P L D 1969 Supreme Court 430 (PLP)

HAMOODUR RAHMAN, C. J.‑This is an application by the appellant, Works Co‑operative Housing Society, in Civil Appeal No. 13 of 1968 (Works Co‑operative Housing Society arid another v. The Karachi Development Authority), for clarification of the last paragraph of the judgment delivered by this Court on the 30th of May 1968, which was to the following effect :‑‑ "We, therefore, allow this appeal and issue a direction to the Karachi Development Authority that they should honour the commitment of the Government expressed in the notification of the Provincial Government dated the 9th of June 1964, in respect of commitment to the appellant‑society and not to depart from the direction given in that notification, so long as it stands intact." In this appeal, the Society, which is a housing Society, claimed that under the notification of the Provincial Government issued on the 9th of June 1964, the Karachi Development Authority was committed to allot to it 500 acres of land, on Country Club Road, Karachi, The Development Authority had, it appears, as a matter of Policy, decided not to allot any land to any Co‑operative Society and was, therefore, refusing to honour the commitment contained in the above‑mentioned notifica tion in favour of the appellant‑Society. The Development Authority claimed that since the notification itself gave power to make the allotment "as far as possible", it had vested the Authority with the right to disregard the commitment in view of the change in its Policy. This Court held that the construction sought to be placed by the Karachi Development Authority on the direction contained in the Notification of the Provincial Government with regard to the appellant‑Society, was erroneous. It did not give the Development Authority any unfettered discretion to completely ignore the appellant‑Society. In the opinion of this Court the appellant Society's right could be defeated only if a case was made out that due to physical factors, beyond the control of the Karachi Development Authority, allotment was no longer possible. Such a physical difficulty, it was further explained, could only arise if the Development Authority had, in the meantime, made an allotment to some other party and that party had actually, in pursuance of such allotment, constructed buildings thereon. Mere paper allotments to others, who had not put up any construction, could not, it was said, involve any difficulty in the way of honoring the commitment made to the appellant‑Society. It appears, however, that after hearing arguments in the appeal orders were reserved, so as to enable the learned Advocate- General, then appearing on behalf of the Development Authority, to find out from the Provincial Government if it was prepared to withdraw the notification or to modify it so as to remove the obligation of the Karachi Development Authority to allot land to the appellant‑Society. This, the Court was subsequently informed, the Provincial Government was not prepared to do. It was in these circumstances that this Court directed the Karachi Development Authority, not to depart from the commitment contained in the, notification, so long as it stands intact. After the judgment of this Court the Appellants applied to the High, Court of West Pakistan for possession, presumably by way of execution of judgment. The Development Authority appeared in these proceedings before the High Court and on 24‑9‑68 agreed to implement the order of this Court but tools; three weeks time to formulate its demands with regard to the deposit of money or the giving of a bank guarantee as a preliminary step to the handing over of possession of the land. On the 15th October 1968, however, the Development Authority filed two further Gazette notifications, dated the 3rd of October 1968, and the 14th of October 1968, respectively whereby the obligation of the Karachi Development Authority to allot land to the appellant‑Society under the notification of the 9th of June 1964, was purported to be deleted. The appellants contended before the High Court that the subsequent notifications were of no consequence, for they could not take away the right given to them by the judgment of this Court, as this would be opposed to the Constitutional provisions of Article 64; which enjoined upon all executive and judicial authorises throughout Pakistan to act in aid of the Supreme Court. The notifications could not also, it was contended, take away a vested right retroactively. The High Court, after hearing the parties, expressed the opinion that the question was one which should be more appro priately agitated before this Court, because, the excitability of the judgment was being questioned in view of certain observations made in the judgment itself. Hence this application. The Karachi Development Authority has also filed an appli cation praying that the Provincial Government should be added as a party to these proceedings, as, in fact the vires of the subsequent notifications of the Provincial Government is being challenged. in the appeal itself, it has to be pointed out, the Provincial Government was not made a party, although there too a question of interpretation of the notification of the Provincial Government itself was involved. The Provincial Government has also not itself come forward to intervene in these proceedings. We are, therefore; of the opinion that the presence of the Provincial Government is not necessary. The question raised here is not one relating to the vices of the notifications but to their applicability. The application of the Development authority is therefore rejected. With regard to the application of the appellant‑Society the contention of the respondents is that by the judgment of this Court the appellant‑Society was only given a contingent right and it had acquired no indefeasible or vested right to the allotment, for, this Court itself had observed that so long as the notification of 9th June 1964, stands intact, the Development Authority cannot depart from the direction contained therein. This, it is, urged, clearly contemplated that the Provincial Government could alter the situation by withdrawing or modify ing that notification. Indeed, before announcing judgment an opportunity had actually been given to the Provincial Government to do so, but the Provincial Government did not exercise this option at that stage. Had it done so the result might well have been different. It has, however, done so now. Should the effect then not be the same? On the other hand, it is contended on behalf of the appel lants that the Provincial Government having not availed of the opportunity, which was given to it before the delivery of the judgment, could not do so now, for, the commitment having merged into the order of the Court had now become a mandate of the Court which could not be changed. No notification issued in the exercise of the executive power of Government could nullify a decision of this Court. The power given under section 20 of the General Clauses Act to alter, amend or cancel a notification is not, it is urged, a power which can be exercised so as to affect a vested right. In support of this contention reliance is placed on an unreported decision of this Court in the case of Messrs S.M. Illahi & Company v. West Pakistan Government (Civil Appeal No. 87 of 1965), where it was held that the Govern ment could not revise the cotton fee rates with retrospective effect so as to prejudicially affect past transactions or impair existing contracts. Support for this proposition is‑also sought to be drawn from the opinion delivered by the Privy Council in the case of Lemn v. Mitchell (LR 1912AC400) declaring that even a legislative measure like an Ordinance expressly given retroactive effect could not operate so as to "annul a valid and subsisting judgment as between parties whose rights had been duly deter mined under and according to the law which existed before the new Ordinance was passed. It was said that it would require much more explicit language "to justify a Court of law in holding that a legislative body intended not merely to alter the law, but to alter it so as to deprive a litigant of a judgment rightly given and still subsisting". As regards the option given to the Provincial Government, before announcing the judgment, to alter the Notification of 9‑6‑64, it is said, that this could not be interpreted as a warrant for doing something which could not legally be done. The intention could only have been to ascertain the mind of the Provincial Government and if that Government did then exercise the option its legal effect would have been determined in the judgment. On behalf of the Karachi Development Authority reliance is placed on another unreported decision of this Court in the case of the Government of Pakistan v. Messrs Mardan Industries Ltd., Sialkot (Civil Appeal No. 3‑P of 1965), to show that a notification issued on the30th of June 1961, granting an exemption for four years with effect from 1st July 1961, in respect of excisable goods produced or manufactured in the tribal area, was held by this Court to have been lawfully modified by another notification issued on the 19th of May 1964, before the expiry of four years making the exemptions subject to further conditions. Even in this case it was conceded that a notification could not operate with retrospective effect. In any event, no question of. taking away any right declared by a judgment arose therein: In the present case, the main question, in my view is as to what was the intent of this Court when it said that the Develop ment Authority could not depart from the direction contained in the notification of the 9th of June 1964 "so long as it stands intact". Did it contemplate that the withdrawal of the notifica tion by the Provincial Government at a subsequent stage would defeat the right of the appellant‑Society? Was this Court thereby 14 only declaring a right contingently? I think not. It is now well settled that a Notification cannot be made to operate retroactively and I think that there can be no manner of doubt that a judgment of a Court declaring a right cannot be nullified by executive action. I cannot, therefore, persuade myself to impute to this Court any intention of authorising an illegality. This Court does not a1sc) as a rule deal with hypothe tical cases. Where no existing right is established no question of granting any relief by this Court can arise particularly, in proceedings initiated under Article 98 of the Constitution. It is difficult, therefore, to appreciate this to how this Court could be said to have declared in the appeal, from which the present application arises, only a contingent right defeatable at the will of the Provincial Government. In my view the words "so long as it stands" occurring in the last paragraph of the judgment in the appeal mean no more than this that since the relevant provisions of the notification dated 9‑6‑64 had not been altered till then the commitment subsisted and the appellant‑Society was entitled to the allotment. It could never have been the intention of this Court to give to the Provincial Government a right to amend the notification in such a way as to nullify its own judgment. I am, therefore, of the view that the construction sought to be placed by the Development Authority on this portion of the judgment of this Court is wholly unjustified and unwarranted, With these observations I would send back the case to the High Court to deal with it; under Order LXV, rule 15 read with section 151 of the Code of Civil procedure. The costs of these proceedings in this Court will abide the result of the proceedings in the High Court.. MUHAMMAD YAQUB ALI, J.‑‑I agree. SAJJAD AHMAD, J. I agree ABDUS SATTAR, J. I agree S.Q.