P L D 1957 (W (PLP)

WAHIDUDDIN, J.

This order will dispose of remaining Writ Petitions, arising out of orders passed under the Sind Requisition of Land Act 1947, in which a common question of law is involved. In these Writ Petitions the validity of the Governor- General's Order No. 1/56, dated 21st March 1956, is chal lenged. By this order, H. E, the Governor-General under section 290-A of the- Government of India Act, amended the Sind Requisition of Land Act, 1947. This Act has a chequered history. It was passed by the Legislative Assembly of Sind and received assent of the Governor of Sind on 22nd August 1947. It was applied immediately to the City of Karachi and the Provincial Government was authorised to extend it to any other area from such date as may be specified by a notification in the Official Gazette. This Act was further amended on 16th May 1948 by the Sind Legislature. Under an amending Act, the words "requisition or" were deleted, and a new section 3-A containing the rules for the assessment of compen sation in respect of requisitioned properties was introduced. On 22nd of July 1948, H. E. the Governor-General of Pakistan, issued G: G. Order No. 14 of 1948 under section 9 of the Indian Independence Act and introduced section 290-A in the Government of India Act. By virtue of this constitutional provision, the Governor-General was empowered to demarcate for purposes of the Capital of the Federation, an area forming part of a Province, and thereupon, so much of the area as may be specified ceased to form part of that Province. H. E. The Governor-General was further authorised by order to make such provision as he may deem necessary or proper, amongst others, with respect to the laws which are to be in force in the area. On 23rd July 1948, the Pakistan Establish ment of the Federal Capital Order, 1948 was promulgated and by a notification of the same date, Karachi was separated from the Province of Sind and made the Capital of Pakistan. According to this order, unless and until other provisions were duly made all the prevalent enactments and laws were to remain in force in Karachi. It was in these circumstances that the Sind Requisition of Land Act 1947 continued to have effect in Karachi. The Administration of Karachi continued to requisition immovable property under the above mentioned enactment. The validity of the Sind Requisition of Land Act was the subject of litigation in several cases. In Mira Khan v. Mehrban Hussain (P L D 1956 Kar. 338), a Division Bench of this Court consisting of Rahman, C. J. and Lari, J. declared the said enactment as ultra vires in so far as it failed to provide for compensation to tenants whose premises may be acquired or requisitioned. In Mrs. Dina Sohrab Katrak v. Mr. S. Ashhad Ali etc. (P L D 1956 Kar. 331), another Division Bench of this Court consisting of Kaikaus and Akhlaque, JJ, held that securing of accommodation for the residence of servants of the Central or Provincial Government was not a public purpose within the definition of public purposes in the Sind Requisition of Land Act, 1947. It may be worth noting that section 290-A Government of India Act, was repealed by the West Pakistan Establishment Act, 1955. It was re introduced by an amending Act. This section has now been preserved in the form of Article 211 of the Pakistan Constitution. On 23rd March 1956 H. E. the Governor-General in order to nullify the effect of the above-mentioned two decisions, issued another order under section 290-A of the Government of India Act, known as G. G. Order No. 1 of 1956. This order is reproduced below :- "In exercise of the powers conferred by clause (c) of subsection (2) of section 290-A of the Government of India Act, 1935 (26 Geo. 5, Cl. 2), and of all other powers enabling him in this behalf, the Governor-General is pleased to make the following order :-

1. Short title and commencement.-(1) This Order maybe called the Sind (Requisition of Land) (Amendment) Order, 1956.

2. Amendment of Section

2. Sind Act XLVI of 1947.-In the Sind (Requisition of Land) Act, 1947 (Sind Act XLVI of 1947), as in force in the Capital of the Federation, hereinafter referred to in the said Act, in section 2, for clause (f) the following shall be substituted, namely "(f) `public purpose' means any purpose connected with the securing of accommodation for the Constituent Assembly of Pakistan and the Central Government or a Provincial Government or the residence of servants of the Central-or a Provincial Government or the members of the Constituent Assembly of Pakistan."

3. Repeal of section 3-A. Sind Act XLVI of 1947, etc. (1) In the said Act, section 3-A shall be repealed. (2) Notwithstanding the aforesaid repeal,- (a) cases in which fair rent of any requisitioned property has immediately before the commencement of this order been determined under the aforesaid section 3-A shall be deemed to be cases in which the amount of compensation has been fixed by agreement under clause (a) of subsec tion (1) of section 4 of the said Act ; (b) cases under subsection (1) of the aforesaid section 3-A pending with the Controller shall, on the commencement of this order be dealt with in accordance with the provisions of section 4 of the said Act ; and (c) cases under subsection (2) of the aforesaid section 3-A pending with the Chief Judge, Small Causes Court, Karachi, shall be deemed to be cases in which no agreement as to the amount of compensation has been reached and on the commencement of this order, shall stand and be transferred to the Arbitrator appointed by the Provincial Government in pursuance of clause (b) of subsection (1) of section 4 of the said Act.

4. Amendment of section 4, Sind Act XLVI of 1947.-In section 4 of the said Act,- (a) in subsection (1), for the words "Property is acquired" the words "Property is requisitioned or acquired" shall be substituted; and (b) in clause (c) of subsection (1) for the words "property acquired" the words "property requisitioned of acquired" shall be substituted. The petitioners have challenged the validity of this order inter alia on the grounds (1) that section 290-A of the Govern ment of India Act does not empower the Governor-General to amend, repeal or add or to legislate (2) in the alternative that the power vested in the Governor-General is in the nature of delegated legislation, and, therefore, section 290-A of the Government of India Act is ultra vires of the Constitution. (3) That the Sind Requisition of Land Act having been declared as ultra vines, was a dead law and, therefore, no amendment could be made in it; and (4) assuming that H. E. the Governor-General has legislative powers under section 290-A of the Government of India Act, such powers were circumscribed and limited and under it H. E. the Gover nor-General could not legislate with retrospective effect. There is no force in the contention of Syed Sharif Uddin., the learned counsel for the petitioner that the power given to the Governor-General under section 290-A of the Government of India Act is of an executive nature and not of legislative character. Section 290-A of the Government of India Act reads as under :-- "290-A. Establishment of the Capital of the Federation. (1) Notwithstanding anything contained in the preceding section, the Governor-General may by order demarcate, for purposes of the Capital of the Federation, an area forming part of a Province, and thereupon so much of the area as may be specified in the said order shall cease to form part of that Province. (2) The Governor-General may by order make, in respect of the area demarcated for purposes of the Capital of the Federation such provisions- (a) for its government and administration ; (b) for varying the composition of the Legislature of the Province affected thereby and the representation in the Federal Legislature of that Province ; (c) with respect to the laws which are to be in force in the area (d) with respect to the jurisdiction, expenses or revenues of any Court theretofore exercising the jurisdiction of a High Court in the area ; (e) with respect to appointments and adjustments of and in respect of, assets and liabilities ; and (f) with respect to other supplemental, incidental and consequential matters; as he may deem necessary or proper. (3) Any provision with respect to the jurisdiction of a High Court contained in an order made under this section shall be subject to the provisions of Chapter II of Part IX of this Act, except that the provisions of subsection (1) of section 230 and of subsection (2) of section 231 thereof shall not apply. (4) The Governor-General may by an order alter, amend or modify any order made under this section. (5) The executive authority of the Federation extends to the Capital of the Federation and any order made under this subsection may be controlled or superseded by an Act of the Federal Legislature. (6) An order made under this section may authorise expenditure from the revenues of the Federation." The learned counsel urged that the words "may make such provision (c) with respect to the laws which are to be in force in the area" means nothing more than to bring into force the existing laws of other Provinces, and to remove the application of any laws which were or are in force in the Federal Capital. It was contended that the said provision of law as it stood on the date of the alleged amendment empowered the Federal Legislature to make laws with respect to matter enumerated in the Provincial list, except matters relating to the High Court, and by implication it meant that the Governor-General had no power to legislate for the Federal Capital with regard to the subjects of the Provincial list. It was further contended that no responsible constitution making body would create under the same constitution parallel legislative bodies for the same purpose and, therefore, the powers conferred on the Governor-General should be limited to the barest minimum and should not be treated to be any more than what has been contended above. This argument is in itself fallacious. The scheme of the Government of India Act clearly envisages parallel legislatures in respect of the same matters both in the Provinces and the Centre. Sections 42 and 88 of the Government of India Act strengthen the arguments of the learned Attorney-General as under these provisions the Parliament created parallel legis latures. Under section 42 of the Government of India Act, the Governor-General was empowered to legislate through Ordinances and under section 88 of the Government of India Act the Governors were empowered to legislate through Ordinances also. The legislative powers of the Governor-General and the Governor were co-extensive with those of the Federal Legislature and the Provincial legislature subject to two limitations which are mentioned in those sections. The learned Attorney General further referred us to section 9 of the Indian Independence Act to demonstrate that the language of section 290-A, Government of India Act, was derived from it and is almost in identical terms. He contended that the provisions of section 9 of the Indian Independence Act, particularly section 9, subsection (c) have been recognised to be of legislative character,' section 9 (c) of the Indian Independence Act reads as under :- " for making omissions from additions to and adaptations and modifications of, the Government of India Act, 1935, and the Orders in Council, rules and other instruments made thereunder, in their application to the separate new Dominions" ; A comparison of the language of these two constitutional provisions supports the argument of the learned Attorney General. A plain reading of these sections will show that the powers conferred on the Governor-General under these sections were of a legislative character. In Jatindra Nath Gupta v. Province of Bihar (1), one of the questions for consideration was the scope of the powers of the Governor under sections 92 (1) and 92 (2) of the Government of India Act in respect of the excluded and partially excluded areas. Section 92 of the Government of India Act reads as under :- "Administration of excluded areas and partially excluded areas.-( A I R 1949 F C 175) The executive authority of a Province extends to excluded and partially excluded areas therein, but, notwithstanding anything in this Act, no Act of the Federal Legislature or of the Provincial Legislature, shall apply to an excluded area or a partially excluded area, unless the Governor by public notification so directs, and the Governor in giving such a direction with respect to any Act may direct that the Act shall in its application to the area, or to any specified part thereof, have effect subject to such exceptions or modifications as he thinks fit. (2) The Governor may make regulations for peace and good government of any area in a Province which is for the time being an excluded area, or a partially excluded area, and any regulations so made may repeal or amend any Act of the Federal Legislature or of the Provincial Legislature, or any (existing law), which is for the time being applicable to the area in question. Regulations made under this subsection shall be submitted forthwith to the Governor-General and until assented to by him shall have no effect". Mahajan, J., while considering the scope of the power of the Governor under this section, observed at page 182 column 2 : - "The first part of the section extends the executive authority of a Province to excluded or partially excluded areas, i.e. in regard to the exercise of executive authority, excluded areas stand on the same footing as the rest of the Province. As regards Legislative power, the Provincial Legislature is completely deprived of it in these cases. The statute in unambiguous words enacts that

'Notwithstanding anything in this Act no Act of the Dominion Legislature or the Provincial Legislature shall apply to an excluded area or a partially excluded area'. Having deprived the Provincial Legislature of its plenary powers of legislation over such area, the section proceeds to confer a power on the Governor of a Province to make laws for such area. It does it in two ways. In the concluding part of section 92 (1) it empowers the Governor to direct by public notification that a Provincial Act shall in its application to the excluded area, or to any specified part thereof, have effect subject to such exceptions or modifications as he think fit. It necessarily follows from this provision that the Governor is constituted as the legislative authority for the excluded parts as the Parliament has conferred on him the power to modify an Act of the Provincial Legislature or to make exceptions in it before giving effect to it in that area. Unless the Governor has legislative power co-extensive with the legislature of that Province it is difficult to see how he can have the power to modify a statute of that legislature. It is in the exercise of his legislative authority that the Governor can without any exceptions or modifications adopt as his own the Provincial Act as such and notify that it shall apply to excluded areas. No sooner the notification is issued, the Provincial Statute become law in that area, not because of the authority of the Provincial Legislature, but by virtue of the law-making power of the Governor. If the Governor thinks fit to modify a statute or make exceptions in it, he is empowered to do so. Cf. Chatturam and others v. Commissioner of Income-tax Bihar (1947FC R116:AIR(34)1947FC32). It is obvious that under section 92 (1) the scope of the legislative power of the Governor is not larger than the scope of the Statute of the Provincial Legislature. He has no power to enlarge the statute or extend its scope under section 92 (1). Limits have been laid down within which his power extends. The condition precedent for the exercise of the power conferred is the pre-existence of a statute of the Provincial Legislature. If no such statute has been passed by the Legislature, no occasion can possibly arise for the exercise of the legislative power of the Governor under section 92 (1). The second limit laid down is that the scope of the statute of the Provincial Legislature is outside the reach of the Governor's power. He cannot go beyond it. He must function within it. He can subtract from its provisions and can modify it. If the statute is not retrospective, he cannot make it re trospective by his notification as it would amount to going beyond the range of the Provincial Statute, 'the existence of which alone brings into play the powers of the Governor. He can, of course, give effect to the statute by the notification in the excluded areas from the date of its commencement. It will thus be seen that a limited field of legislation has been given to the Governor under section 92 (1) regarding excluded areas or partially excluded areas. He can exercise his legislative power within that field but he cannot trespass beyond the prescribed limits, Section 92 (2), however, gives the Governor plenary power of legislation concerning excluded areas by framing regulations. He may repeal or amend any Act of the Dominion Legislature or of the Provincial Legislature or any existing law. He has sovereign authority to legislate for an excluded area subject to the assent of the Governor-General. Unless a law made for the peace and good government of an excluded area has been assented to by the Governor-General, it can have no effect. Thus wherever a Governor wishes to act at his own initiative and wants to make laws, he can make them acting in his sovereign legislative authority by himself with assent of the Governor-General; but when he wishes to adopt a line of convenience and wishes not to legislate in exercise of his powers under section 92 (2) and subject to its safeguards and acts under section 92 (1), then he can only do so subject to the conditions and limitations provided therein. These observations clearly show that the powers con ferred under both the subsections were treated by the learned judge as legislative. In subsection (1) it was found to be a limited power and in subsection (2) the Governor had a sovereign authority to legislate for excluded areas subject to the assent of the Governor-General. There was recently much controversy on the question whether the power conferred under a statute on the executive to extend the life of an enactment is a legislative or executive power. The majority view in Jatindra Nath Gupta v. Province of Bihar (AIR1949FC175) was that such power was undoubtedly a legislative one. Their Lordships of the Federal Court of India on that question held :- "The proviso to section 1 (3) contains the power to extend the Act for a period of one year with modifications, if any. It is one power and not two severable powers. The fact that no modifications were made in the Act when the power was exercised cannot help in determining the true nature of the power. The power to extend the operation of the Act beyond the period mentioned in the Act prima facie is a legislative power. It is for the legislature to state how long a particular legislation will be in operation. That cannot be left to the discretion of some other body. The power to modify an Act of a legislature without any limita tion on the extent of the power of modification, is un doubtedly a legislative power. It is not a power confined subject to any restriction, limitation or proviso (which is the same as an exception) only". A similar question also arose before their Lordships of the Federal Court of Pakistan in connection with Pakistan Public Safety Ordinance, and they also came to the same conclusion that the exercise of the power to extend an Act amounted to legislation. In Sobho Gyanchandani v. Crown (PLD1952FC29), it was held :- "The Pakistan Public Safety Ordinance 1949 was to remain in force for a period of one year from the date of its promulgation i.e., the 8th of October 1949. By means of the proviso, the Central Government was given power, from time to time, by notification, iii the Official Gazette to direct that it shall remain in force for such further period as may be specified in the notification, This proviso must be held to be invalid and ultra vires as it confers legislative Powers on an external authority i.e., the Central Govern ment. The Pakistan Public Safety Ordinance died a natural death on the 8th October 1950. As the Public Safety Ordinance had expired on the 8th of October 1950 it was not open to any authority to issue any order of detention under the Ordinance subsequent to that date". Cornelius, J, in this connection observed at page 31 as follows :- "Prima facie the placing and keeping of a law on the Statute Book, and the removing of a law from the Statute Book are legislative functions". The learned counsel for the petitioner has however relied on a decision of a Single Judge of the Madras High Court reported in The Masulipatam Municipal Council v. Movva chandrika Mahalakshmamma (A I R 1953 Mad. 647). The learned Judge in that case was considering the scope of the powers conferred under section 290 of the Government of India Act. He observed as follows:- "Under the Act when India became a dominion, the power and duty to alter the boundaries of a Province, to create a new Province, to increase the area of a Province and to diminish its area is conferred upon the Governor-General by section 290 of the Act. Before independence this power vested in His Majesty. That power was con ferred to the Governor-General when India was a dominion. The Governor-General under this provision was authorised to make alterations in the area of a Province subject to the proviso that in making the order the Governor-General should ascertain the view of the Government of such Province which will be affected by the order, both with respect to the proposal to make the order and with respect to the provisions to be inserted therein. When once the area is taken over and added to a Province it naturally follows that an arrangement should be made for its proper administration. An area so acquired cannot be left in the air without providing the law applicable and the machinery which should administer the law to that area which was included in a Province and for this purpose subsection (2) authorised 'inter alia' by clause (e) that the Governor-General should make provisions for other supplemental, incidental and consequential matters. In other words, all the necessary machinery-for the administration of the area by the Province and the law that should be supplied to it should be provided by the Governor-General while adding an area to a Province. It is that that has been provided by the Order of 1948. It is not a legislative power which was exercised by the Governor-General under section 290 as was wrongly assumed by the learned Subordinate Judge. The law is already there ; it had to be applied to a particular area which has been added to a Province. This right of providing for the law applicable by a notification is not unknown to constitutional law of civilised countries. There are a number of decisions in which this power has been recognised and it is considered merely as a power to extend the existing laws by an executive order to the area which have been newly added to a Province. The Governor-General, therefore, was competent to issue the Order under section 290 of the Act, so as to bring into force the enact ments, notifications, order, rules and by-laws which have been in force till then in what was known as Bandar town alias Masulipatam. The requirement, therefore, that has been insisted on behalf of the respondent that there should be a fresh notification under section 4 is, in my opinion, wholly unnecessary in view of the clear language of the order of 1948 which it was within the competence of the Governor-General to issue under section 290, Government of India Act". This case is clearly distinguishable in as such as the provisions of section 290 of tire Government of India Act are entirely different from the one incorporated in section 290-A of the: Government of India Act as adapted in Pakistan. On a careful consideration of the authorities cited before us, we consider that the power conferred on the Governor General under section 290-A of the Government of India Act, in respect of making provisions with regard to the laws which are to be in force in the Federal area are undoubtedly legislative, and the Governor-General when acting under` this provision performs the duty of a legislature within the limits laid down therein. The other contention of the learned counsel for the petitioner that the legislative power conferred on the Governor-General under this section is in the nature of delegated legislation, is equally unsound. It was contended that under the scheme of the Government of India Act, legislative powers in respect of the various subjects in the 7th Schedule are conferred on the Central and Provincial Legislatures. -The function of the Governor-General was to exercise executive authority and under section 9 of the Indian Independence Act, he was not empowered to make a change in the scheme of the Government of India Act. According to the learned counsel for the petitioner the Governor-General in creating a parallel legislature in himself has made the Federal Legislature to abdicate its function and allowed them to efface themselves in respect of the legislative authority conferred upon them. The learned counsel vehemently argued that the provisions of section 290-A of the Government of India Act is delegated legislation and, therefore, it should be treated and considered as ultra vices and illegal piece of legislation. Syed Sharifuddin, the learned counsel for the petitioner, in this connection urged that such legislation is treated by some constitutional authorities as new despotism and some authors have described it as Henry VIII clause. In order to further support this conclusion the learned counsel referred us to a recent publication known as the New Despotism by Lord Hayward, Lord Chief Justice of England. In this book at page 20, the learned author has condemned the tendency of legislatures to delegate their functions to the executive. The learned counsel also invited our attention to the observations in 'Cooley's Constitutional Limitations, Vol. I, at page

224. It reads as under :- "One of the settled maxims in constitutional law is, that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body Dr authority. Where the sovereign power of the State has located the authority, there it must remain ; and by the constitutional agency alone the law must be made until the constitution itself is changed. The power to whose judgment, wisdom and patriotism this high prerogative has been entrusted cannot relieve itself of the responsibility by choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust." Lastly, the learned counsel relied on the decisions in Jatindra Nath Gupta v. Province of Bihar (A I R 1949 F C 175) ; In re: Art. 143 Constitution of India & Delhi Laws Act (1912) etc. (A I R 1951 S C 332) and Sobho Gayanchandani v. Crown (P L D 1952 F C 29). It was held in these authorities that if the legislature abdicates in favour of an executive authority, and delegates its power of legislation, then such delegated legislation 3s illegal and ultra vires of the Constitution. We are not here concerned with the principles and policies underlying section 290-A of the Government of India Act. It has been repeatedly held that however inexpedient and undesirable politically a piece of legislation may be, if the legislative authority was competent to legislate upon it, then the Courts must declare them as intra vires. The validity of a piece of legislation does not depend on consideration of jurisprudence or policies. It may be that according to the view of some of the constitutional authors, the policy of delegated legislation may be inexpedient and undesirable, but that does not mean that if the impugned piece of legislation is passed within the competence and power of the legislature concerned, then it should be declared as ultra vires. Section 290-A of the Government of India Act as introduced by the Governor-General under section 9 of the Indian Independence Act no longer exists. It is therefore unnecessary for us to discuss the powers of the Governor-General under section 9 of the Indian Independence Act. The learned Attorney General drew our attention to the fact that section 290-A of the Government of India Act was re-introduced on 13th October 1955, by the Constituent Assembly and received the assent of the Governor-General immediately thereafter. The Constituent Assembly of Pakistan as a sovereign constitution-making body was empowered to frame any constitution for Pakistan, and also to frame during the transitional period any other constitutional provisions for Pakistan. There is no doubt in our mind that the Constituent Assembly was empowered also to create parallel legislatures on the same subject on which the other legislative authorities under the Government of India Act were empowered to legislate. This power was recognised in the form of section 42 and section 88 of the Government of India Act. Section 290-A is another instance of such parallel legislature. If the constitution-making body itself creates a parallel legislature, then the exercise of such legislative powers by such parallel legislature cannot be treated to be a delegated legislation. The learned Attorney General was perfectly justified in arguing that the constitution-making body on the anology of sections 42 and 88 of the Government of India Act, has created another legislative authority, namely, the Governor-General, to legislate with respect to the laws which are to be in force in the Federal Capital. We entertain no doubt that the Constituent Assembly of Pakistan had abundant authority and plenary power to make such legislation and hold that the creation of such parallel legislature cannot be treated to be in any sense a delegated piece of legislation. In our opinion section 290-A of the Government of India Act is a'~ valid and intra vires piece of legislation. The next question for our consideration is whether the Sind Requisition of Land Act, 1947 became a dead letter and therefore, the Governor-General could not make any amend ment in the said enactment. In Mira Khan v. Meherban Hussain (P L D 1956 Kar. 338) a Division Bench of this Court consisting of Rahman C. J. and Lari. J. declared the Sind Requisition of Land Act, 1947 as ultra vires to the extent of the case of the tenants. Rahman, C. J. in this connection observed as under :- "Taking up consideration of the Ordinance first I find that section 4 deals with the payment of compensation for requisi tion or acquisition of irremovable property. It prescribes that there shall be paid compensation in cases of requisition or acquisition under the Ordinance either in accordance with an agreement between the parties as to the amount of compensation payable, or in the absence of such an agree ment in accordance with the award of an arbitrator to be appointed by the Provincial Government. The section does not mention to whom the compensation is to be paid, but a direction is included in clause (c) of subsection (1) of section 4 to the effect that the arbitrator in making an award shall have regard to the provisions of subsection (1) of section 23 of the Land Acquisition Act, 1894, so far as they can be made applicable. There is further provision in this very section empowering the Provincial Government to make rules for the purpose of carrying into effect the provisions of the section. The rules may inter alia lay down the principles to be followed in apportioning the costs of the proceedings before the arbitrator and in appeal and the maximum amount of the award. Nothing is said in these provisions from which the exclusion of tenants from compensation may be spelt out." The position however appears to be different when we come to the Act. Section 4 of the Act lays down that where any immovable property is requisitioned or acquired under the provisions of the Act there shall be paid a compensation, the amount of which shall be determined in the manner and in accordance with the principle set out in that section. The provisions that follow are in terms similar to those of the Ordinance. By Sind Act X of 1948, however, section 3 (A) was inserted in this Act which reads as follows :- '3-A. (1) Where any immovable property is requisitioned under the provisions of this Act, there shall be paid com pensation which shall consist of a fair rent of the property determined by the Controller in accordance with the pro visions of the Sind Rent Requisition Act, 1947. (2) A person aggrieved by an order of the Controller made under subsection (1) may within 15 days of the order appeal- (a) In the City of the Karachi to the Chief Judge, Small Causes Court. (b) elsewhere to the District judge having jurisdiction in the area where the property is situated.' By this very amending Act the words "Requisitioned or" were directed to be omitted wherever they occurred in section (4) of the Act. The new section 3 (A) clearly and obviously implies that "fair rent" is to be the total compensation payable for requisitioned premises. This "fair rent" would be payable to the landlord and to nobody else. The Rent Controller who appeared before us admitted that this would be the case though he suggested that if a tenant who had been dispossessed applied to him for compensation he might" determine what compensation he should get on general principles of natural justice. Obviously no share of the landlord's "fair" rent could be apportioned to the tenant as it would be an encroachment on the rights of the landlord and this was conceded by the Rent Controller. There is no escape from the conclusion consequently in the face of section 3-A of the Act that in the case of requisition of immovable property the whole of the compensation would go to the landlord and nothing would be left for the tenant. To the extent, therefore, that the Act makes no provision for compensating tenants in accordance with the provisions of section 299 of the Constitution Act, the Act is in my opinion ultra vires." Mr. Sher Muhammad, learned counsel for the petitioner in Writ Petition No. 36 of 1956 contended that as a result of this finding, the whole Act viz., the Sind Requisition of Land Act became a nullity and a dead letter. He contended that the invalid part in the said Act cannot be separated from the rest of the enactment and it was not in existence at the time when the Governor-General Order No. 1 of 1956 was promulgated. He argued that by this order the Sind Requisi tion of Land Act could not be revived. The learned counsel placed reliance on a passage in Cooley's Constitutional Limitations Vol. I, page 6, in support of his contention. It reads as under :- "An unconstitutional Act is not a law ; it confers no rights ; it imposes no duties ; it affords no protection ; it creates no office ; it is in legal contemplation, as inoperative as though it had never been passed." Their Lordships of the Privy Council in the case of Attorney General of Alberta v. Attorney-General of Canada and another, (A I R 1948 P C 194 p. 199 = P L D 1947 P C 387 p. 396) observed as follows :- "There remains the second question whether when Patt II has been struck out from the Act as invalid, what is left should be regarded as surviving, or whether, on the contrary, the operation of cutting out Part II involves the consequence , that the whole Act is a dead letter. This sort of question arises not infrequently and is often raised (as in the present instance) by asking whether the, legislation is intra vires 'either in whole or in part', but this does not mean that when Part II is declared invalid what remains of the Act is to be examined bit by bit in order to determine whether the Legislature would be acting within its powers if it is passed what remains. The real question is whether what remains is so inextricably bound up with the part declared invalid that what remains cannot independently survive or, as it has sometimes been, put, whether on a fair review of the whole matter it can be assumed that the Legislature would have enacted what survives without enacting the part that is ultra vires at all.", In the light of the above observations, we have scrutinized the Sind Requisition of Land Act, 1947. The said enactment as it stood did cover the cases of tenants but provided no compensation to them. It was therefore declared ultra vices to this extent. The rest of the provisions in this enactment are not interwoven with the provisions relating to the tenants E in such a sense that if-a portion of it is taken away then the whole Act will become worthless piece of legislation. There are several instances where the premises requisi tioned were either vacant or in the possession and, occupation of the owners. The provisions of this, enactment can without any difficulty be applied to such cases: There is no doubt in our mind that the principle laid down in the above-mentioned authorities are not applicable to the facts of the present case. The case of landlord and tenants in some matters may be connected with each other -but in the above-mentioned instances there cannot be any connection between them. In our opinion the portion, left after the declaration of the said enactment as ultra vires, to the extent of the tenants, is such that the legislature can be expected to legislate upon and was also within the power of the legislature, There is no ground upon which we can come to the conclusion that the legislature would not have legislated on what is left in the said enactment. The cases of tenants are severable from the rest of the provisions of the enactment and these provisions can easily be allowed to operate validly to the properties in physical possession of the landlords. We are therefore of the opinion that H. E. the Governor-General was entitled to amend the provisions of the Sind Requisition of Land Act, 1947, by the Governor-General's E Order No. 1 of 1956. Lastly it was urged that the amendment of the said enact ment by Governor-General's Order No. 1 of 1956 operates to over-ride the effect of the two Division Bench decisions of this Court and rendered valid what was declared to be illegal and ultra vices. The learned counsel urged that the legislature cannot be made to retract upon past controversy and to reverse decisions of the Court of Law. It was further con tended that on the language of section 290-A, the Governor-General was not empowered to legislate with retrospective effect. . The first contention of the learned counsel for the petitioner is not well founded. The legislative authorities are entitled to pass validating Acts and there is no limitation on the powers of the legislature to enact such statutes. It is open to the legislature within the sphere of its constitutional activities, to give retrospective effect to the amendment made in a statute notwithstanding that the earlier law under the same statute is declared by Courts of law as inoperative and ultra vices. This brings us to the second contention, whether the Governor-General within his constitutional authority and activity, on the language of section 290-A of the Government of India Act, is empowered to legislate with retrospective effect. In order to appreciate this argument, we reproduce the relevant portion of section 290-A (2) (c) which reads as under :- "The Governor-General may by order make in respect of the area demarcated for purposes of the Capital of the Federation, such provisions. (c) with respect to the laws which are to be in force in the area". It is a 'well-established principle of constitutional law that the legislative competence of the legislative authority can only be circumscribed by prohibition in the Constitution, and unless and until there is any express or implied prohibition in the Constitution, there is no fetter or limitation on their plenary powers to legislate. It cannot also be doubted that if there is no express or implied prohibition, the legislative authorities under the Government of India Act, have power to legislate both prospective as well as retrospective laws. We have, therefore, to find out if there is any restriction or prohibition under section 290-A of the -Government of India Act on the power of the Governor-General to legislate with retrospective effect. The learned counsel for the petitioner drew our attention to sections 42, 88, 92, 95-A, 100, 102 and section 103 of the Government of India Act, and contended that on the language of these provisions, unlimited power was given to the legislative authorities to legislate. But under section 92 (1), the power to legislate with retrospective effect, is lacking. Under section 95-A, the Governor-General could not extend the existing laws and Acts of the legislature to the areas included under section 5, subsection (bb) of the Govern ment of India Act with retrospective effect. These areas were likely to be included in future and, therefore, a specific power to extend laws with retrospective effect was given to the Governor-General under section 95-A subsection (2) of the Government of India Act The learned counsel also invited our attention to section 9 of the Indian Independence Act. Under this constitutional provision also, powers were con ferred on the Governor-General for making omissions from, additions to, and adaptations and modifications of, the Government of India Act, 1935, and the Orders-in-Council, rules or other instruments made thereunder, in their applica tion to the separate new dominions. These omissions and modifications were to be made for future, and they could not be given effect retrospectively ; therefore subsection (3) was introduced in this section to empower the Governor-General to legislate with retrospective effect from 3rd June 1947. It was contended that to find out the powers of the legislature, the language of the provisions under which that power is conferred, must be examined. If the language of the section gives a contrary intention, then that legislative authority cannot be said to have power to legislate with retrospective effect. We have examined other provisions of the Government of India Act under which legislative authority was conferred on the Federal and Provincial legislature. We have also examined those provisions under which co-extensive powers were given to the Governor-General and the Governor to legislate. The language of these sections clearly establishes that the power given to these authorities was to make laws. In these provisions of the constitution, nothing is mentioned whether they will be for future or with retrospective effect, and in our opinion, these legislative authorities could legislate with retrospective effect. There is, however, an exception in the case of section 92 (1) and could be in case of section 95-A, but in the latter case specific power to legislate with retros pective effect was given. The intention of the legislature must be gathered from the language actually employed in the Constitution, and such language can suggest that no legislation can be made with retrospective effect. There is a clear distinction in the language used in section 290-A (2) (c) and sections 100, 102 and 103 of the Government of India Act. In the former the language used is "with respect to the laws which are to be in force in the area". The language employed in section 290-A, subsection (2) (c) makes it clear that this provision of the Constitution would govern only future laws. The departure from the phraseology in the impugned section is not without significance. It is certainly distinct and marked. The former includes only future legislation and the latter includes both prospective and retrospective legislation. Although we are not concerned with the wisdom of the legislature, there is, however much force in the suggestion made by the counsel for the petitioners that the underlying idea was that the Federal Capital was to be created in future, and, therefore, the Constituent Assembly did not consider it expedient to permit the Governor-General to enact retrospective legisla tion having effect earlier than the date when the Federal Capital comes into existence. We have very carefully considered this question. We are not unmindful of the general principle that the constitu tional provisions should be given a liberal construction and that as far as possible the Courts should declare the statute intra vires rather than ultra vires. But in spite of this, we are clearly of the opinion that the power of legislation conferred under section 290-A of the Government of India Act with respect to the laws in the Federal Area, is only confined to legislation with prospective effect and not to legislation with retrospective effect. If the legislature wanted to give full legislative authority to the Governor-General in respect of the laws in the Federal Capital, then they should have easily used the language that the Governor-General may make such provisions with respect to the laws in the Federal Capital as he deems necessary and proper. The constitution-making body had not used this phraseology. In our opinion, the language of section 290-A is so clear, unambiguous and emphatic, that it can lead us to only one conclusion, namely, that the power conferred on the Governor-General was only with regard to the prospective legislation. We consider that on the language of section 290-A, it cannot be held that the Governor-General has authority to legislate with retrospective effect section 1 of the Governor-General's Order No. 1/56 reads as under :- "(1) Short title and commencement, (1) This Order may be called the Sind (Requisition of Land Amendment) Order, 1956. (2) It shall come into force at once and shall be deemed to have taken effect on and from the twenty-first day of June 1947". This Order shows that the amendment in the Sind Requisi tion of Land Act has been made with effect and retrospec tively from 21st June 1947. This is in violation of the powers conferred on the Governor-General. We, consider that the amendment made in the Sind Requisition of Land Act 1947 to this extent, is ultra vires ; in other respects, the amendment is valid and will be operative. For the reasons given above, we hold that the Governor- General's Order No. 1/1956 is intra vires in all respects, except that it is ultra vires in respect to the retrospective effect given to it from 21st June 1947. The result will be that if any requisition order was made before the date of the said amendment with respect to the case of tenants, such order will be illegal and not operative and effective, The parties have prayed that the question involved in this matter is a substantial question of law as to the interpretation of the Constitution and that this Court should grant certi ficate under Act 157 of the Constitution to file an appeal to the Supreme Court. It is certified that the case involves a substantial question of law as to the interpretation of the Constitution and the parties are permitted to, file an appeal in the Supreme Court. Certificates granted. A. H. Order accordingly.