P L D 1959 Supreme Court (Pak (PLP)

Jamil Hussain Rizvi, Advocate‑General, West Pakistan, (Khurshid Ahmad, Advocate, Supreme Court, with him) instructed by Ijaz Ali Attorney for Respondents. Date of hearing: 13th January, 1959. AMIRUDDIN AHMAD, J: These two appeals arise out of two petitions for Writ No. 190 of 1957 dated the 27th February 1957 and No. 492 of 1957, dated the 10th May 1957, made to the High Court of West Pakistan, Lahore, by the Operators of Stage Carriages, 38 in number in Writ Petition No. 190 and 1 in Writ Petition No. 492, praying for the issue of writs of mandamus or any other appropriate writ or direction or order restraining respondents from enforcing the payment of taxes under the Motor Vehicles Taxation Act, 1924, for the quarter from 1st ` January 1957 to 31st March, 1957 in the former petition and 1st April .1957 to 30th June 1957 in the latter. The grounds taken in both the petitions were that the Punjab Motor Vehicles Taxation Act, 1924, under which the demand was made, having been repealed by the West Pakistan Motor Vehicles Taxation Ordinance, 1956, no demand under the repealed Act could be legally made, and further that under Article 93 of the Constitution of Pakistan of 1956, no tax could be levied for the purpose of a Province, except by or under the authority of an Act of the Provincial Legislature, and therefore the demand for the recovery of taxes was not being made under any valid or subsisting Act of the Provincial Legislature and was unenforceable. The reply to the first petition on behalf of the Province of West Pakistan was that the Government wanted to realise taxes in accordance with the Ordinance, which was in force at the time the writ petition was made, but as the transporters protested, as a stop‑gap arrangement Government issued administrative orders dated the 16th February 1957 to realise taxes at the old rates, namely, under the Act of 1924, but that as this order was modified by an order dated the 3rd April 1957; by which directions were given to realise taxes in accordance with the Ordinance, the petition had become infructuous. With regard to the second petition, the reply was that during the period of demand the Ordinance having lapsed, the Motor Vehicles Taxation Act (IV of 1924), which was purported to have been repealed by the Ordi nance revived and was in force at the time as a valid existing law, and the demand under it was valid and enforceable. The High Court disposed of both the petitions by one judgment on the main ground that subsection (2) of section 4 of the West Pakistan General Clauses Act was ultra vires of Article 102 of the Constitution of 1956, as it held that there was a conflict between them, and dismissed the petitions. These two appeals by the Transport Companies arise out of that judgment. In order to deal with the points raised before us for and against these appeals at the Bar, it is necessary to state certain facts, with regard to which there is no controversy. Up to 17th December 1956 taxes were realised from these Transport Companies, which all operate within the area of the old Province of the Punjab, under the Punjab Motor Vehicles Taxation Act (IV of 1924). After the creation of the Province of West Pakistan as One Unit and the Constitution of 1956 had come into force, the Governor of West Pakistan promulgated Ordinance No. XXXV of 1956 in exercise of the powers conferred on 'him by Article 102 of the said Constitution, which was published in a Gazette Extraordinary, dated the 20th December 1956, and which was deemed to have come into force on the 1st day of October 1956. Instead of the rate of taxes that were realised in the Punjab under the Act of 1924 and other Acts in other areas of the Province of West Pakistan with different rates, flat rates of taxation were prescribed for the whole Province. The Ordinance also repealed by its paragraph 17:‑ (a) The Punjab Motor Vehicles Taxation Act, 1924. (b) The North West Frontier Province Motor Vehicles Taxation Act, 1936. (c) The Sind Motor Vehicles Taxation Act. 1939. (d) The Punjab Motor Vehicles Taxation Act, 1924, as applicable to the area in the State of Bahawalpur, and (e) The Sind Motor Vehicles Taxation Act, 1939, as appli cable to the area in the State of Khairpur. It may be stated here that the flat rates prescribed in this Ordinance were slightly lower in incidence than those realised in the Punjab under the Act of 1924. After the promulgation of the said Ordinance, the West Pakistan Provincial Assembly met on the 28th of January 1957 and the Ordinance was actually laid before it on the 8th of March 1957, but the Assembly before it could replace it by an Act of Legislature was itself suspended by the President under Article 193 of the late Constitution. The Ordinance, therefore, was only valid for six weeks beyond the 28th January 1957 under Article 102 of the Constitution, and ceased to operate on the 11th March 1957. The Act in which the Ordinance was embodied in the form of a statute (Act XXXII of 1958) was passed by the Legislative Assembly and the assent thereto of the Governor was first published in the Official Gazette on the 24th April, 1958. It may be noted here that the demand in the first case in the first instance was under Ordinance for the period from Ist January 1957 to 31st March 1957, and under clause 3 of the Ordinance, it is provided that any broken period in such quarterly periods shall, for the purpose of levying the tax, be considered as a full period'. But as the appellants protested, Government had issued administrative orders dated the 16th February 1957, to realise taxes at the old rates under the Act of 1924, which gave rise to the first writ petition. During the pendency of the writ petition and long before it was disposed of, Government modified the said order and issued a direction that in respect of the quarter covered by the first petition the taxes were to be recovered under the. West Pakistan Motor Vehicles Taxation Ordinance, 1956. It was, therefore, contended on behalf of the respondents in Appeal No. 78 of 1958, which arise out of the first petition, that the writ petition had been rendered infructuous. Mr. Brohi, who appeared for the appellants, in both the appeals, argued that subsection (2) of section 4 of the West Pakis tan General Clauses Act (VI of 1956), as amended by West Pakis tan General Clauses Amendment Act, (III of 1957), puts repeal by Ordinance on the same level as repeal by an Act as regards its effect on the repealed Act. Section 6 of the General Clauses Act, 1897, which applies to Central Acts and is the same as section 4 of the said West Pakistan Act, on the other hand only applies to repeal by Act and not by an Ordinance, there being no correspond ing subsection (2) as in section 4 of the West Pakistan Act. That in the present case we are only concerned with the West Pakistan General Clauses Act, as the Ordinance was promulgated by the West Pakistan Governor. That if a temporary Act passed by the Legislature can repeal a permanent Act, an Ordinance made by the Governor can also do so under subsection (2) of section 4 of the West Pakistan Act and with the same effect. He relied on clause (a) of subsection (1) of section 4 of the Act. Section 4 of the Act is as follows:‑ "(1) Where this Act or any other West Pakistan Act repeals any enactment then unless a different intention appears, the repeal shall not‑ (a) revive anything not in force or existing at the time , at which the repeal takes effect ; (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder ; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed ; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed ; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty forfeiture or punishment as aforesaid; and any such investiga tion, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment maybe imposed as if the Repealing Act had not been passed. (2) The provisions of subsection (1) shall apply on the expiry or withdrawal of any Ordinance promulgated by the Governor under section 88 of the Government of India Act, 1935, or Article 102 of the Constitution, as if it had been repealed by a West Pakistan Act." That the Governor's powers to legislate are co‑extensive with that of the Provincial Assembly and therefore there is no question here of a subordinate 'Legislature repealing an Act of a higher authority: That Act XXXII of 1958, which re‑enacted the Ordinance, did not do so with retrospective effect. That the result, therefore, was that there was no law, under which motor tax could be levied after .the expiry of the Ordinance and before the said Act XXXII was passed and in the interval the appellants would not be liable to pay any tax. On the other hand, the Advocate‑General appearing on behalf of the respondents contended that the repeal was to last temporarily only for the life of the Ordinance and that this was the intention is evident from the fact that in the proposed Act, which was to supersede the Ordinance, the repeal of those very Acts was again provided for. That subsection (2) of section 4 of the said West Pakistan Act was not valid and that where a temporary statute repeals a permanent statute, the repeal is also temporary and operates only by repugnancy, and so when the Ordinance in question expired, the old taxing Act of 1924 revived. One or two cases were cited at the Bar but they had no real bearing on the point under consideration in these cases, and need not be mentioned. We are unable to accept Mr. Brohi's arguments, which carries with it the implication that during the interval of more than 13 months between the expiry of the Ordinance on the 11th of March 1957 and the coming into force of Act XXXII of 1958 on the 24th of April 1958, there was a blank in the statute book on the subject of imposition of tax on motor vehicles in West A Pakistan, as according to Mr. Brohi, on the expiry of the Ordinance the old Taxation Act of 1924 was not revived. The general principle is that the duration of a statute passed by an authority empowered to pass permanent laws is prima facie perpetual unless it is intended to be temporary, and the Act of 1924 was a permanent Act. Now the question is whether it could be permanently repealed by an Ordinance made by the Governor? The Governor derived this power from Article 102 of the late Constitution, the relevant portions of which run thus:‑ "(1) If at any time, except when the Provincial Assembly is in session, the Governor 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 the Provincial Legislature ; but the power of making Ordinances under this clause shall be subject .to the like restrictions as the power of the Provincial Legislature 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 (i) shall be laid before the Provincial Assembly and shall cease to operate at the expiration of six 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." It follows from the language of this Article that the legislative power of .the Governor was limited by the following conditions:‑ (1) that the Provincial Assembly was not in session, (2) that immediate action was necessary, (3) that the Ordinance was liable to be laid before the Provincial Assembly when it met next, and (4) that it was to cease to operate (a) if a resolution disapproving it was passed, and (b) in any event at the expiration of six weeks from the meeting of the Assembly. The powers of legislation of the Governor, therefore, were of a transitory, temporary and contingent nature. They are, no doubt, co‑extensive with those of the Provincial Assembly, as argued by Mr. Brohi, but this can be said only with regard to the field of legislation as regards the Provincial list and the con current list of subjects as given in the Fifth Schedule to the late Constitution. But it is evident that the powers of the Assembly are more extensive inasmuch as it was empowered to enact permanent Acts at all times not subject to any limitations as the Governor's powers are meant to be by Article 102, which are to C be exercised in emergency and with temporary effect only, and carry with them the implication that when a permanent Act is repealed by an Ordinance, the Act will revive on the expiry of the Ordinance. In these cases we are only concerned with the question of the entire repeal of a permanent Act by an Ordinance and we are not called upon to decide the effect of mere amend ment of any text of an Act. In the view that we have held. subsection (2) of section 4 of the West Pakistan General Clauses Act, 1956, as amended by West Pakistan General Clauses Amendment Act (III of 1957), which puts the effects of repeal of a permanent statute by an Act of the Provincial Legislature and by Ordinance on the same footing by extending the application of clause (a) of subsection (1) of section 4, is to that extent ultra vires. The Governor having no power of permanent legislation, the permanent repeal of a perpetual statute by Ordinance is ultra vires, and the repealed Act revives as soon as an Ordinance `ceases to operate` irrespective of the fact whether in the Ordinance the repeal was intended to be permanent or With regard to the first petition for writ the period of demand of the tax is covered by clause 3 of the Ordinance while it was in force. The previous demand under the Act of 1924 having been withdrawn by the Government before the hearing of the writ petition, the petition became infructuous. Both the appeals having been directed against the demand under the Motor Vehicles Taxation Act, 1924, on the ground that the Act did not survive the Ordinance are, therefore, dismissed, with costs in Appeal No. 79 of 1958 only. On the same matter a direct petition for writ by 54 Motor Transport Companies to enforce their Fundamental Rights under Article 5 of the late Constitution was made and heard alongwith these appeals. In view of the lapse of fundamental Rights, on the abrogation of the Constitution, the petition way withdrawn and is dismissed. A.H. Order according.