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Writ Petition No. 70 of 1964, decided on 16th June 1964.
‑Provincial Government extend ing application of Central Act to Province‑Central Act does not thereby become converted into a Provincial Act‑Extension by Government of West Pakistan, of Criminal Law Amendment Act (XIV of 1908), to Province of West Pakistan by notification‑Act (XIV of 1908), does not thereby become a Provincial Act so as to be subordinated, to the extent of "inconsistency", to provisions of a Central Act, vii., Political Parties Act (111 of 1962) Word "repugnancy" in Art. 110, Constitution of Pakistan (1956) "out‑model", replaced by word "inconsistency" in Art. 134, Constitution of Pakistan (1962).
‑Not incon sistent with Political Parties Act (III of 1962) Political parties, as associations of persons, subject to action under Criminal Law Amendment Act (XIV of 1908), even if mischief of S. 3, Political Parties Act (III of 1962), is not attracted by them‑Political Parties Act (Ill of 1962), does not impliedly repeal Criminal Law Amendment Act (XIV of 1908)‑Doctrine of implied repeal Criminal Law Amendment Act (XIV of 1908), Ss. 15, 16‑Political Parties Act (III of 1962), Preamble, Ss. 3, 4 & 5.
Held, (per Abdul Aziz Khan, C. J., Ortcheson, Inamullah and Muhammad Daud Khan, ii. agreeing) that although it is necessary for the continuance of a political party as such that the mischief of section 3 of the Political Parties Act, 1962, should not be attracted, political parties are, in their capacity of associations of persons, as much subject to action under Act XIV of 1908, in respect of unlawful activities falling within the orbit of that Act as any other association. The provisions of the two Acts are not in any way inconsistent. It is no doubt true that the declaration of an association as unlawful by the Provincial Government has the effect of preventing it from carrying on its activity as a political party; in the same way as the imprisonment of an individual for some offence puts an end for the time being to his social and civic activities but the essential point is that action was taken by the Provincial Government against the association (Jamaat‑e‑Islami) not as a political party, but as an allegedly unlawful association.
It would be a complete misconception of the scope of the Political Parties Act, 1962 to suppose that, provided a political party avoided the unlawful objects set out in section 3, it was exempted from the operation of the law of the land and in particular was immune from the consequences of endangering the public peace.
Clyde Engineering Company Limited v. Cowburn and others 37 C L R 466 considered. [Doctrine of implied repeal].
---"The Political Parties Act, 1962 deals with those cases in which total disbandment of any Associa tion is contemplated. On the other hand, the Criminal Law Amendment Act, 1908 contemplates to deal with a case in which it is necessary to stop immediately the unlawful activities of any Association which are found prejudicial to the State. The action contemplated under it is to meet an emergency and is not intended to totally disband an association. The order passed under it can be rescinded at any time."
, Ss. 1 (2) & 16‑Notifications, applying Act to a Province, by virtue of S. 7(2), and then declaring an association an "unlawful association" under .S. 16, may closely follow each other the same day Notifications, held, did v "published"‑West Pakistan General Clauses Act (VI of 1956). S. 1 (41)‑"Notification"‑ Words and phrases‑"Publish".
Per Abdul Aziz Khan, C. J., Ortcheson, Inamullah and Muhammad Daud Khan, JJ. agreeing).‑Act XIV of 1908, is an emergency measure. The mordent the Government was of opinion that there was an association which interfered with the administration of law or with the maintenance of law and order or which constituted a danger to public peace the Provincial Government could extend Act XIV of 1908, to the Province by a notification in the official Gazette under section 1 (2) and then take immediate action under section 16 thereof to meet the situation. If after taking action under section 1 (2) of the Act, the Government were to wait for notice to the members of the association before taking action under section 16, the evil might have been done during the interval and the object of the Act would have been defeated.
According to section 1 (41) of the West Pakistan General Clauses Act, 1956 "Notification" means a notification published under proper authority in the official Gazette.
As soon as the notification under section 1(2) of the Act bearing No. S. O. Sol. 1 (1)/64 was published in the Gazette at 8‑30 a.m., Act XIV of 1908, came into force in West Pakistan and consequential orders under the Act could be made. The very fact that the notification under section 16 of the Act is numbered S. O. Spl. 1 (2)/64 show's that it was printed after the notification under section 1(2) of the Act and as such was published after the Act had come into force in West Pakistan. There is no provision in the Act which bars the passing of both the orders together.
In Webster's "New International Dictionary" (second edition) the relevant definition of the word "publish" is as fol lows:‑
"To bring before the public, as for sale or distribution; (esp. a) to print, or cause to be printed and to issue from the press, either for sale or general distribution, as a hook, newspaper, piece of music, engraving, etc."
Balkrishna Anant Hirlekar v. Emperor A I R 1931 Bom. 132 distinguished.
"The requirement of the enact ment of publishing the notification, in the official Gazette is only a formality. The moment this formality is complied with, the action taken becomes effective. There is nothing to prevent the authorities to pass two orders simultaneously. What is of importance is whether they came into force in their proper order. On the affidavit filed on behalf of the Government I am satisfied that the notification extending the enactment was published first and thereafter the other notification was published. There is no illegality in this procedure particularly as at best it is an irregularity which could be easily cured."
, Ss. 1 (2) & 16‑Notification, applying Act to Province, and declaring an association of persons as an "unlawful association"‑Provincial Government's action alleged to be mala fides by persons proceeded against‑Burden of proving mala fide on such persons‑Simultan eous action taken by two Provinces, no proof of mala fides‑Pro vincial Government's decision a subjective decision‑Not justifiable.
The local application of the provision of a statute is deter mined by the judgment of a local administrative body as to its necessity. Section 16, Criminal Law Amendment Act, 1908, expressly confers on the Provincial Government power to declare any association unlawful, if in its opinion such association interferes or has for its objects interference with the administra tion of law or with the maintenance of law and order or if it constitutes a danger to the public peace. The grounds referred to in the sections are not justifiable issues, and the test laid down is a subjective one. It is not open to the Court to go into the question of the sufficiency or insufficiency of the grounds. In the present case the affidavit of the Home Secretary estab lished the existence of the grounds for taking action under section 16. No material had been placed on the record by the petitioners in support of their contention that the action taken ' was mala fide. The onus of proving mala fides lay heavily on them which they had failed to discharge. Merely that the action was taken in the two wings of the State on the same date did not by itself establish mala fides.
Emperor v. Benoari Lai Sarma and others A I R 1945
P C 48 ref.
, S. 16‑Noti fication made on 6‑1‑1964, by Provincial Government declaring an association of persons as an "unlawful association"‑Unaffected by 7th Fundamental Right, Chapter I, Constitution of Pakistan (1962), which right came to be incorporated in the Constitution (1962), on 10‑1‑64‑Provincial Government's decision past and closed trans action‑[Per Abdul Aziz Khan, C. J., Ortcheson, Inamullah and Muhammad Daud Khan, JJ., concurring; Wahiduddin Ahmed, J., contra]‑Constitution of Pakistan (1962), Art. 6 (1).
Ortcheson, Inamullah and Muhammad Daud Khan, JJ. (concurring).‑There is nothing in section 16 of Act XIV of 1908, or elsewhere in that Act which contemplates any further action to make the order (passed on 6‑1‑1964, declaring the petitioners' association an "unlawful association") final. The moment the order was notified it became final and was not affected by the subsequent enforce ment of Fundamental Rights on the 10th of January 1964.
Keshvan Madahalwa Menon v. State of Bombay A I R 1951 S C 128; D. K. Nabhirajiah v. State of Mysore and others A I R 1952 S C 339; Lachmandas Kewalram and another v. State of Bombay and another A I R 1952 S C 235; Abdul Khander and others v. State of Mysore A I R 1953 S C 355; Behram Khurshid Pasikaka v. State of Bombay A I R 1955 S C 123; Shree Meenakshi Mills Ltd., Madural v. A. V. Vishvantha Sastri A I R 1950 S C 13; Director of Endowments, Government of Hyderabad v. Akram Ali A I R 1956 S C 60; R. B. Seth 8hanti Sarup v. Union of India A I R 1955 S C 624; Jibendra Kishore anti others v. The Province of East Pakistan P L D 1957 Dacca I and Abdul Rauf and others v. The N.‑W. F. P. Government P L D 1958 Pesh. 73 ref.
State of Madras v. V. C. Row A I R 1952 S C 1‑96 distingu ished.
(contra.)‑"The effect of these provisions [S. 16,(1), Criminal Law Amendment Act, 1908], is that the Provincial Government is the final authority and sole judge to declare any association as unlawful on the grounds stated in the parent section. It will be noticed that though the grounds on which the opinion is to be formed have to be factual ly in existence but the declaration is based on subjective considera tion. Neither the Act provides for a right of hearing to the offending party nor does it contain any provision for appointing any higher authority for reviewing the impugned order. Thus it is quite clear that though the order contemplated under section 16(1) of the said Act is capable of being objectively determined by a Court of law or some other body, no provision has been made in the impugned enactment for determining whether the alleged grounds really exist or not in those cases where the allegations contained in the declaration are challenged by the offending Association. Besides the enactment does not provide that the order contemplated under section 16(1) would be passed for a definite period. In the absence of any such provision any order passed under it will have effect for an indefinite period. It is thus left entirely to the sweet‑will of the Govern ment to withdraw or cancel it whenever it likes. In a democratic set up any enactment vesting the Government with such vast and unlimited powers cannot be considered to be based on reasonable restrictions, otherwise the obvious consequence would be that a party‑Government would easily be able to silence its critic and opposition parties. Cases requiring immediate action can be visualized, but that does not mean that the party in power should be made the sole judge of such important matters. Any legislation affecting such right must provide for some forum for the adjudication of the allegations made against the offending party. In the absence of any such provision it is not possible to accept the contention that the impugned legislation imposes or is based on reasonable restrictions. Having regard to these facts and circumstances, there is little doubt that the impugned legislation offends and is inconsistent with Fundamental Right No. 7."
"There is preponderance of view that such legislations are void for being in conflict with Fundamental Rights."
"There is not the slightest doubt that after the introduction and enforcement of the Fundamental Rights under the Constitu tion of Pakistan, the impugned legislation has become uncon stitutional and is void."
"There is thus no doubt that although the Association con cerned was declared unlawful under an order passed prior to the enforcement of the Fundamental Rights, it continues into operation from day to day and affects the valuable Fundamental Rights of its members even after the 10th of January 1964. Therefore, the impugned order cannot be considered to be of a final nature."
"Any order which has its effect from day to day cannot be treated as of final nature and, therefore, cannot be treated as a past and closed transaction. The impugned order in its effect cannot be considered to be of that nature. Any person who holds himself out to be a member of the Party and disregards the impugned order after. the 10th of January 1964, is liable to be punished under section 17. In these circumstances the petition ers' grievance that it threatens the violation of their fundamental rights and prevents them from exercising it after the 10th of January 1964, cannot be lightly disregarded. Therefore, the impugned order after the 10th of January 1964, has become void and is rendered ineffective and illegal in view of Article 6 of the Pakistan Constitution of 1962."
V. G. Row v. The State of Madras A I R 1951 Mad. 147; George Chadayammury v. State A I R 1952 T C 217; The State of Madras v. V. G. Row A I R 1952 S C 196; Shanti Sarup v. Union of India A I R 1955 S C' 624 and Jeshingbhai v. Emperor A I R 1950 Bom. 363 ref.
, S. 16 Provincial Government's decision declaring an association of persons as an "unlawful association"‑Administrative, and not of judicial or quasi‑Judicial nature‑No question of hearing persons affected, before making declaration (Per Abdul Aziz Khan, C. J., Ortcheson, Inamullah and Muhammad Daud Khan, JJ. con curring; Wahiduddin Ahmed, J. contra)‑Maxim: Audi alteram partem.
Per Abdul Aziz Khan, C. J., Ortcheson and Muhammad Daud Khan, JJ. (concurring)‑‑"While deciding whether a decision is administrative or judicial it is the first duty of the Court to enter into the mind of the framers of the Statutes and look at the whole matter as they must have looked at it."
"The use of the word "opinion" in the section (S. 16) is signifi cant, and clearly shows that the Legislature intended the criterion to be purely subjective and not objective. It is quite clear that the author of the Statute never intended to impose any duty on the Provincial Government to determine judicially whether an association interferes or has for its object interference with the administration of law and order, or that it constitutes a danger to the public peace. There are no such words in section 16 or any other section of the Act imposing such a duty, nor is there anything to hold that such a duty is implied. It is purely the subjective mind of the Provincial Government. The Provincial Government has not even to give reasons for forming its opinion. The Provincial Government is the sole judge of its decision to meet a state of emergency visualized by the statute. No appeal, review or representation is provided against its order. In the circumstances, it cannot be said that the decision of the Provincial Government is a judicial or a quasi judicial one. It was an administrative act to meet an emergency and, therefore, the question of hearing the Jamaat before passing the impugned order did not arise. In passing the impugned order under section 16 of Act XIV of 1908, the Government has not violated any principle of natural justice.
Tariq Transport Company, Lahore v. Sargodha‑Bhera Bus Service, Sargodha etc. P L D 1958 S C (Pak.) 437; Brohi's "Funda mental Law of Pakistan" pp. 476 & 481; 49 L Q R 107; Wharton's Law Lixicon "Administrative Business"; R. v. Manchester Legal Aid Committee (1952) 1 All E R 480 and Franklin v. Minister of Town and County Planning (1947) 2 All E R 289 ref.
Chief Commissioner Karachi v. Mrs. Dina Sohrab Katrak P L D 1959 S C (Pak.) 45 and Messrs Faridsons Ltd. v. Govern ment of Pakistan etc. P L D 1961 S C 537 distinguished.
Per Inamullah, J. (agreeing with Abdul Aziz Khan, C. J.)
"The two leading cases on the subject, laying down the rule of natural justice, are Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak P L D 1959 S C (Pak.) 45 and Messrs Farid Sons Limited v. Government of Pakistan P L D 1961 S C 537. The rule deducible from these cases is that the principle of natural justice is not confined only to judicial or quasi judicial tribunals, but also applies to administrative authorities, whose orders may deprive a person of his liberty or property. I venture to state, as I understand these decisions, that it is not all administrative orders to which the maxim of audi alteram partem will apply. The principle of natural justice would apply in the case of an adminis trative body which has to determine facts in an objective manner and to act judicially. A perusal of these cases clearly leads to the conclusion that an administrative authority is not bound by the said maxim where it has neither to ascertain facts objectively nor to act judicially. Under section 16 of Act XIV of 1908, the determination of the question admittedly is purely subjective, and the authority is, in no way required to act judicially."
Per Wahiduddin Ahmed, J. (contra).‑"It was urged that in a case where an action is taken by any authority on subjective consideration, the principle of natural justice is not applicable. With respect, I find no justification to make any such distinction. In the present case the Provincial Government had to form its opinion not on suspicion but on factual existence of certain grounds capable of objective determination. In spite of the fact that the Provincial Government is the sole judge in such matters, I cannot ignore the fact that there is a judicial element involved in the formation of the opinion leading to the declaration of an association as unlawful. The moment such an element is found to be present this principle will be applicable with full force."
"In my view, in the present case a very valuable right of the petitioners has been taken away on account of certain allegations made against them. It was, therefore, essential for the Provin cial Government, at some stage, to provide an opportunity of hearing to the petitioners so that they might have been able to advance cogent reasons for the cancellation of the order affect ing their right. Since this was not done, I have not the slightest doubt that the impugned order offends the principles of natural justice and being void is liable to be quashed."
Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak P L D 1959 S C (Pak). 45; Faridsons Ltd. v. Government of Pakistan P L D 1961 S C 537 and Commissioner of Income‑tax v. Fazlur Rahman P L ID 1961 S C 410 ref.
‑(Extraordinary jurisdiction)‑Relief‑High Court will not grant a relief not claimed in petition‑Constitution of Pakistan (1962), Art. 98.
, Ss. 1 (2), 16 & 17‑E‑Notice under S. 17‑E served a few hours before publica tion of notification under Ss. 1 (2) & 16‑Only an irregularity having no adverse effect on declaration of association as "unlawful" under S. 16.
‑‑Discretionary jurisdiction‑Court will not issue writ if it is likely to become ineffective by unilateral action of a party‑Constitution of Pakistan (1962), Art. 98‑[Rahmatullah v. Deputy Settlement Commissioner P L D 1963 S C 633 rel.]
A. K. Brohi (2) G. H. Abbasi (3) Akhtar‑ud‑Din (4) Muhammad Isa (5) Ghulam Ali (6) Iftikhar Ali Shaikh (7) Muhammad Ismad and (8) S. M. Zafar, on 11‑5‑64, Nos. 1 to 7 on 12‑5‑64, Nos. 1 to 3, 6; ‑ 7, 8 and S.‑ M. Sadiq on 13‑5‑64, Nos. 1, 3, 5 to 7 and S. M. Sadiq on 14‑5‑64, Nos. 1 to 3, 5, and S. M. Sadiq on 15‑5‑64, Nos. 1, 2, 4, 5 ; S. M. Sadiq, Raja Hafizullah and Imtiaz Ahmad on 16‑5‑6 I, for Petitioners.
Khalid M. Ishaq,. A.‑G. West Pakistan; with Abdul Qadir Shaikh Additional A.‑G., Karachi, Aamer Raza A. Khan, on all dates for Respondents:
Tufail Ali Abdur Rahman, Attorney‑General with Rahimtoola as amicus cueia on all dates.
Dates of hearing: 11th, 12th, 13th, 14th, 15th and 16th May
‑The following notification appear ed in the Gazette of West Pakistan dated the 6th of January, 1964:‑
Home Department
Notification
'The 6th January 1964
No. S. O. Spl. 1 (1)/64.‑In exercise of the powers conferred on it by section subsection (2)' of section 1 of the Criminal Law Amendment Act 1908 (Act. XIV of 1908) as amended by ordinance XXI of. 1960, section 3 of Schedule II, the Govern ment of West Pakistan ,is hereby pleased to extend, the said Act to the whole of the Province of West Pakistan.
By order of the Governor
of West Pakistan,
S. ALAMGIR,
Secretary to Government of West Pakistan,
Home Department."
The Government of West Pakistan also issued another notification in the same Gazette on the same date, which reads :‑
GOVERNMENT OF WEST PAK
Home Department
Notification
No. S. O. Spl. 1(2)/64.‑Whereas the association known as Jamaat‑e‑Islami, having its Head Office at Lahore, was vehemently opposed to the creation of Pakistan and continues to oppose its existence by unlawful means and with this objective is indulging in subversive activities against the State, such as inciting students to indulge in unlawful activities and commit acts of violence, fomenting trouble between workmen and employers, and attempting to create a feeling of disloyalty and disaffection amongst Government servants, and whereas the Government of West Pakistan is of opinion that the said Jamaat‑e‑Islami has for its objects interference with the administration of law and the maintenance of law and order, and that further its activities are such as to constitute a danger to the public peace:
Now, therefore, in exercise of the powers vesting in it under subsection (1) of section 16 of the Criminal Law Amendment Act, 1908 (Act XIV of 1908), the Government of West Pakistan hereby declares the said Jamaat‑e‑Islami to be an unlawful association.
The Government of West Pakistan, in exercise of the powers vesting in it under subsection (1) of section 17‑A of the said Act, is pleased to notify the places specified in the Schedule to this notification to be places which are used for the purposes of the said Jamaat‑e‑Islami.
By order of the Governor
of West Pakistan
S. ALAMGIR.
Secretary to the Government of West Pakistan,
Home Department.
Schedule
2. The petitioners, Saiyyid Abul A'la Maudoodi, Misbah uI‑Islam Faruqi and Umar Farooq son of Saiyyid Abul Ma Maudoodi, have filed this petition under Article 98 of the Constitution of the Islamic Republic of Pakistan challenging the order of the Government declaring the Jamaat‑e‑Islami an unlawful association under the Act.
3. The facts of the case need not be stated in detail. So far as the respondent‑Government are concerned, they have stated all the salient facts in the notification reproduced above and further elaborated them in the Press Note dated the 7th of January 1964, (Annexure C, pages 23‑31 of the printed paper book).
4. The petition is to be found on pages 1 to 13 of Part I of the paper‑book. Paragraphs 1 and'2 are formal. Paragraphs 3 to 5 merely give the history of the Jamaat‑e‑Islami with details of its abolition and revival. Paragraphs 6 and 7 deal with the impugned notifictions and the reasons for the declaration of the Jamaat as an unlawful association as stated in the Press Note referred to above, which the petitioners have challenged. Paragraphs 8 and 9 challenge the bona fides of the action of the Government. The petitioners further contend that the order was illegal for want of an opportunity of being heard before passing the impugned orders. The grounds of petition Nos. (i) to (vii) are to be found at pages 7 to 11 of the paper‑book. The petitioners filed Annexure D (pages 33 to 95) showing the history, the aims and objects, the policy and creed of the Jamaat with a view to challenge the impugned orders and to controvert the Press Note referred to above.
5. The petitioners' prayer is‑
"It is, therefore, prayed that it be declared that the Pro vincial Government is not authorised to take any action against a political party under Criminal Law Amendment Act, 1908 (Act XIV of 1908) and that the Notification No. S. O. Spl. 1 (2)/64 dated 6th January 1964 (Annexure B) has been issued without lawful authority and is of no legal effect.
It be further prayed that respondent be directed to withdraw the said Notification (Annexure B) and to de‑seal the premises and not to interfere with the political activities of the Jamaat‑e -Islami."
6. In the reply filed by the respondent paragraph 1 of the petition was not denied except that the respondent chal lenged the reason urged by petitioner No. 1 for not filing an affidavit along with the petition. According to the respondent, petitioner No. 1 failed to file ail affidavit because "he dare not deny that Pakistan was described by the Jamaat‑e‑Islami as NaPaqistan' and that the object of the Jamaat is to, acquire State power, even if resort to force be necessary to attain that end." Paragraph 2 of the petition was admitted and paragraph 3 was not denied. As regards paragraph 4 the respondent did not admit the legal position taken up by the petitioners and contended that the Political Parties Act, 1962 (III of 1962) has nothing to do with the dissolution of parties, political or otherwise, which constitute a danger to the public peace and interfere with the administration of law and the maintenance of law and order, Paragraph 5 of the petition was also not admitted and it was contended that the Jamaat has always believed in acquiring political control by means, constitutional or unconstitutional, any recent trend in its utterances emphasizing constitutional means of acquiring power being based on expediency. Paragraph 6 was not denied. In paragraph 7 it was stated that the reasons for declaring the Jamaat as an unlawful association, are set out in the notification (Annexure B). It was further stated that "the fact that there was with the Government information that the banned Jamaat was receiving funds from foreign sources was not taken into consideration by the Government while determining the question whether action under section 16 of the Criminal Law Amendment Act should be taken against the Jamaat." The respondent did not admit the contents of Annexure D filed by the petitioners which according to the respondent consisted of carefully chosen pieces from the Jamaat's literature. Paragraph 8 of the petition was denied and it was contended that no particulars of mala fides are given and for that reason the allegation cannot be entertained. In paragraph 9 of the reply it was stated that it was not incumbent upon the Government to give an opportunity to the Jamaat to be heard against the action proposed to be taken, as its proceedings were not judicial but purely administrative. Finally; the respondent urges a reply to the legal grounds taken by the petitioners.
7. In the course of his arguments; learned counsel for the petitioners did not urge anything in support of Annexure attached to the petition which, according to Saiyyid Abul A'la Maudoodi, contained an elaborate statement of his and his party's views: Learned counsel contented himself with the following legal arguments at the Bar:‑‑
(i) That section 16 of Act XIV of 1908 is repugnant to the Political Parties Act (11t of 1962);
(ii) that there was no due notice of the publication of the notification under section 1 (2) of Act XIV of 1908 and, there fore, the impugned order is bad in law;
(iii) that the action of the respondent is the action of the Central Government; and
(iv) that Act XIV of 1.908 is inconsistent with the 7th Fundamental Right of Chapter I of the Constitution and is, therefore, void ab initio.
8. Before proceeding to examine' argument No. (i) above it may be pointed out that the term "repugnant" is now out moded. The relevant portion of Article 110 (1) of the 1956 Constitution ran:
"If any provision of an Act of a Provincial Legislature is repugnant to any provision of an Act of Parliament ..the Act of Parliament .shall prevail and the Act of the Provincial Legislature shall, to the extent of the repugnancy, be void."
Article 134 of the present Constitution; on the other hand, is phrased as follows:‑
"When a Provincial Law is inconsistent with a Central Law, the latter shall prevail, and the former shall,' to' the extent ' o the inconsistency, be invalid."
9. Using the old phraseology, Mr.' Brohi's argument that section 16 of Act XIV of 1908 is repugnant to the provisions o Act III of 1962 rests on the assumption that the former is a Provincial Act, but while it is true that in extending the appli cation of the Act to West Pakistan the Provincial Government may be said to have acted in the exercise of conditional, though not of delegated, legislation, that does riot convert a Central into a Provincial Act. If, therefore; Mr. Brohi's contention is to prevail, it can only be on the basis, not, of repugnancy, but o the entirely different principle that Act 1II of 1962 has by implication repealed Act XIV of 19138.
10. In Volume 36 of Halsbury's Laws', :of England (third edition) at, page 465, the doctrine of implied repeal is enunciated thus:
"Repeal by implication is not favored by the Courts : for it is to be presumed that Parliament would not intend to effect so important a matter as the repeal of a law without expressing its intention to do so If, however, provisions are enacted which cannot be reconciled with those of an existing statute, the only inference possible ,is that Parliament, unless it failed to address its mind to the question, intended that the provisions of the existing statute should cease to have., effect, and an intention so evinced is as, effective as one expressed in terms. The rule is, therefore, that one provision repeals another by implication if, but only if, it is so inconsistent with or repugnant to that other that the two are incapable of standing together. If it is reasonably possible so to construe the provisions as to give effect to both, that must be done; and their reconciliation must in particular be attempted if the later statute provides for its construction as one with the earlier, thereby indicating that Parliament regarded them as compatible, or if the repeals expressly effected by the late statute are so detailed that failure to include the earlier provision amongst them must be regarded as such an indi cation."
11. Reference may also be Made to two passages from Crawford's "Statutory Construction", First Edition. The first occurs at page 631, and runs:
"This presumption against the intent to repeal by implication rests upon the assumption that the Legislature enacts laws with a complete knowledge of half existing laws pertaining to, the same subject, so that the failure to add a repealing clause indicates that the intent was not to repeal any existing legislation."
The second, at page 628, is to the following effect:‑
"Where a repeal is effected through implication, the late enactment thus affecting pre‑existing law must be subjected to close scrutiny in the light of its own provisions and those of the law apparently abrogated in whole or in part. The con struction of the new law becomes an important consideration, since its meaning and scope will determine whether a repeal takes place, and if so, its extent. And usually one of two questions will arise:
(1) Whether the new law is intended as a substitute for the old; and (2) whether the new is irreconcilably inconsistent with the old, so that the former is thereby terminated., .In brief, the problem will be, simply to determine what is the legislative intention‑whether the old law shall cease or whether it shall be supplemented."
12. To appreciate Mr. Brohi's argument, it is necessary to set: out the relevant provisions of the two statutes in question. Section 16 of Act XIV of 1908 runs:
"If the Provincial Government is of opinion ‑that any association interferes or has for its object interference with the administration of the‑law or with the maintenance of law and order, of that it constitutes a danger to the public peace, the provincial Government may, by notification in the official Gazette, declare such association to be unlawful."
In section 15 of the Act "association" is defined as meaning any combination or body of persons, whether the same be known by any distinctive name or not, while "unlawful association means an association (a) which encourages or aids persons to commit acts pf violence ox intimidation or of which the members habitually commit such acts, or (b) which has been declared to be unlawful by the Provincial Government under the powers conferred by the Act.
13. The preamble to the Political Parties Act (I1I of 1962) is as follows:‑
"Whereas Article 173 of the Constitution provides that no person shall hold himself out at an election as a member of a political party unless permitted by Act of the Central Legislature;
And whereas it is expedient to provide for the formation of political parties and to permit persons to hold themselves out at elections as members of political parties;
And whereas the national interest of Pakistan in relation to the achievement of uniformity within the meaning of clause (2) of Article 131 of the Constitution requires Central Legislation in the matter ;"
Sections 3 and 4 run as under :‑
Section 3.‑"(1) No political party shall be formed with the object of propagating any opinion, or acting in a manner," prejudicial to the Islamic ideology, or the integrity or security ' of Pakistan.
(2) No person shall form, organise, set up or convene a foreign aided party or in any way be associated with any such party."
Section 4."Subject to the provisions of section 3, it shall be lawful‑
(1) for any body of individuals or association of persons to form, organise or set up a political party;
(2) for any person to be a member or office‑bearer of, or be otherwise associated with, a political party; or
(3) for any person, for the purpose of an election to be held under the Constitution, to hold himself out or any other person as a member, or to have the support, of a political party, the formation, organisation or setting up of which is not prohibited by this Act."
Section 5 disqualifies certain categories of persons from being members or office‑bearers of a political party, while section 6 provides that where the Central Government is of the opinion that any political party has been formed or is operating in contravention of section 3, it shall refer the matter to the Supreme Court, whose decision, given after hearing the person or persons concerned, shall be final and that where the Supreme Court has given a decision that a political party has been so formed or is so operating, the political party shall stand dissolved and all its properties and funds shall be forfeited to the Central Government. Finally, section 10 of the Act repeals the Political Organizations (Prohibition of Unregulated Activity) Ordinance, 1962.
14. On the basis of the above provisions Mr. Brohi con tends that section 16 of Act XIV of 1908 as inconsistent with Act III of 1962. More specifically, he argues that whereas the Jamaat‑e‑Islami, being a political party, cannot be dissolved except in the manner described above, the Provincial Govern ment, by declaring it an unlawful association for an indefinite period of time, has denied to it the right to which it is entitled under section 4 of the Political Parties Act. In support of this assertion he has cited the following dictum of Isaacs, J. in the well‑known case of Clyde Engineering Company Limited v. Cowburn and others (37 C L R 466):‑
"If one enactment makes or acts upon as lawful that which the other makes unlawful, or if one enactment makes unlawful that which the other makes or acts upon as lawful, the two are to that extent inconsistent. It is plain that it may be quite possible to obey both simply by not doing what is declared by either to be unlawful and yet there is palpable inconsistency."
15. The circumstances leading up to the enactment of Act III of 1962 are these. In his Proclamation of the 7th of October 1958 the President of Pakistan stated:
"I have, therefore, decided that
(a) The Constitution of the 23rd of March 1956, will be abrogated.
(b) The Central and Provincial Governments will be dismissed with immediate effect.
(c) The National Parliament and Provincial Assemblies will be dissolved.
(d) All Political Parties will be abolished."
Although a number of its provisions were not to come into force until the commencing day, which proved to be the 8th of June 1962, the present Constitution was enacted on the 1st of March in that year. Among the Articles which were not to have effect until the commencing day was Article 173, the relevant portion of which provides that except as permitted by Act of the Central Legislature, any person who, in connection with an election required to be held under the Constitution, holds out himself or any other person as being a member of, or as having the support of, a political party or any similar organisation shall be punishable in such manner as may be prescribed by Act of the Central Legislature.
16. In Article 242 of the Constitution the expression
"commencing day" was defined as meaning the day on which the first meeting of the first National Assembly was held. It thus became public knowledge on the lst of March 1962, that elections were imminent., and it was apparently feared that in spite of the prohibition of political parties by the Presidential Proclamation of the 7th of October 1958, there would be a recrudescence of political activity on a party basis. On the 10th of May 1962, therefore, the President enacted Ordinance XVIII of 1962 (later repealed by section 10 of Act III of 1962). Section 2 of that Ordinance ran:
"Unless expressly permitted by an Act of the Central Legis lature, no association of persons shall set up an organizational structure or collect funds or otherwise hold, acquire or own property, if the object of the association' is to propagate political opinions or otherwise to indulge in political activity, nor shall any association of persons, whether with or without any organizational structure, call itself by any of the names mentioned in the Schedule or by names which are obvious and identifiable variations of those names." The Jamaat‑e‑Islami Party is mentioned at serial No. 3 in the said Schedule.
17. It is clear from the foregoing that the two objects of the Political Parties Act were to provide for the formation of political parties and to permit persons to hold themselves out at elections as members of such parties. Section 3 of the Act, however, forbade the formation of political parties having the objects set out in the section. In my opinion it would be a complete mis conception of the scope of the Act to suppose that, provided political party avoided the unlawful objects set out in section 3, it was exempted from the operation of the law of the land and in particular was immune from the consequences of endangering the public peace. To put the matter figuratively, the prohibitions contained in section 3 may be compared to a‑morbid condition which, if present pre-natally, prevents the process of birth, and which, if it develops after birth; will prove fatal. Even if that particular morbid condition does not develop, however, death can result from other causes.
18. In my opinion, therefore, the position is that although it is necessary for the continuance of a political party as such that the mischief of section 3 of the Political Parties Act should not be attracted, political parties are, in their capacity of associations of persons, as much subject to action under Act XIV of 1.908 in respect of unlawful activities falling within the orbit of that C Act as any other association. I am accordingly unable to share Mr. Brohi's view that the provisions of the two Acts under consideration are in any way inconsistent. It is no doubt true that the declaration of an association as unlawful by the Provincial Government has the effect of preventing it from carrying on it D activity as a political, party, in the same way as the imprisonment of an individual for some offence puts an end for the time being to his social and civic activities, but the essential point is that action was taken by the Provincial Government against the Jamaat‑e‑Islami, not as, a political party, but as an allegedly unlawful association.
19. Mr. Brohi next challenges the validity of the order under section 16 of Act XIV of 1908 on the ground that the notifications under sections 1 (2) and 16 of the Act were made simultaneously. In support of his contention, he relied on Annexure A (page 15 of the printed paper book) and Annexure B (page 17). Both these notifications were issued on the 6th of January 1964. As already stated, the first notification is numbered S. O. Spl. 1 (1)/64 and that under section 16. is numbered S. O. Spl. 1 (2)/64 which, according to learned counsel, shows that they were published simultaneously. It was argued that Act XIV of 1908 came into force in West Pakistan on the issue of the Notification under section 1 (2) of the Act and that the Government should have waited before acting under section 16 of the Act. In support of his contention, learned counsel for the petitioners relies on Balkrishna Anant Hirlekar v. Emperor (A I R 1931 Bom. 132). That was a case in which eleven accused persons were convicted under section 17 (1) of the Act (XIV of 1908) for being members of an unlawful association. One of the points urged was that the accused had no knowledge that the association was an unlawful association. In the course of the judgment, Beaumont, C. J., observed:‑
"Where an association heretofore lawful is made unlawful, it appears to me that the most elementary principle of justice and fair play require some notice of the illegality to be given to the members of the association so that they may regulate their conduct accordingly."
His Lordship relied on Webster's Dictionary in construing the word "notification" and observed:
"In my opinion . . . . . in order to prove that an association has been declared unlawful under the Criminal Law Amendment Act of 1908, the Government must not only insert the declara tion in the official Gazette, but must publish the Gazette in the manner usually adopted for publishing such Gazette, and allow a reasonable opportunity to people concerned to see the Gazette."
The facts of the above case were quite different from the facts of the case in hand, which is not a case of prosecution under section 17 of Act XIV of 1908. Section 17 (1) provides:
"Whoever is a member of an unlawful association, or takes part in meetings of any such association, or contributes or receives or solicits any contribution for the purpose of any such association, or in any way assists the operations of any such association, shall be punished with imprisonment for a term which may extend to six months, or with fine, or with both."
"Notification" is defined in section 1 (41) of the West Pakistan General Clauses Act as under:
"Notification shall mean a notification published under proper authority in the official Gazette."
For construing the word "notification" I have to rely on the definition given in the General Clauses Act and not the dictionary meaning of that word. The affidavit of Mr. Jaleel‑ud‑Din, Manager Works, West Pakistan Government Press, Lahore, is on the record. He states therein that according to the record pertaining to publication, Notifications Nos. S. O. Spl. 1 (1)/64 and S. O. Spl. 1 (2)/64 dated the 6th of January 1964 were published as the very first items on the opening of the Press on the 6th of January 1964 and that the Press normally started functioning at 7‑30 a.m. He further states that the aforesaid notifications must have been published within an hour of the opening of the Press. As soon as the notification under, section 1(2) of the Act bearing No. S. O. Spl. 1(1)/64 was published) in the Gazette at 8‑30 a.m., Act XIV of 1908 came into force in West Pakistan and consequential orders under the Act could be made. The very fact that the notification under section 16 of the Act is numbered S. O. Spl. 1 (2)/64 shows that it was printed after the notification under section 1(2) of the Act and as such was published after the Act had come into force in West Pakistan. There is no provision in the Act which bars the passing of both the orders together. It may also be observed that the two notifications were, printed separately, and were available for sale at a price of 13 paisa each. In Webster's "New International Dictionary" (second edition) the relevant definition of the word "publish" is as follows:‑
To bring before the public, as for sale or distribution; esp. to print, or cause to be printed, and to issue from the press, either for sale or general distribution, as a book, newspaper piece: of music, engraving, etc.
The notifications in dispute were therefore duly published, and it is unnecessary to enter in this context into the question whether the previous notification extending the provisions of the Act to the former Punjab dispensed with the need for further publication. It must also not be ignored that Act XIV of 1908 is a emergency measure. The moment the Government was of opinion that there was an association which interfered with the administration of law or with the maintenance of law and order c or which constituted a danger to public peace the Provincial Government could extend Act XIV of 1908 to the Province by notification in the official Gazette under section 1(2) and the take immediate action under section 16 thereof to meet the situation. If after taking action under section 1(2) of the Act, the Government were to wait for notice to the members of the, association before taking action under section 16, the evil might have been done during the interval and the object of the Act would have been defeated.
20. It is next argued that the action under the Act is mala fide inasmuch as it was taken both in East Pakistan and West Pakistan on the same date. There is a presumption under section 114 of the Evidence Act that judicial and official acts have been regularly performed. No doubt this presumption is rebuttable, but no evidence has been brought on the record to rebut it. On the other hand there is the affidavit of Mr. S. Alamgir, Home Secretary to the Government of West Pakistan, paragraphs 2, 3 and 9 of which read:
"2. That for some time before 6th January 1964, disturbing reports about the activities of Jamaat‑i‑Islami and its members were being received by the Provincial Government and the orders mentioned in paragraph 1 were passed by the Government on the basis of these reports and other information received and believed to be true.
3. That on examining the reports and information mentioned in paragraph 2 above, the Government came to the conclusion that Saiyyid Abul A'la Maudoodi, the Amir and other members of the Jamaat were doing acts prejudicial to the public safety and the maintenance of law and order.
9. That included in the information received by the' A Government was also information that the Jamaat‑i‑Islami n was receiving a large measure of financial support from some foreign sources hostile to Pakistan, but the Government was H aware of the legal position that this part of the information could not be taken into consideration while determining the question whether an order under section 16 of the Criminal Law Amendment Act should be passed and this position was explained in the Press Note issued by the Government simultaneously with the order under section 16."
The averments made by Mr. S. Alamgir in his affidavit have not been controverted by a counter‑affidavit. The affidavit of an officer of the status of Home Secretary conclusively establishes that action was taken in West Pakistan on the basis of disturbing reports received by the authorities before the 6th of January 1964. Section 1 (2) of the Act provides that the Provincial Government may extend the Act to the Province or any part thereof by means of a notification in the official Gazette. The fact that the notification was published in the West Pakistan Gazette on the 6th of January 1964 is established. The affidavit of Mr. Jaleel‑ud‑Din shows that the notification was published in the Gazette at 8‑30 a.m. I see nothing objectionable, in point of legality, in the present statute's authorizing the Provincial Government to extend it, if considered necessary, to the whole or any part of the Province. In the words of their Lordships of the Privy Council, such an arrangement is a legislative arrangement by which the local application of the provision of a statute is determined by the judgment of a local administrative body as to its necessity. Emperor v. Benoari Lal Sarma and others (A I R 1945 P C 48 at p.51). Section 16 expressly confers on the Provincial Government power to declare any association unlawful, if in its opinion such associa tion interferes or has for its object interference with the administration of law or with the maintenance of law and order o if it constitutes a danger to the public peace. The grounds referred to in the sections are not justiciable issues, and the test laid down is a subjective one. It is not open to the Court to go into the question of the sufficiency or insufficiency of the grounds. As already stated in the present case the affidavit of the Home Secretary establishes the existence of the grounds for taking action under section 16. No material has been placed on the record by the petitioners in support of their contention that the action taken was mala fide. The onus of proving mala fides la heavily on them which they have failed to discharge. Merely that the action was taken in the two wings of the State on the same date does not by itself establish mala fides. The above argument applies with equal force to the contention of learned counsel for the petitioners that the East Pakistan and West Pakistan Governments have taken action under the Act in order to perform the duty of the Central Government which was avoiding to take action against the Jamaat under the Political Parties Act.
21. It is next argued that section 16 of Act XIV of 1908 is inconsistent with the 7th Fundamental Right of Chapter I of the Constitution, which reads:‑
Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of morality or public order.
Mr. Brohi draws our attention to Article 6 (1) of the Constitution which reads:‑
"Any law or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void."
and argues that even if the notification under section 16 of Act XIV of 1908 was a valid notification on the 6th of January 1964 it became void on the 10th of January 1964 with the enforcement of the Fundamental Rights. Mr. Brohi argues that the word "void" means "devoid of all legal force." He draws our attention to Article 250 of the Constitution, which reads:‑
"Where a law is repealed, or is deemed to have been repealed, by, under, or by virtue of this Constitution, the repeal shall not:‑
(a) revive anything not in force or existing at the time at which the repeal takes effect;
(b) affect the previous operating of the law or anything duly done or suffered under the law;
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the law;
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the law had not been repealed."
He contends that the word "repeal" in Article 250 is conspicuously distinct from the word "void" appearing in Article 6. According to him, when an enactment is repealed within the meaning of Article 250, then for future purposes it remains available as law in certain limited directions. On the other hand, the word "void" means "devoid of all legal force". In the light of this interpre tation, Mr. Brohi argues that Act XIV of 1908 was a subsisting law on the 6th of January 1964 but on the 10th of January 1964 a legal revolution took place and the notification issued under section 16 of the Act ceased to be a valid notification in the eye of lave.
22. Learned Attorney‑General submits that the Fundamental Rights are not attracted to the case in hand because the orders were passed on the 6th of January 1964 and the Fundamental Rights only came into existence on the 10th of January 1964.
According to him, where the liability has already been attached there is a complete ban on re‑opening it.
23. In order to appreciate the point at issue, Article 13 (1) of the Indian Constitution may be reproduced with advantage. It reads:‑
"All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void."
The word "void" was considered by the Supreme Court of India in Keshvan Ma4ahalva Menon v. State of Bombay (A I R 1951 SC128) and it was held that the Courts should construe the language of Article 13 (1) of the Constitution according to the established rules of interpre tation and arrive at its true meaning uninfluenced by any assumed spirit of the Constitution. The following observations of Das, J., on page 130 of the report may be usefully reproduced:‑
It will be noticed that all that this clause 13 (1) declares is that all existing laws, in so far as they are inconsistent with the provisions of Part III shall to the extent of such inconsistency, be void. Every statute is prima facie prospective unless it is expressly or by necessary implication made to have retros pective operation. There is no reason why this rule of interpretation should not be applied for the purpose of interpreting our Constitution. We find nothing in the language of Article 13 (1) which may be read as indicating an intention to give it retrospective operation. On the contrary, the language clearly points the other way. The provisions of Part III guarantee what are called Fundamental Rights. Indeed, the heading of Part III is Fundamental Rights'. These rights are given, for the first time, by and under our Constitution. Before the Constitution came into force there was no such thing as fundamental rights. What Article 13 (1) provides is that all existing laws which clash with the exercise of the fundamental rights (which are for the first time created by the Constitution) shall to that extent be void. As the fundamental rights became operative only on and from the date of the Constitution the question of inconsistency of the existing laws which (with ) those rights must necessarily arise on and from the date those rights came into being. It must follow, therefore, that Article 13 (1) can have no retrospective effect but is wholly prospective in its operation. After this first point is noted, it should further be seen that Article 13 (1) does not in terms make the existing laws which are inconsistent with the fundamental rights void ab initio for all purposes. On the contrary it provides that all existing laws, in so far as they are inconsistent with the fundamental rights, shall be void to the extent of their inconsistency. They are not void for all purposes but they are void only to the extent they come into conflict with the fundamental rights. In other words, on and after the commencement of the Constitution no existing law will be permitted to stand in the way of the exercise of any of the fundamental rights. Therefore, the voidness of the existing law is limited to the future exercise of the fundamental rights. Article 13 (1) cannot be read as obliterating the entire operation of the inconsistent laws, or to wipe them out altogether from the Statute Book, for to do so will be to give them retrospective effect which, we have said, they do not possess. Such laws exist for all past transactions and for enforcing all rights and liabilities accrued before the date of the Constitution.
Kania, C. J., Patanjali Sastri, Mahajan and Chandrasekhara Aiyer, JJ., concurred with the above view, while Fazal Ali, J., wrote a dissenting judgment with which B. K. Mukherjee, J., agreed. Fazal Ali J.'s observations regarding the point relevant to the case in hand may be reproduced with advantage from page 133 of the report:‑
"There can be no doubt that Article 13(1) will have no retrospective operation, and transactions which are past and closed and rights which have already vested will remain untouched. But with regard to inchoate matters which were still not determined, when the Constitution came into force, and as regards proceedings whether not yet begun or pending at the time of the enforcement of the Constitution and not yet prosecuted to a final judgment, the very serious question arises as to whether a law which has been declared by the Constitution to be completely ineffectual can yet be applied. On principle and on good authority, the answer to this question would appear to me to be that the law having ceased to be affectual can no longer be applied."
It will be seen from the above extracts that all the six Judges were of the view that the inconsistency referred to in Article 13 (1) did not affect transactions past and closed before the commence ment of the Constitution.
24. The next case on the subject is D. K. Nabhirajiah v. State of Mysore and others (A I R 1952 S C 339). The facts of the case were that on the 13th of September 1949 an order was passed by the Rent Controller (respondent No. 2) under the Mysore House Rent and Accommodation Control Order, 1948, allotting the vacant house of the petitioner to respondent No. 3 and directing the petitioner to deliver possession of the house to the allottee. On the failure of the petitioner to deliver possession, forcible possession was taken from the petitioner under another order dated the 11th April 1950. It was held that as the order of allotment was validly made before the Constitution came into force, it could not be impugned on the ground that there was no public purpose because the house was taken for the accommo dation of a private individual or that no compensation had been paid. The fact that possession was actually taken after the Constitution came into force was immaterial as the petitioner's right to possession had been lost earlier, viz., when the house was allotted to respondent No. 3 by order of the 13th of September 1949 and dispossession was merely a consequence of that order.
25. The next case on the subject in India is Lachmandas Kewalram and another v. State of Bombay and another (A I R 1952 S C 235). The facts of the case were that the appellants were convicted and sentenced to various terms of imprisonment by the Special Judge, Ahmadabad, on charges of murder and other offences under the Indian Penal Code, the Arms Act, and the Bombay Police Act. The Special Judge was appointed by a notification issued under the Bombay Security Measures Act, 1947, and on the 6th of August 1949 the State Government, in exercise of the powers conferred by section 12 of the Acts, directed the Special Judge to try the case of the appellants. Charges were framed on the 13th of January 1950 without any preliminary inquiry and committal by a Magistrate which had been dispensed with by the Act. Seventeen witnesses for the prosecution were examined by the Special Judge before 26th of January 1950 when the Constitution came into force. The proceedings continued and, after the examination of sixty witnesses, ended in conviction of the appellants on the 13th of March 1950. The appellants preferred separate appeals to the High Court which, however, confirmed the conviction and sentence in each case. An objection was raised before the High Court that the trial was illegal as the Act was void under Article 13 (1) of the Constitution read with Article 14. The objection was overruled on the ground that the provisions of the Constitution had no retrospective operation and did not affect the proceedings already started in the Court of the Special Judge. On appeal to the Supreme Court, the majority view was that the Constitution had no retros pective operation to invalidate that part of the proceedings that had already been gone through, but that it did not permit the special procedure to stand in the way of exercise or enjoyment of post -constitutional rights, and must, therefore, strike down the discriminatory procedure if it was sought to be adopted after the Constitution came into operation. The following observations of Das, J., on page 245 of the report may be usefully re produced:‑
The point for decision now is whether the continuation of the procedure prescribed by the Act after the Constitution came into force operates to the prejudice of the appellants and, as such, offend against their newly acquired fundamental right of equal protection of law guaranteed by Article 14. The Constitution has no retrospective operation to invalidate that part of the proceedings that has already been gone through but the Constitution does not permit the special procedure to stand in the way of the exercise or enjoyment of post -constitutional rights and must, therefore, strike down the dis criminatory procedure if it is sought to be adopted after the Constitution came into operation.
In view of the above conclusion, the appeals were accepted and the appellants were ordered to be tried for the offence alleged to have been committed by them according to law in existence.
26. In Abdul Khander and others v. State of Mysore (A I R 1953 S C 355) the appellants were tried under the Mysore Special Criminal Courts Act (XXIV of 1942), and were convicted on the 5th of July 1949, by the Special Judge. One of the appellants was awarded death sentence and the other lesser sentences. Their cases were submitted to a learned Single Judge of the High Court for review under section 7 (a) of the Act and were pending on the 26th of January 1950, when the Constitution came into force. On that date (26‑1‑50), sixty days allowed for appeal in ordinary criminal cases had elapsed. It was urged that the trial must be regarded as a whole and that as the sentence of the Special Judge could not be given effect to until confirmed by the reviewing Judge the proceedings must be taken to have continued. Bose, J., who wrote the judgment, observed:‑
"If this contention is correct, then the only conclusion which follows from it is that the proceedings before the reviewing Judge are ultra vires and may be ignored, but that would not confer any advantage upon the appellants as their right of appeal, if any, against the convictions and sentences of transportation for life and less had already become barred before the Constitution came into force and this right could not be revived after the Constitution."
27. In Behram Khurshid Pasikaka v. State of Bombay (AIR 1955 S C 123), a Constitution Bench, consisting of Mahajan, C. J., B. K. Mukher jea, S. R. Das, Bose and Ghulam Hasan, JJ., was constituted on a reference by a Bench of the same Court under Article 145(3) of the Constitution. The majority opinion was given by Mahajan, C. J., and the following passage from his judgment, occurring at page 145 of the report, may be usefully repro duced:‑
"The meaning to be given to the expression void' in Article 13 (1) is no longer res integra. It stands concluded by the majority decision in Keshavan Madahva Menon v. The State of Bombay A I R 1951 S C 128. The minority view there was that the word void' had the same meaning as repeal' and therefore a statute which came into clash with funda mental rights stood obliterated from the statute book alto gether, and that such a statute was void ab initio. The majo rity however held that the word void' in Article 13 (1) so far as existing laws were concerned, could not be held to obli terate them from the statute book, and could not make such laws void altogether, because in its opinion, Article 13 had not been given any retrospective effect. The majority however held that after the coming into force of the Constitution the effect of Article 13 (1) on such repugnant laws was that it nullified' them, and made them ineffectual and nugatory and devoid of, any legal force or binding effect.
It was further pointed out in one of the judgments represent ing the majority view, that the American rule that if a statute is repugnant to the Constitution the statute is void from its birth, has no application to cases concerning obligations incurred or rights occurred in accordance with an existing law that was constitutional in its inception, but that if any law was made after the 26th January 1950, which was repugnant to the Constitution, then the same rule shall have to be followed in India as followed in America."
It will thus appear that their Lordships adhered to the view expressed in Keshvan's case. The views of their Lordships in Keshvan's case have already been referred to in the earlier part of this judgment.
28. In Shree Meenakshi Mills Ltd. Madural v. A. V. Vishva natha Sastri (A I R 1950 SC 13) the following observations in paragraph 14 (page 18 of the report) will be helpful in appreciating the point at issue:‑
"The second contention raised by the learned Attorney -General is, in our opinion, concluded by a number of earlier decisions of this Court wherein it has been held that when an Act is valid in its entirety before the date of the Consti tution, the part of the proceedings regulated by the special procedure and taken during pre‑Constitution period cannot be, questioned however discriminatory it may have been, but that if the discriminatory procedure is continued after the date of the Constitution, than a person prejudicially affected by it can legitimately ask why he is now being differently treated from others similarly situate."
This paragraph also refers to the earlier authorities on which the view expressed therein is based.
29. In Director of Endowments, Government of Hyderabad v. Akram Ali (A I R 1956 SC 60), the effect of Article 13(1) of the Constitution on a Farman issued by the Nizam of Hyderabad on the 31st of December 1920, was considered. The facts of the case were that on the 31st of December 1920, the Nizam of Hyderabad issued a Farman depriving the respondent and all other claimants of all rights of possession of a Dargah until the rights of the parties were inquired into and decided by a Civil Court. After the enforcement of the Constitution, the respondent filed a petition under Article 226 in the High Court of Judicature at Hyderabad asking for a mandamus against the Director of Endowments, Government of Hyderabad, alleging that despite the decision of the Court in his favour he had not been given possession. The High Court granted the prayer. On appeal to the Supreme Court it was held that the respondent's rights if any at the date of the Constitution and now are that he must establish his right to possession in a Civil Court before he can ask to be put in possession. There was, however, no decision of a Civil Court declaring the respondent's right to possession. It was held that the Nizam was an absolute ruler and could do what he pleased. His will as expressed in the Farman was the law of the land. Therefore, even if it be assumed that the respondent was in possession, his rights to immediate possession, whatever they may have been, were taken away and held in abeyance till he could establish them in the Civil Courts. It was further considered that the respondent's right to possession, assuming he had any, revived when the Constitution came into being. Their Lordships observed:‑
"The effect of Article 13 (1) of the Constitution is not to obliterate the entire operation of the inconsistent laws or to wipe them out altogether from the statute book; for to do so will be to give them retrospective effect which they do not possess. Such laws must be held to be valid for all past tran sactions and for enforcing rights and liabilities accrued before the advent of the Constitution."
30. Another case which requires consideration is reported as R. B. Seth Shanti Sarup v. Union of India (AIR 1955 S C 624). The petitioner was a partner of a firm known as Lallamal Hardeodas Cotton Spinning Mills Company, Hathrs (U. P.). The partners number ed 16 and were members of the same family. In 1944, differences arose between the partners and one of them, namely, Raghunath Pershad, instituted a suit for dissolution of the partnership in the Court of the Civil Judge, Agra. The suit was dismissed on the preliminary ground that it was not maintain able by reason of there being an arbitration clause in the part nership agreement. Against this judgment, an appeal was taken to the High Court of Allahabad. During the pendency of the suit and the appeal, receivers were appointed to work the mills under the directions of the Court. In 1949, the receiver recom mended that the mill could thenceforth be run only at a loss. On the 21st of July 1949, the Government of U. P. passed an order purporting to be made under section 3 (f) of the U. P. Industrial Disputes Act, 1947, by which they appointed respon dent No. 3, one of the partners of the firm, as authorised control ler of the undertaking apparently in terms of the provisions of that section. In July 1950, the petitioner instituted a suit in the Court of a Subordinate Judge at Aligarh praying that the aforesaid order of the U. P. Government be declared as illegal and ultra vires and not warranted by the provisions of the U. P. Industrial Disputes Act. Soon after this suit was filed, the U. P. Legislature passed an Amending Act. The petitioner asserted that the Amending Act was passed only to regularize the appoint ment of respondent No. 3 as authorised controller of the undertaking with retrospective effect from the date when the order of appointment was passed. In 1951, the petitioner filed in the High Court of Allahabad a petition under Article 226 of the Constitution praying for appropriate writs to quash the order of the U. P. Government against the petitioner. During the pen dency of the proceedings, the Union of India (Ministry of Commerce and Industry) passed an order under section 3 (4) of the Essential Supplies (Temporary Powers) Act, 1946, by which the Central Government appointed the same person, namely, respondent No. 3 as an authorised controller for the purpose of that section and directed him to run the said undertaking to the exclusion of all other partners. After the passing of the above order, the Central Government was impleaded as a respondent to the writ petition pending before the Allahabad High Court, and a prayer was added for quashing the Central Government's order also. It appears from the report that the U. P. Govern ment gave an undertaking in the course of the proceedings in the High Court that if the order made by the Central Govern ment was quashed they would not claim possession of the mill. The High Court dismissed the writ petition holding that in the circumstances of the case it did not consider it proper to exer cise its discretionary powers under Article 226 of the Constitu tion in favour of the petitioner and directed the petitioner to seek his remedy in the civil suit already filed by him and pending in the Court at Aligarh. Thereupon the petitioner went up to the Supreme Court under Article 32 of the Constitution praying for quashing the order referred to above and restoration of the properties. The learned Attorney‑General, appearing for the Central Government conceded that the impunged orders did not come within the purview of and were not warranted by the provisions of the Acts under which they purport to have been passed. He, therefore, made no attempt to support the orders or the Acts under which they were passed. He; however, argued that even though the orders were invalid, the petitioner could not come to the Supreme Court under Article 32 of the Constitution inasmuch as there was no fundamental right in existence when the order of the U. P. Government was passed in July 1949, and no fresh act of dispossession had taken place since the coming into force of the Constitution. Their Lordships of the Supreme Court observed:‑
"We do not think that there is any substance in this conten tion. In the first place, the order against which this petition is primarily directed is the order of the Central Government passed in October 1952, and whether or not the earlier order of the U. P. Government was formally withdrawn, it is this later order upon which the respondent No. 3 (Controller) bases his right to retain possession of the properties.
The order of the Central Government must, therefore, be deemed to have deprived the petitioner of his property within the meaning of Article 31 of the Constitution as construed by this Court. As has been said already, the U. P. Government made it clear before the Allahabad High Court in connection with the hearing of the writ petition that they were not asserting any rights of their own under the Industrial Disputes Act as soon as the Central Government took over the undertaking under the provisions of the Essential Supplies Act."
After having arrived at the above conclusion. It was observed:‑
"But even assuming that the deprivation took place earlier and at a time when the Constitution had not come into force, the order affecting the deprivation which continued from day to day must be held to have come into conflict with the fundamental rights of the petitioner as soon as the Constitu tion came into force and become void on and from that date under Article 13 (1) of the Constitution."
The above observation which is based on an assumption is an obiter dictum and is contrary to the earlier authorities of the Supreme Court of India, referred to above. In view of the italicized passage and the concession of the learned Attorney‑General, the petitioner stood deprived of his rights within the meaning of Article 31, (as held by the Supreme Court) under the orders of the Central Government passed after the enforcement of the Constitution and, therefore, had a right to approach the Supreme Court under Article 32 of the Constitution.
31. It will be seen from the authorities referred to above that the view of the Supreme Court of India is that the voidness of the existing laws in so far as they are inconsistent with the Fundamental Rights is limited to the future exercise of Funda mental Rights. Article 13 (1) cannot be read as obliterating the entire operation of inconsistent laws, or to wipe them out altogether from the Statute Book, for to do so would be to give them retrospective effect which is not contemplated by Article 13(1) which is prospective. The "inconsistent laws" exists for all past transactions and for enforcing all rights and liabilities accrued before the date of the Constitution.
32. The Courts in Pakistan have also taken the same view as in Indian Supreme Court on the point at issue. While inter preting the provisions of the 1956 Constitution, a Full Bench of the Dacca High Court in Jibendra Kishore and others v. The Province of East Pakistan (P L D 1957 Dacca 1) observed:‑
"The Constitution has no retrospective effect and even if the provisions of certain laws be discriminatory in view of Article 5 (which provided that all citizens are equal before law and are entitled to equal protection of law) or any other Article, they must be held to be valid for all past transactions and for the enforcement of rights and liabilities accrued before the coming into force of the Constitution. Indeed in so far as the fundamental rights are concerned, they were created and not merely recognised by the Constitution. Consequently, a citizen had no fundamental rights in the sense in which they are now understood. If these fundamental rights came into existence as such on the coming into force of the Constitu tion, nothing done before the 23rd of March 1956, can be said to have infringed any fundamental right." (Page 16 of the report).
33. In Abdul Rauf and others v. The N.‑W. F. P. Govern ment (P L D 1958 Pesh. 73) Muhammad Shafi, J., observed as follows:‑
I am, thus, of the view that so far as the cases already con cluded and closed are concerned, they are not affected by the fact that Article 5 of the Constitution has rendered section 11 of the Regulation void'."
At page 129 of the report, Abdul Hamid, J., observed as fol lows :‑
"I am also in agreement with my learned brother, for the reasons stated by him that Article 5 of the Constitution is not retrospective in effect. Cases which were decided before the Constitution came into force are not covered by the pri vilege contained in Article 5 of the Constitution which the Constitution began to confer after its promulgation on 23rd March 1956. Decisions in cases decided before that date were under the law which was valid then. Any sentence imposed under that law, when it was not invalid, will run its term. Nothing done under the law which was valid at the time when the sentence were passed will be disturbed. That view has been expressed by the Supreme Courts and High Courts both in India and Pakistan."
Habibullah Khan, J., held as follows:‑
"In so far as the cases, which were decided before the new Constitution, came into force, are concerned, the validity of their decisions is final, and they cannot be re‑opened. As regards the other cases, which have been either disposed of after the Constitution came into force, or were pending after that date, the entire proceedings taken, orders made, and convic tions recorded, are void, and all these cases will stand in the same position as they were just before 23rd March 1956. These cases cannot be tried under the F. C. R. but this order would not constitute a bar to their trial in the ordinary judi cial Courts, if the authorities are so advised."
34. In the light of the authorities cited above, I have given my most anxious thought to the question whether the impunged order of 6th January 1964, was completed and final or whether some further steps had to be taken to make it complete and final, and have reached the conclusion that there is nothing in section 16 of Act XIV of 1908, or elsewhere in that Act which contemplates any further action to make that order final. Th moment the order was notified it became final and was no affected by the subsequent enforcement of Fundamental Right on the 10th of January 1964.
35. Mr. Brohi relies on the State of Madras v. V. C. Row (AIR 1952 SC196), in support of his contention that the Criminal Law Amend ment Act, 1908, is inconsistent with the Seventh Right. The facts of the case cited have no bearing on the present case. In that case by an order dated the 10th of March 1950, the State Government declared a society called the Peoples' Education Society an unlawful association under section 16 of the Criminal Law Amendment Act, 1908. On the 10th of April 1950, the respondent, who was the General Secretary of the Association, applied to the High Court praying that the order dated the 10th of March 1950, and the Act under which it had been passed infringed the fundamental right conferred on him by Article 19 (1) (c) of the Constitution to form associations or unions. During the pendency of the respondent's petition in the High Court, the Criminal Law Amendment (Madras) Act (XI of 1950), was passed on the 12th of August 1950. By section 6 (a) of the Amending Act, the old sections 16 and 16‑A were recast as follows:‑
"16 (1) A notification issued under clause (b) of subsec tion (2) of section 15 in respect of any association shall:
(a) specify the ground on which it is issued, the reasons for its issue, and such other particulars, if any, as may have a bearing on the necessity therefore, and
(b) fix a reasonable period for any office‑bearer or member of the association or any other person interested to make a representation to the State Government in respect of the issue of the notification.
(2) Nothing in subsection (1) shall require the State Govern ment to disclose any facts which it considers to be against the public interest to disclose."
The respondent's petition was taken up for hearing by the High Court on the 21st of August 1950. After considering the original Act and the Amending Act, the High Court accepted the petition and granted a certificate under Article 132 of the Con stitution. The State of Madras then went up to the Supreme Court. It will thus be seen from the above statement of facts that the impunged order was passed on, the 10th of March 1950, when the Constitution had come into force. Article 19 (1) (c) of the Indian Constitution reads:‑
"All citizens shall have the right
(c) to form associations or unions."
Article 19 (4) of the Constitution provides:‑
"Nothing in sub‑clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevents the State from making any law imposing, in the interest of public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub‑clause."
The order dated the 10th of March 1950, was passed while the aforesaid Article were in existence. It is clear that the Amend ing Act was passed to bring the original provisions of the Act within the purview of Article 19 (4). This case is distinguish able from the one in hand on the following grounds:‑
(1) In the Madras case the impugned order was passed when the fundamental rights were in existence ; and
(2) the relevant provisions of the Act were amended in order to bring it in conformity with Article 19 (4) of the Constitution. After carefully considering the old Act and the Amending Act, their Lordships of the Supreme Court came to the conclusion that the restrictions imposed on the exercise of the Fundamental Rights under Article 19(1)(c) were outside the authorised restric tions in clause (4) of Article 19. They, therefore, held the Act to be unconstitutional. In the case in hand the impugned order was passed on the 6th of January 1964, when the Fundamental Rights were not in existence. Moreover, as I have already said, after the order had been passed, nothing further had to be done. No proceedings had to be, or were taken on or after the 10th of January 1964, when the Fundamental Rights came into existence.
36. Relying on the maxim audi alteram partem (no man should be condemned unheard), Mr. Brohi challenged the order declaring the Jamaat as an unlawful association on the ground that the Jamaat was not heard before the order under section 16 of Act XIV of 1908, was passed. He contends that the principle that no man should be condemned unheard is not confined to proceedings before Courts only but extends also to all proceed ings, by whomsoever held, which may affect the person or property or other right of the parties concerned, in the dispute. He further contends that a just decision in such controversies is possible only if the parties are given the opportunity of being heard. According to Mr. Brohi, the order declaring the Jamaat as an unlawful association was an order in the nature of a judicial proceeding though administrative in form. In support of his contention, Mr. Brohi relied on Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak (P L D 1959 S C (Pak.) 45) and Messrs Faridsons Ltd. v. Government of Pakistan etc. (P L D 1961 S C 537).
37. The facts of Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak, were Mrs. Dina Sohrab Katrak owned three flats in the town of Karachi. Under section 3 (1) of the Sind (Requisition of Land) Act (XLVI of 1947), the Controller requi sitioned the aforesaid flats. Feeling aggrieved by the order of requisitioning, Mrs. Katrak filed an appeal under section 10(1) of the Act which was dismissed by the Chief Commissioner, Karachi, (the appellate authority), without giving her an oppor tunity of being heard. Mrs. Katrak thereupon filed a writ petition in the High Court. Section 3 (1) of the Act provides that if, in the opinion of an officer appointed by the Provincial Government as Controller for the purposes of the Act, it is necessary to requisition for any public purpose any movable or immovable property other than that used for religious worship or for accommodating an educational institution or a dispen sary, or a hospital, he may make an order in writing requisi tioning such property, "public purpose" was defined in the Act, as it then stood, as under:‑
"Any purpose connected with the securing of accommoda tion for the Central Government of Pakistan or the Provincial Government."
On the 21st of November 1955, the Rent Controller passed .an order that the three flats belonging to Mrs. Katrak be requisition ed "for the accommodation for the Chief Commissioner's Province of Karachi with immediate effect". The High Court held that ‑ if the order of requisition was made to secure accommodation for the subordinates of the Chief Commissioner, it was illegal as the expression "public purpose" (as it then stood in the Act) did not include securing accommodation for residence of Government employees. The order of requisition was held to be illegal and ultra vires and the authorities were directed to refrain from giving effect to it. This decision was announced on the 20th of March 1956. On the 21st of March 1956, the Governor- General issued an Ordinance amending, with retrospective effect, the definition of "public purpose" and some other provi sions of the Act in question. The expression "public purpose" as amended included the securing of accommodation for the resi dence of the Government employees as well as the Members of the Constituent Assembly. On the 14th of April 1956, another order of requisition was passed in respect of the same flats stating that the accommodation was required for a "public purpose" as defined in section 2 of the Sind (Requisition of Land) Act, 1947, as amended. The respondent appealed against this order and the Chief Commissioner dismissed the appeal without giving Mrs. Katrak an opportunity of being heard in person or through her Advocate, whereupon she went up to the High Court again challenging the validity of the order of requisition and the Ordinance of the Governor‑General amending the Act. The High Court accepted the appeal and the Chief Commissioner went up in appeal to the Supreme Court.
Section 10 (1) and (2) of the Act read as under :‑
"(1) Any person aggrieved by an order of the Controller made under subsections (1), (3) and (5) of section I and section 9 may, within fifteen days from the date on which the order is served upon or communicated to him, present an appeal in writing to the Provincial Government.
(2) The Provincial Government shall then call for the report of the case from the Controller and after perusing such record and making such further inquiry as it thinks fit, may reverse, modify or confirm the order made by the Controller."
Shahab‑ud‑Din J., at page 49 of the report, observed as under
"It could not have been the intention to give the person aggrieved the right of appeal and at the same time to leave it to the discretion of the appellate authority to consider or not the very representation in appeal."
Again, at page 50 ibid, his Lordship observed :‑
"It cannot be disputed that it is a principle of natural justice that no one should be dealt with to his material disadvantage or deprived of his liberty or property without having an opportunity of being heard and making his defence. That being so, when a statute gives a right of appeal it should be understood as silently implying when it does not expressly provide that the appellant shall have the right of' being heard."
In view of what has been stated above, it would appear that the facts of the case of Mrs. Katrak are quite different from the facts of the case in hand. I will presently show that no appeal, review or representation is provided for in this case.
38. The facts of Messrs Faridsons Ltd,. v. Government of Pakistan were : After the promulgation of we Registration (Importers & Exporters) Order, 1952. Messrs Faridsons Ltd. were granted an import and export registration certificate to 1952 under clause 3 of the Order. Whilst they were carrying on their business as importers and exporters, the Chief Controller of Imports and Exports cancelled the import and export registration certificate. They protested against this high‑handed action of the Chief Controller and asked him to cancel the said order but received no reply. Their representation to the appropriate Ministry met the same fate. They then preferred appeals to the Government but in spite of repeated requests the appeals remained undisposed of. Thereupon Messrs Faridsons Ltd. moved the High Court for the issuance of an appropriate writ for quashing the aforesaid order and for consequential directions for the grant of certificate for .the relevant shipping periods. The High Court held that the relevant provisions of the Order in question did not confer any right on the appellant to be heard and there was no duty cast upon the Chief Controller to act in a judicial manner and as such the appellant could not question the validity of the impugned orders on either the ground that no notice to show cause had been issued to them or that they had not been given any opportunity of adducing evidence or of being heard. The High Court further held that Messrs Faridsons were not entitled to make a grievance of the fact that no detailed reasons for the suspension orders had been communicated to them. Messrs Faridsons went up in appeal to the Supreme Court and maintained that a duty was cast upon the Chief Controller of Imports and Exports to decide the matter in a judicial manner after giving them an opportunity to show cause whether in fact any of the grounds on which such cancellation or suspension could be made existed or not. They further contended that if the Chief Controller came to the finding, after examining the evidence produced by the appellants, that grounds did exist for such cancellation or suspension then he could only order such cancellation or suspension as the case may be for reasons to be recorded in writing and had thereafter to communicate the said reasons to the appellants in order to enable them to prefer an appeal if they so desired. They contended that as the Chief Controller had not done any of the above things, he had acted in an arbitrary and high‑handed manner in violation of the principles of natural justice and, therefore, the orders should be quashed.
39. After analyzing the provisions of the Order, Hamoodur Rahman, J. observed at page 571 of the report under section as under
"In the present case, as already indicated, the statutory provisions under consideration provide that the registration can be refused, cancelled or suspended only upon the grounds, specified in paragraphs (i) to (h) of clause 4 after the examina tion of the evidence or information available to the authority or collected by it from the person concerned and for reasons to be recorded in writing. Power to call for such evidence or information and to discover same by inspection and expert examination is also given. Finally a right of appeal to the Central Government is given and the authority is required to communicate the reasons for the adverse order. These pro visions, in my view, clearly indicate that the Chief' Controller was under a duty to decide after ascertaining facts upon evidence or information in his possession whether the importer or exporter had been guilty of any and, if so, which of the acts of misconduct specified in the Order and give reasons for his decision in such adequate manner as to enable the appellate authority to judge whether or not the decision had been correctly arrived at. It is difficult to imagine how he could possibly arrive at a correct decision without giving the importer or exporter concerned an adequate opportunity of presenting his own case or meeting the case sought to be set up against him. I have, therefore, no doubt in my mind that these pro visions clearly cast a duty upon the Chief Controller to act judicially and intended that lie should follow the procedure, which is necessary to enable him to discharge that duty efficiently. namely, by acting in good faith without any bias and by giving to tile party sought to be adversely affected a fair opportunity of presenting his case.
In my reading of the provisions of the order the power given to the Chief Controller was coupled with the duty to exercise that discretion or power in the manner prescribed and upon the conditions therein mentioned or implied. Such authorities are bound, in my view, by the rule expressed in the maxim audi alteram partem and cannot condemn any person with consequences resulting from alleged misconduct unheard and without giving him the opportunity of making any defence."
40. At page 554 of the report, S. A. Rahman, J. observed as follows :‑
"A plain reading of the provisions of the Order clearly leads to the inference that the Chief Controller had to ascertain facts objectively, before he could take action adverse to the appellants in respect of their registration. Clause 7 makes this clear and it then becomes incumbent on the Chief Controller to put down the reasons for the action in writing."
41. Fazle Akbar, J. observed at page 561 of the report in the following words :‑
"If the power of suspension had rested solely in the hands of only one authority like the Chief Controller without his order being amenable to an appeal the position might have been different but section 4 (2) of the Order gives a right of appeal against his order to the Central Government. Further, section 7 says that the Chief Controller may for reasons recorded in writing may cancel or suspend registration.' Where there is right vested in an authority created by a statute, be it administrative or quasi judicial, to give reasoned orders in writing it becomes his duty to decide the case in an objective manner. The provisions of section 5 also clearly impose such a duty on the Chief Controller. In these circumstances, I think that the Chief Controller should have given an opportunity to the appellants to represent their case. From the above, it is clear that not only the Chief Controller did not conform to norms of judicial procedure in suspending the registration, but also failed to observe the steps and methods prescribed by the Order.
The procedure adopted by the Chief Controller was, to say the least, unfair and unreasonable."
42. It will thus be seen from the above analysis of Faridsons' case that its facts are quite different from the facts of the case in hand.
43. In Tariq Transport Company Lahore v. Sargodha‑Bhera Bus Service Company etc. (P L D 1958 S C (Pak.) 437), the following observations of M. Monir, C. J., at page 455 of the report, may be usefully reproduced :‑
"The question whether an act is judicial, quasi‑judicial or administrative is clouded by a confusion which it is extremely difficult to resolve and no clear‑cut distinction between these three functions can be discovered from the large number of reported cases and the divergent opinions expressed therein. In modern States where expertise is the dominating feature of Government more than one function is combined in administra tive tribunals, and more often than not an administrative agency discharges not only legislative and administrative but also judicial functions. The true question in the case of such tribunals always is whether the act which is complained of is a judicial act and not whether the procedure adopted by the tribunal is judicial or quasi judicial or whether the dominant or general aspect of the tribunal is that of a judicial, quasi judicial or administrative body. A tribunal is not always furnished with the trappings of a Court, nor will such trappings make its action judicial. The character of the action taken in a given case and the nature of ‑the right on which it operates must determine whether that action is judicial, ministerial or legislative or whether it is simply the act of a public agent. A tribunal acts judicially in the full sense of the term if (1) it has to determine a dispute ;
(2) the dispute relates to a right or liability which, whatever its immediate aspect, is ultimately referable to some right, or liability recognised by the Constitution or statute or by custom or equity which by the domestic law is declared to be the rule of decision ;
(3) since every right or liability depends upon facts, the tribunal is under an obligation to discover the relevant facts ;
(4) the ascertainment of the facts is in the presence of the parties either of whom is entitled to produce evidence in support of its respective case and to question the truth of the evidence produced by his opponent ; and
(5) after an investigation of the facts and hearing legal arguments the tribunal renders a judgment which so far as the tribunal is concerned terminates the dispute.
In the case of an administrative tribunal, however, the emphasis is on policy, expediency, and discretion to enable it to achieve the object with which it was set up. In the case of such a tribunal the approach in determining the relevant facts is therefore often subjective and not objective, there being generally no lis before it in which the parties are arrayed against each other for the enforcement of a private right or liability and who for that purpose are entitled to produce evidence and adduce legal argument."
44. In his book "Fundamental Law of Pakistan", Mr. Brohi after discussing and analyzing the leading cases on the subject, has stated his conclusion at page 481 as under
"In other words, if the law permits a subjective approach to the determination of the conditions limiting the exercise of power, and constitutes the officer exercising the power as a sole Judge as to their existence, writ of certiorari will not lie ; but if, on the other hand, those conditions have themselves to be determined objectively, then they become conditions precedent to the exercise of the power and their existence cannot be said to be conclusively demonstrated merely because the officer exercising the power says that such conditions exist. In the latter case the Court can go behind the declaration that such conditions' have been found to exist."
At page 482 of the same book, Mr. Brohi quotes from an Article of Mr. D. M. Gordon contributed to 49 L. Q. R. in the course of which, at page 107, the writer says :‑
"Judicial Tribunals must treat legal rights and liabilities as pre‑existing, because such tribunals declare themselves bound by a fixed objective standard ; they profess not to confer rights or impose liabilities themselves but only to do what is dictated by law. But administrative tribunals which act upon policy and expediency, themselves dictate what is politic and expedient; they are not concerned with pre‑existing rights and liabilities but themselves create rights and liabilities that they enforce."
45. The Lord Chancellor of England appointed a Committee to consider the powers exercised by or under the directions or by the persons or bodies appointed especially by Ministers of the Crown by way of : (a) delegated legislation, and (b) judicial and quasi judicial decisions, and to report what safeguards were desirable or necessary to secure the constitutional principles of the sovereignty of the Parliament and the supremacy of the law. The Committee observed :‑
"The distinction between purely administrative decisions, on the one hand, and the judicial and quasi judicial decisions, on the other, consists in the fact that there is, according to them, no legal obligation in the matter of reaching administrative decisions to consider and weigh submissions or arguments or to take any evidence or to entertain any objections that may be raised. This is so because the grounds upon which the person deciding acts, and the steps which he takes to inform himself before acting, are left entirely to his discretion."
To the question : "What then is administrative decision' " the Committee returned the following answer
"In the case of administrative decisions, there is no legal obligation upon the person charged with the duty of making the decision to consider and weigh submissions and arguments, or to collate any evidence or solve any issue. The grounds upon which he acts, and the means which he takes to inform himself before acting are left entirely to his discretion."
(P. 476, Brohi's Fundamental Law of Pakistan).
"Administrative Business" is defined in Wharton's Law Lexicon as under
"The business of managing conducted in private by persons having complete discretion, as distinguished from judicial business, which is conducted in Court under specific rules as to evidence etc."
The same definition of "Administrative Business" is given in the Dictionary of English Law by Earl Jowitt (1959 Edition).
46. In R. T. Manchester Legal Aid Committee ((1952) 1 All E R 480), Parket, J. observed at page 490 of the report as under
"If an administrative body in arriving at its decision at no stage has before it any form of lis and throughout has to consider the question from the point of view of policy and expediency, it cannot be said that it is under a duty at any stag to act judicially."
47. Franklin v. Minister of Town and County Planning ((1947) 2 All E R 289) was a case in which were involved the appreciation of the provisions of the Town and County Planning Act and New Towns Act, 1946, to determine whether under the Act the function of the Minister, who had to pass an order after following the prescribed procedure, could be regarded as being of judicial or quasi judicial character. The procedure prescribed by the Act required that the Minister was to make a public inquiry before passing the order. The relevant rules mentioned in the Schedule to the Act read as follows :‑
"(3) If any objection is duly made to the proposed order and is not withdrawn, the Minister shall, before making the order, cause a public local inquiry to be held with respect thereto and shall consider the report of the person by whom the inquiry was held.
(4) Subject to the provisions of the last foregoing paragraph, the Minister may make the order in terms of the draft or subject to such modifications as he thinks fit."
Lord Thankerton observed at page 295 of the report as follows :‑
"In my opinion, no judicial, or quasi judicial, duty was imposed on the respondent, and any reference to judicial duty, or bias, is irrelevant ‑ in the present case. The respondent's duties under section 1 of the Act and Schedule 1 thereto are, in my opinion, purely administrative, but the Act prescribes certain methods of, or steps in the discharge of that duty. It is obvious that, before making the draft order, which must contain a definite proposal to designate the area concerned as the site of a new town, the respondent must have made elaborate inquiry into the matter, and have consulted any local authorities who appear to him to be concerned, and, obviously, other Departments of the Government, such as the Ministry of Health, would naturally require to be consulted. It would seem, accordingly, that the respondent was required to satisfy himself that it was a sound scheme before he took the serious step of issuing a draft order. It seems clear also that the purpose of inviting objections, and, where they are not with drawn, of having a public inquiry, to be held by someone other than the respondent, to whom that person reports (sic), was for the further information of the respondent, in order to the final consideration of the soundness of the scheme of the designa tion, and it is important to note that the development of the site, after the order is made, is primarily the duty of the development corporation established under section 2 of the Act. I am of opinion that no judicial duty is laid on the respondent in discharging of these statutory duties, and that the only question is whether he has com plied with the statutory directions to appoint a person to hold the public inquiry, and to consider that person's report. On this contention of the appellants no suggestion is made that the public inquiry was not properly con ducted, nor is there any criticism of the report by Mr. Morris. In such a case the only ground of challenge must be either that the respondent did not, in fact, consider the report and the objections, of which there is here no evidence, or that his mind was so foreclosed that he gave no genuine consideration to them, which is the case made by the appellants."
48. While deciding whether a decision is administrative or judicial it is the first duty of the Court to enter into the mind of the framers of the Statutes and look at the whole matter as they must have looked at it. Section 16 of Act XIV of 1908 is worded as follows :‑
"If the Provincial Government is of opinion that .any associa tion interferes or has for its object interference with the admi nistration of the law or with the maintenance of law and order, or that it constitutes a danger to the public peace, the Provincial Government may, by notification in the official Gazette, declare such association to be unlawful."
The use of the word "opinion" in the section is significant, and clearly shows that the Legislature intended the criterion to be purely subjective and not objective. It is quite clear to me that the author of the Statute never intended to impose any duty o the Provincial Government to determine judicially whether a association interferes or has for its object interference with the administration of law and order, or that it constitutes a danger to the public peace. There are no such words in section 16 o airy other section of the Act imposing such a duty, nor is there anything to hold that such a duty is implied. It is purely the subjective mind of the Provincial Government. The Provincial Government leas not even to give reasons for forming its opinion. The Provincial Government is the sole judge of its decision to meet a state of emergency visualized by the statute. No appeal, review or representation is provided against its order. In the circumstances, it cannot be said that the decision of the Provincial Government is a judicial or a quasi‑judicial one. It was an administrative act to meet an emergency and, therefore, the question of hearing the Jamaat before passing the impugned order did not arise. In passing the impugned order under section 1 of Act XIV of 1908, the Government has not violated any principle of natural justice.
49. For the reasons given above, I see no ground to hold that the order of the respondent declaring the Jamaat‑e‑Islami as an unlawful association under section 16 of Act XIV of 1908 is illegal.
50. In the course of arguments, Umar Farooq, petitioner No. 3, filed an affidavit (sworn at Karachi on the 14th of May 1964), paragraph 2 of which reads :‑
"That at about 4 a.m. on 6th January 1964 I was present at my house at 5‑A, Zaildar Park, Ichhra, Lahore, when the police party came there and had brought, same members of Majlis‑e‑Shora as were apprehended by them in the Central Office of the Jamaat‑e‑Islami and at that time in my‑presence police served order, of the Provincial Government purporting to have been passed under subsection (5) of section 17‑E of the Criminal Law Amendment Act, 1908, among others, on Fazlur Rehman, Naim Siddiqi, Faqir Husain and Safdar Hassan Siddiqi. One of the orders dated 6th January 1964 served on Safdar Hassan Siddiqi is filed herewith as Annexure J. My father and other office‑bearers of the Jamaat were also arrested under the Maintenance of Public Order Ordinance at about the same time The order served on Safdar Hassan Siddiqi may be usefully reproduced
GOVERNMENT OF WEST PAKISTAN
HOME DEPARTMENT
As the Government of West Pakistan has reasons to believe that you Safdar Hassan Siddiqui Shoba Tanzeem, Jamaat‑e‑Islami, Pakistan, Lahore, have in your custody monies, securities or credits, which are being used or intended to be used for the purposes of the Jamaat‑e‑Islami which has been declared by the said Government to be an unlawful association under sub section (1) of section 16 of the Criminal Law Amendment Act, 1908:
Now, therefore, the Government of West Pakistan, in exercise of the powers vesting in it under subsection (5) of section 17‑E of the said Act, hereby prohibits you the said Safdar Hassan Siddiqui from paying, delivering, transferring or otherwise dealing in any manner whatsoever with the same, save in accordance with written orders of the said Government.
By ORDER OF THE GOVERNOR
OF WEST PAKISTAN
S. ALAMGIR,
Secretary to the G.overnment of West
Pakistan, Home Department.
No. S. O. Spl. 1 (3)/64.
Dated Lahore
The 6th January 1964."
51. Section 17‑E (5) of Act XIV of 1908 reads as under :‑
Where the Provincial Government has reason to believe that any person has custody of any monies, securities or credits which are being used or are intended to be used for the purposes of an unlawful association, the Provincial Govern ment may, by order in writing, prohibit such person from paying, delivering, transferring or otherwise dealing in any manner whatsoever with the same, save in accordance with the written orders of the Provincial Government. A copy of such order shall be served upon the person to whom it is directed.
There is no prayer in the petition that orders under section 17‑E(5) of the Act be declared to be illegal and ineffective. I, therefore, do not consider it necessary to go into this matter.' No order as to costs.
52. While my brothers and I am grateful to Mr. Brohi and the learned Attorney‑General for their valuable assistance, we would be failing in our duty if we do not express dissatisfaction with the handling of the case by the learned Advocate‑General.
‑I agree.
‑I agree.
‑I agree that the petition be dismissed and have appended a separate note.
I agree that the petition should be dismissed but have given my own reasons in a separate note.
.‑On the verbal prayer of Mr. S. M. Zafar, Advocate, we grant a certificate under Article 58 (2) (a) of the Constitution.
‑I have gone through the elaborate and carefully considered judgment of my Lord the Chief Justice. I agree with his conclusions, and that the petition should be dismissed. I may only mention that at one stage I was of the view that the principle of natural justice audi alteram partem applied to the impugned order under section 16 of Act XIV of 1908 declaring the Jamaat as an unlawful association. I am, however, after going through the judgment and further consi deration, of the view that this principle would not apply to the said order.
2. The two leading cases on the subject, laying down the rule of natural justice, are Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak (P L D 1959 S C (Pak.) 45) and Messrs Farid Sons Ltd. v. Government of Pakistan (P L D 1961 SC 537). The rule deducible from these cases is that the principle of natural justice is not confined only to judicial or quasi judicial tribunals, but also applies to administra tive authorities, whose orders may deprive a person of his liberty or property. I venture to state, as I understand these decisions, that it is not all administrative orders to which the maxim of audi alteram partem will apply. The principle of natural justice would apply in the case of an administrative body which has to determine facts in an objective manner and to act judicially. A perusal of these cases clearly lead's to the conclusion that an administrative authority is not bound b the said maxim where it has neither to ascertain facts objective nor to act judicially. Under section 16 of Act XIV of 1908, the determination of the question admittedly is purely subjective, and the authority is, in no way, required to act judicially.
3. It is noticeable that the Provincial Government under section 16 of Act XIV of 1908 has to act in an emergency. In some cases, the very object may be frustrated by giving a show- cause notice before an action is taken. It may be said that the show‑cause notice should be given after the association has been declared unlawful. In the first place, the rule contemplates that no one should be condemned without being heard, and where a person has already been condemned, the question of application of the rule of natural justice could not arise. No case has been cited, and I am not aware of one in which it may have been laid down that the principles of natural justice, in a case where an expediency requires that an order be passed immediately ignoring the rule, may be applied later on. In the second place, Mr. Brohi, the learned counsel for the petitioners, did not advance any such argument. His only point was that the principle of natural justice should have been applied before the impugned order was passed. Lastly, there is no prayer in the petition that the Provincial Government be called upon to give a show‑cause notice as to why the impugned order be not maintained. Presumably, no such relief has been claimed as this could be made only on the assumption that the impugned order was legal. Mr. Brohi, on the other hand, urged that the impugned order was void for want of the application of the rule of natural justice. At any rate, it is now a well‑settled rule that this Court in exercise of its extraordinary jurisdiction will not grant a relief which is no claimed in the petition. I am clearly of the view that the rule of audi alteram partem cannot be made applicable to the circum stances of the present case.
‑The points raised in this writ petition are of considerable Constitutional importance. The petitioners have challenged the validity of the order of the West Pakistan Government dated 6th January 1964 banning the Association known as Jamaat‑e‑Islami throughout West Pakistan on number of grounds. This action was taken against the said Political Organization under section 16, subsection (1) of the Criminal Law Amendment Act XIV of 1908. , At first the Government of West Pakistan extended the application of the Criminal Law Amendment Act of 1908 to the whole of Province of West Pakistan by notification dated 6th January 1964. By another notification of the same date it declared the said Associa tion to be an unlawful association, under section 16 (1) of the said enactment. Simultaneously by the same notification the Provincial Government in exercise of its powers under section 17‑A (1) notified the places which were used for the activities and purposes of the said Association. Both the notifica tions were published in the official Gazette on 6th January 1964. In pursuance of these notifications the local subordinate authorities have taken possession and sealed all the places notified in the Schedule to the said notification, which are used as head office and branch office for conducting the activities of the Jamaat‑e -Islami. As a result the Jamaat‑e‑Islami is banned throughout the West Pakistan Province and any person who continues to be a member of this unlawful association, or takes part in meeting of any such association, or contributes or receives or solicits any contribution for the purposes of any such association, or in any way assists the operations of any such association, is liable to be punished with imprisonment for a term which may extend to six months,. or with fine, or with both. Thus the petitioners and other members of the said Association are up longer permitted to function under it and their political activities are completely banned during the continuance of the said impugned orders.
2. The respondent Government has justified this action on the ground of public safety and maintenance of law and order in the Province of West Pakistan. The Government's case is that for some time before 6th January 1964 disturbing reports about the activities of Jamaat‑e‑Islami and its members were being received and the impugned orders were passed on the basis of these reports and other information received by them. It is alleged that on the examination of the material in its possession the Provincial Government came to the conclusion that Jamaat‑e‑Islami was indulging in subversive activities against the State and the impugned order had to be issued for the following reasons contained in the impugned notification declaring the Jamaat‑e -Islami as unlawful Association :‑
(i) That the Jamaat‑e‑Islami was vehemently opposed to the creation of Pakistan and continues to oppose its existence by unlawful means.
(ii) That with this objective it is indulging in subversive activities against the State, such as inciting students to indulging in unlawful activities and commit acts of violence, fomenting trouble between workmen and employers, and attempting to create a feeling of disloyalty and dissatisfaction amongst Government servants.
(iii) That the object of the Jamaat‑e‑Islami is to interfere with the administration of law and the maintenance of law and order; to excite disaffection towards Government established by law.
(iv) Its activities are such as to constitute a danger to the public peace.
3. The petitioners have denied these allegations. According to them all those, who were the members of the Jamaat‑e‑Islami believe in the solidarity and strength of Pakistan and to them the interests of Pakistan are very dear. They further alleged that their association believed in the efficaciousness of constitutional means for propagating its ideals and never considered violence or force as a possible substitute. It is alleged that the action taken by the Government of West Pakistan is mala fide, without lawful authority and of no legal effect whatever, and the action taken has seriously prejudiced the rights of the members of the Jamaat.
4. Amongst others the petitioners have challenged the validity of the impugned orders on the ground that the Criminal Law Amendment Act XIV of 1908 has been indirectly repealed by Political Parties Act III of 1962. In the alternative, it is contended that the Criminal Law Amendment Act is a Provincial Legislation and as it is in conflict and inconsistent with the Political Parties Act, a Central Legislation, it must give way to the Central Legislation and is no longer operative and effective as a valid legislation. This point has been fully dealt with by the learned Chief justice and it will serve no useful purpose to traverse on the same ground. I agree with his conclusion that both the enactments are Central Legislations and there is no conflict and inconsistency between each other. In my view the Political Parties Act deals with those cases in which total disband ment of any Association is contemplated. On the other hand, the Criminal Law Amendment Act contemplates to deal with a case in which it is necessary to stop immediately the unlawful activities of any Association which are found prejudicial to the State. The action contemplated under it is to meet an emergency and is not intended to totally disband an association. The order passed under it can be rescinded at any time.
5. The next objection of the petitioners that the impugned orders are illegal because sufficient time has not passed between the publication of the notification extending the enactment to the Province of West Pakistan and the notification declaring the said Association as unlawful has no force. This objection has been fully discussed in the judgment of the learned Chief Justice. The requirement of the enactment of publishing the notification in the official Gazette is only a formality. The moment this formality is complied with, the action taken becomes effective. There is nothing to prevent the authorities to pass two orders simultaneously. What is of importance is whether they came into force in their proper order. On the affidavit filed on behalf of the Government I am satisfied that the notification extending the enactment was published first and thereafter the other notification was published. I do not find any illegality in this procedure particularly as at best it is an irregularity which could be easily cured.
6. It was urged by Mr. Brohi that the offices of the Jamaat e‑Islami were sealed much before the notifications under sections 16 (1) and 17‑A were published in the official Gazette. He referred to the affidavit of Umar Farooq in which he affirmed that notice under section 17‑E of the said Act was served at 4 a.m. on 6th January 1964 and the office of the Jamaat‑e‑Islami in Lahore was sealed at the pre‑dawn time of 6th January 1964. Even if it is correct, it is only an irregularity and cannot have any adverse effect on the declaration of the Jamaat‑e‑Islami as unlawful Association. In law such irregularity can have no far reaching effect on the contentions raised in the petition. It might s have some effect in a case in which any person is charged with the offence under section 17 of the said Act. But this question is not involved in this matter. I would, therefore, repel these objections.
7. The difficulty, however, arises on the other two grounds raised by the petitioners. I felt this difficulty at the time of the admission of the writ petition for final hearing. In my view the respondent has not been able to meet these objections effec tively. It will be noticed that the respondent Government has levelled serious charges of subversive activities against the Jamaat -e‑Islami. The opinion formed by the Provincial Government under section 16 (1) of the Criminal Law Amendment Act XIV of 1908 is based on factual existence of certain objectionable activities of the Association which have been totally denied and controverted by the petitioners in the writ petition. It cannot be denied that by declaring the said Association as unlawful the petitioners have been condemned unheard and deprived of their valuable fundamental right to form Association recognised under the Constitution of Pakistan. It is for consideration whether it is open to the respondent Government to take such a drastic action without affording reasonable opportunity to the offending Association to explain the charges levelled against it. It seems to me that this is not permissible under the law as administered in Pakistan. It is now a well recognised principle of law that the maxim audi alteram partem "no man shall be condemned unheard" applies to judicial as well as administrative bodies particularly where the proceedings taken may affect the right of the person or property or other rights of the parties. This view was expressed by their Lordships of the Supreme Court in Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak (P L D 1959 S C (Pak.) 45). The learned Attorney‑General, however, urged on behalf of the respondent that this principle cannot be applied to administrative orders. This contention was repelled by their Lordships of the Supreme Court of Pakistan in Faridsons Ltd. v. Government of Pakistan (P L D 1961 S C 537). In this connection, Rahman, J., at page 554 of the report, observed as under :‑
"This Court laid it down as rule in Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak that the maxim audi alteram partem no man shall be condemned unheard applies to judicial as well as administrative bodies, specially where the proceedings taken may affect the person or property or other rights of the parties concerned in the dispute. Even if therefore the proceedings before the Chief Controller were neither strictly judicial nor even quasi‑judicial in character, the principle of natural justice embodied in the above maxim could be called in aid by the appellants. The High Court was in error in holding that this principle was a peculiarity of English Law and could not be invoked in this country where statute law covers the relevant field of litigation. This principle is of universal application where the statute itself prescribes no specific procedure for ascertaining the necessary facts and no express exclusion of the principle can be spelt out of the words of the statute."
In a recent decision their Lordships of the Supreme Court have reaffirmed this view in Commissioner of Income‑tax v. Fazlur Rahman (P L D 1964 S C 410). Kaikaus, J., who wrote the judgment on behalf of the Court, on this point observed as under
"At the same time it should be pointed out that the right to be heard is not confined to proceedings which are judicial in form. As has been held by this Court in the Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak the maxim no man shall be condemned unheard' is not confined to Courts but extends to all proceedings by whomsoever held which may affect the person or property or other right of the parties concerned in the dispute, and the maxim will apply with no less force to proceedings which affect liability to pay a tax. We hold that an opportunity of hearing was essential and in its absence the order of the Commissioner of Income‑tax is void."
8. It was urged that in a case where an action is taken b any authority on subjective consideration, the principle of natural justice is not applicable. With respect, I find no justification to make any such distinction. In the present case the Provincial Government had to form its opinion not on suspicion but on factual existence of certain grounds capable of objective determina tion. In spite of the fact that the Provincial Government is the sole Judge in such matters, I cannot ignore the fact that there is a judicial element involved in the formation of the opinion leading to the declaration of an association as unlawful. The moment such an element is found to be present this principle will be applicable with full force.
9. In my view, in the present case a very valuable right of the petitioners has been taken away on account of certain allegations made against them. It was, therefore, essential for the Provincial Government, at some stage, to provide an oppor tunity of hearing to the petitioners so that they might have been able to advance cogent reasons for the cancellation of the order affecting their right. Since this was not done, I have not the slightest doubt that the impugned order offends the principles of natural justice and being void is liable to be quashed.
10. There is yet another difficulty in the way of the respon dent. Admittedly, from 10th January 1964, under the Constitu tion of Pakistan of 1962, certain fundamental rights have been recognised which are enforceable in Courts of law. Under Article 6 of the Constitution, if any existing law is found to be in conflict with the fundamental rights, it is the duty of the Court to hold such laws as void and to declare any order passed under such void laws as illegal and ineffective. In this connection Mr. Brohi referred us to Fundamental Right No. 7 recognised in Chapter I on Fundamental Rights which is in the following terms :‑
"Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of morality or public order."
The learned counsel contended that the Criminal Law Amendment Act XIV of 1908 cannot be considered to be based on any reasonable restrictions imposed by law in the interest of morality or public order. According to him the very nature of the orders contemplated in this enactment are of an arbitrary one. It does not provide any opportunity to the offending party of a hearing and it confers on the Government an arbitrary power to declare any association as unlawful on the opinion formed for reasons enumerated under section 16 of the enactment without any redress.
11. This argument was hotly contested on behalf of the Government. Both Mr. Tufail Ali Abdur Rehman, the learned Attorney‑General, and Mr. Khalid M. Ishaq, the learned Advocate‑General, contended that the impugned legislation is of a preventive nature and has an element of emergency. Its chief object is to take prompt action for preventing apprehended" danger to the maintenance of law and order and public peace. It was urged that if in such cases Government is invested with the power to take immediate drastic action against the offending parties, it cannot be considered to be unreasonable restriction. In my opinion, the contention of the respondent has no merit whatever. In the first place, the Constitution has not provided that the Legislature can impose such restriction in the interest of public safety and integrity of the State of Pakistan. A reference to the Constitution would bear out that wherever it considered necessary it has provided so in clear terms. For instance, in Fundamental Right No. 2, which deals with safeguard as to arrest and detention, it is provided that nothing in subsections (1) and (2), namely, that no person who is arrested shall be detained in custody without being informed as soon as may be of the grounds of such arrest etc., shall apply to any person who is arrested or detained under any law provided for preventive detention. Secondly, the answer to this question depends on the construction and effect of section 16 (1) of the Criminal Law Amendment Act XIV of 1908, which is reproduced below :‑
"If the Provincial Government is of opinion that any association interferes or has for its object interference with the administration of the law or with the maintenance of law and order, or that it constitutes a danger to the public peace, the Provincial Government may, by notification in the official Gazette, declare such association to be unlawful."
and other provisions contained in this enactment.
12. The effect of these provisions is that the Provincial Government is the final authority and sole judge to declare any association as unlawful on the grounds stated in the parent section. It will be noticed that though the grounds on which the opinion is to be formed have to be factually in existence but the declara tion is based on subjective consideration. Neither the Act provides for a right of hearing to the offending party nor does it contain any provision for appointing any higher authority for reviewing the impugned order. Thus it is quite clear that though the order contemplated under section 16 (1) of the said Act is capable of being objectively determined by a Court of law or some other body, no provision has been made in the impugned enactment for determining whether the alleged grounds really exist or not in those cases where the allegations contained in the declaration are challenged by the offending Association. Besides the enactment does not provide that the order contemplated under section 16 (1) would be passed for a definite period. In the absence of any such provision any order passed under it will have effect for an indefinite period. It is thus left entirely to the sweet‑will of the Government to withdraw or cancel it whenever it likes. In a democratic set up any enactment vesting the Government with such vast and unlimited powers cannot be considered to be based on reasonable restrictions, otherwise the obvious consequence would be that a party‑Government would easily be able to silence its critic and opposition parties.
13. I can visualize cases requiring immediate action but that does not mean that the party in power should be made the sole judge of such important matters. Any legislation affecting such right must provide for some forum for the adjudication of the allegations made against the offending party. In the absence of any such provision it is not possible for me to accept the con tention that the impugned legislation imposes or is based on reasonable restrictions. Having regard to these facts and circumstances, there is little doubt that the impugned legislation offends and is inconsistent with Fundamental Right No. 7.
14. The view taken by me is strengthened by a number of Indian decisions cited at the Bar. This and similar enactments were the subject matter of several authoritative Indian decisions an d there is preponderance of view that such legislations are void for) V being in conflict with Fundamental Rights.
15. In Y. G. Roy v. The State of Madras (A I R 1951 Mad. 147), Satyanarayana, J. on this point observed at page 151 as under
"I shall now examine how and to what extent the provisions of the Criminal Law Amendment Act, unamended and amended, are inconsistent with the fundamental rights in Part III of the Constitution. It is not seriously disputed by the learned Advocate‑General, though he did not concede, that section 16 of the unamended Act is void as being inconsistent with the fundamental rights recognised in the Constitution. That section confers upon the Provincial Government the power to declare an association unlawful if it is of opinion that the association interferes or has for its object interference with the administration of law or with the maintenance of law and order or that it constitutes a danger to the public peace. That declaration is final and conclusive and cannot be questioned in a prosecution under section 17 of the Act. The accused has no right or opportunity to show that the declaration was erroneous and was not justified. It is a naked arbitrary power conferred upon the Provincial Government to impose a restriction on the right of a free association conferred by Article 19 (c) of the Con stitution and is of such an absolute nature which cannot and indeed was not attempted to be supported as a reasonable restriction on the exercise of the right. In my opinion, it offends also Art. 14 as it denies equal protection of the law to persons. As no serious attempt was made on behalf of the respondent to support the legality of that provision it is unnecessary to give more reason to hold that it is inconsistent with the provisions of Part III of the Constitution. In view of Art. 13 of the Constitution, it must be held that section 16 which is inconsistent with the provisions of the Constitution is void" The learned Judge further observed at page 154 as under :‑
"The next question is whether the restrictions imposed are reasonable. I feel no difficulty in answering the question under the unamended Act. An unrestricted power is conferred by section 16 on the Provincial Government to declare an associa tion unlawful and the satisfaction of the existence of the grounds enumerated in the section is the subjective satisfaction of the Provincial Government and not of an external authority. The declaration carried with it a finality and it is not a justiciable right. No machinery is provided to test the correctness of the order by the persons affected and no opportunity is provided for them to show that the association is not such as falls within the purview of the grounds enumerated in the section. The declaration carries with it the penalties specified in section 17‑A or 17‑B, or 17‑E. The declara tion cannot be questioned in a proceeding under section 17 nor under section 17‑A or 17‑B or 17‑E. The penalties contemplated under these sections proceed on the basis that the declaration is valid and is not subject to any judicial review. A total prohibition of a right of a person to defend himself is not only a restriction on the right to defend himself but a negation of it. It cannot be argued and indeed no attempt was made to support the position that the provision in section 16 is a reasonable restriction."
16. A similar enactment came up for consideration before a Full Bench of the Travancore High Court in the case of George Chadayammury v. State (A I R 1952 Trav. Co, 217). In this connection, Koshi, J. observed as under :‑
"The Cochin Criminal Law Amendment Act XXVII of 1124 was intended to be a piece of permanent and peace‑time legislation. Notwithstanding its preventive aspect it is mainly punitive. Transgressions of a notification issued under it are to be visited with punishment ranging from imprisonment for a period of six months to imprisonment for three years with or without fine. Once a prosecution is launched against an association declared to be unlawful the criminal Court cannot question the validity of the notification and it cannot, therefore, be said that the law gives person hit by it an opportunity for a fair trial. Serious inroads are made regarding the right to property also. There is no time‑limit prescribed for the duration of a notification issued under section 3. Government alone have authority to decide how long an association declared to be unlawful should continue to remain under the ban imposed by them."
The learned Judge further observed :‑
"With respect to a law which contains such draconian provisions and serious inroads on the liberty of the citizens the law does not enjoin upon Government to specify the grounds on which the declaration is made or the reasons for making it or other particulars, if any, that may have a bearing on the necessity for the declaration. Nor is there a provision for service of the notice of the declaration directly on the associations concerned or on the members thereof. Where an association heretofore lawful is made unlawful, the most elementary principles of justice and fair play require some notice of the illegality to be given to the members of the association so that they may regulate their conduct accordingly. The only publicity sought to be given to the notification is by publication of the official Gazette. This together with the imposition of a time-limit for approaching the High Court to get the declaration cancelled makes the safe‑guard of a judicial review really illusory. In our opinion the cumulative effect of the absence of a provision for proper notice or sufficient publicity and the imposition of a time‑limit to seek a review of the Government order by the High Court is to make the law overstep the bounds of permissible legislation in such a manner that sub‑clause (4) of Art. 19 would not save it. In other words, it offends clause (4) of Art. 19 as an unreasonable restriction on the exercise of the right conferred by Art. 19 (1) (c). With the coming into force of the Constitution, the law (section 3 of the impugned Act) as also the notification issued under it becomes void."
17. In The State of Madras v. V. G. Row (AIR 1952 SC196), the Indian Supreme Court also considered the validity of a similar legislation in the light of the fundamental rights recognised under the Indian Constitution. In that case the Madras Government declared an association known as Peoples Educational Society as an unlawful association under the Indian Criminal Law Amendment Act, 1908. The association challenged the impugned order in writ jurisdiction before the Madras High Court. During the pendency of the petition the Madras Criminal Law Amendment Act XI of 1950 was passed effecting certain changes in the parent Act. The amending legislation provided that a notification issued in respect of any association shall
(a) specify the ground on which it is issued, the reasons for its issue, and such other particulars, if any, as may have a bearing on the necessity therefore; and
(b) fix a reasonable period for any office‑bearer or member of the association or any other person interested to make a representation to the State Government in respect of the issue of the notification.
It further provided that the Government would place the representa tions received from the offending association and the material in its possession before a Board constituted by it for consideration. If it was found by the Board that there was no justification or sufficient cause for the issue of the notification declaring any association as unlawful, the Government was required to cancel it. In spite of these provisions the amended legislation was found by the Madras High Court to have offended the Fundamental Rights, recognised under the Indian Constitution. The matter was taken by the Government before the Indian Supreme Court who upheld the decision of the High Court though on different grounds. It was held by the Indian Supreme Court 'that the view of the High Court was supportable on a broader and more fundamental grounds. In this connection their Lordships observed as under :‑
"Giving due weight to all the considerations indicated above, we have come to the conclusion that section 15 (2) (b) cannot be upheld as falling within the limits of the authorised restrictions on the right conferred by Art. 19 (1)(c). The right to form associations or unions has such wide and valid scope for its exercise, and its curtailment is fraught with such potentional reactions in the religious, political and economic fields that the vesting of authority in the executive Government to impose restriction on such right, without allowing the grounds of such imposition both in their factual and legal aspects to be duly tested in the judicial inquiry, is a strong element which, in our opinion, must be taken into account in judging the reasonableness of the restrictions imposed by section 15 (2) (b) on the exercise of fundamental right under Art. 19 (1) for no summary and what is bound to be a largely solid view by an Advisory Board, even where its verdict is binding on the executive Government, can be a substitute for judicial inquiry. The formulae of subjective satisfaction of the Government or of its officers, with an Advisory Board thrown in to review the materials on which the Government seeks to override the freedom guaranteed to the citizens may be reviewed as reasonable only in very exceptional circumstances and within the narrowest limits and cannot receive judicial approval as a general pattern of reasonable restrictions on fundamental rights."
Their Lordships further repelled the contention that the impugned legislation involved an element of emergency requiring prompt steps to be taken to prevent apprehended danger to public tran quility and observed as under:‑
"These features are however absent in the grounds in which the Government is authorised under section 15 (2) (b) to declare associations unlawful. These grounds taken by themselves are factual and not anticipatory or based on suspicion. An associa tion is allowed to be declared unlawful because it constitutes' a danger or has interfered or interferes' with the maintenance of public order or has such interference for its object' etc. The actual existence of these grounds is amenable to objective determination by the Court, quite as such as the grounds men tioned in clause (a) of subsection (2) of section 15, as to which the Attorney‑General conceded that it would be incumbent on the Government to establish as a fact that the association, which it alleged to be unlawful encouraged' or aided', persons to commit acts, of violence, etc. We are unable to discover any reasonableness in the claim of the Government in seeking, by its mere declaration, to shut out judicial enquiry into the under lying acts under clause (b)."
In the light of the above discussion, there is not the slightest doubt in my mind that after the introduction and enforcement of the fundamental rights under the Constitution of Pakistan, the impugned legislation has become unconstitutional and is void.
18. The learned Attorney‑General, however, contended that the provisions of the Constitution have no retrospective effect. He urged that the impugned order was passed under the Criminal Law Amendment Act XIV of 1908 on 6th January 1964. It was, therefore, immune from attack on the strength of the fundamental rights which came into force on 10th of January 1964. The contention of the learned counsel for the Government would have much force provided the impugned order is found to be in the nature of‑past and closed transaction. I am in respectful agree ment with my Lord the Chief Justice that the Constitution has no retrospective effect unless provided to the contrary. On this view any action taken by the Provincial Government under the impugned legislation before the 10th of January 1964 is not open to challenge provided the impugned order is final in the sense that it is past and closed transaction.
19. The question, therefore, arises whether in the present case it can be held that the impugned order, had become final in that sense prior to the enforcement of the fundamental Rights so that it cannot be challenged on the grounds that it offends the principles enumerated in Fundamental Right No. 7. On exami nation of the provisions of the Criminal Law Amendment Act XIV of 1908, it seems to me that the impugned order cannot be considered a past and closed transaction, and is not final in all respects. It is quite true that the Jamaat‑e‑Islami was declared an unlawful Association on 6th January 1964 but the effect of this declaration was only this much that the Provincial Government besides taking custody of the assets and possession of its property was enabled to penalise any person who continues to act as member of the said unlawful association or commits any other acts mentioned in section 17 of the impugned enactment. Thus the impugned order had the effect to continue from day to day till the order is withdrawn by the Provincial Government. Even after 10th January 1964 no person belonging to this Organisation can indulge in political activities or hold himself out as its member. Any person declaring himself as member of the Jamaat‑e‑Islami after 10th of January 1964 is liable to be prosecuted under section 17 of the Criminal Law Amendment Act XIV of 1908. It was even conceded by the learned Attorney‑General that if the impugned disbandment is held to be void on account of the infringement of the Fundamental Rights, any such prosecution would be rendered illegal and void. The impugned order is not in the nature of total disbandment of the Association concerned because it is open to the Government to revoke the impugned order at any time it likes. In fact by fiction of law any person found to be acting under any changed name is to be treated as belonging to this Association and subject to the penalties imposed under section 17 of the said Act. There is thus no doubt that although the Asso ciation concerned was declared unlawful under an order passed prior to the enforcement of the Fundamental Right, it continues into operation from day to day and affects the valuable Funda mental Rights of its members even after the 10th of January 1964. In my opinion, therefore, the impugned order cannot be considered to be of a final nature.
20. In Shanti Sarup v. Union of India (A I R 1955 SC 624) the Indian Supreme Court set aside an order passed before the enforcement of the Constitution on the ground that the deprivation of the Fundamen tal Right continued from day to day. In that case a Cotton Spinning 4Vlill was closed by the owners as it was running at a loss on 19th March 1949. On 21st July 1949 the Government of U. P. passed an order purporting to be made under section 3 (f), U. P. Industrial Disputes Act, 1937, by which they appointed one of the partners of the firm as "authorised controller" of the under taking. The order directed the said partner to take over the possession of the mill to the exclusion of the other partners and run the undertaking himself subject to the general supervision of the District Magistrate of Aligarh. In 1952 the Union of India (Ministry of Commerce and Industry) passed an order purporting to be made under section 3 (4) of Essential Supplies (Temporary Powers) Act, 1946, by which the Central Government appointed the same person as an authorised controller under the provisions of that section and directed him to run the said undertaking to the exclusion of all the other partners. The petitioners contended that both the orders were illegal and inoperative by reason of their not being warranted at all by the provisions of law under which they respectively purported to have been passed. Their Lordships upheld the contention of the petitioners and declared the order passed prior to the coming into force of the Indian Constitution as void amongst others on the following observations:‑
"Assuming that the deprivation took place earlier and the time when the Constitution had not come into force, the order affecting the deprivation which continued from day to day must beheld to have come into conflict with the fundamental rights of the petitioners as soon as the Constitution came into force and became void on and from that date under Article 13 (1) of the Constitution."
21. In Jeshingbhai v. Emperor (A I R 1950 Born. 363) an order was passed against a person by the District Magistrate, Ahmedabad on 12th Decem ber 1949 to the effect that he should not be in any area of the District of Ahmedabad except with the permission of the District Magistrate, Ahmedabad. This order was challenged on the ground that it was in violation of Fundamental Right guaranteed to the citizens under Article 19 (1), sub‑clauses (d) and (e) of the Indian Constitution which provided that all citizens shall have the right to move freely throughout the territory of India and to reside and settle in any part of the territory of India. It was urged on behalf of the Government that the impugned order was made on 12th December 1949, prior to the commencement of the Consti tution, and the operation of the order was saved under section 6 of the General Clauses Act. This contention was rejected by Chagla. C. J. on the following observations:‑--
"The other argument advanced by the Advocate‑General is that this order was made as I pointed out on 12th December 1949 and inasmuch as the order was made prior to the commence ment of the Constitution the Advocate‑General contends in view of section 6, General Clauses Act, the operation of the order is saved and the order cannot be challenged. But what Mr. Purshottam is doing before us today is not so much the challeng ing of that order as the assertion of a fundamental right which :‑is granted to him after 26th January 1950. If we are satisfied that today when we are hearing this petition the petitioner is deprived of his fundamental right of movement and of residence, then we can undoubtedly interfere. The saving of the order under section 6 does not mean that the State is entitled after 26th January 1950 to deprive a citizen of a fundamental right which is guaranteed to him. These fundamental rights have come into existence after 26th January. Our Constituent Assembly has provided remedies for safeguarding these rights. These rights have been made justiciable and, therefore, even though the operation of the order may have been saved by section 6, General Clauses Act, as I said before, we are not so much concerned with the validity of the order as the violation of the fundamental rights which have come into existence after 26th January 1950."
The learned Judge further observed as under:‑
"It is true that the fundamental right has not been in fact violated after the Constitution came into force, but so long as the order stands there is undoubtedly a threat of the violation of that right and Mr. Purshottam says that he should not be driven to enter Ahmedabad and face a prosecution at the hands of the Government. In my opinion, therefore, the Court should issue an order against the respondents calling upon them to forbear from preventing the petitioner from entering the d6frict of Ahmedabad."
22. The above discussion would show that any order which has its effect from day to day cannot be treated as of final nature and, therefore, cannot be treated as a past and closed transaction. With respect I would like to point out that the impugned order in its effect cannot be considered to be of that nature. Any person who holds himself out to be a member of the Jamaat‑e‑Islami and disregards the impugned order after the 10th of January 1964 is liable to be punished under section 17. In these circumstances the petitioner's grievance that it threatens the violation of their fundamental right and prevents them from exercising it after the 10th of January 1964 cannot be lightly disregarded. I would, Y therefore, hold that the impugned order after the 10th of January 1964 had become void and is rendered ineffective and illegal in view of Article 6 of the Pakistan Constitution of 1962.
23. The next question for consideration is whether it would be proper to quash the impugned order and issue a writ in exercise of the powers vested in this Court under Article 98 of the Constitution. The power vested in this Court to exercise this, jurisdiction is purely discretionary., It is open to this Court to decline to exercise this jurisdiction in those cases where the writ issued is Z likely to become ineffective on the taking of certain remedial steps. In my view it is still possible for the Government concerned to amend the Criminal Law Amendment Act XIV of 1908 in such a manner so as to bring it conformity with the Fundamental Rights affected in this matter. It cannot be overlooked that the impugned order was immune from constitutional attack at the time when it was passed. The point involved in this matter is most complicated and difficult. It is possible that the Government may, in the light of the above discussion, amend the impugned legislation and validate the order passed by it with effect from the 10th of January 1964. Having regard to the fact that serious allegations are made against the Jamaat‑e‑Islami I would not like to pass any hasty order in this matter.
24. In Rahmatullah v. Deputy Settlement Commissioner (P L D 1963 S C 633), their Lordships observed as under at page 645:‑
"The Court will not grant a writ to produce a certain effect when the law provides power to one of the parties affected' by the writ, to nullify the Court's writ unilaterally and the circum stances enabling such action are found to be present."
Keeping these observations in view, I have no doubt that the Government concerned can unilaterally nullify any writ issued by this Court by affording the petitioners an opportunity of hearing and making suitable amendment in the impugned legislation. At this stage, therefore, I am not inclined to issue any writ against the Government. If the respondent Government fails to take action within a reasonable time it will be open to the petitioners to move this Court by a fresh petition if so advised for the redress of their grievance.
25. Subject to the above remarks, I agree that this petition be dismissed with no order as to costs.
A. H. Petition dismissed.
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