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Petitioner: DEWAN TEXTILE MILLS LTD. VS Respondent: PAKISTAN AND Other
Court Name: Sindh High Court Judge(s): Muhammad Haleem, Abdul Qadir Sheikh, Zakaullah Lodhi Title: DEWAN TEXTILE MILLS LTD. vs PAKISTAN AND Other Case No.: Miscellaneous Application No. 71 of 1976 Date of Judgment:1976-02-22 Reported As: PLD 1976 Karachi 1368 Result: H.
Judgment Order under clause (1)-- (a) prohibiting the making of an Order for the detention of a person, or (b) for the grant of bail to a person detained, under any law providing for preventive detention ; and (4) Where- (4) Where-- Court for an Order under para- Court for an Order under para-- graph (a) or paragraph (c) of graph (a) or paragraph (c) of clause (1), and clause (1), and (b) the making of an interim Order (b) the making of an interim Order would have the effect of prejudic- would have the effect of prejudic-- ing or interfering with the carry- ing or interfering with the carrying ing out of a public work or of out of a public work or of other-- otherwise being harmful to the wise being harmful to the public public interest or of impending the interest are of impending the assessm ent or collection of public assessment or collection of public revenues, revenues, the Court shall not make an interim the Court shall not make an in-- Order unless the prescribed law terim Order unless the prescribed officer has been given notice of the law officer has been given notice
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application and he or any per- of the application and he or any son authorised by him in that be- person authorised by him in that half has had an opportunity of behalf has had an opportunity of being heard and the Court, for being heard and the Court, for reasons to be recorded in writing, reasons to be recorded in writing, is satisfied that the interim Order- is satisfied that the interim Order-- (i) would not have such effect as (i) would not have such effect as aforesaid ; or aforesaid ; or (ti! Would have the effect of sus- (ii) would have the effect of sus-- pending an Order or proceeding pending an Order or proceeding which on the face of the record which on the face of the record is without jurisdiction." is without jurisdiction. (4-A) An interim Order made by a made to it to question the validity or legal effect of any Order made, proceeding taken or act done by any authority or person, which has been made, taken or done or purports to have been made, taken or done under any law which is specified in Part I of the First Schedule or relates to, or is connected with, assessm ent or collection of public revenues shall cease to have effect on the expiration of a period of sixty days following the day on which it is made, unless the case is finally decided, or the interim Order is withdrawn, by the Court earlier." The first category of arguments addressed by Mr. A. K. Brohi involves of the interpretation of the language of clause (4-A) so far it affects the power of the High Court to grant interim relief, pending final adjudication of an application for relief under Article 199 of the Constitution. In this regard, Mr. Brohi firstly submitted that the embargo placed by clause (4-A) on the duration of time for which an interim Order is to remain in force is relatable only to those interim Orders that are passed ex parte, known as ex parte interim Orders, and not the ones passed after giving an opportunity .Of hearing to the prescribed Law Officer in terms of clause (4) of Article 199. Learned counsel supported this assertion by pointing out that the Consti--tution under its Article 199 has conferred upon the High Court powers of very high competency ; inter alia (i) power to issue directions ; and (ii) power to assess and declare any act done as an act of no legal effect and done or taken without lawful authority, and the power to make an interim Order is to be construed as incidental to the power to make a final Order, in so much as, the object of making an interim Order is to preserve the corpus of the dispute till such time as the High Court can finally dispose of the same and since any amendment which seeks to adversely affect the jurisdiction of a superior Court has to be construed very strictly, it could, therefore, be implicitly assumed that there would be no necessity to place any restrictions on the power of the High Courts to make an
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interim Order by means of clause (4-A), and the embargo on the duration of time is to be construed only in relation to ex parte interim Orders. Learned counsel submitted, as a point of note about clause (4-A) that if the Legislature had so desired, it could have made it an integral part of clause (4), and the argument would have been then plausible that all interim Orders passed in accordance with the machinery prescribed under clause (4) are limited to the period of 60 days. The fact that this has not been done, according to learned counsel, indicates that the intention of the Legislature was that clause (4-A) would apply only to those Orders passed otherwise than in accordance with the procedure specified in clause (4). Thus if an interim Order has been passed fn terms of the prescribed procedure in clause (4) after the hearing having been given to the prescribed Law Officer, the life of such an Order, according to learned counsel, is not meant to be limited to 60 days. Mr. Brohi sought to fortify this argument by urging that it is one of the very basic principles of statutory construction that it is not to be assumed that the Legislature would place an embargo which is wholly arbitrary or unreasonable, and since it is obvious that the cases before the High Court cannot be finally disposed of in 60 days, the only reasonable interpretation which can conceivably be placed on the embargo on the limitation of the operation of an interim Order is that it is meant only for those interim Orders which have been issued without notice to the prescribed Law Officer. Mr. Brohi submitted that in the cases wherein prescribed Law Officer has, in accordance with clause (4) been given notice of the application and an opportunity of being heard, and the Court has also recorded the reasons in writing stating clearly that the interim Order would not have the effect of prejudicing or interfering with the work of carrying out of a public work or being harmful to the public interest or of impeding, the assessment or collec--tion of public revenues or would have the effect of suspending an Order which on the face of the record is without jurisdiction, then there is conceivably no reason for limiting the life of such an Order to 60 days. To do so, according to Mr. Brohi, would lead to the ridiculous result that, although the Court has recorded a judicial finding after hearing the prescribed Law Officer to the effect, for example, that the making of an interim Order would not be impeding the assessment or collection of public revenues, yet the interim Order must lapse without any fault of the petitioner. Mr. Brohi submitted that the accepted principle of law is that an act of a Court is not to harm or prejudice a party, and the fact that due to the arrears of work in a High Court or for the reason of the laches on the part of the opposite-party could not have been meant to penalise a petitioner who has obtained a judicial finding from the Court in his favour, as stated above. Mr. Brohi's next line of arguments on the language of clause (4-A) was that it clearly relates to two categories of Orders ; those passed under a law specified in Fart I of the First Schedule ; and those relating to or connected with the assessment or collection of public revenues. In the first category, the act done by an Authority is protected whether it has been done under the law or purports to have been done under the law. In the second category, since the word 'purports' in absent, a distinction has necessarily to be drawn between the cases falling under the second category. According to him. Therefore, the interpretation which is to be placed on the language of clause (4- A) should bear the following formulation "(4-A).-An interim Order made by a High Court on an application made to it to question the validity or legal effect of any Order made, proceedings taken or act done by any Authority or person which has been made, taken or done or purports to have been made, taken or done under any law which is specified in Part I of the First Schedule or relates to, or is connected with, assessment or collection of public revenues, shall cease to have effect on the expiration of a period of 60 days following the day on which it is made, unless the case is finally decided, or the interim Order is withdrawn, by the Court earlier."
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In this behalf, Mr. Brohi further submitted that, although in the case of laws specified in Part I of the First Schedule, Orders passed under a law and Orders which purport to be passed under a law have been protected, this does not mean that any and every Order which states that it has been passed under such a law is protected. According to him an Order can only be described to have been purportedly made under a statute if the officer concerned has- "(i) freely applied his mind to the extent of his power under the statute ; (ii) acted in good faith and (iii) made a bona fide error which is, however, not of such a nature as to amount to an act in excess of jurisdiction. In other words it must be an error of the type which a reasonable man could have made." Mr. Brohi explained this by submitting that if an officer passes an Order in reckless or conscious disregard of the statute that Order has not even been purportedly made under the statute and such an Order cannot conceivably be protected. In this connection, reliance was placed on the meaning of the word "purported", given by Dorab Patel, J. In PLD 1970 Kar. 427 which is as follows : "It seems to me that action which is described as purported to have been taken under a statute can only mean something which was intended to have been done in pursuance of the provisions of that statute but which through human error did not fall within the scope of the statute therefore, an act in deliberate disregard of the provisions of a statute cannot be treated as an act purported to have been done under that statute." Mr. Brohi further submitted that this point is more conclusively decided by the Supreme Court in State v. Zia-ur-Rehman (PLD1973SC49) and Federation of Pakistan v. Saeed Ahmed (PLD1974SC151) that irrespective of the Constitutional language used, acts which are mala fide or in excess of jurisdiction cannot possibly be protected. According to Mr. Brohi, therefore, a mala fide act or an act in excess of jurisdiction or the one which cannot be described to have been 'purportedly' made under the law is void ab initio, and if an interim Order has been passed by a High Court on an application from the aggrieved person under Article 199 of the Constitution, the embargo of 60 days' time placed under clause (4-A) would not be applicable. Mr. Brohi then submitted that so far section 14 of the Constitution (Fourth Amendment) Act, 1975 is concerned, it does not effect a Constitu--tional amendment at all, for, unlike the preceding 13 sections, it does not state that it amends any Article or a provision of the Constitution. It may be mentioned here that section 14 states that an interim Order such as is referred to in clause (4-A) of Article 199 of the Constitution made by a. High Court before the commencement of this Act shall cease to have effect on the expiration of 60 days from such commencement, unless the ease is finally decided, or the interim Order is withdrawn by the Court earlier. The argument of Mr. Brohi precisely is that since the language of section 14 is not to the effect so as to direct or provide for an amendment of any Article or a provision of the Constitution, the effect to this provision of Constitution (Fourth Amendment) Act, 1975 cannot be given in terms of clause (6) of Article 239 of the Constitution which provides that the Constitu--tion will be amended only 'in accordance with the terms' of the Amending Act. Mr. A. K. Brohi finally submitted that if these arguments do not prevail, then he would press the submission that the Constitutional amendment brought about by the Constitution (Fourth Amendment) Act, 1975 is to be regarded as an utter destruction of judicial power which cannot be achieved by the power of amendment conferred by Part XI of the Constitution under Articles 238 and 239. In this behalf learned counsel placed reliance on the scheme of the Constitution which, according to him, is fully reflected in its Preamble, wherein it has been asserted and emphasised that the 'sovereignty' belongs to 'Almighty Allah' alone, and the authority to be exercised by the
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'people' of Pakistan within the limits prescribed by Him is a sacred trust, and that "the independence of the Judiciary shall be fully secured." Learned counsel argued that once the people of Pakistan gave the Constitution to this country, that act alone is the 'sovereign' act, and not any other act which amends the Constitution and which has been entrusted to the Parliament as an Agent. In this behalf, he argued that the Parliament cannot be given the same status of a Constituent Assembly which is set up as a sovereign body, with no limitation on its power to adopt a Constitutional instrument, in any terms, desired by it. But once that Constitutional document has been framed, it imposes a limitation on all organs of the State which draw their power from or under that document, and in a tripartite system of Government envisaged by the Constitution, an act of Parliament which is co-equal with the Judiciary, the third partner being the Executive, cannot be treated as a sovereign act. Learned counsel further stressed that the Parliament, like the other two principal organs of the State, is subject to the Constitution, and its position can never be considered as analogous to a Constituent Assembly. While conceding that it has power to amend the Constitution, that power, according to learned counsel being a power contained in the Constitution itself, is to be construed within the framework of the Constitution, and ought not to be given so wide a content as to enable Parliament to destroy the power of the Constitution itself. This argument was highlighted so as to emphasise the limited argument that the amendment brought about in Article 199, by the addition of clause (4-A), amounts to the destruction of judicial power vested in the High Courts, for, the power to maintain the status quo pending final decision by the High Court is fundamental to the exercise of judicial power. If a stay Order is not granted, and the consequence is that the property which is sought to be protected by the petitioner under the relief claimed by him under Article 199 is destroyed due to the embargo of time placed on the duration of the interim Order, no effective relief can ever be granted by the High Court, even though it was admissible in the final result. The grant of interim relief, it was thus argued, is an inherent aspect of the power to grant final relief, and the curtailment of the one is pro tanto a curtailment of the other. Mr. Brohi emphasised that granting of relief under Article 199, is, as the opening words of this Article clearly state, contingent on a prior showing by the petitioner that no other adequate relief is available to him under the law, and if, therefore. Relief is admissible to him under the Constitutional power vested in the High Court, then the deprivation of the right in property which could be protected by the interim Order amounts to destruction of judicial power. According to him, therefore, meaning that must be given to the word "amendment" in Chapter XI of the Constitution is "to make such changes which do not destroy the basic feature and fundamental scheme of the Constitution". Mr. Yahya Bakhtiar, learned Attorney-General who assisted the Court as amicus curiae, supported the amendments introduced by the Constitution (Fourth Amendment) Act, 1975 as being the integral part of the Constitution. He argued that the power of amendment contained in Part XI of the Constitu--tion is an exercise of 'constituent power' vested in the Parliament, and cannot be delegated to the level of an ordinary legislative function conferred upon the Parliament in the other Parts of the Constitution. Referring to the argument of Mr. A. K. Brohi that the Constitution was handed over to the nation by the 'people' of Pakistan and that they entrusted the task of the amendment of the Constitution to the Parliament as their Agent, learned Attorney-General submitted that reference to the Preamble to the Constitution would be totally inapt as the text of a Preamble is to be construed as a legal fiction, and in the words of Hamoodur Rahman, C. J. In State v. Zia-ur-Rehman, 'in the case of any doubt as to the intent of the law-maker, it may be looked at to ascertain the true intent, but it cannot control the substantive provisions thereof'.
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Learned Attorney-General emphasised that the Judiciary in the scheme set out in the Constitution has no power to strike down any provision of the Constitution, and he made extensive references to the passages from the judgment in State v. Zia-ur-Rehman, particularly to the following "In exercising this power the Judiciary claims no supremacy over other organs of the Government but acts only as the Administrator to the public will. Even when it declares a legislative measure unconstitutional and void it does not do so because the judicial power is superior in degree or dignity to the legislative power; but because the Constitu--tion has vested it with the power to declare what the law is in the cases which come before it. It merely enforces the Constitution as a paramount law whenever a legislative enactment come into conflict with it because it is its duty to see that the Constitution prevails. It is only when the Legislature fails to keep within its own Constitutional limits, the Judiciary steps in to enforce compliance with the Constitution. Again if law has been patently and validly made the Judiciary cannot refuse to enforce it even if the result of it be to nullify its own decision. The Legislature has also every right to change, amend or clarify the law if the Judiciary has found that language used by the Legislature conveys an intent different from that which was sought to be conveyed by it. The Legislature which establishes a particular Court may also, if it so desires, abolish it. So far, therefore, as this Court is concerned it has never claimed to be above the Constitution nor to have the right to strike down any provi--sion of the Constitution. It has accepted the position that it is a creature of the Constitution; that it derives its powers and jurisdictions from the Constitution; and that it will even confine itself within the limits set by the Constitution which it has taken oath to protect and preserve but it does claim and has always claimed that it has the right to interpret the Constitution and to say as to what a particular provi--sion of the Constitution means or does not mean, even if that particular--lar provision is a provision seeking to oust the jurisdiction of this Court. This is a right which it acquires not de hors the Constitution but by virtue of the fact that it is a superior Court set up by the Constitution itself. It is not necessary for this purpose to invoke any divine or supernatural right but this judicial power is inherent in the Court itself. It flows from the fact that it is a Constitutional Court and it can only be taken away by abolishing the Court itself." Learned Attorney-General, however, submitted that whereas the Judi--ciary can claim no supremacy over the other two equally independent organs of the State, it has no doubt the power to scrutinise the validity of even the Constitutional measure seeking to amend the Constitution. In this regard, he pointed out the following portion from State v. Zia-ur-Rehman "If a Constitutional measure is adopted in a manner different to that prescribed in the Constitution then the validity of such a measure may well be questioned and adjudicated upon. This, however, will be possible only in the case of a Constitutional amendment but generally not in the case of a first or a new Constitution, unless the powers of the Constitution-making body itself are limited by some supra-Constitu--tional document" Learned Attorney-General took exception to Mr. Brohi's argument by the amendment introduced in Article 199 the powers of the High Courts have been taken away. He emphasised that High Court has yet the power to make the final Order, and the embargo of time placed on the period for which an interim Order is to remain in force cannot be treated as annihilation or deprivation of power of the High Court. As to the interpretation of the language of clause (4-A), with reference to the embargo of 60 days imposed upon interim Orders envisaged by this clause, learned Attorney-General took the stand that the embargo is relatable not only to those passed ex parte, but also to the ones made after the limita--tions of clause (4) are satisfied. Referring to clause (4) he submitted that the High Court has no power to pass an interim Order in respect of cases falling under the categories mentioned
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therein, and if an interim Order is passed after the condition imposed by the provisions of clause (4) are ful--filled, then that Order by virtue of clause (4-A) is limited to 60 days' duration. In reply to the second line of Mr. Brohi's arguments on the inter--pretation of clause (4-A) learned Attorney-General submitted that the language contained therein is indivisible, although it deals with two classes of cases; one falling under the category which relates to laws preserved by Part I of the First Schedule of the Constitution, and the other being relatable to assessment or collection of public revenues. According to learned Attorney-General reference made by Mr. Brohi to the word "purports", or his arguments that a mala fide Order is not an Order "purported" made under a statute has no bearing on the interpretation of clause (4-A). He submitted that the distinction in any case would be irrelevant, for, the effect of the provision of this clause is on the interim Orders of the categories specified therein. In other words the submission of learned Attorney-General was that the question whether an Order pertaining to the two categories of the cases specified in clause (4-A) is passed in exercise of power under the law or purported exercise of law is the question which is to be decided by the final Order passed by the High Court on an application under Article 199. Learned Attorney-General then submitted that the jurisdiction vested in the High Court under Article 199 of the Constitution is made specifically subject to the Constitution in that Article, and, therefore, curtailment of that jurisdiction by amendment of the Constitution is not open to exception. He submitted that in any case there has been no actual curtail--ment of the jurisdiction since the embargo has been placed on an interim Order which by its very nature is an exercise of discretionary jurisdiction by the High Court and petitioner cannot claim it as a right not to speak of a right protected by the Constitution. In so far as the interpretation of section 14 of the Constitution (Fourth Amendment) Act, 1975 is concerned learned Attorney-General submitted that the provisions contained in the Bill when it becomes an Act of Parliament under clause (6) of Article 239 acquire the status of a part of the Constitution and it is. Therefore, not necessary that the language of the specific Article should contain a direction regarding amendment to be made in any particular article or part of the Constitution. I might add here that the arguments on the lines addressed by Mr. A. K. Brohi and the learned Attorney-General were adopted by the other counsel appearing in the case and references to certain reported cases were also made in particular to State v. Zia-ur-Rehman and Federation of Pakistan v. Saeed Ahmed by the learned counsel. 1, however, feel that it would suffice if the scope of the arguments addressed at the Bar is noticed for the time being. Since the arguments relating to the nature and the scope of the power of amendment of Constitution conferred under Part XI of the Constitution are of significant Constitutional importance, I would like to deal with this aspect first. The basic argument advanced by Mr. A. K. Brohi is that it is not to be assumed that the original framers of the Constitution I.e. The people of --Pakistan, had intended, in view of the tripartite form of Government prescrib--ed by them in the Constitution, to invest the Parliament, an equal partner with the Judiciary, with the power to destroy the…
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