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Civil Petition for Special Leave to Appeal No. 376 of 1969, decided or 23rd December 1969.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 27th November 1969, in Writ Petition No. 1771 of 1969).
Vires of Ordinance‑Could not be challenged in view of Art. 133, Constitution of Pakistan (1962) and in view of abrogation of the said Constitution itself‑Constitution of Pakistan (1962), Art. 133.
Muhammad Yousaf v. Chief Settlement and Rehabilitation Commissioner P L D 1968 S C 101 and Messrs Sh. Mian Mohd. Allah Bakhsh Limited v. West Pakistan Province 1968 S C M R 1090 ref.
Abdur Rashid, Senior Advocate Supreme Court instructed by Abdul Karim Sheikh, Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Dates of hearing : 22nd and 23rd December 1969.
The petitioner‑firm moved the High Court in writ jurisdiction to annul the levy of cotton fee at 25 paisas per maund of the cotton ginned and pressed by them during the years 1961‑62 to 1968‑69 as without lawful authority on the grounds : (i) that the West Pakistan Cotton Control (Validation of Levy of Fees) Ordinance (XIII of 1966), was ultra vires of the 1962‑Constitution; (ii) that no valid notification was issued during the years 1961‑62 to 1968‑69 levying cotton fee at 25 paisas per maund; and (iii) that the demand for payment of the cotton fee was made from the occupiers of ginning factories alone whereas under the impugned notification the fee was recoverable from managers of the factories and cotton dealers a well.
The writ petition was dismissed by a Division Bench on the view that even if the impugned notifications levying the cotton fee are kept out of view, the petitioners were liable to pay fee at 25 paisas, per maund, under the notification of 1952. The contention that Article 2 of the 1962‑Constitution prohibited the Legislature from giving retrospective effect to laws enacted after the commencing day of the Constitution was ruled out following the decision of this Court in Muhammad Yousaf v. Chief Settle ment and Rehabilitation Commissioner (PLD1968SC101).
In support of the petition for leave to appeal from the order of the High Court Sh. Abdur Rasheed placed reliance on order in Messrs Sh. Mian Mohd. Allah Bakhsh Limited v. West Pakistan Province (1968SCMR1090) granting leave to appeal to consider the question whether the Cotton Fee Ordinance XIII of 1966 was intra vires of the legislative powers of the West Pakistan Provincial Assembly. The vires of the Ordinance XIII is no longer a live issue as the Constitution stands abrogated and the National and Provincial Assemblies are dissolved. The demarcation of boundaries of legislative, powers between the National Assembly and the Provincial Assemblies, accordingly, no longer exists.
Ordinance XIII of 1966 could not, therefore be struck down on the ground that the West Pakistan Legislative Assembly was not competent to legislate on the subject of cotton duty. We are further of the view that even if the Constitution of 1962 was inforce the validity of the Ordinance could not be questioned in view of Article 133 which provided
"133.‑(1) The responsibility of deciding whether‑a Legislature has power under this Constitution to make a law is that of the Legislature itself.
(2) The validity of a law shall not be called in question on the ground that the Legislature by which it was made had no power to make the law.
(3) Nothing in clause (1) or clause (2) shall be construed to have the effect of taking away, limiting or restricting the power of a High Court exercisable by it under paragraph (c) of clause (2) of Article 98."
The challenge to the vires of Ordinance XIII is, therefore, without any substance. The petitioner‑co is, therefore, liable to pay cotton fee at the rate of 25 paisas, per maund, for the period 1961‑62 to 1968‑69 as found by the High Court.
The petition for leave to appeal is dismissed.
Leave refused,
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