Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MUHAMMAD SIDDIQ VS Respondent: COMMISSIONER, LAHORE DIVISION, LAHORE
P L D 1962 (W
P L D 1962 (W. P.) Lahore 999
Before Shabir Ahmad and Anwarul Haq, JJ
MUHAMMAD SIDDIQ‑Petitioner
Versus
(1) COMMISSIONER, LAHORE DIVISION, LAHORE
AND
(2) CHIEF `OFFICER OF THE MUNICIPAL CORPORATION,' LAHORE‑Respondents
Writ Petition No. 558 of 1962, decided on 20th July 1962.
(a) Martial Law Orders (Repeal) Order (29 of 1962), Art. 2‑Repeal of "all" Martial Law Orders by order of "President" instead of by "Chief Martial Law Administrator" Validity not questionable‑President and Chief Martial Law Administrator being same person‑President as imposing authority of Martial Law competent'' to "repeal" Martial Law Orders-- Misdescription of designation of authority‑Not of consequence [Piao Gul v. The, State P L D 1960 S C (Pak.) 307 rel.]
(b) Martial Law Order (M. L. A. Zone "B") No. 111 and No. 118 read with West Pakistan Martial Law Orders (Continuance in Force) Ordinance (XXI of 1962)‑Ordinance XXI of 1962 "existing law"‑Martial Law Orders (Repeal) Order (29 of 1962) Constitution of Pakistan (1962), Arts. 6, 79 and 225 (1) (3)‑ Constitution of Pakistan (1962), Principles of law‑making Nos. 5 and 6‑Courts not competent to declare law invalid on alleged ground of violation of any Principle of law‑making.
(c) Constitution of Pakistan (1962), Art. 79‑"After the first meeting" of Assembly‑Means after "end" of first meeting.
(d) Constitution of Pakistan (1962), Art. 250‑Liability under orders passed by virtue of Martial Law Orders continues unaffected‑Martial Law Orders (Repeal) Order (29 of 1962), S.3‑West Pakistan General Clauses Act (VI of 1956), S. 23.
(e) Martial Law Order (M. L. A. Zone "B") No. 118, cl. (a) "Entire" municipal area declared "prohibited" ‑ "Alternative" accommodation ‑ Discrimination employed between cattle possessed by private owners and those kept for commercial purposes ‑Alternative sites, development of‑Whether legitimate objections against implementation of Ordinance‑[D. K. Kannisa v. Devichund A I R 1924 Mad. 46 ; Perumalla Venkayya v. Batchu Pullayya A I R 1942 Mad. 466 and Joti Pershad v. Emperor A I R 1921 Lah. 134 considered.
(f) Martial Law Order (M. L. A. Zone "B") No. 111, paras. 5 & 7‑Para. 5 to be so read as to include power of allotment of sites to bamboo merchants also‑Casus omissus‑Court competent to supply omissions‑["A Treatise on Statute Law", 5th Edition, page 105 ; Cookson v. Lee (1854) L J R Ch. D p. 471 (Vol. 32; ref. and Crawford's Construction of Statutes 1940 Ed., para. 169 considered].
(g) Martial Law Order (M. L. A. Zone "B") No. 111, para. 7 --As and when ordered by Commissioner"‑Does not mean removal of "all simultaneously."
(h) Martial Law Order (M. L. A. Zone "B") No. 111, para. 7‑Contemplates removal of "entire timber business" including "saw‑mills" and "godowns."
(i) Words and phrases‑"Shop"‑Meaning.
Ghias Muhammad and Rafiq Qureshi for Petitioner.
Maulvi Mushtaq Hussain, A. A. G. for Respondent No. 1
Mazhar‑ul‑Haq for Respondent No. 2.
Dates of hearing : 10th and 11th July 1962.
JUDGMENT
SHABIR AHMED, J.‑This judgment will dispose of Writ Petitions Nos. 558, 598, 599 and 612 of 1962, which raise certain common questions of law.
2. On the 13th of April 1962, the Martial Law Adminis trator of Zone `B' issued Martial Law Order No. 118 directing the removal of buffaloes, cows and other cattle from the area of the City of Lahore Corporation with a view to removing obstruction in traffic and improving sanitation. The Commis sioner of Lahore Division was authorised to implement the Order. On the 16th of April 1962, the Commissioner, Lahore Division, accordingly issued an order, giving time limits for the removal of cattle from various areas of the City of Lahore. In pursuance of the Commissioner's order, notices were served by the Corporation authorities on cattle owners. By means of Writ Petition No. 558 of 1962, which has been presented by one Muhammad Siddique, describing himself as President of the Cattle Owners' Association of Lahore, it is prayed that the order of the Commissioner may be declared "as being without lawful authority and of no legal effect." As a consequential relief, it is prayed that the respondents be, directed to refrain from enforcing the Commissioner's order.
3. On the 15th of February 1962, the Martial Law Administrator Zone `B' issued Martial Law Order No. 111, directing the acquisition of certain lands for constructing a timber market and authorising the Lahore Improvement Trust to allot sites in this new market to the timber merchants and do all other things necessary for the establishment of the said market. The order further contemplated that all timber and bamboo shops shall be moved from Ravi Road, Rattan Chand Road and other places within the City of Lahore Corporation to the said timber market as and when ordered by the Commissioner, Lahore Division. This latter officer issued an order on the 6th of June 1962, directing the proprietors of bamboo shops on Rattan Chand Road to shift their business to the new timber market. By an earlier order issued in March 1962, he had ordered timber merchants on the Ravi Road and other places in the City of Lahore to move their business to the new timber market. These orders are challenged by an individual bamboo merchant, Muhammad Afzal, in Writ Petition No. 598 of 1962, by eleven bamboo merchants collectively in Writ Petition No. 599 of 1962 and by the Timber Merchants' Association in Writ Petition No. 612 of 1962.
4. A common ground taken in all these petitions is that the orders issued by the Commissioner have no legal sanction behind them for the following reasons: ‑
(a) That under Article 225 of the Constitution of the Republic of Pakistan, 1962, all Martial Law Regulations, except those specified therein, stand repealed with effect as from the commencing day, with the result that Martial Law ;Orders Nos. 111 and 118, under which the Commissioner has purported to act, have disappeared from the 8th of June 1962,
(b) That Governor's Ordinance No. XXI of 1962, called the West Pakistan Martial Law Orders (Continuance in Force) Ordinance, 1962, which seeks to perpetuate the provisions of the Martial Law Orders just referred to, is void inasmuch as
(i) it is repugnant to Article 225 of the Constitution which clearly lays down that all Martial Law Regulation are repealed,
(ii) it is not existing law within the meaning of Article 225 (1) of the Constitution, and, therefore, it is not continued in force after the commencing day,
(iii) as it is not "existing Law", the Ordinance would be valid only if it was promulgated in conformity with the pro cedure laid down in Article 79 of the Constitution which admittedly is not the case,
(iv) it offends against the 5th and 6th principles of law making as embodied in Chapter I of Part II of the Constitution, namely, freedom of movement and right to acquire property as well as freedom to follow any vocation, and
(v) it is mala fide.
There is no doubt that Article 225 of the Constitution of the Republic of Pakistan, which came into force on the 8th of June 1962, provides in its clause (3) that "all Martial Law Regulations, except those specified in the table to this clause, are repealed with effect as from the commencing day . . . . . . . " Before the coming into force of the Constitution, the President also promulgated Order No. 29 of 1962 on the 7th of June 1962 entitled the "Martial Law Orders (Repeal) Order, 1962." Paragraph 2 of this Order may be reproduced here with advantage:
"2. Repeal.‑All Martial Law Orders made or issued by any Martial Law Authority shall stand repealed immediately before the commencing day as defined in Article 242 of the Constitu tion‑of the Republic of Pakistan.
Explanation I. `Martial Law Authority' means the Chief Martial Law Administrator and includes a Zonal Martial Law Administrator.
Explanation II.‑In this Article, `Martial Law Order' does not include any order made or issued under any of the Regula tions specified in the Table to clause (3) of Article 225 of the said Constitution."
6. The Provincial Governor promulgated Ordinance No. XXI of 1962 on the 25th of May 1962. Sections 1 and 2 of this Ordinance, which are directly relevant in the present context, read as follows: ‑
"1. (1) This Ordinance may be called the West Pakistan Martial Law Orders (Continuance in Force) Ordinance, 1962.
(2) It shall come into force on the expiry of Martial Law Orders Nos. 111, 112, 118, 119 and 121 issued by the Martial Law Administrator Zone `B' (hereinafter referred to as the said Martial Law Orders)."
"2. The said Martial Law Orders shall, subject to the provisions of this Ordinance, be continued and be deemed to have been enacted in this Ordinance."
7. By section 3 of the Ordinance certain amendments were made in the Martial Law Orders continued by the Ordinance, making independent provision for penalties incurred for the disobedience of directions issued under the Martial Law Orders in question. It is, however, not necessary to reproduce these amendments here.
8. Now, the argument of the learned counsel appearing for the various petitioners is that the combined effect of clause (3) of Article 225 of the Constitution and the President's Order No. 29 of 1962 was that the Martial Law Orders in question stood repealed immediately before the commencing day and the repeal was followed by the commencing day, without any vacuum or interregnum .for the enforcement of Governor's Ordinance No. XXI of 1962. In other words, when the commencing day dawned, neither the Martial Law Orders Nos. 111 and 118 nor the Governor's Ordinance No. XXI of 1962 were existing law within the meaning of clause (1) of Article 225. If that was so, the argument proceeds, then any Ordinance made by the Governor shall have to conform to the provisions of Article 79 of the Constitution if it is to be regarded as valid law, as it would be an Ordinance made after the commencement of the Constitution.
9. Article 79 lays down that "if, at a time when the Assembly of a Province stands dissolved or is not in session, the Governor of the Province is satisfied that circumstances exist which render immediate legislation necessary, he may, subject to this Article, make and promulgate such Ordinances as the circum stances appear to him to require, and any such Ordinance shall, subject to this Article, have the same force of law as an Act of the Provincial Legislature." Clause (2) of this Article contemplates that "an Ordinance made and promulgated under this Article shall, as soon as is practicable, be laid before the Assembly of the Province," The effect of clauses (3) to (6) of this Article is that any Ordinance promulgated by the Governor shall remain in force for a period of one hundred and eighty days if the Provincial Assembly does not meet within that period, or for a period ending forty‑two days after the first meeting of the Assembly following the promulgation of the Ordinance. In the present case, Ordinance No. XXI of 1962 has not been placed before the first meeting of the Provincial Assembly which has just ended on the 7th of July 1962.
10. This argument is, of course, advanced subject to the objection that even the President's Order No. 29 of 1962 is with out legal force inasmuch as Martial Law Orders and Regulations could be repealed only by the Chief Martial Law Administrator and not by the President.
11. As regards the attack on the validity of the President's Order No. 29 of 1962, suffice it to say that on the day it was promulgated, the ‑same person was functioning as President and Chief Martial Law Administrator and it was, therefore, immaterial whether he described himself as President or as Chief Martial Law Administrator when ordering the repeal of Martial Law Orders and Regulations. Further, it was the President of Pakistan who had imposed Martial Law in the country and appointed the Chief Martial Law Administrator. The President would, there fore, appear to be competent, for this reason as well, to lift Martial Law and to repeal Martial Law Orders and Regulations. In Piao Gul v. The State (P L D 1960 S C (Pak.) 307), their Lordships were pleased to observe that misdescription in the designation of the officer deciding a case was of no effect on the legality of trial, on the principle that a false description does not vitiate. For all these reasons, it appears to us that the validity of the President's Order No. 29 of 1962 cannot be questioned. '
12. It seems to us that the effect of President's Order No. 29 of 1962 teas to repeal all Martial Law Orders immediately before the commencing day, and simultaneously with that repeal 'Governor's Ordinance XXI of 1962 came into force, i.e., immediately before the commencing day. Mr. Ghias Muhammad strenuously contended that the use of the phrase "immediately before the commencing day" in President's Order No. 29 of 1962 showed that the repeal was at once followed by the commencing day, without any possibility of the Governor's Ordinance No. XXI of 1962 creeping into the field between the repeal and the commencing day. This
argument of the learned counsel overlooks the fact that Ordinance No. :XXI of 1962 came into force simultaneously with the repeal whereas the commencing day was to follow the repeal of the Martial Law Orders. While interpreting the word "immediately", we have to give it a reasonable meaning. Once that is done, the repeal of the Martial Law Orders would be accompanied by the coming into force of the Governor's Ordinance No. XXI of 1962 for the Teason that the Ordinance was to take effect on the expiry of the Martial Law Orders. Both these events, namely, the repeal of the Martial Law Orders and the coming into force of Governor's Ordinance No. XXI of 1962 would, therefore, take place imme diately before the commencing day. On this view of the matter, the Governor's Ordinance No. XXI of 1962 must be deemed to be an existing law within the meaning of clause (1) of Article 223 of the Constitution. That being so, the Commissioner's orders, giving various directions to the petitioners before us, would clearly be covered by the provisions of Ordinance No. XXI of 1962.
13. Once the Ordinance No. XXI of 1962 is deemed to be an existing law, it would be conceded that the provisions of Article 79 of the Constitution would not apply to it, for the reason that it is not an Ordinance made under the present Constitution. Article 79 of the Constitution has not been given a retrospective effect, and would clearly apply to Ordinances made or promulgated by the Governor after the commencing day. We do not, therefore, see any necessity for this Ordinance being placed before the Provincial Assembly as required by Article 79.
14. The validity of the Ordinance was, however, further challenged on the ground that it was repugnant to the express provisions of clause (3) of Article 225 of the Constitution inas much as it sought to continue in force Martial Law Orders which have been repealed by the Constitution itself. We are inclined to agree with Mr. Ghias Muhammad that the preamble and the title of the Ordinance are not happily worded as they do give the impression of running counter to the provisions of clause (3) of Article 225 of the Constitution. Once Martial Law Orders and Regulations are repealed by the President's Order No. 29 of 1962 and Article 225 of the Constitution, a Provincial Governor does not appear to have any authority to continue the same. But the defect is, however, one of form only, as section 2 of the Ordinance makes it clear that the Martial Law Orders enumerated in section 1 "are to be deemed to have been enacted in the Ordinance." In other words, the Ordinance is a fresh law re‑enacting the provisions of the Martial Law Orders in question. The Constitution or the President's Order No. 29 of 1962 do not contain any prohibition against the re‑enactment of any Martial Law Regulation or Order in the form of an Ordinance or of an Act of the Legis lature concerned.
15. The next ground on which the validity of the Governor's Ordinance is challenged is that it offends against the 5th and 6th principles of law‑making as enumerated in the 1962 Constitution. The 5th principle is to the effect that no law should impose any restriction on the freedom of a citizen to move throughout Pakistan or to reside or settle in any part of Pakistan or freedom of a citizen to acquire, hold or dispose of property in any part of Pakistan. It is, however, provided that this principle may be departed from where it is necessary so to do in the public interest. The 6th principle is to the effect that no law should impose any restriction on the freedom of a citizen to engage in any profession, trade, business, occupation or employment, or otherwise to follow the vocation of his choice. It is again provided that this principle may be departed from in certain circumstances. It is contended that by imposing restrictions on keeping cattle in the City of Lahore Corporation, or on carrying on the business of selling bamboos and timber in certain localities, restrictions are being imposed on the freedom and right to acquire property and to follow any vocation that the citizens may choose. A reading of the Martial Law Orders in question does not support any such contention. No restrictions are imposed in these Martial Law Orders on the right to acquire and; hold property or to follow the vocation chosen by the petitioners. The restrictions are only intended to regulate, in the public interest, the manner in which, and the place at which, the particular businesses shall be carried on. These restrictions are permitted by the Constitution itself.
16. It is also to be noted that according to Article 6 of the Constitution, the responsibility of deciding whether a proposed law does or does not disregard or violate any principle of law making, is that of the Legislature concerned, and tile validity of a law is not to be called in question on the ground that the law disregards, violates or is otherwise not in accordance with the principles of law‑making. It would be seen, therefore, that even if we had come to the conclusion that the Ordinance did violate any of the principles of law‑making, we would have no power to declare the Ordinance void for that reason. However, as it is, we are not persuaded that any principles of law‑making have been violated by the Ordinance.
17. It was finally contended in this connection that the Ordinance was mala ,fide, inasmuch as it was promulgated at a time when the new Constitution was on the anvil, and an appropriate course for the Governor would have been to ask the Provincial Assembly to enact a law on the subject, but instead of doing that, the authorities hurriedly brought in the present Ordinance with a view to coercing the petitioners into obedience. We regret to say that we are not at all impressed by this argument. The Provincial administration had taken certain steps to improve the sanitation and traffic arrangements in the City, and had undertaken to build a new timber market for the con venience of the public and improvement of the City, and it was bound to follow up these measures to their logical fulfillment. It was clear that with Martial Law coming to an end, legal sanction was necessary for the measures so undertaken. The Governor was, therefore, bound to take necessary steps in this behalf. The Proclamation of the 7th of October 1958 and the Laws (Continuance in Force) Order, 1958, gave him the requisite authority to issue Ordinances on subjects falling within his jurisdiction. There is thus no question of any mala fides on the part of the Governor in promulgating Ordinance No. XXI of 1962.
18. We have thus reached the conclusion that Ordinance No. XXI of 1962 is a valid existing law and continues in force under Article 225 of the Constitution. It does not suffer from any infirmities of the kind alleged by the petitioners. The orders issued by the Commissioner are, therefore, clearly in pursuance of powers given to him by a valid law.
19. There are two other aspects of this matter upon which we might briefly touch before passing on to consider the various c separate contentions raised in each of the petitions. The first is this, Even if we had come to the conclusion that Governor's Ordinance No. XXI of 1962 was not an existing law and was governed by Article 79 of the Constitution, it would still be valid until the expiry of forty‑two days after the first meeting of the Assembly of the Province. As already stated, the first meeting ended on the 7th of July 1962. The Ordinance would, therefore, have continued in force until the 18th of August 1962 and until then the Commissioner could clearly act under it.
20. The second aspect of the matter is that even if Governor's Ordinance No. XXI of 1962 had not been enacted, the liability incurred by the petitioners under the orders of the Commissioner, which were admittedly passed during the currency of the parent legislation, namely, Martial Law Orders Nos. 11I and 118, would have remained unaffected in view of the provisions contained in Article 250 of the Constitution section 3 of the President's Order No. 29 of 1962 and section 23 of the West Pakistan General Clauses Act, 1956.
21. On behalf of the Cattle Owners' Association (petitioners in Writ Petition No. 558 of 1962), Mr. Ghias Muhammad has raised the following further contentions: ‑
(I) That even if the Ordinance, under which the Commis sioner is purporting to act, be regarded as valid legislation, the Commissioner's order is bad for the following reasons: ‑
(a) clause (a) of Martial Law Order No. 118 provides that the Commissioner may notify such localities or areas within the limits of Lahore Municipal Corporation, as he may deem fit, as localities or areas within which it shall not be lawful to keep or possess without permit any cow or buffalo of any age, but the Commissioner has arbitrarily chosen to notify the entire municipal area as ' prohibited area, instead of selecting localities as he was required to do ;
(b) the power conferred 'on the Commissioner is subject to the performance of a duty, namely, the provision of alternative accommodation outside the municipal area, but the order passed by him is silent on this point, and
(c) the Commissioner has discriminated between the owners of cattle kept for private or commercial purposes inasmuch as he has made provision for the issue of a permit for keeping a cow or a buffalo for private purposes, but not for a commercial purpose, in the same locality.
(2) That the Commissioner's order cannot be implemented because (a) the land owners, whose land was acquired by the Commissioner for providing alternative sites to the cattle owners, have refused to hand over possession, and (b) sufficient time, is required to develop alternative sites.
22. As regards the argument based on clause (a) of Martial Law Order No. 118, we do not find any warrant for the conten tion put forward by Mr. Ghias Muhammad that the Commissioner was bound to select individual localities and could not notify the whole of the municipal area as prohibited area for keeping cattle. The intention of the Martial Law Order was clearly to provide for measures to remove obstruction in traffic and to improve sanitation within the limits of the Lahore Municipal Corporation, and it was left to the discretion and judgment of the Commissioner, Lahore Division, to notify such localities or areas as he may deem fit, in which cattle shall not be kept without permit. If the Commissioner came to the conclusion that the entire municipal area was such as to require improvement in sanitation and removal of obstruction in traffic, there was nothing to prevent him from issuing a notification to that effect. The action taken by him in notifying the entire municipal area as prohibited area does not appear to us to be arbitrary, as it is in conformity with the object of the Martial Law Order No. 118.
23. Mr. Ghias Muhammad laid considerable stress on the omission of the Commissioner to mention in his order to the petitioners that they shall be given alternative accommodation. It appeared to the learned counsel that the provision of alternative accommodation was a condition precedent to the issuing of any directions to the petitioners to move their cattle out of the municipal area. We consider it unnecessary to examine this conten tion at any great length, for the very simple reason that in actual fact alternative accommodation has been provided by the authorities Mr. Mushtaq Hussain, the learned" Additional Advocate‑General, who appeared before us for the Commissioner Lahore Division, has made a statement to the effect that six alternative sites have been earmarked by the authorities and at several of these sites various facilities like water connections and shelters have been provided. He also stated that the Commis sioner was…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.