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Writ Petition No. 457 of 1981, decided on 4th March, 1986.

‑‑‑Para. 25‑‑Land Reforms (North‑West Frontier Province Amendment) Ordinance (XI of 1981)‑‑Laws (Continuance in Force) Order (1 of 1977), Arts. 6 & 7‑‑Provisional Constitution Order (1 of 1981), Art. 9‑4nterim Constitution of Pakistan (1972), Art. 280 read with Seventh Schedule Constitution of Pakistan (1973), Art. 128‑‑Vires of Land Reforms (North‑West Frontier Province Amendment) Ordinance 1981‑‑Power of Governor of Province to amend Land Reforms Regulation, 1972 (M.L.R. 115)‑‑Land Reforms Regulation, 1972 (M.L.R. 115) 'existing law' within meaning of Art. 280 of Interim Constitution 1972, kept alive and not affected by Constitution, 1973‑‑Regulation could be altered, repealed or amended by Governor appropriate legislature subject to restriction that before it was altered, repealed or amended, prior sanction of President was to be obtained, as required by proviso to sub‑Article (3) of Art.. 280 of Interim Constitution and sub‑Art. (2) of Art 68 of 1973 Constitution‑‑Subject of land, rights in or over land, land tenure etc. including matters incidental or ancillary thereto, having been provided as item Nos. 20 and 54 in List II (Provincial Legislature List) contained in Fourth Schedule to that Constitution falling within Provincial field except to extent as related to maximum limits prescribed thereby which could be owned, held, possessed controlled by any person which power came to be vested n Federal Legislature in view of Art. 253(1)(a) of 1973 Constitution‑‑Governor of Province, therefore, having legislative powers with regard thereto, was competent to amend Martial Law Regulation No. 115 and vires of Provincial legislation amending said Land Reforms Regulation by Ordinance in question could not be disputed‑‑Ordinance issued by Governor amending Land Reforms Regulation was also not subject to other requirement of Article 128 of Constitution (1973) because enforcement of Art. 128 was .by Art. 2, Provisional Constitution Order, 1981 made subject to any order made by President or Chief Martial Law Administrator including Law s (Continuance in Force) Order, 1977 which was made by Chief Martial Law Administrator Provisional Constitutional Order, 1981 was therefore, to remain in force without limit as to its duration, mentioned in Article 7(1) of Laws (Continuance in Force) Order, 1977 which was made by Chief Martial Law Administrator‑‑Ordinance made by Governor was therefore held a good law and amendment made by it in Regulation had force of law.‑‑Contention that Land Reforms Regulation was a 'central' law and could not be amended by provincial legislature, held, had no force.‑‑[Vires of legislation].

Qazi Muhammad Jamil for Petitioners. Amirzada Khan, A.‑G. for Respondents.

Date of hearing: 3rd February, 1986.

Tilla Muhammad and Ghulam Hazrat have jointly and Azam Khan and Fazal Akbar have severally instituted constitutional petitions against Government of North‑West Frontier Province and others, which have respectively been registered as Writ Petition No. 457/81, Writ Petition No. 51/82 and Writ Petition No. 73/82. All the writ petitioners have on identical grounds challenged the vires of the Land Reforms (North‑West Frontier Province Amendment) Ordinance, 1981 (hereinafter referred to as the Ordinance) and for that reason we propose to dispose of all these writ petitions by this single judgment.

2. It has been alleged by the petitioners in their respective writ petitions that the Governor of the North‑West Frontier Province had no authority to promulgate the Ordinance and for that reason the amendment carried out by the Ordinance in the Land Reforms Regulation, 1972 (hereinafter referred to as the Regulation, whereby definition of the word 'tenant' was inserted in the Regulation, was of no legal effect. It has further been alleged that even if the Governor had the powers to legislate for the Province, ‑he could not amend the Regulation which, having been issued by the Chief Martial Law Administrator, was for all intents and purposes a central Statute and could not, therefore, be amended by a Provincial Statute. It has also been asserted by the petitioners that the amendment of the Regulation by the Ordinance has caused great hardship to the petitioners and many other lessees in that the protection and the rights available to them as 'tenants' under the Regulation have been taken away by inserting a definition therein through the Ordinance which excludes them from the category of tenants. All the petitioners prayed that on the grounds mentioned in their respective writ petitions the Ordinance may be declared to have been made without lawful authority and of no legal consequence.

3. Out of the aforesaid three writ petitions, the Government of the North‑West Frontier Province cared to file written comments only in Writ Petition No. 73/82, wherein the assertions made by the writ petitioner were controverted in toto.

4. The petitioners in Writ Petition No.457/81 were represented by Qazi Mohammad Jamil, Advocate, whereas Azam Khan petitioner was represented by Mian Shakirullah Jan Advocate and Fazal Akbar petitioner was represented by Mian Hisamuddin, Advocate. Detailed arguments before us were addressed by Qazi Mohammad Jamil, Advocate. Mian Shakirullah Jan, Advocate and Mian Hisamuddin, Advocate adopted the same in support of the case of their clients. Government of the North West Frontier Province was represented before us by the learned Advocate‑General.

5. Before us, however, Qazi Mohammad Jamil, Advocate confined his arguments only to three points, namely, that the provincial legislature (which included the Governor )was not competent to amend the regulation which was a central law having been made by the chief Martial Law Administration (as he was then functioning), secondly , that no specific power had been delegated to the provincial legislature (including the Governor ) to amend the said Regulation and Thirdly, that the Regulation having been saved by Article 280 of the interim constitution as a central law could not have been amended by the provincial legislature.

6. The learned Advocate-General, on the other hand, argued that the Governor had full powers to legislate for the Province in the provincial field, which power had been given to him Articles 6 and 7 of the Laws (Continuance in Force) Order, 1977 (hereinafter referred to as the Order) and Article 2 of the Provisional Constitution Order, 1981 (hereinafter referred to as 1981-Order), read with Article 128 of the Constitution of Islamic Republic of Pakistan (hereinafter referred to as 1973 Constitution) which was inserted in 1981-Order by C.M.L.A. Order No.2 of 1981. He further argued that it was wrong to say that the Regulation was a central law and could not be amended by the provincial Legislature. He contended, with reference to Article 280 of the Interim Constitution, that the Regulation was an 'existing law' within the meaning of said Article and was kept alive as such, and could be altered, repealed or amended by an appropriate Legislature, subject to the only restriction that before it was altered, repealed or amended the prior sanction of the President has to be obtained. He also argued that the field of legislation within which the Regulation fell after the enforcement of Interim Constitution was the provincial field in which the provincial Legislature could legislate and that the 1973 Constitution also brought about no change and did not affect the competency of the provincial Legislature to legislate in this field, except to the extent of providing for a maximum limit in respect of what any person could own, hold, possess or control, which field in 1973 Constitution was assigned to the federal Legislature. The powers of the Governor to legislate in the field in which the provincial Legislature could legislate continued even after the imposition, in the year 1977, of Martial Law in the country and such powers could be exercised by him on the force of the provisions contained in the Order till the coming into force of the 1981-Order, where after such powers could be exercised by him on the strength of 1981-Order by which certain Articles of 1973-Constitution, incorporated therein, were also brought into force; Article 128 thereof being one of them having been incorporated therein by C.M.L.A. Order No.2 of 1981, issued on the 9th of April, 1981. He contended that the Ordinance having been promulgated by a competent authority was a valid piece of legislation and the amendment. in the Regulation made by the Ordinance has full force and was also operative retrospectively, as has been held by the Supreme Court in Bakhtawar Shah and others' case, decided on 9-12-1984. The learned Advocate General further contended that before promulgating the Ordinance the Governor had also obtained the prior sanction of the President to such amendment, as was required by the proviso to sub-Article (3) of Article 280 of the Interim Constitution and sub-Article (2) of Article 268 of the 1973-Constitution.

7. We have considered the arguments of the learned counsel for the parties in the light of the constitutional provisions referred to above and in our view there is force in the arguments of the learned Advocate‑General. It is true that the Regulation was first made by the Chief Martial Law Administrator as Martial Law Regulation No.115, but after the enforcement of the Interim Constitution and by Article 280 thereof, read with Seventh Schedule appended thereto, it became an Act of the Appropriate Legislature but could only be amended or repealed with the previous sanction of the President. In that Constitution the subject of land, rights in or over land, land tenures, etc., including matters incidental or ancillary thereto, having been provided as item Nos.20 and 54 in List‑I1 (Provincial Legislative List) contained in the Fourth Schedule to that Constitution, fell within the provincial field of legislation. This would mean that the Regulation, which was later termed as the Land Reforms Regulation, 1972 by the Short Titles Ordinance, 1972 and the Short Titles Act, 1973 which replaced that Ordinance, could have been amended, altered or repealed by the provincial Legislature, had the Interim Constitution remained in force. However, the Interim Constitution was replaced by 1973‑Constitution and Article 263 thereof and Sixth Schedule attached thereto did not alter its status in so far as it concerned its alteration, repeal or amendment, which could be effected by the appropriate Legislature with the previous sanction of the President, as provided in sub‑Article (2) of the said Article. In so far as the powers to alter, repeal or amend were concerned, this law continued to remain in the provincial field, having not been included in the Federal Legislative List, except to the extent as related to the maximum limits prescribed thereby which could be owned, held, possessed or controlled by any person which power came to be vested in the Federal Legislature in view of the provisions contained in clause (a) of sub‑Article (I) of Article 253 of 1973‑Constitution, read with item 58 of the Federal Legislative List contained in Fourth Schedule thereto. The subject of land has also not been provided in the Concurrent Legislative List, as contained in the Fourth Schedule to 1973‑Constitution, and for that reason other restrictions contained in the 1973‑Constitution on the provincial Legislature and the legislation made by it were also not applicable to the Ordinance. We are, therefore, of the view that except to the extent already indicated, relating to the maximum limits of the property which a person could own, hold, possess or control, the Regulation, falling in the provincial field of legislation, could be amended by the Governor if he was to be conceded the same legislative powers as were exercisable by a person holding this office under 1973 Constitution.

8. The Ordinance, which has been attacked as being ultra vires of the provincial Legislature, was brought into force on the 28th day of September, 1981. While deciding, therefore, the question as to the competency of the Governor to promulgate the Ordinance, we have to lock to the constitutional and legal position as was obtaining on that day in the country, the prior period intervening between the date of imposition of Martial Law in the country and the said day being not relevant in this context. On the 24th March, 1981, the Chief Martial Law Administrator had enforced in the country the 1981‑Order, whereby certain provisions of 1973‑Constitution were also enforced in the country. At the time of making the Ordinance, Article 128 of the 1973‑Constitution had also come into force through Article 2 of 1981‑Order. This Article 1; relates to the powers of the Governor to promulgate an Ordinance in the provincial field of legislation when the Provincial Assembly is not in session. Since on the 28th of September, 1981 the Provincial Assembly was not in existence, so the Governor was competent to make the Ordinance as it related to the subject which fell in the provincial field, except to the extent already indicated; the amendment made by the Ordinance not falling in exception. The Ordinance was also not subject to other requirements of Article 128 of 1973‑Constitution because enforcement of this Article was by Article 2 of 1981‑Order made subject to any order made by the President or the Chief Martial Law Administrator, including the Order which was made by the Chief Martial Law Administrator. The Ordinance was, therefore, to remain in force without limit as to its duration, as mentioned in Article 7 (1) of the Order, which was made by the Chief Martial Law Administrator.

9.The aforesaid discussion would lead to an irresistible conclusion that since the subject of amendment made by the Ordinance fell in the provincial field of legislation, and since the Governor was competent to c legislate with respect to it, the Ordinance was a good law and the amendment made by‑it in the Regulation has the force of law.

10. The contention of the learned counsel for the petitioners that the Regulation was a 'central' law and could not, therefore, be amended D by the provincial legislature has no substance, inasmuch as the very Article 280 of the Interim Constitution, which bestowed life upon it as an Act of an appropriate Legislature, defined it to be an 'existing law' and not a 'central law'. This definition was carried through in 1973 Constitution, in Article 268 read with Article 260 thereof.

11. The argument of the learned counsel for the petitioners that the Regulation could not have been amended by the Governor without a specific delegation by the President in that behalf overlooks the constitutional provisions, referred to above, which provide for the legislative powers of the Governor relating to legislation in the provincial field, which had, as earlier mentioned, come into force when the Ordinance was promulgated by the Governor. The argument is, therefore, without substance.

12. In the result, we find no substance in these three writ petitions, which are hereby dismissed. We shall, however, make no orders as to costs.

M . Y . H . Petition dismissed.

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