P L D 1959 (W (PLP)

KAIKAUS, J.‑‑‑This judgment will dispose of Writ Petition No. 23 of 1957 and Criminal Revision No. 38 of 1958, the point of law arising in which is common.

2. In Writ Petition No. 23 of 1957 the facts, in so far as they are relevant to the question of law which is to be deter mined, are that 223 kanals 12 marlas of land, owned by one Sawan Singh and situate in village Ghogha, District Gujranwala, were purchased by the petitioners in the year 1942 by means of a registered sale deed. A suit to pre‑empt this sale was filed by Fauja Singh, son of the vendor, and was decreed on the 28th of June 1944. Fauja Singh decree‑holder sold the land in dispute in favour of Fauja Singh, Dalip Singh and Tarlok Singh sons of Sant Singh. As Fauja Singh and others were evacuees, the Rehabilitation Department treated this land as evacuee property. The present petitioners filed an application before the Deputy Custodian, Evacuee Property, Gujranwala, on the 3rd of November 1954 under section 18 of Ordinance XV of 1949, i.e the Administration of Evacuee Property Ordinance, claiming that the land still belonged to them. The plea was that the decree for possession by pre‑emotion had not been executed and its execution having become time barred, the decree‑holder lost all rights in the land and the ownership remained vested in the vendees, i. e., the petitioners. The application was dismissed by the Deputy Custodian, but an appeal against the order of the Deputy Custodian to the Deputy Custodian General was accepted on the 16th June 1956 and it was held that the rights of Fauja Singh or his transferees were extinguished in the end of July 1957 and that no evacuee had any interest in this property. Against the order of the Deputy Custodian General, Khushi Muhammad, an allottee, preferred a revision to the Custodian under section 36 of Ordinance XX of 1956 which Ordinance had, by this time, taken the place of Ordinance XV of 1949. On 23rd of December 1956 this revision was accepted and it was held by the Custodian that the land in dispute was evacuee property.

3. The contention of learned counsel for the petitioners is that Ordinance XX of 1956, under section 36 of which the Custodian heard the revision, was void because it was merely the re‑enactment of an Ordinance that had expired and there was no authority in the President to re‑enact an Ordinance which had expired. As Ordinance XX of 1956 was void, the Custodian heard the revision without any legal authority and his order in revision being void, the order of the Deputy Custodian General of 16th June 1956 still stands.

4. In order to appreciate the argument some facts and some provisions of law have to be referred to. On the 13th of August 1948, there was a proclamation of emergency by the Governor General of Pakistan under section 102 of the Government of India Act. On account of this proclamation the Federal Legis lature was empowered to make laws for the Provinces even with respect to matters enumerated in the Provincial List, and the Governor‑General also became empowered to promulgate Ordi nances with respect to such matters. On the 15th of October 1949, the Governor‑General made the Administration of Evacuee Property Ordinance by virtue of his powers under section 42 of the Government of India Act. This Ordinance would, in accordance with section 42 as it originally stood, have remained in force only till the expiry of six weeks from the meeting of the Federal Legislature, but by virtue of an amendment of section 42 of the Government of India Act, effected by the Pakistan (Provisional Constitution) Order, 1947, subsection (3) of section 42, which provided for the duration of the Order, had been deleted and the Ordinances promulgated by the Governor General had the same duration as Acts of the Legislature. (This amendment was later withdrawn and subsection (3) was restored with effect from the 31st December 1949). However,' Ordinance XV of 1949 would not, on account of this amendment of section 42, have become a permanent measure because it had been promulgated pursuant to a proclamation under section 102 of the Government of India Act and by virtue of subsection (4) of that section all laws which the Federal Legislature could not have made but for the proclamation were to cease to have effect on the expiry of six months from the date on which the proclamation ceased to operate. The proclamation ceased to operate on the 23rd of March 1956, i.e., the Constitution Day, and in accordance with section 102 (4) of the Government of India Act, Ordinance XV of 1949 would have expired on the 22nd of September 1956. This, at least, was the general impression till their Lordships of the Supreme Court held that by virtue of Article 224 of the Constitution all Ordinances, which were in operation on the 23rd of March 1956, became permanent laws. As it was apprehended that Ordinance XV of 1949 was to expire on the 22nd of September 1956, the President promulgated, on the 22nd of September 1956, Ordinance XVIII of 1956 which was in the same terms as Ordinance XV of 1949. The preamble to this Ordinance states that as Ordinance XV of 1949 is, in accordance with section 102 of the Government of India Act, to cease to have effect six months after the Constitution Day, this Ordinance is being promulgated. By section 58 of this Ordinance, Ordinance XV of 1949 was repealed. Ordinance XVIII of 1956 had been promulgated by the President by virtue of his powers under Article 69 of the late Constitution and in accordance with that Article it was to cease to operate on the expiry of six weeks from the next meeting of the Assembly. The Assembly met on the 7th of October 1956 at Dacca. The Ordinance should have been placed before the Assembly. It was not so placed, but no particular argument has been based on the fact that it was not so placed. Learned counsel for the petitioners has only contended that it was to expire six weeks after the meeting of the Assembly as it would have expired if it had been placed before the Assembly and no resolution had been passed with respect to it. As the Assembly had met on the 7th of October 1956, Ordinance XVIII of 1956 would have expired on the 18th of November 1956. On the 17th of November 1956 was promulgated Ordinance XX of 1956. This Ordinance is in the same terms as Ordinance XVIII of 1956. Its preamble states that as Ordinance XVII1 of 1956 is by virtue of Article 69 to expire on the 18th of November 1956 and the Assembly is not in session, this Ordinance is being promulgated.

5. The contention of learned counsel for the petitioners is that once an Ordinance expires, there is no power left in the President to re enact it. It would be convenient to reproduce here Article 69 of the Constitution :‑ "69.‑(1) If at any time, except when the National Assembly is in session, the President is satisfied that circumstances exist which render immediate action necessary, he may make and promulgate such Ordinances as the circumstances appear to him to require, and any Ordinance so made shall have the like force of law as an Act of Parliament, but the power of making Ordinances under this clause shall be subject. to the like restrictions as the power of Parliament to make laws, and any Ordinance 'made under this clause may be controlled or superseded by any such Act. "(2) An Ordinance promulgated under clause (1) shall be laid before the National Assembly, and shall cease to operate at the expiration of sic weeks from the next meeting of the Assembly, or if a resolution disapproving it is passed by the Assembly, upon the passing of that resolution. "(3) At any time when the National Assembly stands dissolved, the President may, if he is satisfied that circumstances exist which render such action necessary, make and promul gate an Ordinance authorising expenditure from the Federal Consolidated Fund, whether the expenditure is charged by the Constitution upon that Fund or not, pending compliance with the provisions of Articles 63, 65 and 66. "(4) As soon as may be after the date of the reconstitution of the National Assembly, any Ordinance promulgated under clause (3) shall be laid before the Assembly, and the provisions of Articles 63, 65 and 66 shall be complied with within six weeks from that date." Reliance is placed upon subsection (2) in accordance with which the Ordinance is to cease to operate on the expiry of six weeks from the meeting of the Assembly. It is contended that in view of Article 69 (2) the life of the expiring Ordinance could not have been extended and if its life could not have been extended, to re‑enact its provisions would amount to continuing its life by indirect means.

6. The question as to whether the contents of an Ordinance can be re‑enacted has been discussed at length by a Full Bench of this Court to which this specific question had been referred in State v. Tirathmal & Co. (1), and it has been held that while there is no power to continue the life of an expiring Ordinance there is no objection to the re‑enactment of its provisions. That case related to Article 102 of the Constitution which confers the powers of promulgating Ordinances on the Governor, but clauses (1) and (2) of Article 69 are in the same words as clauses (1) and (2) of Article 102 and there is no ground for making a distinction between the powers of the President and a Governor in this respect. Nothing has been said .in the argument before us which would make us differ from that judgment. In view of the detailed discussion in that judgment it is not necessary to discuss the matter at any length, but we will briefly deal with the argument put forward.

7. The gist of the argument, as in fact has already been indicated above, is this. An Ordinance which continued the life of an expiring Ordinance would be in conflict with Article 69 (2) of the Constitution. To re‑enact the provisions of an Ordinance would amount to extending the life of an expiring Ordinance by indirect means. What the law prohibits should not be allowed to be achieved by an indirect method.

8. At first sight this argument has an appeal, but it does not take one long to appreciate that this is only a superficial view, and that there are almost insuperable difficulties in the way of the interpretation which learned counsel for the petitioners puts upon Article 69 (2).

9. The logical conclusion of the interpretation contended for by the learned counsel for the petitioners would be that once an Ordinance expires it can never be re‑enacted. His simple (1) Criminal Reference No. 242 of 1958 argument is that as the life of an Ordinance cannot be extended you can never re‑enact what was contained in that Ordinance. On this argument even after a hundred years the contents of an expired Ordinance could not be re‑enacted by the President or the Governor, but this obviously leads to an absurdity. Situations may arise again and again wherein the President or the Governor may have to' enact wholly or partly what he enacted by an Ordinance that has expired. Let us assume that an Ordinance is promulgated and is placed before the Assembly. At that time the circumstances are such that the Assembly does not feel the need of continuing it beyond six weeks from the meeting of the Assembly because the emergency seems to be disappearing. The assembly is, therefore, content to leave matters as they are, but the moment the Assembly session concludes, circum stances aggravate and there is again a need of the same or similar provision. Could it then be said that the Governor would have no authority to promulgate an Ordinance with the same content ?

10. Faced with this situation, the only argument which can be put forward on behalf of the petitioners is that the Governor should have power to re‑enact an Ordinance if there is a fresh emergency. An obvious objection to this argument is that the validity of the Ordinance will, in that case, depend upon a decision by the Court as to whether the same emergency had continued when the Ordinance was re‑enacted or whether there was a fresh emergency. Such a matter is not really one for the determination of the Courts and it is difficult to impute to they framers of the Constitution an intention that the Courts should determine the validity of an Ordinance after finding whether the emergency had only continued or whether there was a fresh emergency. The question whether the emergency was the same or a fresh one may sometimes be very difficult, if not impossible, to decide. We may here refer in passing to the opinion of the learned Chief Justice of the Calcutta High Court in re Anukul Chandra Parihal (A I R 1933 Cal. 278), where he said that even when the same circumstances continue, the emergency may well be regarded as having arisen again. The learned Chief Justice was dealing with an argument that the Governor‑General could not re‑enact an Ordinance promulgated under section 72 of the Government of India Act, 1919, because the emergency was the same. Whether there is a continuing or a fresh emergency, is in any case, a matter of opinion and subjective consideration and not a matter on which decision as to validity of Ordinance should be based.

11. Once we reach the conclusion that it is not possible to determine the validity of an Ordinance on a decision of the question as to whether the emergency is fresh or continuing, there is no possible argument in favour of the petitioners, because they cannot contend that in a fresh emergency there should be no re‑enactment of the Ordinance.

12. We may also refer here to the circumstances that existed in Maulvi Tamiz‑ud‑Din Ahmad v. The Province of East Bengal (P L D 1949 Dacca 1), and which are an excellent illustration of how there is need for power to re‑enact an Ordinance even though the emergency remains the same. In that case the Ordinance had been promulgated and placed before the Assembly. The Assembly approved of it and made it into an Act. The Governor, thinking that some Central subject was also involved, reserved the Act for the assent of the Governor‑General. The assent of the Governor-General had not yet been received when the Ordinance was about to expire. Faced with this the Governor made an Ordinance continuing the life of the expiring Ordinance. Now, what the Governor did was not technically correct, for he did not re enact the provisions of the Ordinance and simply provided for the continuation of the life of the expiring Ordinance. But the case illustrates the need of a power of making an Ordinance with respect to even a continuing emergency. Orders for detention had in that case been passed under the expiring Ordinance. The Governor and the Legislature both wanted the orders to be given effect to, yet unless the Governor had power to re‑enact an Ordinance, the orders of detention would have become void.

13. It is not correct even that by re‑enacting the provisions of an Ordinance the same result is achieved as is achieved by continuing its life. As has been explained in the Full Bench case the effect of expiry and re‑enactment of an Ordinance is different from the effect of continuation of its life. In the case of expiry the Ordinance is deemed never to have existed except for trans actions past and closed. But if the life of the Ordinance is continued it does not expire at all and the results which follow expiry do not come into existence.

14. Although we are not agreeing with learned counsel for the petitioners with respect to the powers of the President to re enact an expiring Ordinance, there is another objection raised by Mr. Fazal‑e‑Ghani, who appears for the respondents, which too is a sufficient answer to this writ petition. It is contended by Mr. Fazl‑e‑Ghani that Ordinance XV of 1949, had, by virtue of Article 224 of the late Constitution, become a permanent law and that if Ordinance XX of 1956 was void, then Ordinance XV of 1949 was still in force and the revisional power of the Custodian did exist on the date when he passed the impugned order. That an Ordinance which was in force on the 23rd of March 1956 acquires permanency and continues in force till repealed or altered is established by the judgment of their Lordships of the Supreme Court in Jibendra Kishore Achharyya Chowdhury v. The Province of East Pakistan (P L D 1957 S C (Pak.) 9). The subsequent Ordinance, viz., XVIII of 1956 and XX of 1956, were therefore superfluous and even if they had never been promulgated a revision before the Custodian was competent. The only point to consider in this connection is the effect of the repeal of Ordinance XV of 1949, by a provision to that effect in Ordinance XVIII of 1956. The effect would be that for the time being Ordinance XV of 1949 would stand repealed, but as Ordinance XVIII of 1956 was only a temporary statute, the repeal would be only temporary, that is, till the life of that statute, with the result that the moment the temporary statute expired, Ordinance XV of 1949 would again emerge. Ordinance XVIII of 1956 expired on the 17th of November 1956 and from that date again the Ordinance XV of 1949 would be in force. The proposition that on the expiry of a temporary statute any repeal effected by it would terminate and the enactment repealed would again emerge is also established by a judgment of their Lordships of the Supreme Court in Sargodha Bhera Bus Service v. Province of West Pakistan (I). In that case the Motor Vehicles Taxation Act (IV of 1924) had been repealed by the Motor Vehicles Taxation Ordinance V of 1956. The Ordinance had expired on the 11th of March 1957. The Motor Vehicles Taxation Act of 1958 had come into force on the 24th of April 1958. The question was whether during the interval between the 11th of March 1957 and the 24th of April 1958 there was any law relating to motor taxation in existence. It was held by their Lordships that on the 11th of March 1957 the Motor Vehicles Taxation Act of 1924 had again come into existence.

15. We find, therefore, that in the first place the argument put forward by the learned counsel for the petitioners as to the invalidity of Ordinance XX of 1956 has no force and, in the second place, even if Ordinance XX of 1956 was void, there was in force Ordinance XV of 1949 on the date on which the revision before the Custodian was lodged or decided. The order of the Custodian, therefore, was perfectly valid.

16. The facts in Criminal Revision No. 38 of 1958 are that the petitioners sold, on the 7th of October 1956, ten seers of sugar at Rs. 2‑8‑0 per seer as against the scheduled rate of Rs. 1‑4‑0 and the sale was made to a person who did not possess a ration card. They were challaned for contravening the Punjab Sugar (Distribution and Licensing Control) Order, 1952, in accordance with which sale of sugar for a price in excess of the scheduled rate or to a person without a ration card is an offence. The Magistrate, before whom the case was pending, framed charges under the West Pakistan Sugar (Distribution and Licensing Control) Order, 1957, which had been promulgated under Ordinance XI of 1957. The petitioners challenged Ordinance XI of 1957 on the ground that it was a re‑enactment of Ordinance I of 1957, but we find that the validity of that Ordinance was irrelevant for their case. Although the charge framed against them was under the Order as well as the Ordinance of 1957, neither the Order nor the Ordinance had any application to their case because the alleged offence had been committed on the 7th of October 1956 before the Ordinance or the Order was promulgated. As, however, this was only a technical objection and it would not have done the petitioners any good if the charge had been amended and the Order of 1952 was substituted in place of the Order of 1957, we allowed learned counsel for the petitioners to argue that Ordinance XVI of 1956, by which the Punjab Sugar (Distribution and Licensing Control) Order, 1952, had been continued, was void. The only ground on ~' which he attacked the Ordinance was the one which had been argued in Writ Petition No. 23 of 1957. He contended that as (1) P L D 1959 S C (Pak.) 127 Ordinance XVI of 1956 only re‑enacted the provisions of Ordinance VIII of 1956, it was void. He did not put forward any fresh argu ment and simply associated himself with the argument of learned counsel for the petitioners in the writ petition. We have already discussed that matter and we reject the contention. We hold that the Punjab Sugar (Distribution and Licensing Control) Order, 1952, is valid.

17. As a result, both the writ petition and the criminal revision are dismissed. In the writ petition the respondents shall have their costs from the petitioners. A. H. Petitions dismissed.