the word "manufacturer or producer", which terms are defined in that clause. There is a proviso attached to clause (11) of section 2 of the Sales Tax Act and an amendment was made therein with the object of making a ginner of cotton a manfacturer or a pro ducer irrespective of the fact that the cotton ginner belonged to someone else who had sold the ginned cotton though that result would not ensue in the same circumstances if the manufacturer or producer were not a ginner of cotton.

2. The effect of the amendment of the Sales Tax Act (No. III of 1951) by Ordinance XXVIII of 1959 is that clause (11) of section 2 and the proviso attached to that clause now read as follows :‑ "Clause (11) `manufacturer or producer' means a person who engages, whether exclusively or not, in the manufacture of goods, and includes a printer, publisher, lithographer, engraver or a person engaged in the ginning of cotton and also any person (not being an employee) who manufactures goods, whether or not the materials of which the goods are manufactured are owned by him: "Provided that where one person, other than a person engaged in the ginning of cotton, manufactures goods for another, wholly or in part out of the materials supplied by that other, and the goods are not for the use of, but are for sale by, that other, the person supplying the materials shall be deemed to be the manufacturer and the person who so manufactures the goods shall be deemed not to be the manufacturer. "The expression also included‑-- (i) the assignee, trustee in bankruptcy, liquidator, executor, or curator of any manufacturer or producer and, generally, any person who continues the business of a manufacturer or pro ducer or disposes of his assets in any fiduciary capacity ; (ii) any person, firm or company which owns, holds, claims, or uses any patent, proprietary, sales or other right to goods being manufactured, whether by them, in their name, or for or on their behalf by others, whether such person, firm or company sells, distributes, consigns, or otherwise disposes of the goods or not." The question for determination is whether or not any of the petitioner's is entitled to the grant of any relief by means of issue of a writ.

3. Before dealing with the definition of tile term "manu facturer or producer" and the effect of the recent amendment of the definition effected by Ordinance XXVIII of 1959, 1 would deal with the objection which was raised by Mr. S. A. Haque, the learned counsel who represented the respondents at the present hearing and the hearing of some of these writ petitions by my brother Habibullah Khan, J. and myself, because that objection, if sustained, would result in, the dismissal of all these petitions file objection raised was that in the event of the failure of the peti tioners to make the Sales Tax authorities or the Appellate Tribunal agree to their interpretation, the petitioners could apply to those authorities that the decision of the question be referred to this Court under section 66 of the Income‑tax Act, because that pro vision of law has application to questions arising before the Sales Tax authorities as if the questions had arisen under the Income- tax Act and the Sales Tax authority were Income‑tax authority. Mr. S. A. Haque contended that because, if any of the petitioners were entitled to it, the relief claimed by him could be granted to him on a reference made to this Court under section 66 of the Income‑tax Act, the writ petitions should be thrown out on the short ground that another remedy was open to the petitioners. In this connection he relied on a decision of the Peshawer Bench of this Court reported as Khan Abdur Rahman Khan v. Saadullah Khan (P L D 1956 Pesh. 58), but it appears to me that the decision relied upon does not go as far as the learned counsel for the respondents contended that it did. It is true that if an alternative remedy is open, this Court will be reluctant to issue a writ and will leave the party seeking the writ to obtain redress in the ordinary manner, but I am clear in my mind that the fact that another remedy is open to him does not deprive a person of his right to get a writ if tilt established facts make him entitled to it. But whether or not tilt extraordinary jurisdiction of this Court to issue a writ should be exercised in a case in which another means of getting the relief sought is open to the party seeking the writ would depend on tilt a circumstances of each case. If the procedure for obtaining tilt relief by some other proceedings is too cumbersome or the relief cannot be obtained without delay and expense, or the delay would make the grant of the relief meaningless, this Court would not hesitate to issue a writ if the party applying for it is found entitled to it, simply because the party could have chosen another course to obtain the relief which is due. Having carefully considered the matter I have arrived at the conclusion that in the present cases the petitions should not be refused on the ground that another means of getting the relief sought being open, the petitioners should be left to adopt those means. A number of petitions have been presented to this Court to question the validity of the levy of the sales tax on cotton ginners, and it is obvious that it will be beneficial to everyone concerned if the question raised is decided as expeditiously as possible and by a Court whose decision unless set aside by the Supreme Court of Pakistan, will be final.

4. Having held that a decision in these proceedings with regard to the question raised in the writ petitions should be given, proceed to consider whether or not the petitioners are entitled to the relief they claimed by their petitions. The definition of the word "manufacturer or producer", as it stands now, makes it clear that a ginner of cotton answers that description. While the other learned counsel who appeared for some of the petitioners admitted that the amendment brought about by Ordinance XXVIII of 1959 with regard to the definition of the term "manufacturer or producer" was unassailable, Mi. Nur Ahmad Parhar, who appeared for some of the petitioners, contended that the amendment was invalid in law and, therefore, could not affect the right of cotton ginners to obtain relief if they were entitled to it before the amendment was effected. He raised the following objections to the amendment brought about in the definition of the word "manufacturer or producer" contained in clause (11) of section 2 of the Sales Tax Act (No. III of 1951) :

(1) That the subject of sales tax was, under the Constitution of the Islamic Republic of Pakistan which was enforced on the 23rd of March 1956, a Provincial subject and, therefore, Sales Tax Act, 1951, which had been passed by the Constituent Assembly of Pakistan, ceased to remain on the statute book on the 23rd of March 1956, the day that Constitution was enforced, and Ordinance XXVIII of 1959 was of no effect because it amended a law which was no longer on the statute book ; (2) that the President was incompetent to issue the Ordinance ; and (3) that Ordinance XXVIII of 1959 could not be made retrospective in operation and though on or after the 9th of May 1959 the ginners of cotton were to be deemed to be manufacturers or producers for the purpose of the Sales Tax Act, the same could not be said if the status of the ginners of cotton had fallen for determination with regard to a date prior to the 9th of May 1959. I will deal with these contentions in the order in which they have been mentioned above.

5. The first of the above three contentions, namely, that the Sales Tax Act, 1951, had ceased to be valid law on the 23rd of March 1:56 and, therefore, none of its provisions could be amended after that date is, in my view, entirely devoid of force. Mr. Nur Ahmad Parhar did not deny that the Sales Tax Act, 1951, was passed by a competent Legislature and was, therefore, validly in force when the Constitution of the Islamic Republic of Pakistan was enforced on the 23rd of March 1956. That being so, even if his contention that after the 23rd of March 1956 the subject of the sales tax was to be dealt with by Provincial Legis latures were correct‑which I will show presently that it is not‑his argument cannot succeed. It is clear that when raising his first objection to the amendment, Mr. Parhar entirely overlooked the provisions of Article 224 of the Constitution of the Islamic Republic of Pakistan which, despite the fact that the Government of India Act and some other enactments mentioned in Article 221 of the Constitution had been repealed, continued in force the laws made by virtue of the powers conferred by those Acts till such time as they were repealed or amended by a competent authority. Article 224 kept the Sales Tax Act, 1951, alive and assuming that taxes on sales had been made a Provincial subject under the Constitution enforced on the 23rd of March 1956, the Sales Tax Act, 1951, continued to have validity till repealed or amended by a competent authority.

6. The contention of Mr. Parhar that sales tax was a subject which could be legislated upon by the Provincial Legislature on and after the 23rd March 1956, by reason of the enforcement of the Constitution of the Islamic Republic of Pakistan may now be dealt with. The learned counsel relied on Article 109 of that Constitution for his argument that if a subject had not been mentioned in any of the Lists contained in the Fifth Schedule, the Provincial Legislature was to have the authority to legislate on the subject. In so far as the abstract proposition of law goes the argument regarding the powers of Provincial Legislatures is correct, but it cannot help Mr. Parhar, because the subject of taxes on sales is mentioned in entry No. 26 of the Federal List contained in the Fifth Schedule of the Constitution enforced on the 23rd of March 1956. When confronted with the situation that taxes on sales found mention in the above‑mentioned entry No. 26, Mr. Parhar contended that the sales tax dealt with in that entry related to tax on sales of articles mentioned in that entry. In my view this contention is entirely without substance, because entry No. 26 of the Federal List under discussion deals with taxes on sales generally and not with taxes on the sale of articles mentioned in that entry only. The first contention of Mr. Nur Ahmad Parhar, therefore, is entirely without force and cannot but be rejected.

7. I will now deal with the second contention of Mr. Parhar, namely, that the Ordinance XXVIII of 1959 was invalid because it could not have been promulgated. In this connection Mr. Parhar relied on Article 69 of the Constitution enforced on the 23rd of March 1956 wherein it is made clear that the President could issue an Ordinance only when the National Assembly (which was the Legislature set up by that Constitution) was not in session. The contention was that as the President could issue an ordinance only when the Central Legislature, which would ordinarily pass all laws, was not in session, it follows that if the Legislature did not exist, as it does not after the proclamation of Martial Law on the 7th of October 1958, the President ceased to have any power to issue Ordinances. It is not necessary to consider what the position was under the Constitution enforced on the 23rd of March 1956, but it is obvious that in the present state of the law the non‑existence of the Legislative body does not deprive the President of the right to promulgate Ordinances. The Constitution which was enforced on the 23rd March 1956 was abrogated on the night of the 7th October 1958, but because of paragraph 2 (1) of the Laws (Continuance in Force) Order, 1958, the Government of Pakistan is to be carried on as nearly as possible according to the abrogated) Constitution. This does not mean that the abrogated Constitutions is to be followed to the letter and it is obvious that as no Legislature exists it is not possible to comply, in all details, with) Article 69 of that Constitution. I would, therefore, hold that the second contention of Mr. Parhar also is without substance.

8. In support of his third contention that the amendment effected by Ordinance XXVIII of 1959 could not be made to have retrospective operation, Mr. Parhar contended that it was a general principle of interpretation of statutes that a statute could not be made retrospective if the rights of the subjects would be affected by the change in the law. In support of this contention Mr. Parhar relied on some remarks made in Maxwell's Interpretation of Statutes, but failed to notice that in that very book it is said in clear terms that the Legislative body is competent to direct that laws or amendments were to have retrospective operation. Maxwell deals with the powers of the British Parliament but as in its own sphere every Legislative body is as supreme as the British Parlia ment, the remarks of the learned author with regard to the powers of .a Legislative body to make laws having retrospective operation are fully applicable to all Legislative bodies. It follows, therefore, that the National Assembly of Pakistan, envisaged by the Con stitution enforced on 23rd March 1956 and abrogated on the night of the 7th October 1958, could make a law dealing with a matter mentioned in Federal list of the Fifth Schedule of the abrogated Constitution and as the powers of the President of Pakistan to promulgate Ordinances was with regard to the matter to be legislated upon was the same as that of the National Assembly to make laws, an ordinance promulgated by the President could be made retrospective in operation. It is true that in the absence of clear words to the contrary, a new statute or an amendment in an existing statute, unless it be a statute relating to procedure, is to be deemed to be prospective in operation, but this principle or' interpretation cannot be invoked and has no application where the statute or the amendment is expressed in clear terms to have retrospective operation. In the present case, as shown by me in an earlier part, the subject of taxes on sales fell within entry No. 26 of the Federal List of the Constitution of the Islamic Republic of Pakistan enforced on the 23rd of March 1956 and abrogated by the then President of Pakistan on the 7th October 1958. It is clear that the Ordinance, though retrospective in operation, would have been perfectly good law under the abrogated Constitution and as the powers of the President to make laws have certainly not been curtailed by the abrogation of the above, mentioned Constitution the Ordinance is perfectly valid. The, third contention of Mr. Parhar, therefore, is as devoid of force as the two previous ones.

9. All the three contentions of Mr. Parhar have failed, but if all or any of them had succeeded he would have been up against a hurdle which, to my mind, would be insuperable. The Gazette of Pakistan dated the 9th of May 1959 in which Ordinance XXVIII of 1959 was published shows that it was promulgated by General Muhammad Ayub Khan President and the Chief Martial Law Administrator. Now, even if there are any limitations on the powers of the President under the law that is in force in Pakistan since the 8th of October 1958, there are none on those of the Chief Martial Law Administrator and even under the Laws (Continuance in Force) Order the Chief Martial Law Administrator has been given the power to amend any law continued in force by that Order, General Muhammad Ayub Khans is in a unique position as he is both the President and the Chief Martial Law Administrator and as Ordinance XXVIII of 1959 mentions both his offices it would be permissible to infer that he had exercised the powers vesting in him in both his official capacities. Consequently, even if Ordinance XXVIII of 1959 had been invalid as an Ordinance it could have been acted upon as a, Martial Law Regulation. As, however, the three contentions of Mr. Parhar with regard to the Ordinance being invalid have been repelled I need not dilate on this aspect of the matter.

10. The law as it stands at present being that a ginner of cotton is to be deemed to be a manufacturer or a producer for the purposes of clause (11) of section 2 of the Sales Tax Act, 1951, and to have possessed that status from the date that that Act was I enforced on the 20th of April 1951, it is obvious that, provided the other conditions mentioned in the Act, which need not be detailed, are satisfied, a ginner of cotton would be liable for payment of sales tax. Here I might deal with an argument raised by Malik Muhammad Akram, Advocate, who appeared for some of the petitioners. He pointed out that though Ordinance XXVIII of 1959 enacted that for the purpose of the definition contained in clause (11) of section 2 of the Sales Tax Act, 1951, a ginner of cotton was to be deemed to be a manufacturer or producer and was to be deemed to have had that status from the date on which the parent Act was enforced, the position was not the same where the proviso to clause (11) of section 2 of the Sales Tax Act had application, and contended that a ginner of cotton who, before the 9th of May 1959, had ginned the cotton of another who had sold the ginned cotton could not be held to be a manufacturer or a producer for the purposes of the levy of the sales tax. To the contention of Malik Muhammad Akram the reply of Mr. S. A. Haque was that because the definition of "manufacturer or producer" had been amended with the result that a ginner of cotton was to be deemed to be a manufacturer or a producer from the date on which the original Act had come into force, a ginner of cotton who had ginned cotton which was not his own would be a manufacturer or producer from the date on which the parent Act came into force in spite of the fact that the amendment which had deprived the ginners of cotton of the benefit of the proviso to clause (11) of section 2 of the Sales Tax Act, 1951, had not been made retrospective in operation from the date the Act came into force. In my view the argument of Mr. S. A. Haque has no force. The proviso deals with those cases in which the ginning of cotton is done by a ginner for someone else. The effect of the amendment would certainly be that from the 9th of May 1959 onward a ginner of cotton will be deemed to be a manufacturer or a producer for the purposes of levy of sales tax, whether the cotton ginned were his own or that of another, but this will not be the case if a ginner had ginned somebody else's cotton before the 9th of May 1959. 1 have said in an earlier part of this order that it is a well‑established canon of interpretation of statutes that, in the absence of clear language to that effect, a statute is to be presumed not to be retrospective in H operation unless it deals with matters of procedure, and if that principle is applied to the addition made in the proviso to clause (11) of section 2 of the Sales Tax Act, 1951‑and I see no reason why it should not be applied‑it becomes clear that the amendment made in the proviso is to have only prospective and not retrospective operation. If the contention of Mr. S. A. Haque were accepted, the result would be that a ginner of cotton who had merely ginned cotton for another, who had sold the ginned cotton and most probably earned profit by that sale, will have to pay sates tax on the sale made by the owner of the cotton. It is obvious that this would be very hard on the ginner, because at the time he ginned the cotton, he did not know that he will have to pay sales tax as if he had effected the sale of the ginned cotton, and had charged only the fee for ginning. If, however, the amendment of the proviso had been made retrospective in as clear a language as was employed with regard to the main part of clause (11) of section 2 of the Sales Tax Act the resultant hardship would have been no ground for holding that the amend ment was to be only prospective in operation, but as the language of Ordinance XXVIII of 1959 does not compel me to hold that the addition made in the proviso was to be retrospective in operation, I have arrived at the conclusion that the addition made in the proviso to clause (11) of section 2 of the Sales Tax Act (No. III of 1951) by Ordinance XXVIII of 1959 is to be only prospective in operation and cannot have any retrospective effect.

11. The questions of law that arose having been decided, I will now consider whether or not a writ should issue in any of the petitions. It was contended by some of the learned counsel who appeared for the petitioners that their clients had been called upon to pay sales tax though they were not ginners of cotton, some others contended that their clients had not been afforded an opportunity to be heard, while some said that the procedure laid down by law had not been followed. In view of the large number of petitions the respondents have not put in detailed written statements in each case and I am not in a position to say whether or not these contentions are correct. Ordinarily, a writ does not issue where the facts are not admitted and some other authority is competent to look into them, and I do not see why that practice should be departed from in the present cases. It appears to me, therefore that no writ should issue because it is not clear the case of which of the petitioners calls for grant of relief on a ground other than that dealt with in what has been said above. The question whether any of the ginners can claim that before the 9th of May 1959 he was not liable to pay tax because the cotton he ginned was not his own but of someone else or that he was not liable to pay the tax for some other reason is a matter for the determination of the Sales Tax authorities and I am, therefore, of the opinion that those questions should be left to be determinated by those authorities. Similarly, the question whether or not a person was in fact a ginner of cotton or had not been afforded the opportunity to show that he was not liable are being left undetermined because these questions can be agitated by appeal.

12. In view of what I have said above, I do not find any occasion for issuing a writ in any of these petitions and, therefare, dismiss all of them, but pass no order as to costs. MASUD AHMAD, J.

‑I agree. A. H Petitions dismissed.