P L D 1958 (W (PLP)

Therefore, section 17 of the West Pakistan Motor Vehicles Taxation Ordinance (XXXV of 1956) does not permanently repeal Punjab Motor Vehicles Taxation Act (IV of 1924). If the Ordinance expires by lapse of time and no new enactment is passed by the Legislature to replace it, the earlier Act namely Punjab Motor Vehicles Taxation Act (IV of 1924) continues to be in operation. Gooderham and Worts, Ltd. v. Canadian Broadcasting Corporation A I R 1949 P C 90; Emperor v. Sibnath Banerjee A I R 1943 F C 75 ; Crown v. Haveli P L D 1949 Lah. 550; Halsbury's Laws of England, Volume 31, Second Edition, page 512, and Craies on Statute Law, page 376 ref A. K. Brohi and Muhammad Siddiq for Petitioner. Sh. Khurshid Ahmad for Respondents. Dates of hearing: 17th and 18th October 1957. YAQUB ALI, J.-This order will dispose of Writ Petition No. 190 of 1957 by thirty-eight Transport Companies--operating in the territory of the former Punjab, including the Sargodha Bus Service, Sargodha, and Writ Petitioner No. 492 of 1957 by the Okara Bus Service, Okara, which proceed on the same grounds and seek the same relief. The Punjab Motor Vehicles Taxation Act (IV of 1924), authorise the Provincial Government, to impose a tax on motor vehicles. On the 20th of December 1956, the Governor of West Pakistan in consequence of Integration promulgated West Pakistan Motor Vehicles Taxation Ordinance (XXXV of 1956) with a view to consolidate the law relating to imposition of tax on motor vehicles in West Pakistan. The Ordinance was to take effect retrospectively from the 1st of October 1956. Among other regional Acts, section 17 of the Ordinance repealed the Punjab Motor Vehicles Act (IV of 1924). After the promulgation of this Ordinance, the West Pakistan Provincial Assembly met on the 28th of January 1957, but the Ordinance was not placed before it for approval as required by Article 102 of the Constitution. It was intended to replace it by an Act and its bill was published on the 27th of January 1957, in an Extraordinary Gazette but the bill was not moved in the Assembly, and on the 10th of March 1957, Ordinance XXXV of 1956, lapsed. These petitions arise out of the resultant situation. The petitioners maintained that the Punjab Motor Vehicles Act, 1924; was permanently repealed on the 20th of December 1956, with retrospective effect and as the Ordinance, which replaced it, had lapsed, the Provincial Government had no legal authority to recover motor vehicle tax from them. The Provincial Government, 'however, insisted that the requisite authority continued to vest in it under the Punjab Motor Vehicles Act (IV of 1924) which had been temporarily repealed and was revived with the lapsing of the Ordinance XXXV of 1956. The petitioners accordingly seek the issue of a writ of mandamus or any other appropriate writ or direction to the Provincial Govern ment and the Director of Excise and Taxation to refrain from demanding and recovering from them motor vehicle tax. In reply to the respondents' contention that the Punjab Motor Vehicles Act (IV of 1924) had revived, the petitioners placed reliance on subsection (2) of section 4 of the West Pakistan General Clauses Act which provides that on the expiry or withdrawal of an Ordinance the con sequences of the repeal of an Act embodied in section 6 of the Act would follow. If this contention be correct, then section 17 of the Ordinance XXXV of 1956, repealing the Punjab Motor Vehicles Taxation Act (IV of 1924), will remain in force irrespective of the expiry of the Ordinance itself under Article 102 of the Constitution. The principal question which falls for decision in these petitions, therefore, is the vires of subsection (2) of -section 4 of the West Pakistan General Clauses Act. In the alternative, Mr. A. K. Brohi, learned counsel for the petitioners, urged that the framer of the West Pakistan Motor Vehicles Taxation Ordinance XXXV of 1956 had the intention to repeal permanently all enactments mentioned in section 17 including the Punjab Motor Vehicles Taxation Act (IV of 1924). Therefore, as soon as section 17 of the Ordinance became operative, all these enactments were once for all removed from the Statute Book of the country. The question of their revival on the lapsing of the Ordinance itself, therefore, did not arise even if section 4 (2) of the West Pakistan General Clauses Act was found to be repugnant to Article 102 of the Constitution. In support of the first contention, while conceding that any law repugnant to the letter and spirit of the Consti tution must be held to be void, Mr. Brohi explained that the provisions of section 4 (2) of the General Clauses Act should be read as an integral part of every Ordinance Promulgated in the Province of West Pakistan with the result that for the purpose of the application of section of the General Clauses Act, it shall be deemed that all the Ordinances had received the approval of the Legislature as contemplated by Article 102 of the Constitution Mr. Brohi, however, conceded that the Provincial Legislature could not pass an Act providing that in future all Ordinances promulgated by the Governor will continue in force even if they are not placed before the Provincial Legislative Assembly, contrary to the provisions of Article 102 of the Constitution. Such an enactment, according to learned counsel, would be objectionable in form. At the same time, he argued that though an Ordinance could not be perpetuated as such, by a deeming clause in an Act of the Legislature, its provisions could be placed on the basis of an Act. It is of course open to the Provincial Legislature to re-enact the provisions of an Ordinance, in a measure passed by it, but that would be possible, in our opinion, only after the Legislature has had the chance to apply its mind consciously to the proposed law. The scheme of the Constitution seems to militate against the view contended for by the learned counsel that an enactment promulgated by an authority that can only pass temporary legislation, may be taken on trust by the Provincial Assembly even in part and anticipatory approval accorded to it without being aware of its contents. If the Legislature cannot, as it is acknowledged, throw overboard the provisions of Article 102 of the Constitution and invest an Ordinance with perpetual life by advance approval, it would not he logical to assume that a result of the like nature can be achieved in respect of a part of the Ordinance, by a similar process. It has to be kept in view that in law there is no distinction between keeping alive an Ordinance for the limited purpose of the application of section 6 of the West Pakistan General Clauses Act and keeping alive the whole Ordinance in breach of the mandatory provisions of the Constitution that it shall cease to operate at the expiration of six weeks from the next meeting of the Assembly or if a resolution dis approving it is passed by the Assembly, upon the passing of that resolution. The argument that subsection (2) of section 4 of the West Pakistan General Clauses Act should be read as an integral part of every Ordinance so as to confer on it the status of an Act is, therefore, not logical because it will defeat the provisions of Article 102 of the Constitution in an indirect manner. It was next contended that Article 102 was enacted for the benefit of Members of the National or Provincial Assemblies and they could waive the benefit and accord ad hoc approval to all, existing and future Ordinances. Firstly, it is not relevant to determine for whose benefit the Article was enacted, but if it was so, one would think that it was intended to be a curb on the authoritarian system of Government and to promote interests of democracy in the Republic of Pakistan rather than to confer benefits on Members of the Legislatures. Secondly, bow could those members of the West Pakistan Legislative Assembly who voted in favour of the General Clauses Act claim the benefit for themselves for all times to come? The members change periodically and no body of members can strike a deal on behalf of members who will sit next in their seats. What about those members who, although in minority, opposed the passage of the General Clauses Act? Have they also waived or surrendered the benefits secured to them by the Constitution under Article 102? The argument suffers from too many infirmities to be even plausible. We accordingly hold that subsection (2) of section 4 of the West Pakistan General Clauses Act is ultra vices of Article 102 of the Constitution. The second contention of Mr. Brohi also fails because although the intention of the author of Ordinance XXXV of 1956 unmistakably was to repeal, among others, the Punjab Motor Vehicles Taxation Act (IV of 1924) permanently, yet could it be said that the intention was unconditional? It cannot be seriously contended that it was intended to repeal the various Motor Vehicles Taxation Acts enumerated in section 17 in force in the Province of West Pakistan on the 20th of December 1956, as unnecessary and redundant. If that was not so then an Ordinance being a temporary piece of legislation could not have the intention to repeal earlier statutes on the subject without the condition of their being replaced permanently in the form of another statute or the approval of the Legislature to its continuation. A few authorities were cited from the bar, Gooderham and Worts Ltd. v. Canadian Broadcasting Corporation (A I R 1949 P C 90), Emperor v. Sibnath Banerjee (A I R 1943 F C 75), Crown v. Haveli (P L D 1949 Lah. 550) and some passages were read from Halsbury's Laws of England, Volume 31, Second Edition, page 512, and Craies on Statute Law, page

376. Repeal effected by temporary legislation is only temporary, but if the intention is to repeal permanently, that is, without desiring to replace it by another permanent statute, then even a temporary law can effect a permanent repeal. These are well-established principles of interpretation of statutes and hardly need any authority in their support. In consequence of our above findings we dismiss both these petitions, but, in the circumstances of the case, leave the parties to bear their own costs. A. H. Petition dismissed.