P L D 1964 Dacca 473 (PLP)

5. The learned Advocate contends that East Pakistan Public Safety Ordinance (LXXVIII of 1958), has lapsed inasmuch as it was not placed before the Provincial Assembly for approval in accordance with the provisions of Article 79 of the Constitu tion. He has argued that though on the date of promulgation of the Ordinance, namely, the 25th of November 1958, the Consti tution was not in force, it was necessary to have the approval of the Provincial Assembly within the prescribed period mentioned in Sub‑Article (6) of the said Article in order to continue the Ordinance as a valid law after the Constitution came into force on the 8th June 1962. We are afraid this argument has not taken note of the provisions contained in Sub- Article (2) of the said Article and Article 225 of the Constitu tion. Sub‑Article (2) of the Article 79 lays down that an Ordi nance made and promulgated under that Article shall, as soon as practicable, be laid before the Assembly of the Province. Sub- Article (3) provides that if before the expiration of the pre scribed period, the Assembly of the Province by resolution, approves of the Ordinance, the Ordinance shall be deemed to have become an act of the Provincial Legislature, but if, before the expiration of that period, the Assembly of the Province, by resolution, disapproves ordinance, It shall cease to have effect, and shall be deemed to have been, repealed upon the passing of the resolution. Sub‑Article (4) provides that if the Assembly of the Province has not approved or disapproved of the Ordinance, and it has not been repealed by the Governor, before the expiration of the prescribed period it shall cease to have effect, and shall be deemed to have been repealed, upon the expiration of that period. The prescribed period has been defined under Sub‑Article (6) of the Article. It is therefore evident that an Ordinance promulgated under Article 79 has to be placed before the Assembly of the Province in order that it may be continued as an enforceable law after the prescribed period. The present Ordinance was promulgated, as we have already pointed out, long before the Constitution came into force on the 8th o June 1962. It was therefore not necessary to place this Ordi nance for approval by the Provincial Legislature. This Ordinance has been continued as a valid law by Article 225 of the Constitution which provides that, except as provided in that Article, all existing laws shall, subject to the Constitution, continue in force so far as applicable and with necessary adaptations until altered, repealed or amended by the appropriate Legislature. "Existing Laws" has been defined in sub‑Article (7) to mean all laws, Ordinances, Orders‑in‑Council, Orders, Rules, Bye laws, Regulations and Letters Patent constituting a High Court, and any notifications and other legal instruments having the force of law in force in Pakistan or any part of Pakistan, or having extra‑territorial validity immediately before the commencing day. There is no doubt that the Ordinance was a valid law before the Constitution came into force and since this Ordinance ha not been excluded in Article 225 it continues to remain in force and its continuance was not upon compliance with the provisions of Article 79 of the Constitution.

6. It has then been contended that on the admission of the respondents the local residents of the villages mentioned above did not take any part in incidents that took place on the date mentioned above and therefore the imposition of collective fine on the residents was without any lawful authority. In the affida vit‑in‑opposition it has been clearly stated that not only the students but the residents of the locality took part in the inci dents. The petitioner in his application has stated that neither he nor any of the inhabitants of the locality was in any way concerned in or abetted the commission of any offence prejudicially affecting the public safety, the main tenance of public order, nor were they concerned in any of the offences narrated in the notification. In reply to this, the respondents have asserted that the local residents also took part in the incidents that happened at the railway station. We have read the affidavit‑in‑opposition carefully, we must say that it does not make any precise statement in this regard but it cannot be said that there is any admission of the petitioner's allegation.

7. The next point that has been urged is that the order, in the face of it, shows that the Provincial Government was not sure as to the actual acts of commission or omission for which the inhabitants of the localities mentioned in the notification were responsible. The notification in question runs as follows "No. 213‑Poll.(II)‑12th October 1962.‑Whereas it appears to the Provincial Government that the inhabitants of the area described in the Schedule hereto annexed within the jurisdiction of Netrokona police‑station in the district of Mymensingh are concerned in or abetting the commission of offences preju dicially affecting the public safety, the maintenance of public order, the maintenance of services essential to the life of the community, or harbouring persons concerned in the commis sion of such offences or are failing to render all the assistance in their power to discover or apprehend the offenders, or are suppressing material evidence of the commission of such offences ; Now, therefore, in exercise of the powers conferred by sub section (1) of section 31 of the East Pakistan Public Safety Ordinance 1958, (East Pakistan Ordinance No. LXXVIII of 1958), the Governor is pleased to impose a collective fine of Rs. 5,000 (rupees five thousand only) on the inhabitants of the area described in the said Schedule subject to any order which may be passed exempting any person or class or section of such inhabitants from liability to pay any portion of the fine. So much of the area under police‑station Netrokona lying in Mauza Satpai (Jurisdiction List No. 318) including Mahallas (1) Satpai, (II) Ukileara and (III) Chalkpara, under Ward No. 1 and Mahalla Teribazar under Ward No. 2 of the Netro kona Town Committee. No. 214 Poll. (II)‑12th October 1962.‑In exercise of the powers conferred by subsection (2) of section 31 of the East Pakistan Public Safety Ordinance 1958, (Ordinance No. LXXVIII of 1958), the Governor is pleased to empower the Deputy Commissioner of Mymensingh to exercise the powers under subsections (2), (3), (4) and (5) of the said section."

8. The learned Advocate for the petitioner contends that the notification shows that the Provisions of section 31 of the East Bengal Public Safety Ordinance have been quoted without reference to the actual acts for which the inhabitants were found responsible. We do not find any substance in this contention also. The occurrence took place on a large scale in which a large number of people were involved. It cannot therefore be said that each of the acts alleged in the notification was no committed. It may be that each of them were responsible for some acts while the others were not but there is nothing before us to hold that all the acts mentioned in the notification were not committed in the occurrence.

9. The next point urged by the learned Advocate is that the apportionment of the compensation was made without any enquiry as contemplated by subsection (3) of section

31. In the affidavit‑in‑opposition it has been stated that in apportioning the Due the Deputy Commissioner took into account the assessment list of the Netrokona Town Committee. In this view of the matter, we do not find that the assessment has been made in violation of the provisions of subsection (3) of section 31.

10. Mr. Moazzam Hossain has then argued that the notice demanding payment of collective fine was signed by an unauthorised person. We do not find on what basis it has been asserted that the person had no authority to sign the demand notice. There is no question of any delegation by the Deputy Commissioner in this respect as it is not the case of the petitioner that in connection with apportionment of the fine the Deputy Commissioner asked someone else to do it. There is no legal bar to the signing of the demand notice by a subordinate of the Deputy Commissioner.

11. The last contention of learned Advocate is that in order to attract the provisions of section 31 of the East Pakistan Public Safety Ordinance, there must be a series or persistent repetition of occurrence constituting one or more of the offences specified therein and that one single instance of an abrupt occur rence happening on a particular occasion as in the instant case even though that may produce one or other of the baneful effects contemplated by that section cannot warrant its application so as to justify imposition of collective fine. The relevant portion of the section reads :‑ "31. (1) If it appears to the Provincial Government that the inhabitants of any area are concerned in or abetting the commission of offences prejudicially affecting communal harmony, public safety, the maintenance of public order, the maintenance of supplies or services essential to the life of the community, or harbouring persons concerned in the commis sion of such offence, or are failing to render all the assis tance in their power to discover or apprehend the offender or offenders, or are suppressing material evidence of the commis sion of such offences, it may, by notification, impose, a collective fine on the inhabitants of that area ; . . . . ."

12. The offences envisaged in this section are offences pre judicially affecting communal harmony, public safety, the main tenance of public order, the maintenance of supplies or service essential to the life of the community or harbouring persons concerned in the commission of such offences or failing to render all the assistance in their power to discover or apprehend the offender or offenders, or suppressing material evidence of the commission of such offences. Can it be said, if on a particular occasion something happened which resulted in the disturbance of com munal harmony or prejudicially affected public safety or the maintenance of public order etc., that the .provisions of this section are attracted or can such a solitary incident be regarded as sufficient to show that the inhabitants of area around the scene of that incident were concerned in or abetted the commis sion of the offence ensuing therefrom or rendered themselves liable for any of the other offending acts of omission and com mission contemplated by the section. The more we read the section the more we are convinced that such a situation was not in the mind when the provisions contained in the section were made. The section makes liable some persons for acts for which they may not themselves be directly or indirectly responsible. Jurisdiction for this is perhaps to be found on the assumption based on a repetition of certain offences of a public nature in a particular area, that the inhabitants of that area, i.e., the majority or the bulk of its inhabitants are actually committing those offences or lending encouragement and support thereto actively, or passively. A single incident of an abrupt or sporadic nature cannot, we are afraid, afford a valid foundation for such an assumption.

13. The preamble of the Ordinance says that, in order to provide for "special measures" for ensuring the public safety and the maintenance of public order, the suppression of preju dicial acts endangering communal harmony or the safety or stability of the Province, and for maintaining supplies and services essential to the life of the community, it was thought expedient to make the provisions in the Ordinance. Does not the preamble clearly indicate that the intention is to take recourse to the "special measures" contemplated by the Ordinance more by way of prevention of prejudicial acts as defined in the Ordinance than of punishing the culprits for ordinary crimes ? If that were not the intention, what then is the justification for imposing punitive fine on persons who may or may not be concerned with any prejudicial ac.? In our view, the justification for such punishment is failure to render such assistance which the Government require in maintaining law and order in an extra ordinary situation for their failure to do it through the ordi nary machinery. It is no doubt the duty of the State to main tain order in society but the members thereof are also bound to co‑operate and more so on an occasion of emergency. Does failure to do this on one particular occasion like the unforeseen one under consideration become punishable ?

14. Before we conclude we also note that the present one cannot be said to be a local affair exclusively or for that matter even mainly inasmuch as there cannot be any dispute as to the presence and participation of outsiders as well in sufficient strength. In fact even the possibility of their preponderance cannot be ruled out.

15. Indeed, we have not been able to lay our hands on any authority on this point. Nevertheless, we have felt, on a reading of the entire Ordinance in question, that imposition of collec tive fine could not have been contemplated in a situation as the present. Only when some prejudicial acts, as defined in the Ordinance, continue to be committed in a particular locality, it is then and then alone that the Provincial Government may impose collective fine on the inhabitants thereof. The result, therefore, is that this rule is made absolute. The order of the Provincial Government imposing collective fine on the petitioner is directed to be cancelled. Having regard to the facts of this case, we make no order as to costs. A. S. CHOWDHURY, J.‑I agree. S. Q./K. B. A. Rule made absolute.