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Petitioner: SYED MUHAMMAD WARTS SHAH VS Respondent: THE PROVINCE OF WEST PAKISTAN
P L D 1959 (W
P L D 1959 (W. P.) Lahore 898
Before M. R. Kayani, C. J. and B. Z. Kaikaus, J
Syed MUHAMMAD WARTS SHAH‑--Petitioner
versus
THE PROVINCE OF WEST PAKISTAN‑--Respondent
Writ Petition No. 509 of 1958, decided on 3rd July 1959.
(a) Constitution of Pakistan (1956), Art. 193‑Assumption by President of power of Government in Province‑President entitled to assume powers vested in Governor, e.g., Ordinance‑making power of Governor under Art. 102, Constitution of Pakistan
Held, that under a Proclamation issued under Art. 193, Con stitution of Pakistan (1956) the President is entitled to assume the powers which are vested in the Governor, e.g., the Ordinance making power of the Governor vested in him under Art. 102, Constitution of Pakistan, (1956).
The President is entitled to assume to himself the powers of any body or authority.
A Proclamation of emergency is resorted to when the democratic machinery has broken down. The provision as to division of powers in such cases would be something very unusual and if the intention of the makers of the Constitution was to create a dual control, at least there should have been some clear indication to that effect.
It is not correct to say that the President by assuming to himself the powers of making Ordinance is depriving the Governor of any power which specially vests in him. By the Proclamation, the powers of the Government are to be assumed by the President. The powers of the Government are also powers of the Governor, though he is to act on advice. In the case of the ordinance‑making power too, he is to act on advice.
The Governor assumes powers only on behalf of the President and there would be nothing wrong in saying that even the power of making Ordinances can be assumed by the Governor on behalf of the President even though, in accordance with Article 102, it was he who was to promulgate Ordinances. When there is a Proclamation the whole power of Government vests in the President and it is he who acts either directly or through the Governor.
(b) Constitution of Pakistan (1956), Art. 193‑Proclamation by President assuming powers of Government in Province of West Pakistan, dated 21st March 1957, as amended by Proclamation dated 29th March 1957‑Contains provision for assumption of Ordinance‑making power by President.
Held, that in the President's Proclamation under Art. 193, Constitution of Pakistan, issued on 21st March 1957, as amended on 29th March 1957, assuming powers of Government in the Province of West Pakistan, there is a clear intention on the part of the President to assume the Ordinance‑making powers. The clear intention of the President, to assume the ordinance making power is there, and the authority to assume such a power exists under Article 193. The only legal requirement for assumption of this power is that the President should notify the assumption of power and he has notified it. The mere fact that the description of this assumption of power as a conse quential or incidental provision is incorrect, does not deprive the notification of its force and validity.
(c) Constitution of Pakistan (1956), Art. 102‑West Pakistan Foodstuffs (Control) Ordinance (President's West Pakistan Ordinance I of 1957 issued under Proclamation made under Art. 193, Constitution of Pakistan--‑Not placed before Parliament within six weeks of 30‑4‑1957 date of Parliament's meeting--- Ordinance ceased to be in force‑West Pakistan Foodgrains (Licensing Control)' Order, 1957 issued under Ordinance I of 1957 also ceased to be in force‑Wheat seized in September 1957 Seizure illegal‑Constitution of Pakistan (1956), Art. 6‑West Pakistan Foodstuffs (Control) Ordinance (XI of 1957).
Under Art. 102, Constitution of Pakistan, the West Pakistan Foodstuffs (Control) Ordinance (President's West Pakistan Ordinance I of 1957, issued under a Proclamation made under Art. 193, Constitution of Pakistan) was to be placed before the Parliament in its next meeting and it was to expire six weeks after the meeting. The Parliament was admittedly in session on the 30th April 1957 though the session may have begun earlier. The Ordinance, therefore, would expire in the middle of June 1957. The Ordinance was a temporary statute and when a temporary statute expires, no law which has been promulgated by virtue of the temporary statute can continue to be in force. This proposition does not appear to need support of any argu ment. Had it been otherwise an authority that has power only to enact a temporary statute could make a permanent law by first providing in the temporary statute for the making of an order or regulation and then making the order or regulation.
Where wheat was seized under section 7, West Pakistan Foodgrains (Licensing Control) Order, 1957 on 13th September 1957, the order having ceased to exist six weeks after 30‑4‑1957 the seizure was illegal.
On that date because of the expiry of Ordinance I of 1957 there was no law in force under which the wheat could have been seized on account of disobedience of directions. It is only on account of the retrospective effect given by the Ordinance XI of 1957 that we can assume the existence on that day of the West Pakistan Foodgrains (Lincensing Control) Order under section 7 of which the seizure was made, but on account of Article 6 of the late Constitution it would not be within the competence of the Governor to promulgate an Ordinance which punishes a person for an act which was not punishable at the time when it was done.
In view of Article 6, therefore, Ordinance XI of 1957, in so far as it makes the act of the petitioner punishable, although the act was not punishable at the time when it was done, is ultra vires.
(d) West Pakistan Foodstuff's (Control) Ordinance (XI of 1957)‑Continues in force orders promulgated under West Pakistan Foodstufs (Control) Ordinance (l of 1957).
(e) West Pakistan General Clauses Act (VI of 1956), S. 23‑ ‑Interpretation‑Notifications, Orders etc. made under repealed Act or deemed to have been so made‑Continue in force.
(f) Writ‑---Relief--‑Wheat seized by Government and sold ---Seizure illegal‑High Court granted relief only by declaring illegality of seizure.
Karam Elahi Chouhan for Petitioner.
Syed Shamim Hussain Kadri, for A. G. for Respondent.
Dates of hearing : 9th and 10th June 1959.
JUDGMENT
KAIKAUS, J.---‑This judgment will dispose of the Writ Petitions Nos. 509 of 1958 and 1140 of 1957, the main point involved in which is common.
2. The facts in Writ Petition No. 509 of 1958 are that the petitioners Syed Muhammad Waris Shah, who is a landowner, declared his stocks, in accordance with a direction given by the Licensing Authority under section 7 of the West Pakistan Food grains (Licensing Control) Order, 1957, on the 11th of June 1957, as 8,500 maunds of wheat. There was, at the same time, a direction to him to sell the stock as soon as possible to an approved dealer. According to the petitioner's case he sold 3,100 maunds of wheat to the Khokhar Commission Shop, which was an approved arhti in July or August 1957. He, at the same time, entered into an agreement for sale of his stocks to the same commission shop on the 4th of September, 1957. In accordance with this agreement 4000 maunds were to be sold and the weighing was to take place from 11th September to the 18th September 1957. On the 13th September 1957, there was a raid and 3970 maunds were taken away under the orders of, the District Magistrate or the Commissioner. The stocks were forfeited and the petitioner was paid only Rs. 5 per maund.
3. The case of the respondent, i.e., the Province of West Pakistan, is that in June 1957 the petitioner had been directed by the Licensing Authority by virtue of its powers under section 7 of the West Pakistan Foodgrains (Licensing and Control) Order, 1957, to sell his stocks as soon as possible to a pacca arhti, that in spite of repeated directions he failed to do so, that a few days before the raid, which took place on the 13th of September 1957, he had been approached by an officer of the Food Depart ment to hand over stocks but he had avoided doing so and that the stocks were seized on the 13th of September 1957 because he had failed to act in obedience to the directions given to him. The alleged agreement of 4th of September 1957 with the Khokhar Commission Shop is denied.
4. The petitioner attacked the seizure of his stocks on the ground that there had been no violation of any order of the Licensing Authority and that he was doing his best to carry out the directions given. He, at the same time, attacked the order on the ground that Ordinance I of 1957 under which the West Pakistan Foodgrains (Licensing and Control) Order was promulgated was either from its very inception void or was no longer in force on the date on which the seizure was trade, i.e., the 13th of September 1957. We propose to consider only the legal objection to the validity of the Order for in the view that we take it is not necessary to go into the question whether the orders were in fact disobeyed.
5. In Writ Petition No. 1140 of 1957 there are five peti tioners, one of them being an association. They allege that they were licensees under the West Pakistan Foodgrains (Licensing Control) Order, 1956, but their licenses expired on the 13th of May 1956 and they want to continue the business of sale and purchase of commodities but they are being prevented from doing so by the following Orders which were made under Ordinance I of 1957, which Ordinance was promulgated by the President of Pakistan in exercise of the powers which became vested in him by a Proclamation under Article 193 of the Constitution.
(i) West Pakistan Wheat (Movement Control) Order, 1957, dated 15‑4‑1957,
(ii) West Pakistan Mandi (Control and Procurement) Order, 1957, dated 15‑4‑1957,
(iii) West Pakistan Foodgrains (Licensing Control) Order, 1957, dated 15‑4‑1957,
(iv) West Pakistan Wheat (Price Control) Order, 1957, dated 15‑4‑1957.
It is contended that for reasons, to which a reference will presently be made, all these Orders are void and the petitioners are entitled to carry on their business unhampered by the provisions of these Orders.
6. We proceed now to consider the grounds of attack on the validity of Ordinance I of 1957 under which the Orders referred to in both these writ petitions had been promulgated. On the 21st of March 1957, the President issued a Pro clamation under Article 193 of the late Constitution by which he assumed to himself powers of the Government as well as of the Governor of West Pakistan. It will be con venient to reproduce here Article 193 as well as the Proclamation, because a reference will have to be made in detail to the contents of both.
"193‑(1). If the President, on receipt of a report from the Governor of a Province, is satisfied that a situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of the Constitu tion, the President may by Proclamation‑
(a) assume to himself, or direct the Governor of the Province to assume on behalf of the President, all or any of the functions of the Government of the Province, and all or any of the Powers vested in, or exercisable by, any body or authority in the Province, other than the Provincial Legislature ;
(b) declare that the powers of the Provincial Legislature shall be exercisable by, or under the authority of, Parliament ;
(c) make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation including provisions for suspending in whole or in part the operation of any provisions of the Constitution relating to any body or authority in the Province:
Provided that nothing in this Article shall authorise the President to assume to himself, or direct the Governor of the Province to assume on his behalf, any of the powers vested in or exercisable by, a High Court or to suspend either in whole or in part the operation of any provisions of the Constitution, relating to High Courts.
"(2). A proclamation under this Article (not being a Proclama tion revoking a previous Proclamation) shall be laid before the National Assembly, and shall cease to operate at the exp;ration of two months, unless before the expiration of that period it has been approved by a resolution of the National Assembly, arid may by a like resolution be extended for a further period not exceeding four months ; but no such Proclamation shall in any case remain in force for more than six months ;
Provided that if any such Proclamation (not being a Pro clamation revoking a previous Proclamation) is issued at a time when the National Assembly stands dissolved, or if the dissolution of the National Assembly takes place during the period of two months referred to in this clause, the Pro clamation shall cease to operate at the expiry of thirty days from the date on which the National Assembly first meets after its re‑constitution, unless before the expiration of the said period of thirty days, a resolution approving the Procla mation has been passed by that Assembly.
"(3). Where by a Proclamation issued under this Article it has been declared that the powers of the Provincial Legislature shall be exercisable by or under the authority of Parliament, I shall be competent‑
(a) to Parliament to confer on the President the power of the Provincial Legislature to make laws;
(b) to Parliament, or the President, when he is empowered under sub‑clause (a) to make laws conferring powers and imposing duties, or authorising the conferring of powers and the imposition of duties, upon the Federation, or officers and authorities thereof ;
(c) to the President when the National Assembly is not in session, to authorise expenditure from the Provincial Con solidated Fund, whether the expenditure is charged by the Constitution upon that Fund or not, pending the sanction of such expenditure by Parliament ;
(d) to the National Assembly resolution to sanction expen diture authorised by the President under sub‑clause (c).
(4). Any law made in exercise of the power of the Provincial Legislature by Parliament or the President, which Parliament or the President would not, but for the issue of a Proclamation under this Article have been competent to make, shall, to the extent of the incompetency, cease to have effect on the expiration of a period of six months after the Proclamation under this Article has ceased to operate, except as to things done or omitted to be done before the expiration of the said period".
Proclamation :
"Whereas the President, having received a report from the Governor of the Province of West Pakistan, is satisfied that a situation has arisen in which the Government of that Province cannot be carried on in accordance with the provisions of the Constitution of Pakistan ;
Now, therefore, in exercise of the powers conferred by Article 193 of the Constitution and of all other powers enabling him in that behalf the President is pleased‑
(a) to assume to himself as President of Pakistan all functions of the Government of the said Province and all powers vested in or exercisable by the Governor of that Province ;
(b) to declare that the powers of the Legislature of the, said Province shall be exercisable by or under the authority of Parliament ; and
(c) to make the following incidental and consequential provisions which appear to him to be necessary or desirable for giving effect to the objects of this Proclamation, namely,--
(i) in the exercise of the functions and powers assumed to himself by virtue of clause (a) of this Proclamation, it shall be lawful extent as he thinks fit through the Governor of the said Province
(ii) the operation of the following provision of the Con stitution in relation to that Province is hereby suspended, namely,---
Articles 71, 75, 76, Clauses (1) and (2) of Article 77, Clauses (2) and (3) of Article 78, Articles 80, 81, 82, 83 except so far as it relates to the power to dissolve, 84, 85, 86, 88, 90, 91, 92, 93, 95, so much of Article 124 and of Clause (1) of Article 190 as relates to the Provincial Assembly, Clause (3) of Article 226, Clause (1) of Article 230 so far as it may be construed as requiring any statement to be laid before the Provincial Assembly or forbidding the raising of any taxes without the Act of a Provincial Legislature authorising them, and paragraphs 9 and the table thereunder except so far as relates to the Speaker and Deputy Speaker, 10, 11, 12 and so far as relates to any right or power of the Provincial Assembly or the Provincial Legislature, 13 of the Fourth Schedule ;
(iii) while this Proclamation is in force, it shall, notwith standing anything in any rule or law relating to elections, be unnecessary for an election to be held for the purpose of filling any casual vacancy in the Legislative Assembly of the Province;
(iv) any reference in the Constitution to the Governor shall in relation to the said Province be construed as a reference to the President, and any reference therein to the Legislature or Legislative Assembly of the Province shall, in so far as it relates to the functions and
powers thereof, be construed as a reference to Parliament, and in particular, the reference in Article 102 to the Governor and to the Legislature or Legislative Assembly of the Province shall be construed as reference to the President and to Parliament respectively ;
Provided that nothing herein shall affect the provisions of Article 70 and paragraph 1 of the fourth Schedule and the Table thereunder so far as relates to the Governor or prevent the President from acting under sub‑clause (1) of this clause to such extent as he thinks fit through the Governor of the said Province ;
(i) any reference in the Constitution to Acts or laws of, or made by, the Legislature of the Province shall be construed as including a reference to Acts or laws made, in exercise of the powers of the Legislature of the Province, by Parliament by virtue of this Proclamation or by the President in virtue of a power conferred by Parliament under sub‑clause (a) of clause (3) of Article 193 of the Constitution ; and any Act of the like kind as the General Clauses Act, 1897 (X of 1897), which is in force in the Province, and so much of the General Clauses Act, 1897 (X of 1897), as applies to Provincial laws, shall have effect in relation to any such Acts or laws as if they were Acts of the Legislature of the Province."
On the 29th of March 1957, there was an amendment to this Proclamation which reads
"Whereas the President is satisfied that for the greater convenience of administration certain changes are necessary in the Proclamation made by him on the 21st March 1957 in exercise of the powers conferred by Article 193 of the Constitution ;
Now therefore in exercise of the powers conferred by that Article and of all other powers enabling him in that behalf the President is pleased to direct that the following modifica tions shall be made in the Proclamation aforesaid:
1. For clause (a) of the Proclamation substitute the following :‑
"(a) to direct the Governor of the Province of West Pakistan to assume on behalf of the President all the functions of the Government of the said Province;
(2) Sub‑clause (i) of clause (c) of the Proclamation be omitted.
3. The following be substituted as sub‑clause (i) for the existing sub‑clause (ii), namely :‑
"(i) The operation of the following provisions of the Constitution in relation to the said Province is hereby suspended, namely:‑
Articles 71, 75, 76, clauses (1) and (2) of Article 77, clause (3) of Article 78, Articles 80, 81, 83 except so far as it relates to the power to dissolve Articles 84, 85, 86, 88,'91, 92, 93, 96, 98, 99 only in respect of the reference to the grants made by the Provincial Assembly, Article 101, so much of Article 124 and of clause (1) of Article 190 as relates to the Provincial Assembly, clause (2) of Article 225, clause (3) of Article 226, clause (1) of Article 230 so far as it may be construed as requiring any statement or demand to be laid before or passed by the Provincial Assembly, paragraph 9 and the Table there under except so far as it relates to the Speaker and the Deputy Speaker and paragraphs 10, 11, 12 and, so far as relates to any right or power of the Provincial Assembly or the Provincial Legislature, 13 of the Fourth Schedule."
4. Sub‑clause (iii) of clause (c) of the Proclamation be renumbered as sub‑clause (ii).
5. The following be substituted as sub‑clause (iii) for the existing sub‑clause (iv), namely,‑
(iii) Any reference in the Constitution except in clause (4) of Article 230, to the Legislature or the Legislative Assembly or the Provincial Assembly of the said Province shall, in so far as it relates to the functions and powers thereof, be construed as a reference to Parliament and, notwithstanding anything hereinbefore contained, the references in Article 102 to the Governor of the said Province shall be construed as references to the President.
6. Sub‑clause (v) of clause (c) of the Proclamation be renumbered as sub‑clause (iv)."
It will be observed that in accordance with the amended Pro clamation the word "Governor" in Article 102 had been substi tuted by the word "President", with the result that the ordinance making power of the Governor vested in the President. On the 6th of April 1954, the President promulgated the West Pakistan Foodstuffs (Control) Ordinance I of 1957. On the 15th of April 1957, the Governor of West Pakistan, acting by virtue of the powers granted to him by section 3 of this Ordinance promulgated all the orders mentioned above (which include the West Pakistan Foodgrains (Licensing and Control) Order, 1957, under which Syed Muhammad Waris Shah, the petitioner in Writ Petition No. 409 of 1958, was proceeded against). The validity of the Ordinance and the orders issued thereunder is challenged on the following grounds:‑
(1) Under Article 193 it was not open to a President to assume to himself the ordinance‑making power of the Governor at all.
(2) Even if he had validly assumed this power on the 21st of March 1957, he had restored this power to the Governor on the 29th of March 1957 when the amended Proclamation was issued and, in any case, this power could not be acquired by a notification under Article 193 (c), i.e., by a conse quential or incidental order, and, after 29th March 1957, the only notification which could support this order was one under Article 193 (c) ;
(3) Under Article 102 an Ordinance promulgated by the Governor has to be placed before the Provincial Assembly and ceases to operate on the expiry of six weeks from the meeting of the Provincial Assembly. As by the Proclamation the Parliament had been substituted for the Provincial Assembly, the Ordinance promulgated by the President had to be placed before the Parliament and would cease to operate on the expiry of six weeks from the meeting of the Parliament. The Parliament had met at least on the 30th April 1957 when it passed an Act which delegated its power of making laws in the Province of West Pakistan to the President and the Parliament not having framed any Act in terms of the Ordinance, the Ordinance expired on the 12th of June 1957. The result was that the orders promulgated under the Ordinance also came to an end on the 12th of June 1957 and on the 13th of September 1957, when the wheat of Syed Muhammad Waris Shah petitioner in Writ Petition No. 509 of 1958 was seized, there was no law in existence authorising its seizure. The relief prayed for in the other writ petition relates to the future. It is contended that as now none of the Orders mentioned above is in force, the petitioners have the right to carry on their business unobstructed by those Ordinances.
7. We proceed to consider these grounds one by one. As regards the first ground, the argument put forward is that action is taken by the President on the report of the Governor himself and, therefore, it would not be reasonable to assume that the intention was to deprive the Governor of his own powers also. Another argument is that according to the wording of the first part of Article 193 powers are to be assumed either by the President himself or by the Governor and the reference must be to the same powers. When the Governor assumes powers, he is not to assume the powers of the Governor because he already has them, and, therefore, the President when he assumes powers does not assume the powers which are vested in the Governor.
8. There are a number of reasons why this contention has to be rejected. In the first place, the words used are very wide. The President is entitled to assume to himself the powers of any body or authority. In the second place, the authorities whose powers the President was not empowered to assume are expressly mentioned. It is stated in the Article that…
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