MESSRS ELAHI COTTON GINNING AND PRESSING FACTORY, GUJRAT vs GOVERNMENT OF WEST PAKISTAN THROUGH
The petitioner-firm challenged the levy of a cotton fee on ginned and pressed cotton for the years 1961-62 to 1968-69, arguing that the West Pakistan Cotton Control (Validation of Levy of Fees) Ordinance (XIII of 1966) was ultra vires the 1962 Constitution, that no valid notification existed for the levy, and that the demand was improperly restricted to factory occupiers. The High Court dismissed the petition, holding the petitioners liable under a 1952 notification and rejecting the constitutional challenge based on precedent regarding retrospective legislation. Upon appeal, the Supreme Court affirmed the dismissal. The Court held that the challenge to the Ordinance was without substance, noting that under Article 133 of the 1962 Constitution, the validity of a law could not be questioned on the grounds of legislative competence. Consequently, the Court upheld the liability of the petitioners to pay the cotton fee at the prescribed rate, ruling that the legislative power to enact the Ordinance was not subject to judicial invalidation on the basis of competence.
- Can the validity of a law be challenged on the ground that the Legislature lacked the power to enact it under the 1962 Constitution?
- Does Article 133 of the 1962 Constitution preclude the questioning of a law's validity based on legislative competence?
- Is the West Pakistan Cotton Control (Validation of Levy of Fees) Ordinance (XIII of 1966) ultra vires the 1962 Constitution?
- West Pakistan Cotton Control (Validation of Levy of Fees) Ordinance (XIII of 1966)
- Article 2, Constitution of Pakistan 1962
- Article 98, Constitution of Pakistan 1962
- Article 133, Constitution of Pakistan 1962
ORDER
1. MUHAMMAD YAQUB ALI, J.-The petitioner-firm moved the High Court in writ jurisdiction to annul the levy of cotton fee at 25 paisas per maund of the cotton ginned and pressed by them during the years 1961-62 to 1968-69 as without lawful authority on the grounds : (i) that the West Pakistan Cotton Control (Validation of Levy of Fees) Ordinance (XIII of 1966), was ultra vires of the 1962- Constitution; (ii) that no valid notification was issued during the years 1961-62 to 1968-69 levying cotton fee at 25 paisas per maund; and (i.e) that the demand for payment of the cotton fee was made from the occupiers of ginning factories alone whereas under the impugned notification the fee was recoverable from managers of the factories and cotton dealers a well.
2. The writ petition was dismissed by a Division Bench on the view that even if the impugned notifications levying the cotton fee are kept out of view, the petitioners were liable to pay fee at 25 paisas, per maund, under the notification of 1952. The contention that Article 2 of the 1962- Constitution prohibited the Legislature from giving retrospective effect to laws enacted after the commencing day of the Constitution was ruled out following the decision of this Court in Muhammad Yousaf v. Chief Settle--ment and Rehabilitation Commissioner (PLD1968SC101).
3. Ordinance XIII of 1966 could not, therefore be struck down on the ground that the West Pakistan Legislative Assembly was not competent to legislate on the subject of cotton duty. We are further of the view that even if the Constitution of 1962 was inforce the validity of the Ordinance could not be questioned in view of Article 133 which provided "133.-(1) The responsibility of deciding whether-a Legislature has power under this Constitution to make a law is that of the Legislature itself.
(2) The validity of a law shall not be called in question on the ground that the Legislature by which it was made had no power to make the law.
(3) Nothing in clause (1) or clause (2) shall be construed to have the effect of taking away, limiting or restricting the power of a High Court exercisable by it under paragraph (c) of clause (2) of Article 98."
4. The challenge to the vires of Ordinance XIII is, therefore, without any substance. The petitioner-co is, therefore, liable to pay cotton fee at the rate of 25 paisas, per maund, for the period 1961-62 to 1968-69 as found by the High Court.
5. The petition for leave to appeal is dismissed.