MAMUKANJAN COTTON FACTORY Versus PROVINCE OF PUNJAB

1. MUHAMMAD GUL, J.‑ This judgment deals with Civil Petitions for Leave to Appeal Nos. 746 and 749 of 1974, which proceed on similar facts and give rise to the same law point.

2. The petitioner in each case is owner of a cotton-ginning factory run by diesel engine. At the relevant time, cotton-ginning factories in the Province were chargeable with cotton fee under the West Punjab Cotton (Control) Act, 1949 and the rules framed thereunder. However, the expression "factory" as originally defined in the Act did not include ginning factory run by diesel engine. Nevertheless, the petitioner in each case was charged cotton fee purporting to be under the Act, notwithstanding the above lacuna in the law. The High Court, by judgment in Hakimuddin v. Chief Cotton Inspector (P L D 1960 Lah. 709), declared the collection of fee as aforesaid, to be ultra vires the statute.

3. An attempt was made to remove the defect in the law by the West Pakistan Ordinance XII of 1961, which by section 2 enlarged the definition of the expression "factory" to include a factory run by diesel engine. But the amendment fell short of validating the past recovery of the duty to relieve the Provincial Government of its liability to refund the amount unlawfully recovered prior to 27‑6‑1961, when the amending Ordinance came into force.

4. To force the Provincial Government to refund the cotton fee unlawfully collected prior to the coming into force of the amending Ordinance of 1961, the petitioners filed two writ petitions, which were accepted by the High Court on 15‑11‑1967.

5. In another writ petition, namely. Messrs Chaudhri Brothers Cotton Ginning Factory v. E. A. D. A. Bahawalnagar (W. P. No. 532 of 1969) on identical facts, the High Court ruled on 5‑8‑1970, that the cotton fee recover ed in respect of ginning factory run on diesel during the period prior to 21‑6‑1961, shall be adjusted future liability as from that date under the amended law.

6. This led to the promulgation of yet another Ordinance, namely, the Punjab Cotton Control (Validation of Levy of Fees) Ordinance, 1971, (Punjab Ordinance XIX of 1971) to undo the effect of the aforesaid judgments of the High Court, with the plain object of enabling the Provincial Government to retain the exactions, which at the time they were made had no warrant in law. This is a short Ordinance which for the material purpose read:‑

7. "Notwithstanding any omission or anything to the contrary contained in the West Punjab Cotton (Control) Act, 1949 or the Bahawalpur Cotton (Control) Act, 1949 (both since repealed), before their amendment by the West Punjab and the Bahawalpur Cotton (Control) (West Pakistan Amendment) Ordinance, 1961 (also since repealed) or the Rules made thereunder, or anything to the contrary contained in any decree, judgment or order of any Court, the fees levied, charged, collected or realised from the occupiers of cotton-ginning factories run by diesel under the provisions of the West Punjab Cotton (Control) Act, 1949 or the Bahawalpur Cotton (Control) Act, 1949, before their amendment by the West Punjab and the Bahawalpur Cotton (Control) (West Pakistan Amendment) Ordinance, 1961, shall be deemed to have been validly levied, charged, collected or realized under the provisions of the West Punjab Cotton (Control) Act, 1949, or, as the case may be, under the Bahawalpur Cotton (Control) Act, 1949, as amended by the West Punjab and the Bahawalpur Cotton (Control) (West Pakistan Amendment) Ordi nance, 1961.

(2) Where any fee referred to in subsection (1) has not been paid or realised before the coming into force of this Ordinance or if so paid or realised, has been refunded to or adjusted against other fees payable by the occupiers of the aforesaid factories, the same shall be recoverable in accordance with the provisions of the West Pakistan Cotton Control Ordinance, 1966."

8. In consequence of the new dispensation, the Provincial Government has declined to adjust the unwarranted recoveries of cotton fees ab initio and has also issued fresh notices of demand for fee that had become due in respect of the intervening period, it is not controverted that above provision is comprehensive enough and operates retrospectively, so as to provide statutory cover to the impugned action of the Government.

9. The petitioner in each case, was thus obliged to move yet another writ petition to call in question the vires of the validating Ordinance of 1971 and the consequential acts and omissions of the Provincial Government in the relevant field.

10. The writ petitions were heard by a learned Single Judge, who following judgment of this Court in Haji Dossa Ltd., Karachi v. The Province of Punjab (1973 S C M R 2) held the validating Ordinance of 1971 as intra vires and dismissed the writ petitions. That decision has been upheld in Letters Patent Appeals Nos. 15 and 16 of 1974 decided on 4‑7‑1974, against which the petitioner in each case now seeks leave to appeal.

11. Mr. A. K. Brohi, appearing in support of these two petitions, frankly conceded, that he did not find it possible to question the vires of the validating Ordinance on the grounds canvassed in the High Court. With the permission of this Court, learned counsel, however, attacked the vires of the Ordinance and the resultant action of the Provincial Government on a fresh ground. His argument in nutshell was that the validating Ordinance purports to enable the Provincial Government to retain and claim, what according to the judgments of the High Court, the Government could not have at the material time, levied and collected. These judgments are rendered by the High Court, in exercise of its jurisdiction conferred by the Constitution itself. The validating Ordinance on the other hand, is sub‑constitutional legislation, which according to learned counsel cannot undo or destroy, what he described as the "end product" of the Constitutional jurisdiction.

12. The argument, in my opinion, is without substance and which ii accepted would indeed lead to startling results. It would strike at the very root of the power of Legislature, otherwise competent to legislate on a particular subject, to undertake any remedial or curative legisla tion after discovery of defect in an existing law as a result of the, judgment of a superior Court in exercise of its constitutional jurisdiction. The argument overlooks the fact, that the remedial or curative legislation is also "the end product" of constitutional jurisdiction in the cognate field. The argument if accepted, would also seek to throw into serious disarray the pivotal arrangement in the Constitution regarding the division of sovereign power of the State among its principal organs; namely, the executive, the Legislature and the judiciary each being the master in its own assigned field under the Constitution.

13. The argument of learned counsel also conveniently overlooks string of cases, in which the vires of the remedial legislation, competently made, was upheld by this Court, notwithstanding the earlier judgments of the Superior Courts, in exercise of their constitutional jurisdiction, to the contrary effect. The foremost and exactly in point among these cases is the judgment in Dossa Ltd. v. The Province of the Punjab, in which as in these cases, the vires of the validating Ordinance of 1971, was called in question. It was inter alia observed in that case:‑

14. "The last contention, namely, that the Ordinance of 1971 could not validate something which was void ab initio in terms of the Act of1949, loses sight of the fact that it is open to the Legislature to confer retrospective operation on the laws made by it. A reference to the provisions of this Ordinance leaves no doubt that the law maker expressly made its operation retrospective with the avowed object of conferring validity on a demand which was not valid under the original Act of 1949."

15. Commissioner of Sales‑tax (West) Karachi v. Messrs Kruddsons Ltd. (P L D 1974 S C 180), is also to the same effect. In that case the vires of section 30‑A of the Sales Tax Act, 1951 as inserted by the Finance Act, 1967 and which was subsequently amended by the Finance Act, 1968 to give it retrospective effect, came in for examination. The latter amendment was made during the pendency of appeal in this Court. Relying on its earlier judgments, in the Province of East Pakistan v. Mehdi Ali Khan (P L D 1959 S C (Pak.) 387), Saeedur Rahman v. Chief Election Commissioner (P L D 1965 S C 157), and a number of other precedents of high authority, this Court had had no hesitation to come to the conclusion, that the appeal must be decided under the latest dispensation. In all these cases, amendments in the law were made after the existing law was found defective by the Superior Courts.

16. For the foregoing reasons, the two petitions are hereby dismissed.

17. K. B. A.

18. Petitions dismissed.