Haji DOSSA LIMITED, KARACHI vs PROVINCE OF PUNJAB THROUGH COLLECTOR, SAHIWAL AND Other

ORDER

1. ANWARUL HAQ, J.-This order will dispose of Civil Peti--tions for Special Leave to Appeal bearing Nos. 364 and 365 of 1972, both of which raise identical questions of law and fact.

2. The petitioner-company, Haji Dossa Limited of Karachi is the owner of cotton ginning factories at places called Harrappa and Gamber in the Sahiwal district. For some time it was also the occupier of an evacuee factory of the same kind at Sahiwal. The factories are run by diesel engines. A demand was made on the petitioner for the payment of cotton fee under the pro--visions of the West Punjab Cotton Control Act of 1949 for dif--ferent years, whereupon the petitioner filed four writ petitions in the High Court bearing No. 1730 to 1733 of 1967. They were allowed by a Division Bench of the High Court on the ground that in Hakim-ud-Din v. The Chief Cotton Inspector (PLD 1960 Lah.

3. 709) it had already been held that the definition of term `factory', as given in the Cotton (Control)

4. Act, 1949, did not include a factory run by diesel oil. Although the definition was later amended on the 21st of June 1961, to include also the factories run by diesel, yet the definition not having been made retrospective, the demands forming the subject-matter of the four petitions were declared to be without lawful authority.

5. In 1971, fresh notices of demand were served upon the peti--tioner in respect of the same factories, and apparently for the same financial years. The petitioner challenged the legality of these notices by filing Writ Petitions Nos. 96U and 961 of 1972 in the Lahore High Court. Both these petitions were dismissed by a learned Single Judge by identical orders passed on the 12th of July 1972. A perusal of these orders shows that the main con--tention raised on behalf of the petitioner was that the new de--mands made by the Provincial Government were without lawful authority for the reason that in two of the previous writ petitions a statement had been made before the High Court by the learned Advocate-General to the effect that the law authorising the levy of cotton fee was not applicable to factories run by diesel oil. The High Court observed that such a statement could not debar the Government from amending the law and applying it with retrospective effect, as had been done under the Punjab Cotton Control (Validation of Levy of Fees) Ordinance, 1971, whereby factories run by diesel engines had been made liable to pay cotton fee with retrospective effect.

6. On this view of the matter both the writ petitions were dismissed.

7. Special leave to appeal is now sought on the following grounds :---

(a) that the High Court was in error in thinking that the statement made on behalf of the Government by the learned Advocate-General in previous litigation between the parties on the same subject-matter did not bind the Government so as to prevent it from amending the law with retrospective effect ;

(b) that the amending Ordinance of 1971 was ultra vires of the powers of the Provincial Legislature as the demand made upon the petitioner was in fact a tax and not a fee, and was not covered by the subjects in respect of which the Provincial Governor and the Provincial Legislature could legislate ; and

(c) that in any case the Ordinance in question was inopera--tive inasmuch as it sought to validate with retrospective effect something which was void ab initio owing to the fact that fac--tories run by diesel oil were not included in the purview of the Cotton (Control) Act of 1949.

8. After hearing the learned counsel at length, we are of the view that these contentions have no merit.

9. The statement made by the learned Advocate-General appear--ing for the Provincial Government, in the previous litigation between the parties on the same subject-matter was obviously made in the context of the law as it then stood. The law had, in fact, already been interpreted in a previous case, to which re--ference was made by the Division Bench while deciding the writ petitions instituted by the petitioner in the year 1967, and it would therefore, have been futile for the learned Advocate-General to take up any other position. It is, however, clear that the state--ment as to the position prevailing under the law then in force could not, by any stretch of imagination, operate to prevent the Provincial Government or the Provincial Legislature from amend--ing the law so as to bring within its mischief factories run by diesel oil. The power to legislate could not be denied by any statement made before a Court of Law. We are, therefore, in agreement with the view taken by the High Court in this regard.

10. As regards the contention that the validating Ordinance of 1971 is ultra vires of the powers of the Provincial Legislature and the Governor, the learned counsel was not in a position to support his argument by reference to the relevant provisions of the 1962-Constitution which was operative at the time subject to the proclamation of Martial Law and the various orders made by the Chief Martial Law Administrator and President during the relevant period. Under Article 132 of that Constitution, the Provincial Legislature had power to make laws for the Province, or any part of the Province, with respect to any matter other than a matter enumerated in the Third Schedule. In order, there--fore, to exclude the subject of the levy of cotton fee from the purview of the Provincial Legislature, it had to be shown that this item was included in the purview of the Central Legislature in the Third Schedule to the Constitution. We have scrutinised the 49 items listed in the Third Schedule and none of them relates to the subject now in issue before us.

11. The contention that the demand made upon the petitioner is, in fact, in the nature of a tax and not a fee does not in any manner advance the case of the petitioner, as the Provincial Legis--lature could impose a tax as well as a fee in respect of the subjects within its competence. However, the question whether the de--mand made in the present case is a fee or a tax already stands settled by the previous decisions of the High Court as well as of the Supreme Court and it is not necessary to say anything more on the subject, except that this aspect of the question has no bear--ing upon the validity of the validating Ordinance of 1971.

12. The last contention, namely, that the. Ordinance of 1971 could not validate something which was void ab initio in terms of the Act of 1949, 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.

13. The learned counsel for the petitioner referred us to Mohd. Ismail & Co. Etc. v. Chief Cotton Inspector (PLD 1966 SC 388) in support of his contention that the Ordinance could not operate retrospectively, but we find that in that case it was observed that without a deeming provision such as could give effect to the substituted clause from the date of the original Act, the new clause would be operative only from the date of the amendment. In the case before us the Ordinance expressly gives retrospective effect to the levy of cotton fee on factories run by diesel oil. The requirement for the retrospective operation of the statute is, therefore, fully met in this case.

14. The learned counsel finally placed reliance on Mian Mohammad v. Province of West Pakistan (1968 SCMR 1090) to contend that the Governor, could not, under the provisions of the abrogated Constitution of 1962, legislate with retrospective effect from a date prior to the promulgation of that Constitution. In the case relied upon by Mr. Saeed-ur-Rahman Farrukh, leave to appeal was granted to examine this question in Civil Petition for Special Leave to Appeal No. 153 of 1968. The consequent appeal bearing No. 73 of 1969 was, however, dismissed on the 16th of November, 1971, and it was held, relying upon Amin Ullah v. Pannu Ram (PLD 1967 SC 289) and Pir Rashid-ud-Daula v. The Chief Administrator of Auqaf (PLD 1971 SC 401) that the levy of cotton fee could be validated with retrospective effect. In view of these decisions the last contention also fails.

15. As a result both the petitions are found to be without merit and are accordingly dismissed.