P L D 1968 Lahore 188 (PLP)

Now I am prepared to assume that the introduction of subsection (3) to section 18 was intended to have retrospective effect, for according to section which introduced this amendment, this subsection is to be 'deemed to have been added; but the mere fact that the introduction of sub section (3) was to be with retrospective effect will not necessarily lead to the conclusion that the use of the words 'as added' was intended to create a retrospective effect. The words 'as added' had to be used because subsection (3) had been later added and did not exist in the original Act. "That cannot be regarded as a determination of the question of retrospective effect as it has been raised in the present appeals. Here, the argument advanced, which we have accepted, is that by the wording of section 25, rights accrue to 'persons interested' who commence proceedings under section 18 and those rights accrue, not from the date of the award, but from the date upon which a notice under section 9 is issued by the Collector. The Collector's award was made on the 14th of March 1957, but the notice under section 9 was issued on the 3rd of November 1953. The question being one of sequestration of vested rights, not in any ordinary case, but in a case of compulsory expropriation under forms of law, express words or the very strongest of necessary implications would be required in order to uphold the contention made on behalf of the Corporation, namely, that by the Amending Act not only was the local authority made competent to move the Court, but the Court was also enabled to reduce the compensation below that awarded by the Collector, and all this with effect from the year 1894. In our view, and speaking with respect to the learned Judge, it is not possible to draw a conclusion of retrospective operation from the mere use of the words `shall be deemed to have been added without any indication of the intention of the Legislature as to the date from which the deeming was to take effect. The addition of the reference to deeming would then be mere surplusage and the phrase would be understood as in every way equivalent to the phrase 'shall be added'." Basing his arguments on the above passage, learned counsel submitted that in the instant case also by mere addition of subsection (3), it could not be held that the said subsection shall have retrospective effect, especially, when there was no direction in the Ordinance No. XVIII of 1965 that the said subsection shall be considered to have been added in the main statute, right from the time when the said statute came into force. In this way he submits that the present case is on a higher footing than Mahboob Fatima's case because there the amending. Act had rather directed that the newly‑added subsection shall be deemed to have been added. He further submits that the added sub section itself no doubt in the present case stated that the orders under delegated powers under section 31(2) shall be deemed always to have been subject to the incidents of appeal, etc., but this expression, he says was used because these words did not exist in the parent statute and were being added a new and for this reason the phraseology of deeming was used for a limited purpose ant that in no way had the effect of retrospective operation.

5. I have given my anxious thought to the arguments advanced by the learned counsel for the petitioner. The points raised are quite correct upto the stage that in sections 1(2) and 2 of the ordinance and para. 2(2) of the Schedule there is no indication that the amendments are to be retrospective. But the newly‑added subsection, however, is no couched that by itself it is retrospective in nature. In the case of Mst. Mahboob Fatima there was no indication of time from which the new subsection was deemed to have been added. In the instant case the time indication is there inasmuch as here the newly‑added subsection says that the orders referred to therein shall be deemed "always" to have been subject to appeal and revision, etc. Here the word "always" makes all the differences because it points out the time from which the addition is to be considered to be there. In Prabhakar Kondaji Bhapkar v. Emperor (A I R 1944 Bom. 119), it was laid down that the words that:‑-- "the following clause shall be substituted and shall be deemed always to have been substituted," can only mean that the new clause is substituted and the old clause from the date of its inception is to be read in the form of the substituted clause; otherwise if the new clause had always ,7 been substituted, as indicated by the words "shall be deemed always to have been substituted there would be nothing for which it could have been substituted.

6. There is an other reason to hold that the addition brought about by the Ordinance XVIII of 1965 is retrospective in nature and that is that this statute is a curative type of law which has been enacted to validate certain orders which were being passed on the assumption that the jurisdiction to bear appeal or revision in such types of cases existed. Prior to it there was confusion on the subject. In Mst. Jehan Ara Begum v. Chief Settlement and Rehabilitation Commissioner and others (P L D 1963 Kar. 725), it was held that such decision was final while in Abdua Ghani v. C. S. & R. C. and another (P L D 1964 Lah. 214), it was held that such orders were appealable and revisable. It was in this background and that the case of Supreme Court in Jalal Din and others v. Sh. Muhammad Rafaq etc. came, wherein it was held that such orders are not appealable or revisable. Then came the Ordinance in question on the 2nd of June 1965 and section 3 of this Ordinance which is handed as "validation" reads as follows:‑‑ "Validation.‑Anything done, action taken, order passed, rule made or notification issued, or purporting to have been done, take:, passed, made or issued, under any of the aforesaid Acts, before the promulgation of this Ordinance, shall be deemed to have been done, taken, passed, made or issued under such Act as amended by this Ordinance and shall have and shall be deemed always to have had effect accordingly." This clearly points out that this statute is of a curative character which was promulgated to cure the lacuna or defect in the old law, and from that point of view it is retrospective because it is well‑settled that curative or remedial statutes are generally retrospective in nature.

7. The second objection raised by the learned counsel was that if the Ordinance was retrospective in nature then it was an invalid piece of legislation inasmuch as it was contrary to the provisions of Article 225 of the Constitution of the Islamic Republic of Pakistan which directed that existing laws were to remain in force until altered, etc. He submitted that the mandate of the Constitution was to let an existing laws tin this case Act XVIII of 1958) remain in force until it was altered, while the effect of Ordinance XVIII of (965, if given retrospective operation, will be to do away with that mandate and to say that even though the Constitution directed an existing law to operate till such time it was altered; the Ordinance directed that it shall not operate and in its place a new law should be considered to have operated. According to Act XXVIII of 1958, orders of the kind involved in this case were not appealable as laid down in Jalal Din's case and this state of law, the learned counsel contended, should be considered to have remained operative till the 2nd of June 1965, when Ordinance XVIII of 1965 was promulgated. If that is so then the order of the S. C., which was passed on 15‑12‑1962, would be without jurisdiction and without lawful authority. The said Ordinance, the learned counsel contended, cannot overrun a Statute which has already run out during a particular period under the mandate of the Constitution itself. The learned counsel argued that the word `until' as used in Article 225 connoted a duration or a period and during that period or duration only Act of 1958, which was an existing law, can be considered to have operated and not the provisions added by the new Ordinance retrospectively. The learned counsel referred to Articles 12, 14, 49 (2), 52, 54(2), 56(3), 91(2), 94, 106, 108(9), 149, 158 (5), 165 (3), 182(2), 191(2), 193(1), 204(3), 211(7), 214(2), 222, 226(2), 229, 231, 233(2) and 237 of the Constitution where the word "until" was used to say that in all those places it was used in a sense denoting duration of time for which a thing, fact, event or set of circumstances was allowed to exist, function and operate. He also referred to the meaning of the word "until" as given by Ballentine in his law dictionary (1940 Edition at page 1320) for the purpose of showing that it was a term of exclusion. He referred to a number of cases for the purpose of showing that the word "until" denotes a period of time. As for example, Muhammad Ali Jullunduri v. Government of the Punjab (P L D 1954 Lah. 175), Isaacs and another v. The Royal Insurance Co. (1870 L R 5 Ex‑Chequer 296), Mason v. Mason ((1910) 1 Ch. 695), Levinstein v. Levinslein ((1921) 2 Ch. 251) and Clerks v. Menzies ((1922) 2 Ch. 298). Lastly, he placed reliance on Special Reference No. I of 1957 (P L D 1957 S C (Pak.) 219), which was a case wherein question for the interpretations of Article 225 of the late Constitution arose. The said Article directed that until new Assemblies were constituted the old Provincial Assemblies would continue to function. It was held by the Supreme Court that the word "until" denoted a period of time during which the old Assemblies had to continue and the Governor had no power to dissolve them earlier. Mr. Hafizur Rehman also referred to Fundamental Law of Pakistan by Mr. Brohi where at page 215 the learned author while opining that no retrospective law can be made wrote as follows:‑-- "It has been held in India that the Legislatures that have been created by the Constitution have the power to enact retrospective laws so as to reach even matters in the Pre Constitution period. (See A I R 1954 S C 158, the case of the Union of India v. Madan Gopal). It would, however, be noticed upon the perusal of the judgment in that case that although some observations have been made in support of the proposition that the Legislatures established under the Indian Constitution have the power to pass legislation touching and concerning pre‑constitution matters, it was held, on the facts of that case, that the impugned legislation, namely, the Finance Act of 1950 was not, as a matter of construction, a retrospective piece of legislation. The Court remarked that the Act was "prospective in operation in that it levied a certain charge of income‑tax and super‑tax at specified rates for the year beginning on the 1st of April 1950 it said the case is thus one where the statute purports to operate only prospectively, but such operation has, under the Scheme of the Indian Income‑tax law, to take into account income earned before the statute came into force. Such an enactment cannot strictly speaking, be said to be retroactive legislation, though its operation may affect acts done in the pact. `Their Lordships of the Supreme Court relied on the case of Queen v. St. Mary Whitechemal (1848) 12 Q B 120: 116 E R 811 in support of this view. If this view as to what retroactive legislation is, be regarded as correct, the dicta referred to above would become obiter since the reason for deciding the case will then be entirely a different one altogether. It is the view of the present writer that the Legislature established by the Constitution cannot pass laws affecting acts and omissions that have taken place before the coming into force of the Constitution. And before such an abnormal power could be suffered by Courts to be assumed by the Legislatures, it must be shown that it was expressly conferred upon them. Once it is conceded that the Legislatures, established by the Constitution are new legal institutions deriving their powers from the terms of the Constitution itself, it would be difficult to justify the assumption of the power by such newly‑created institutions to pass laws affecting acts and omissions countenanced by subjects during the pre‑Constitution period."

8. The arguments of the learned counsel for the petitioner are no doubt attractive but they are based merely on one side of the picture. There are certain other aspects as well and when examined in the light thereof the arguments of the learned counsel do not appear to be correct. My reasons for not accepting the contention of the learned counsel are as follows: (a) That as per Article 225(1) itself the existing laws are to remain in force "subject to the provisions of this Constitution". (b) That the Constitution in the relevant Articles authorises the relevant Legislature to enact laws into its own sphere and in that sphere the Legislature is Supreme and there is no E fetter on it that it cannot make retrospective laws. The principle is well settled but if authority be needed reference can be made to Mir Ahmad Nawaz Khan Bugti v. Superintendent District Jail, Lyallpur and two others P L D 1964 Lah. 202. (c) That Article 225(1) says that the existing laws are to continue until altered, repealed or amended by the appropriate Legislature but it nowhere says that the methods of alteration, repeal or amendment etc., is to be controlled by this sub. Article in any manner. For finding limitation on the powers of the Legislature, a reference may have to be made to some other provisions of the Constitution but not Article 225(1) itself. (d) The word "until" in Article 225(1) is not used entirely to connote a duration. It really means that existing laws are to continue so long as they are not altered, repealed or amended. In this respect reference can be made to a case reported as United Province v. Mst. Atiqa Begum and others A I R 1941 F C

16. In that case was involved section 292 of the Government of India Act, 1935, which reads:‑-- "

292. Notwithstanding the repeal by this Act of the Government of India Act, but subject to the other provisions of this Act, all the law in force in British India immediate before the commencement of Part III of this Act shall continue in force in British India until altered or repealed or amended by a competent Legislature or other competent authority." A question arose as to whether the power to make retrospective laws was in any way controlled by that section or not. In that connection it was argued that existing laws were to continue and there could not be made any law so retrospectively as to go beyond the constitutional Act itself. This argument was repelled and after reference to certain rulings of the Privy Council it was held that the section did not curtail the power of the Legislature to make retrospective laws vis‑a‑vis even the existing laws. It will be appreciated that the wording of Article 225(!) is almost similar to section 292 of the Government of India Act, 1935 and the law laid down by the Federal Court can hold good for the present Article 225(1) as well. It will Further be appreciated that the word "until" in this sub‑Article is not used in the same sense in which it is used in the various G other Articles referred to by the learned counsel for the petitioner. That it can be possible to give a different meaning to this word with reference to the context in which it may be placed is clear from Special Reference No. 1 of 1957. (e) Lastly, it may be mentioned that even if it be possible to have two meanings of Article 225(1), one which allows the Legislature to remain supreme and make retrospective laws and the other as not to let it remain supreme, then I would prefer to follow that construction which will allow the Legislature of this country also to remain sovereign and Supreme. Secondly, if with regard to new laws the Legislature can make them retrospective, there is no justification to curtail its supremacy and sovereignty in these spheres where it is to touch the existing laws and thus make the Legislature subordinate to existing laws. From that point of view, existing laws cannot be given any higher status than any other law which may be made or altered prospectively or retrospectively. The view which I have taken regarding the powers of the Legislature was taken by Inamullah Khan, C. J., in Sh. Riaz‑ud- Din Ahmad v. C. S. C., Lahore and another (P L D 1966 Lah. 43), and I do not see any reason to differ from the same.

9. The third objection taken by the learned counsel for the petitioner was that if a retrospective law is made it will conflict with Article 2 of the Constitution which guaranteed that it was an inalienable right of a person to be governed by law and law alone. The learned counsel submitted that the law referred to in that Article must be the law prevalent at the time when the dispute or matter arose and not a subsequent law made to operate retrospectively. For this he relied upon a Full Bench ruling of Dacca High Court reported in Haji Ghulam Zamin and another v. A. B. Khondkar and others (P L D 1965 Dacca 156). This argument was considered by Qadeer‑ud‑Din, J., in Writ Petition No. 222/R of 1963 decided on the 6th of January 1966 and it was held that the principle laid down in the Dacca case was not applicable to the Ordinance XVIII of 1965. Relevant passage in the judgment of the learned Judge runs as follows:‑

"The observations that are contained in the Full Bench Judgment of the High Court of East Pakistan, to which reference has been made above, are clearly distinguishable on the ground that in the case which was under consideration the impugned notification was issued at a time when there was no law which could justify its issuance. Thus, it amounted to treating those who were hit by it otherwise than in accordance with law. By subsequent and retrospective Legislation that defect of the notification was sought to be cured. Therefore, the learned Judges of the High Court had pointed out that it amounted to taking away a constitutional right by a contrivance or a Legislative fiction. In the present case, the action which was taken was the result of mistaken application of law and not without the basis of any law. If the law has been changed and now that question is to be decided according to the existing law then it will not be right to say that an action which was taken without law, is not sought to be supported by law. Moreover, fn this case the amendment which has been made conferred the power of hearing appeals and revisions on certain officers of the Settlement Department. It is the consequence of the exercise of that power of hearing appeals and revisions which is the cause of complaint by the petitioner and not direct interference of the amendment with any right of the petitioner." Respectfully following the same view I also hold that the Dacca case is not applicable to the facts and circumstances of the present case.

10. From what has been stated above, it is concluded that the order of the Settlement Commissioner was well within his authority and he had ample jurisdiction to hold the property as one unit even though D. S. C., or the Additional Settlement Commissioner had divided it into various portions. The learned counsel for the contesting respondent submitted that in the instant case the D. S. C./Additional S. C., held that there were three shops and one residential portion in this property and while so holding they had not exercised delegated powers of dividing the property but only their normal powers. This is not so because in the case of Muhammad Siddiq and two others v. C. S. & R. C. and two others (P L D 1965 S C 123), where such an order was passed it was considered to fall within the delegated powers. Same was the position in Abdul Ghani v. The Chief Settlement and Rehabilitation Commissioner, etc. (P L D 1964 Lah. 214).

11. No other point was urged before me.

12. For the reasons aforesaid, there is no force in the writ petition which is hereby dismissed leaving the parties to bear their own costs.

13. As regards Writ Petition No. 1005/R of 1963, the learned counsel for the petitioner adopted the arguments raised by Sh. Hafiz‑ur‑Rahman and did not advance any new point. The said writ petition, therefore, also has no merit and is hereby dismissed leaving the parties to bear their own costs. K.M.A. Petition rejected.