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Petitioner: GHULAM NABI VS Respondent: PROVINCE OF SINDH and others
Court Name: Sindh High Court Judge(s): Sabihuddin Ahmed, Wahid Bux Brohi Title: GHULAM NABI vs PROVINCE OF SINDH and others Case No.:<p>Constitutional Petitions Nos.D-159 to 163, 156 to 172, 176, 179, 180 to 183,
JUDGMENT
Reported As: PLD 1999 Karachi 372 Result: Order accordingly Judgment JUDGMENT ' SABIHUDDIN AHMED, J.---These petitions involving similar facts and identical questions of law were heard together and disposed of by common order announced on 3-6-1999. The petitioners who are agriculturists owning land and supplied irrigation water through watercourses from outlets in different canals under the command of Kotri, Sukkur and Guddu Barrages appear to be aggrieved by the promulgation of the Sindh Irrigation (Amendment) Ordinance, 1999 (hereinafter referred to as impugned Ordinance), section 5(1) whereof purports to abrogate and annul the order granting irrigation water through various canals to 107 persons mentioned in the Schedule to the Ordinance. Having pronounced upon the Constitutional validity of the aforesaid Ordinance we proceed to record detailed reasons for our conclusion hereinbelow. 2. It may not be necessary to recapitulate the facts of each particular case as they were similar for the purpose of deciding the controversy between the parties and it might suffice, by way of explaining the factual background, to refer to the contents of C.P. No,159 of 1999. According to the petitioner the water supply available for irrigating his lands was not adequate and, therefore, he alongwith other co-owners of the watercourse represented to the Provincial Government for sanction of a different outlet from the canal. The approval was accorded in terms of a letter dated 25-5-1997 on behalf of the Secretary, Irrigation and Pow Department addressed to the concerned Executive Engineer, the relevant part whereof reads as under:--
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"In supersession of this Department's letter of even number dated 7-10-1997, I am directed to convey approval in favour of Haji Muhammad Alam Jamali and others, to the sanction of a separate outlet at R.D. 14.1 Ex. Brandhi Minor for applicants area measuring 235 acres (Two Hundred Thirty Five Acres), only, being part command of watercourse No,6-L Ex. Brandhi Minor. 2. The approval is, however, subject to the observance of all legal and codal formalities under Sindh Irrigation Act, 1879 and other rules and regulations etc. Further subject to the condition that the expenditure involved in implementing the proposal will be borne by the applicants. 3. You are requested to take necessary action and inform all concerned accordingly, under intimation to this Department." 3. As is evident from the above, the sanction was subject to fulfilment of all legal and codal formalities under the Sindh Irrigation Act and the condition that expenses entailed would be borne by the applicant/petitioner. According to the petitioner all such legal requirements were met. He paid the required expenses, spent huge amount on construction of watercourse and planted an Orchards on the land. On 27-3-1999, however, the Governor of Sindh in the exercise of his powers under Article 128 of the Constitution issued the impugned Ordinance. While sections 1 to 4 purported to amend the Sindh Irrigation Act, 1879, section 5 stipulated abatement of certain orders of approval, and reads as follows:-- "5.--(1) Notwithstanding anything contained in any law for the time being in force or any judgment nor order of any Court or agreement, the orders granting irrigation water through the various canals to the various persons mentioned in the Schedule to this Ordinance shall stand abrogated and annulled and be of no effect. (2) No compensation shall be claimed by or payable to any person who sustains any loss by such abrogation and annulment." 4. The Schedule to the Ordinance mentions 107 applicants in whose favour sanctions were accorded alongwith the name of the relevant canal and the date of the sanction order. The petitioner's name figured in the aforesaid Schedule and aggrieved by the same the Constitutional validity of section 5 of the impugned Ordinance has been called in question, inter alia, upon the following grounds:-- (i) That the Ordinance in question was ultra vires legislative powers of the Governor available under Article 128 of the Constitution. (ii) That the provisions of section 5 of the Ordinance were liable to be struck down for being mala fide, in derogation of vested rights and violative of principles of natural justice. (iii) That the Ordinance amounted to deprivation of petitioners right to property and to acquisition without compensation and was, therefore, ultra vires the fundamental rights guaranteed under Article 24 of the Constitution. (iv) That selection of 107 landowners in the Schedule to the Ordinance for adverse action out of 4000 sanctioned outlets in the province and 145 approvals accorded by the last Government, amounted to hostile discrimination forbidden by Article 25 of the Constitution. 5. In the comments/statements filed on behalf of the respondent No,2\ allegations of mala fide were expressly denied. It was averred that only a limited quantity of irrigation water was available and by approval of the aforesaid 107 outlets through use of political clout landowners whose lands were located at the tail of watercourses had been badly affected and the Ordinance was promulgated in the public interest to ensure equitable supply of irrigation water. It was further contended that a committee of experts comprising two Chief Engineers and one Superintending Engineer reviewed all the 145 outlets approved by the previous Government and it was found that though legal requirements were fulfilled in 38 cases and the sanctions were also feasible, it was not so in the remaining 107 cases which were enumerated in the Schedule to the Ordinance. Hence, it
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was contended that the petitioners had not acquired any vested rights and no hostile discrimination had been effected. 6. As to the question of competence of the Governor to promulgate the impugned Ordinance, Mr.Jhamat Jethanand, learned counsel for the petitioner in C.P. No,159 of 1999 and most of the other petitions, argued that the power available to the Governor was in the nature of an extraordinary power available to the executive to legislate in an emergency situation, exercisable under Article 128(1) of the Constitution only when the Assembly was not in session and the Governor was satisfied that there was need to take immediate action. On the factual side learned counsel pointed out that the approvals sought to be annulled by the impugned Ordinance had been accorded between 23-4-1997 and 30-10-1998 (on 22-5-1998 in C.P. No,159 of 1999) and the Provincial Assembly had already been summoned to meet on 31-3-1999 when the Ordinance was promulgated, three days thereafter were closed holidays. As such though technically, the Assembly was not in session, there could be no conceivable basis for the Governor to satisfy himself that immediate action was necessary and no such basis has been disclosed. To be fair to the learned counsel, it may be acknowledged that the argument does possess the merit of logical consistency though he was unable to substantiate it by any precedents. 7. The learned Advocate-General, in reply, did not dispute that the Provincial Assembly had already been summoned to meet before the impugned Ordinance was promulgated and three days thereafter were closed holidays on account of Sunday and Eid-ul-Azha. He, nevertheless, argued that the consistent view of Courts in Pakistan has been that satisfaction as to the insistence for immediate legislation on the part of the President or Governor was only subjective and not justiciable. He relied upon a Full Bench judgment of the earstwhile West Pakistan High Court, in the matter of In re: Syedlaq Hussain, Advocate PLD 1965 Lahore 147 and Division Bench Judgment of this Court in Kazi Abdul Majeed v. Government of Sindh PLD 1976 Karachi 600, which indeed support his contention. Moreover, he argued that even if it be assumed otherwise, once the condition of the Assembly not being in session was satisfied, one of the important consideration for the Governor's satisfaction was whether the object could be achieved through legislation according to the ordinary process. He contended that in the peculiar circumstances, arising from the promulgation under Article 234 it was not possible to move a Government bill in the Provincial Assembly to deal with the situation. On our request, learned Advocate-General placed before us the Rules of Provincial Assembly which show that private members bill are only required to be taken up for consideration on the day fixed for discussion on such bills and have to be taken up in the order in which they were tabled. While we are doubtful if earlier judgments regarding non-justiciability of the Governor's satisfaction continue to remain good law after recent pronouncement of the Supreme Court in cases like Farooq Ahmad Khan Leghari v. Federation of Pakistan PLD 1999 SC 57, provisions relating to Government bills and private members bills being substantially different in the Rules, we find considerable force in the argument that the situation could not be appropriately dealt with through a private bill and must, therefore, repel Mr. Jethanand's contentions on this aspect of the controversy. 8. At this stage it may be pertinent to refer to the contentions of Mr.Muhammad Yousuf Leghari, learned counsel for the petitioner in a number of connected petitions, assailing the authority of the Governor to promulgate the impugned Ordinance. Mr. Leghari argued that while exercising Ordinance-making power under Article 128, the Governor was required to act on the advice of the Chief Minister as the matter did not fall within the area of discretionary powers available to him under the Constitution. Indeed there could be no cavil with this proposition under ordinary circumstances. Nevertheless, when confronted with the fact that on account of the proclamation dated 30-10-1998 the provisions of Articles 130 and 136 have been suspended, Mr. Leghari argued that the function of the Government of a Province could only be assumed by the President or the
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Federal Government or entrusted to the Governor of a Province under Articles 232 and 234 of the Constitution only when strict conditions for exercise of such power were fulfilled. He placed strong reliance on a Full Bench judgment of the Lahore High Court in Mian Manzoor Ahmad Wattoo v. Federation of Pakistan PLD 1997 Lahore 38. With profound respect to the learned counsel, however, we find the discussion largely academic inasmuch as the learned Advocate-General rightly pointed out that the validity of the aforesaid proclamation dated 30-10-1998 has already been upheld by the Honourable Supreme Court in Syed Jalal Mahmood Shah v. Federation of Pakistan PLD 1999 SC 395. In the circumstances, we have no option but to hold that in view of paras. (ii) and (iii) of the aforesaid proclamation, Mr.Leghari's contention has no force. 9. Mr.Jhamat Jethanand then argued that approvals of outlets in favour of petitioners had been duly acted upon and the petitioners had invested huge amounts by way of construction of watercourses and plantation of orchara etc. They had acquired vested rights and as such the impugned action of annulling all the approvals were patently unlawful on grounds of being (i) mala fide, (ii) loss of locus poententiae and (iii) denial of opportunity of being heard. We may observe that in case vested rights had matured in favour of the petitioners through fulfilment of all requirements of law and had the impugned action been taken in the exercise of executive power, we would have had unhesitatingly declared the same to be unlawful. Nevertheless we pointed out to Mr. Jethanand that what was impugned before us was not an executive order but a legislative dispensation. It was well-settled that motives of the Legislature could not be gone into by Courts, the Legislature had plenary power to destroy existing rights and was under no obligation to accord prior hearing to those likely to be affected adversely by a new law. 10. Realising this difficulty Mr. Jethanand contended that though promulgated in the form of a legislative instrument the impugned Ordinance in substance was nothing but merely an executive fiat. Moreover, he argued that the fact that it had been brought into existence by the executive only without debate and discussion by the entire house and reflected the opinion of one individual rather than collective deliberation of the representatives of the people could not be overlooked. As such the principle that Courts could not sit in judgment over legislative wisdom did not apply to such dispensation. It was amenable to judicial review as any other executive action. Learned counsel, however, did not cite any case-law wherein the validity of legislation affected through an Ordinance has been examined from a different yardstick as compared to an Act of Legislature. Indeed we are aware that in Chaudhary Qasimuddin v. Province of West Pakistan PLD 1957 Lahore 76, Kaikaus, J. (as his Lordship then was) did take the view that the validity of an Ordinance could be questioned on the ground of mala fide as otherwise every mala fide act of the executive could be protected by promulgating it in the form of an Ordinance. This view however, was not shared by the other learned Member of the Bench, Yaqub Ali, J. And was eventually expressly overruled by the Hon'ble Supreme Court in Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457. Again in the more recent pronouncement of the Honourable Supreme Court in Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 where their Lordships found a conflict between certain provisions in Articles 203-C and 209 of the Constitution, they held that action ought to be taken under the latter provision which have been enacted through a consensus as compared to the former which was inserted trough an amendment brought about by the Chief Martial Law Administrator. Nevertheless in all the opinions it was expressly clarified that the former provision was not being struck down or given a sub-Constitutional status. In view of the above we are of the opinion that though it might be desirable, as far as possible to enact legislation through a bill presented before the Legislature, once the preconditions as to the fact of the Assembly not being in session and the satisfaction of the Governor that immediate action is necessary are met, an Ordinance must be given the same effect as an Act of the Assembly in terms of the mandate of Article 128(2) of the Constitution.
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11 Mr. Jethanand next argued that the impugned section 5(1) of the Ordinaice purporting to destroy the legal rights acquired by certain individuals named n the Schedule, were in the nature of "legislative judgment" and did not per se amount to legislation. Therefore, even if such provisions were enacted by the Provincial Assembly itself, they could not pass the test of constitutionality. Learned counsel contended that though the Legislature might have plenary power tc destroy or impair existing rights, subject to limitations laid down by the Constitution, its powers were confined only to laying down general rules and providing a mechanism for their enforcement. Individual cases were to be dealt with by tle executive or the judiciary, depending on the nature of the subject-matter. He illustrated this by stating that perhaps Legislature could have stipulated hat the approvals accorded to a certain categories of land owners would stand cancelled upon happening of certain events or proof of certain facts. It could provide a mechanism for determining the persons who fell within such category or the facts necessary to entail annulment of rights. It could not, however, specify individuals whose rights were to be taken away in the legislative insrument itself. Though the case-law cited by learned counsel was not particularly helpful, the argument indeed appeared to enjoy the support of legal principle end, therefore, we decided to examine the same in some depth. 12. We are aware that similar arguments found favour with a Full Bench of the Lahore High Court in National Industrial Cooperative Credit Corporation v. Province of Punjab PLD 1992 Lahore 462. After the unearthing of large-scale financial scandals in cooperative societies in Punjab and pursuant to a report of Commission of Inquiry constituted to look into the same, the Governor of Punjab promulgated an Ordinance known as Punjab Undesirable Cooperative Societies (Dissolution) Ordinance, 1992 (Ordinance XX of 1992). The Ordinance inter alia stipulated that certain named cooperative societies enumerated in the Schedule thereto were to be treated as "Undesirable Cooperative Societies" and by virtue of section 12 they would cease to exist and their assets would stand vested in the Registrar, Cooperative Societies. The Constitutional validity of the aforesaid Ordinance was called in question and it was inter alia urged that declaration of specified societies as undesirable amounted to a bill of attainder, being one of the pains and penalties as it amounted to pronouncement of "legislative judgment". The arguments found favour with their Lordships and it was held that since the same attempted to make inroads into the power of the judiciary it was beyond the competence of Legislature. 13. Indeed similar views also appear to have been taken by the Supreme Court of Untied States in U.S. v. Lovett 328 US 303. A statute enacted after congressional enquiry into the alleged subversive activities of certain individuals stipulating that three named individuals would not be paid any salary out of Government Funds unless reappointed by the President with the consent of the Senate was struck down being bill of attainder and hit by Article I, section 9 of the U.S. Constitution. Similarly in U.S. v. Brown 381 US 438 a provision of the Labour. Management Reporting and Disclosure Act, 1959, which made holding of office in a Trade Union by a member of Communist party an offence, was also struck down. While the purpose of the legislation intended to "protect the national economy by minimizing the danger of political strikes" was found valid, it was held that the Legislature could not identify individuals who fell within that category. Chief Justice Warren, who delivered the majority opinion traced the history of bills of attainder and bills of pains and penalties pointing out that during the 16th to 18th Centuries in England and even during the early stage of the revolution in America, Legislature often resorted to sentencing people to capital punishment and also minor punishment and deprivation of civil rights who were considered to have attempted to overthrow Government etc. Such legislative measures involving capital punishment disenfranchisement etc. Were known as bills of attainder and those involving lesser penalties as bills of pain and penalties. It was explained that the U.S. Constitution was premised on the principle of separation of powers and punishment for something done being essentially a
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judicial function could not be allowed to be arrogated by the Legislature and it was on this principle that the Constitution enjoined the Congress as well as the States to pass a bill of attainder. 14. The crux of the matter, however, is that the Supreme Court of the United States found it possible to apply the prohibition against bills of attainder to smaller penalties and deprivation of rights known as bills of pains and penalties and also to burdens of civil nature because the theory of separation of powers was viewed as a cornerstone of the Constitutional system. In this context an erudite and extremely illuminated discussion is available in the judgment of the Honourable Supreme Court in Fauji Foundation's case paras.167-204) where it has been shown how the aforesaid doctrine of (separation of power) was acknowledged to be a kind of grund norm of the American Constitution and how the same is inapplicable in its pristine form to our Constitutional system. We respectfully follow the same and would humbly venture to add that even otherwise this theory propounded by Montesque, which at one time as considered to be a bulwark against despotic use of power, has been effectively eroded with the development of Constitutional law over the last two centuries wherein more practical and effective checks and balances have been evolved. The enormous amount of delegation of legislative power to the executive which is liberally upheld by Courts, the expansion of judicial review jurisdiction whereby Courts are empowered to examine the validity of administrative action, not merely to examine whether the administrative agency acted within its allotted jurisdiction but also on the principle whether public power was exercised rationally and fairly, the recognition of the power of Courts to issue directives of an executive or quasi-legislative nature in public interest litigation, the wide powers conferred upon administrative agencies or Tribunals to deal with the important rights of the people only lend support to the view taken by the Honourable Supreme Court. 15. Our Constitution does not contain any clear demarcation of functions entrusted to the executive, judiciary or legislature and being modelled on parliamentary system, with the Legislature controlling the executive, separation of powers in the sense envisaged in U.S.A. Cannot be assumed. Though trichotomy of functions of the three arms of Government exists in a general sense, there is substantial overlapping within the Constitution itself. In any event, in view of a binding precedent from the Hon'ble Supreme Court, we find ourselves unable to be pursuaded to hold a legislative instrument ultra vires on the basis of a theory whose own efficacy is in considerable doubt. Accordingly, we are of the opinion that the provisions of the impugned Ordinance could only be struck down on the ground of being repugnant to a guaranteed fundamental right or any other provision of the Constitution. 16. We have noticed that in the National Industrial Credit Corporation case PLD 1992 Lahore 463 their Lordships did observe that the ratio of the Supreme Court judgment in Fauji Foundation lost his significance upon incorporation of Article 2A of the Constitution and emphasised the stipulation in the Objectives Resolution to the effect that "wherein independence of judiciary shall be fully secured". This, however, was done on the basis of concession accorded by the learned counsel for the respondents and apparently their Lordships did not have the benefit of hearing detailed arguments. While we fully endorse their Lordships' view to the effect that independence of judiciary is one of the most sacred pillar upon which the edifice of our Constitutional and legal system is founded, with profound respects we find if extremely difficult to persuade overselves to take the view that this concept had no existence till the incorporation of Article 2A i,e, when the Constitution was originally framed or the Fauji Foundation case was decided. 17. Mr. Jethanand then argued that the impugned provisions of the Ordinance were repugnant to Article 24 of the Constitution, which read as under:-- "Article 24.--(1) Protection of property rights.--No person shall be deprived of his property save in accordance with law.
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(2) No property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides for compensation therefor and either fixes the amount .Of compensation or specifies the principles on and the manner in which compensation is to be determined and given. (3) Nothing in this Article shall affect the validity of-- (a) any law permitting the compulsory acquisition or taking possession of any property for preventing danger to life, property or public health; or (b) any law permitting the taking over of any property which has been acquired by, or come into the possession of any person by any unfair means, or in any manner, contrary to law; or (c) any law relating to the acquisition, administration or disposal of any property which is or is deemed to be enemy property or evacuee property under any law (not being property which has ceased to be evacuee property under any law); or (d) any law providing for the taking over the management of any property by the State for a limited period, either in the public interest or in order to secure the proper management of the property, or for the benefit of its owner; or (e) any law providing for the acquisition of any class of property for the purpose of- (i) providing education and medical aid to all or any specified class of…
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