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Before Ajmal Mian, Actg. C. J. and Mir Hazar Khan Khoso, J
MESSRS DAWOOD YAMAHA LTD.‑Petitioner versus
GOVERNMENT OF BALUCHISTAN AND 3 OTHERS‑Respondents
Constitutional Petition No. 34 of 1985, decided on 20th November, 1985.
Art. 199‑Company-Constitutional petition‑Competency to file‑Technical objection as to competency of person signing Cons titutional petition on behalf of limited Company, held, would have to be raised at earliest opportunity so as to rectify defect if any by party filing same‑Party filing petition, however, would be bound to ensure that same was filed by competent person in accordance with law‑Failure, to object about competency of petition at proper time, however, would not render petition to be dismissed on any technical ground.
Messrs Muhammad Siddiq Muhammad Umar and another v. Tire Austra lasia Bank Limited P L D 1966 S C 684 ; Khan Iftikhar Hussain Khan of Mamdot (represented by 5 hefts) v. Messrs Ghulam Nabi Corporation Ltd., Lahore P L D 1971 S C 550 , Messrs Eagle Star Insurance Co. Ltd. v. Messrs Usman Sons Limited and others, P L D 1969 Kar. 123 ; Munir Hussain v. Mst. Mehrun Nisa (through her legal heirs) P L D 1982 Kar. 71 ; Lt.‑Col. (Reid.) P. G. Braganza v. The Border Area Allotment Committee and another 1981 C L C 1479 , Manager, Jammu: and Kashmir. State Property, in Pakis tan v. Khuda Yar and another P L D 1975 S C 678 and Iyakku Mathoo v. Julius Elia.; Metropolitan A I R 1962 Ker. 19 ref.
Preamble‑Constitution of Pakistan (1973), Art. 199‑Suit Constitutional petition‑Extent of applicability of Civil Procedure Code to constitutional petition‑Provisions of Code of Civil Pro cedure, held. would be strictly applicable to a suit, whereas such provisions would not be strictly applicable to constitutional peti tion‑Some provisions thereof, however, could be pressed into‑ service to regulate; conduct of. petitions in absence of any rule on particular topic framed by High Court for regulating constitutional petitions.
--Art. 199‑Constitutional petition‑Estoppel , acquiescence‑Effect of‑Effect of laches, estoppel or acquiescence to defeat constitutional petition. livid, would depend on facts and circumstances of each case‑Delay of few months in some cases would be fatal while in other cases, delay of few years would be explainable and not fatal to constitutional petition‑Condonation of aches having effect of prejudicing other party, however, would not generally be condoned, in absence of compelling reasons such as fostering cause of justice or in cases of continuing wrong.
S. Sharif Ahmed Hashmi v. The Chairman, Screening Committee, Lahore and another 1980 S C M R 711 : Hart Kishan Dass v. Chairman, WAPDA P L D 1983 Quetta 61 : Pakistan through Chairman, Railways. The Punjab Labour Court No. 2 Lahore and 2 others 1982 C L C 711 ; 1978 S C M R 367 ; Syed Arshad Hussain v. The Government of Sind and 38 others P L D 1982 Kar. 604 ; Habibullah Khan and others v. Qazi Muhammad Ishaq and others, P L D 1966 S C 505 ; Mian Miraj‑ud‑Din v. The Senior Superintendent of Police. Lahore District, Lahore and others P L D 1970 Lah 569 ; Municipal Committee, Mt:/tan through its Chairman v. Burmah, Shell Storage and Distributing Company of Pakistan Limited and another P L D 1976 Lah. 726 ; F.. A. Evans v. Muhammad Ashraf P L D 1964 S C 536 and Messrs Sethi .Straw Board .hills Ltd. v. Punjab Labour Court No. 3, Lyallpur and 2 others P L D 1977 Lab. 71 ref.
‑‑‑ Art. 72‑Documents‑‑Production of, during course of argu ments ‑ Effect‑ Document produced on day of arguments un‑supported by affidavit, held, could not be looked into as affected person would have no opportunity to rebut contents of same.
‑‑ Words, "mechanic", "mechanical" and "purpose"‑Meaning and scope‑Use of CKD Kits and conversion thereof into motor cycles was covered by word "mechanical purpose".
Black's Law Dictionary, Revised Fourth Edition and G. N. Dalmia State P L D 1963 (W. P.) Lah. 474 ref.
‑‑ S. 3(7‑A)‑‑Word "Consumption", meaning of‑Word, "Con sumption", to be given wide connotation to include utilization of article by causing change in its existing position and nature. [Words and phrases].
‑‑ S. 3(7‑A)‑Comma, use of, between two portions of clause Effect‑Use of comma between two portions and employing of words, "which may include conversion of ship. . .", held, would indicate that second portion of clause (7‑A), S. 3 of Ordinance II of 190. would not control or :,tri: t meaning of first portion thereof Word "include", used in a statute would imply that definition was not exhaustive; while word "means" would indicate that definition given by statute was exhaustive.‑[Interpretation of statutes).
G. N. Daltnia v. The State P L D 1963 (W P.) Lab. 474 ; Shershah Industries Limited, Karachi v. Government of Baluchistan and 4 others P L D 1982 Quetta 19 ; Noor Muhammad Sheikh v. S. Ahsan & Bros. and 3 others Constitutional Petition No. 101 of 1984 ; Haji Saleh Muhammad and 2 others v. Haji Junta Khan Agha and 4 others 1983 S C M R 587 and Msl. Nargis Bibi and others v. Muhammad lbrahim and another 1983 C L C 370 ref.
‑‑ ‑ Where a statute gives definition of a term, Court, held, would have to apply same‑Reference to dictionary meaning would not be made to ascertain meaning of same.
Shershah Industries Limited, Karachi v. Government of Baluchistan and 4 others P L D 1982 Quetta 19 : Noor 1Kuhammad .Sheikh v .S. Ahsan & Bros. and 3 others Constitutional Petition No. 101 of 1984 ; Haji Saleh Muhammad and 2 others v. Haji Juma Khan Agha and 4 others 1983 S C M R 587 and Mst. Nargis Bibi and others v. Muhammad Ibrahim and another 1983 C L C 370 ref. '
‑‑ Art. 4 Right of individual‑Extent and scope‑Provisions of Art. 4 of Constitution of Pakistan enjoins right of individual to enjoy protection of law and to be treated in accordance with law Where imposition of tax/octroi was not discriminatory, there would be held no violation of Art. 4 of Constitution, 1973.
‑‑ Ss. 8(b), 9, 10 & I1‑Local area‑Curtailing, extending or altering of‑Provisions of section H(b), held, empowered Government to extend, curtail or otherwise alter limits of local area‑Government, likewise was empowered to declare that any area would cease to be a Union, Mohalla, Tehsil, Town Municipality or a City‑Provisions of S. 8(b) was independent from provisions of Ss. 9, 10 & 11.
‑‑ S. 70(d)‑Tax, recovery of‑‑Provisions of S. 70(d), held, em powered recovery of tax from any date even with retrospective effect.
S. 70 (d)‑Word, "recovery", "Ievy"‑Meaning, scope and distinction‑Word "recovery", held, would not include levy or imposition of tax‑Word "levy", however, would embrace both imposition and realization of tax or fee.‑[Words and phrases].
--Notification, held, would operate prospectively and not retrospec tively‑Curative legislation would cure and rectify all defects/flaws in enactment if same existed.
Syed paid Muhammad and another v. The Quetta Municipal Committee and others P L D 1970 Quetta 1 ; Commissioner of Sales Tax (West), Karachi v. Messrs Kruddsons Limited P L D 1974 S C 180; Kohi‑Noor Textile Mills Ltd. v. Commissioner of Income‑tax, Lahore P L D 1974 S C 284; Messrs Firdous Spinning and Wearing Mills Limited and others v. Federation of Pakistan and 2 others P L D 1984 Kar. 522 ; Muhammad Bashir Butt v. M. V. Taheri P L D 1980 Kar. 458 ; Barkat Ali v. Administrator, Thal Development, Bhakkar P L D 1978 Lah. 867 ; Abdul Rashid and I D others v. Maj. Ziaul Hassan and another 1982 C L C 239 ; Pakistan International Airlines Cor poration v. Messrs Pak Saaf Dry Cleaners P L D 1 981 S C 553 ; Mst. Aisha .Begunt and others v. Chairman, Federal Land Commission 1982 S d M R 1074 ; Dossa Limited Karachi v. Province of Punjab P L D 1973 S C M R 2 ; Su veedur Rahman v. Chief Election Commissioner, Dacca and 2 others P L D 1965 S C 157 ; Messrs Haider Automobile Limited v. Pakistan P L D 1969 S C 623 ; Messrs Mamukartjan Cotton Factory v. The Punjab Province and others P L D 1975 S C 50 and Hakimuddin v. Chief Cotton Inspector P L D 1960 Lah. 709 ref.
‑‑ S. 70(d)‑"Vested right", connotation of‑Vested right, held, could not be taken away in absence of express provision‑Right of party to file appeal or other legal proceedings could not be taken ' away by subsequent enactment in absence of Express provision to that effect.‑[Words and phrases].
‑‑ Preamble‑Legislative powers‑Exercise of‑There would be, held, no impediment or letters on legislative powers to achieve curative effect ‑Legislature has plenary powers to make law retrospectively, and to take away even vested rights, provided that language and intent employee/manifested are clear and admit no ambiguity/ Legislature would likewise be competent to enact any provision retrospectively even to undo judgment of superior Courts.
Commissioner of Sales Tax (West), Karachi v. Messrs Kruddsons Limited P 1. D 1974 S C 180 and Fauji Foundation and another v . Shamim‑ ur‑Rehman P L D 1983 S C 457 ref.
‑‑ S. 8(2) & (3) [as amended by Baluchistan Local Government (Amendment) Ordinance (XXII of 1985)‑Levy of tax Validity, extent of‑Any defect in Levy or Recovery of Octroi, held, would stand cured and regularized on account of amendment in section 8 of Ordinance 11 of 1980.
‑‑ Artt. 199‑Baluchistan Local Government Ordinance (1I of 1980), S. 8(2) & (3) [as amended by Baluchistan Local Government (Amendment) Ordinance (XXII of 1985))‑Constitutional jurisdic tion, exercise of‑In view of validity accorded to levy or recovery of octroi, High Court declined to interfere in such levy or recovery in its constitutional jurisdiction‑High Court, however, exhorted Authority to consider excessive aspect of ad valorem octroi on representation of assesses.
Tahir Muhammad Khan for Petitioner.
Amir‑ul‑Mulk Mengal, A.‑G. for Respondent No. 1.
Respondent No. 2 in person.
Raja Afsar for Respondent No. 3.
Mohammad Zafar for Respondent No. 4.
Dates of hearing : 5th, 6th, 11th, 12th and 13th November, 1985.
‑‑The petitioners through this petition have prayed for the following reliefs :‑
In the circumstances given above it is respectfully prayed that this Hon'ble Court may be pleased to declare, that :‑
(i) The petitioner's factory is situated outside the area of Town Committee, Uthal therefore, the Town Committee, neither exercised nor exercises jurisdiction to collect Octroi Tax from the petitioner the taxes have been illegally collected from the petitioner is liable to be refunded with interest or adjusted against the future taxes :
(ii) The respondent No. 1 had no jurisdiction to direct the petitioner to make payment of taxes. Even otherwise the direction was limited to 1980‑81, it at all it had any sanctity of law, it only related to a specified period ;
(iii) Until 2‑10‑1984 the goods imported in the factory were not taxable by the Council which was exercising jurisdiction.
(iv) Although after 2‑10‑1984, Union Council Kenwari exercises jurisdiction to collect taxes but the C.K.D. Kits are not imported for consumption used and sale, therefore. it is not taxable by the Union Council, Kenwari.
(v) If at all this Honourable Court hold: that C.K D Kits are taxable, the tax in excess of ore per cent is oppressive, excessive, discriminator against principles of equality before law. Even in violation of the schedule of the local council;.
(vi) The Honourable Court may direct the respondents to refund the illegally recovered amount or to adjust it in future dues.
(vii) May grant any relief to which the petitioner may be found entitled.
(viii) The costs of this petition may also be allowed."
2. The brief facts leading to the filing of the above petition are that the petitioners. (which is a limited company) have their factory in Mauza Chib Mandra. Tehsil Uthal, District Lasbella as per averment in the petition. where they assemble Motor Cycles from the C.K.D. Kits imported from Japan under the patent name of "Yamaha". The respondent No. 3 i.e. the Town Committee Uthal, had levied the octroi on the various items of goods imported within its limits fur consumption,, use or sale at the various rates, namely. about 1 per cent to the value of the, articles. Upon the request of the petitioners by a Notification No. 5‑158/7(PLGB)/ AOL dated 29th November. 1978 exemption from the payment of Octroi was granted by the respondent No. I for a period of two years commencing from 1st July, 1978 and expiring on 30th June. 1980 in respect of raw material, Kits and parts in knock‑down condition, electrical and other equipments and building material apart from grant of exemption of five years in respect of industrial and electrical machinery entering into Lasbella District. The respondent No. 3 revised the Schedule of Octroi (hereinafter referred to as the Schedule) by a Notification, dated 22nd July, 1980 (Annexures D/1 and D;2 to the petition). After the expiry of the above period of two years, the petitioner were called upon to pay the octroi as per Schedule, but they made again representation for further exemption, which remained under consideration. After that, the Secretary, Local Government, Rural Development and Agrovils Department (Local Councils Wing) by his letter, dated 10th November, 1981 addressed to the Chairman, Town Committee, Uthal and a copy whereof was endorsed to the peti tioners and to Lasbella Textile Mills at Uthal, conveyed the following decision of the Governor/M.L.A. :‑
"that the balance amount of octroi charges for the year 1980‑81 be paid directly to the Government by Messrs Lasbella Textile Mills and Dawood Yamaha Limited."
It seems that the petitioners again made representation, in response whereof, the Head quarter, Martial Law Administrator, Zone 'D' by its letter, dated 12th January, 1982 ordered the suspension of recovery and the convening of the meeting on 20th January. 1982, but it appears that eventually it was decided to. press for the payment of octroi. The petitioners as per schedule of the payments annexed to the petition started making payment in January, 1982 and continued to pay upto December, 1984, totalling a sum of Rs. 71,15,526.77. However, from the documents filed alongwith the petition, it appears that the petitioners bad been making representations from March, 1981: to the effect that the percentage of octroi, namely. 3 per cent on the C K. D. Kits was excessive and was not compatible with one per cent charged by the Town Committee, Hub which was not very far away. It also seems that the Government of Baluchistan by its Notification, dated 3rd July, 1983 issued in pursuance of the powers conferred on it by section 10 read with sections 7, 8 and 11 of the Baluchistan Local Government Ordinance, 1980 (II of 1980) (herein after referred to as the 'Ordinance') constituted Local Councils in the District Lasbella and Kalat Division as per schedule contained therein, subject to the proviso that the above Notification shall take effect from the date to be notified by the Government in this behalf. The above schedule, inter alia, includes Union Council Kenwari i.e., the respondent No. 4 and also Town Committee Uthal. It may be pertinent to reproduce hereinbelow the item No. 5 and items No. 13(D) of the aforesaid schedule, which give the description of the respondents Nos. 3 and 4 :‑
"(5) Union Council, Kenwari
(1) Chib Mandra‑2. (2) Winder.
(3) Salarag.
(4) Kenwari.
(5) Watta. ,
(6) Bohar.
(7) Kharrari‑1:
(8) Kharrari‑2"
13(D) Town Committee, Uthal
(1) Mari‑I. ,
(2) Mari‑2.
(3) Mari‑3.
(4) Gab Kori.
(5) Kandiara.
(6) Awadan.
(7) Banodi."
3. It may be partinent to observe that the respondent No. 4 was not in existence prior to the issuance of the above Notification, but the respon dent No. 3 was constituted by the Notification, dated 12th June, 1976.
It may be pertinent to reproduce the above Notification, which reads as follows : ‑
"Government of Baluchistan
Local Government Rural Development,
And Agrovilles Department.
(P. L. G. Board)
Quetta the 12th June, 1976.
NOTIFICATION
| No. 7‑98/75(PLGB).‑In exercise of the powers conferred under sec tion 8 of the Local Government Act, 1975, the following Rural areas shall, with effect from 15‑5‑1976 be converted into Urban areas and known by the name mentioned here under |
Limit of Town Committees Uthal
S. No. Name of Name of Village/Towns Included. ,
District T/Committee
Lasbela Uthal (1) A straight line from R.C.D. road
running alongwith the Southern side
of Khantra Nadi towards East upto
Pillar No. 1.
(2) A straight line from R.C.D. road
running alongwith the Southern side
of Khantra Nadi towards West upto
Pillar No. 2.
(3) A straight line from R.C.D. road
running alongwith Nothern side of
Landa Dhora towards East upto
Pillar No, 3.
(4) A straight line running alongwith
Bank of Northern side of Landa
Dhora towards East upto Pillar
No. 4.
(5). A straight line running from Pillar
No. 1 (Khantra Dhora) towards
Pillar No. 4 (Lands Dhora) towards
the Eastern side of R.C.D. road.
(6) A straight line running from Pillar
No. 2 (Khantra‑Nadi) towards Pillar
No. 3 (Lands Dhoras) Western side
of R.C.D. road.
(Sd.)
(Shahzada Sultan Hamid)
Additional Secretary,
Local Government Department."
It may be noticed that the boundaries given in the above‑quoted Notification, dated 12th June, 1976 of the respondent No. 3 have different description than the boundaries given in the above Notification, dated 3rd July, 1983. The Octroi was levied by the respondent No. 3 on the basis of the above Notification, dated 12th June, 1976.
4. It is the case of the respondent No. 1 i.e., the Provincial Govern ment that the second Notification notifying the date for enforcing the date for enforcing the above Notification. dated 3rd July, 1983 was not issued till 29th May, 1985, whereas, the case of the petitioners is that in pursuance of above Notification, dated 3rd July, 1983, the elections of the respondents Nos. 3 and 4 were held and the Councillors were elected and declared as elected and that they also started functioning. Be that as it may, in October, 1984, the respondent No. 4 also levied Octroi. After that, they issued notices to the petitioners for the payment of Octroi. It seems that in August, 1984, the petitioner's representative met the Secretary of the respondent No. 4 and first time contended that their factory was not situated within the limits of the respondent No. 3 but within the limits of the respondent No. 4, which is reflected from para. 1 of the respondent No. 3's Secretary letter, dated 24th February, 1985, which reads as follows ‑‑
Para. 1.‑With reference to your letter dated 4‑12‑1984 handed over personally by one of your employee and discussions of your various representatives it may be mentioned that it was for the first time, perhaps in the month of August, 1984 when one of your representative met me and claimed that as Dawood Yamaha factory is not situated within the limits of Town Committee, Uthal, therefore, Octroi duty cannot be recovered by the Town Committee, Uthal instead of Union Council concerned. The representative, however, did not produce any documentary proof about his claim, so he was satisfied that Town Committee is recovering octroi from Dawood Yamaha since a long time, therefore, the undersigned who has resumed charge on 13‑12‑1983 cannot refrain from recovery of octroi duty being recovered from a long time. In absence of production of documentary proof by him, I presume that the said representative was satisfied about my verdicts."
It appears that after December, 1984, the petitioners stopped making payment of the Octroi to the respondent No. 3, which continued to press for the payment. The petitioners filed the above petition on 25th April, 1985 and when it was fixed for Katcha Peshi on 28th April, 1985, the comments were sent for from the respondents Nos. 1, 3 and 4, in response to which, the comments were submitted. The petition was admitted to regular hearing on 17th June, 1985. It seems that after the filing of the above petition, the Governor of Baluchistan first issued a Notification, dated 29th May, 1985 (hereinafter referred to as the Notification) and thereafter, during the arguments on 7‑11‑1985 promulgated Baluchistan Local Government (Amendment) Ordinance, 1985 (hereinafter referred to as the Validation Ordinance) (Ordinance XXII of 1985) which retrospective effect from 1st July, 1980, It may be advantageous to reproduce hereinbelow the above Notification :
"NOTIFICATION
No. 5‑108/79 (PLGB) AO.IV/Vol‑II/9522‑39.‑In exercise of the powers conferred by section 8 of the Baluchistan Local Government Ordinance, 1980 (lI of 1980), the Government of Baluchistan is pleased to include the entire Industrial estate area situated in Mauzas Chib Mandra‑II, Chak Kharari and Chak Sarkar Karari, within the limits of Town of Uthal, with effect from 1st day of July, 1980.
(2) In exercise of the powers conferred by clause (d) of subsection (1) of section 70 of the Baluchistan Local Government Ordinance, 1980 (II of 1980), the Government of Baluchistan is further p eased to direct that the amount of Octroi already levied. charged, collected or realized by the Town Committee. Uthal, with effect from 1st day of July, 1980 from industrial units located in the industrial estate area, Uthal, shall be deemed to have been validly levied, charged, collected or realized, as the case may be, as if this Notification was in force on the day on which the Octroi was levied, charged, collected or realized.
(3) In exercise of the powers conferred by section 10 read with sec tions 7, 8 and 11 of the Baluchistan Local Government Ordinance, 1980 (II of 1980), the Government of Baluchistan is further pleased to appoint the 1st day of November, 1983, to be the date on which Notification No. 8‑34/79(PLGB) 8316‑50, dated 3rd July, 1983, shall come into force, except the provisions contained in paras. 1 and 2 above, which shall have effect on the date mentioned therein."
5. In support of the above petition, Mr. Tahir Muhammad Khan, learned counsel for the petitioners has urged as follows :‑
(i) That since the factory is not located within the limits of the respon dent No. 3, the recovery of Octroi is without, jurisdiction ;
(ii) That under the second Schedule, to the Ordinance there is no power vested in the respondent No. 3 to levy any Octroi. (This argument was not pressed when it was pointed out to Mr. Tahir Muhammad Khan that item 2‑A was incorporated by Ordinance XIII of 1980 in Part II of the Second Schedule to the Ordinance, which provides tax on the import of goods and animals for consumption, use or sale.)
(iii) That since C.K.D. Kit is an item known in the commercial par lance and as it has not been included in the Schedule of Octroi, the recovery of the Octroi is illegal ;
(iv) That in any case, C.K.D. Kits axe not imported by the petitioners within the limits of the respondent No. 3 for consumption, use or sale and, therefore, the recovery is illegal ;
(v) That in any event, the petitioners liability is to pay Octroi under item No. 163 of the Schedule at the rate of 1 per cent and not under item No. 169 at the rate of 3 per cent ad valorem ;
(vi) That the 3 per cent ad valorem or Octroi is in violation of Article 4 of the Constitution ;
(vii) That the Notification i.e. dated 29th May, 1985 has been impugned, inter alia. on the grounds that the same is ultra vires of the powers contained in the Ordinance, inasmuch as, is in violation of sections 8, 9, 11, 68, 69 and 70, mala fide, issued in colourful exercise of powers vested, being subordinate legislation cannot exceed or amend the law and that it cannot be given retrospective effect
(viii) That the Validation Ordinance does not affect the pending cases ;
Mr. Muhammad War, learned counsel for the respondent No. 4 supported the arguments of Mr. Tahir Muhammad Khan and further sub mitted that under the scheme of the Ordinance, the respondent No. 1 could not have sliced away a portion of the areas of Mauzas Chib Mandra 2, Chak Kharari and Chak Sarkar Karari and included the same through the Notification in the respondent No. 3's limits and, therefore, it is ultra vires of the powers of the respondent No. 1, besides being mala fide.
Mr. Amirul Mulk Mengal, learned Advocate‑General appearing for the respondent No. 1 has contended as follows:‑
(i) That the petitioners had alternate remedy in the form of an appeal, which argument was not pressed as he was unable to place on record any rule providing appeal in terms of section 149 of the Ordinance ;
(ii) The question whether the petitioner's factory is situated within the limits of the respondent No.3 or not, or the respondent No. 4, is a disputed question of fact, which cannot be investigated in a Constitutional Writ Petition ;
(iii) That the petition has not been filed by a competent person ;
(iv) That the petition suffers from laches ;
(v) That the petition is liable to be dismissed on account of estoppel and acquiescence ;
(vi) That the C.K.D. Kits are covered by item No. 169 and not by item No. 163 of the Schedule ;
(vii) That the recovery of Octroi at the rate of 3 per cent is not violative of Article 4 of the Constitution ;
(viii) That the Notification is valid ; and
(ix) In any case, the Validation Ordinance has cured the defect, if any.
Raja M. Afsar, learned counsel appearing for the respondent No. 3 has adopted the arguments of Mr. Amirul Mulk Mengal, learned Advocate General and in futherance of his arguments cited a number of cases.
6. Before taking up the respective contentions of the learned counsel for the parties on merits, it may be appropriate to take up the contentions of Mr. Amirul Mulk Mengal, learned Advocate‑General and of Raja M. Afsar, learned counsel for the respondent No. 3 pertaining to the incompetency of the above petition, laches, estoppel and acquiescence.
Adverting to Mr. Amirul Mulk Mengal's contention that the petition has not been Died by a competent person, it may be observed that the petition has been signed by one Mr. Humayun Zafar Hatmi, Special Attorney, of the petitioners. According to Mr. Tahir Muhammad Khan, learned counsel for the petitioners, Mr. Hatmi is the General Manager of the petitioner's‑Company. It has been contended by the learned Advocate‑General that the petition has neither filed a copy of the Articles of Association, nor a copy of the Board of Directors' resolution resolving to file the above petition and authorising Mr. Hatmi to file the same. It was further contended by him that neither the petition, nor the Special Power‑of‑Attorney contains the seal of the Company. It has. also been contended by Raja M. Afsar, learned counsel for the respondent No. 3 that even if it is to be assumed that the above formalities were complied with, the Special Power‑of‑Attorney produced by the petitioners, does not contain and express power either to file a writ petition or to sign the same on behalf of the petitioner's Company.
On the other hand, Mr. Tahir Muhammad Khan, learned counsel for the petitioners has submitted that the above point was not raised by the above respondents either in their comments or in the counter‑affidavits and, therefore, they should not be allowed to raise the same. He has further submitted that this Court should not non‑suit the petitioners on a technical ground..
7. It is true that no objection has been raised by the respondent No. 1 or 3 in their comments or in their counter‑affidavits and the sans has been first time raised during the arguments. We are inclined to hold that a technical objection as to the competency of the person signing as writ petition on behalf of a Limited Company is to be raised at the earliest opportunity, so that the other party may rectify the defect if any, though it is incumbent upon a party filing a legal proceeding to ensure that the f.; same is filed by a competent person in. accordance with law after complying with the various formalities.
Mr. Amirul Mulk Mengal, learned Advocate‑General in furtherance of his above submission has referred to the following judgments :‑
(i) Messrs Muhammad Siddiq, Muhammad Umar and another v. The Australasia Bank Limited P L D 1966 S C 684, in which, the Honourable Supreme Court while dealing with the question of filing of a suit by a constituted Attorney of a Public Limited Company, observed that a constituted Attorney could only do so, if he was duly authorised in that behalf and occupied one or other of the offices mentioned in rule 1 of Order XXIX of the Civil Procedure Code. It was also observed that the Articles of Associa tion of the Company, should also contain the power to authorize the Directors to delegate the power. It was further observed that it was not necessary to examine the Managing Director for ascertain ing the above facts.
(ii) Khan Ifiikhar Hussain Khan of Mamdot (represented by 6 heirs) v. Messrs Ghulam Nabi Corporation Ltd. Lahore P L D 1971 S C 550 In the above case, the Honourable Supreme Court while commenting upon the question of filing of a suit on behalf of a Company observed that a suit on behalf of a Company by the Director Incharge of the Company, is not competent unless he is authorised by a resolution passed by tire Company's Board of Directors in a meeting, which could riot have been duly convened unless due notice was given to all the Directors. It was held that since there was no competent meeting convened for passing the resolution for authorising the filing of a suit; the suit was in competent.
Whereas, Raja M. Afsar, learned counsel for the respondent No. 3 has referred to the following cases :‑
(i) Messrs Eagle Star Insurance Co. Ltd. v. Messrs Usman Sons Limited and others P L D 1969 Kar. 123, in which, a learned, Single Judge of the erstwhile High Court of West Pakistan at Karachi Bench, while trying a suit, observed that a Power‑of Attorney must be construed strictly and that the Attorney can neither go beyond, nor can deviate from the terms of the Power of‑Attorney. It was further observed that if the Power of Attorney contained the power to obtain loan on behalf of the Principal on security of the Principal's property, such authority cannot be extended so as to enable the Attorney to mortgage property of Principal for loan obtained by third party.
(ii) Munir Hussain v. Mst. Mehrun Nisa (through her legal heirs) P L D 1982 Kar. 71. In the above case, a learned Single Judge of the Sind High Court after re‑producing the Power of‑Attorney, observed that the same had not authorised the Attorney either to sign or verify or present the ejectment application. The appeal of the tenant was allowed on the ground that the ejectment application was not filed by a competent Attorney.
' Mr. Tahir Muhammad Khan, learned counsel for ;he petitioners in rebuttal has referred to the following cases ‑‑
(i) Lt.‑Col. (Retd.) P. G. Braganza v. The Border Area Allotment Committee and another 1984 C L C 1479, in which, a learned Single Judge of the Lahore High Court after perusing a Power‑of‑Attorney executed in favour of the petitioner, held that the tenor of the same indicates that the Attorney was authorised to file proceeding in all the Courts which the executant could conceive of at time of execution of Power‑of‑Attorney including all disputes pertaining to land, inter alia, in civil Courts. It was further held by him that the above document be given beneficial interpreta tion and that it included the power to apply to High Court exercis ing .Constitutional jurisdiction in a civil matter. It was also observed that technicalities are undesirable. It was also held that in a Constitutional petition under Article 199 of the Constitution of 1973, even an oral authority to file the same cannot be excluded from consideration.
(ii) Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another P L D 1975 S C 678. In the above case, the Honourable Supreme Court while hearing a civil appeal observed that the principal object behind all legal formalities is to safeguard the paramount interest of justice and that mere technicalities unless offering insurmountable hurdles, not to be allowed to defeat the ends of justice.
(iii) Iyakku Mathoo v. Julius Elias Metropolitan A I R 1962 Ker. 19, in which, a learned Single Judge of Kerala High Court held that where the plaint is filed under the signature of one who is found not to be a recognised agent, the defect can be cured subsequently, subject however to the requirement that the suit must have been instituted with the knowledge and authority of the plaintiff.
8. It may be observed that Mr. Tahir Muhammad Khan, learned counsel for the petitioners on 13th November, 1985 has produced a Photo stat copy of page 12 of the petitioners's Company's Articles of' Association, clause 66 of which, provides that the Directors may delegate their powers to Committees consisting of such member or members as they think fit. He has not produced any resolution of the Board of Directors as according to him, the time available was not sufficient to send for the resolution from the Head Office of the petitioner's Company.
We are inclined to hold that since the respondents Nos. I and 3 have not raised any plea to the effect that the petition was not signed by a competent person in their comments or in their counter‑affidavits, which they should have done, it will not be just and proper to dismiss the above petition on the above technical ground. The above clause 66 of the Articles of Association of the petitioner's company authorises the e Directors to delegate their power. It may also be observed that under rule 1 of Order XXIX of the Code of Civil Procedure, it has been provided that in a suit by or against a Corporation, any pleading may be signed and verified on behalf of the Corporation by. the Secretary or by any Director or other Principal Officer of the Corporation, who is able to despose to the facts of the case. If Mr. Hatmi is factually the General Manager of the petitioner's Company as contended by Mr. Tahir Muhammad Khan, he is covered by the expression "other Principal Officer". We are also inclined to take the view that there is a vast difference between a suit and a constitutional petition, inasmuch as, the provisions of the Code of Civil Procedure are strictly applicable to a suit, whereas, they are not strictly applicable to constitutional petitions, though some of the provi sions thereof are pressed into service to regulate the conduct of the petitions in the absence of any rule on a particular topic framed by the High Court for regulating the constitutional petitions. We are also inclined to hold that the Court will be reluctant to non‑suit a petitioner on a technical ground, but would prefer to adjudicate upon the dispute on merits. The power to file a petition can be spelt out from Paras. 1 to 3 of the Special Power‑of‑Attorney produced alongwith the petition.
9. Reverting to Mr. Amirul Mulk Mengal's contention that the petition suffers from laches and is hit estoppel and acquiescence, it may again be pointed out that the Octroi was levied by the respondent No. 3 prior to 1978. The petitioners did not challenge the competency of the respondent No. 3 to levy the Octroi, but on the contrary requested for exemption from the payment, which was granted for a period of two yearn. as admitted by the petitioners in para. 4 of the petition. Upon expiry of the above period of two years, the petitioners requested for further exemption, but when failed to obtain, they contended that the 3 per cent ad valorem Octroi was excessive, but never contended that either their factory was not located within the respondent No. 3's Octroi limits or that it was not competent to levy the same for an reason, The peti tioners paid Octroi subject to the decision of the review filed by theist before the Governor against the excessive rate and not against the legality of the levy, which is evident from the petitioner's letters, dated 24th January, 1982, 30th January, 1982, 9th February, 1982 and 13th February, 1982 (Annexures L/4 to'L/7 to the petitioner's rejoinder). Reference may also be made to, the petitioner's two letters both, dated 9th February, 1982, addressed to the Governor/M. L. A. and ‑the Secretary, Local Government, Government of Baluchistan (Annexures H/1 and H/2, respectively annexed to the petition). However, it was first time in August, 1984 before the issuance of notices by the respondent No. 4 that the petitioners came out with the plea that their factory was not situated within the respondent No. 3's Octroi limits, but was situated within the limits of the respondent No. 4, which is evident from the above‑quoted para. 1 of the respondent No. 3's Secretary's letter, dated 24th February. 1985. However, it was contented by Mr. Tahir Muhammad Khan, learned counsel for the petitioners that since the petitioners have a recurring cause of action, there is no question of laches or estoppel or acquiescence.
Mr. Amirul Mulk Mengal, learned Advocate‑General in support of his above submission has referred to the following cases :‑
(i) S. Sharif Ahmed Hashmi v. The Chairman, Screening Committee. Lahore and another, 1980 S C M R 711, in which, it was contended by the counsel for the petitioner that since the order was void, the question of laches did notarise. It was held by the Honourable Supreme Court that a writ petition against avoid order tray be dismissed if it suffers from laches. In the above case, the petitioner was an employee in the Provincial Public Works Depart ment. He did not impugn the order pass against him for nearly 12 years, but went on making representations as appeals etc. to different authorities. The Honourable Supreme Court main tained the judgment of the High Court dismissing his petition. He also filed review petition in the Honourable Supreme Court, which was also dismissed by the above‑reported judgment.
(ii) Hari Kishan Dass v. Chairman, WAPDA P L D 1983 Quetta 61. In the above case, a D. B. of this Court dismissed a constitutional petition on the ground of laches, as the same was filed after the lapse of three yeas from the date of passing of the final order by a Labour Court under the Industrial Relations Ordi nance, 1969.
(iii) Pakistan through Chairman, Railways v. The Punjab Labour Court No. 2, Lahore and 2 others 1982 C L C 711, in which, a learned Single Judge of the Lahore High Court upon placing reliance on the above Supreme Court case, reported in 1978 S C M R 367 dismissed a constitutional petition by holding that even a petition against a void order is liable to be dismissed if the peti tioner is guilty of laches.
On the other hand, Mr. Tahir Muhammad Khan, learned counsel for the petitioners has placed reliance on the following cases :‑
(i) Syed Arshad Hussain v. The Government of Sind and 38 others P L D 1982 Kar. 604, in which, a D. B. of the Sind High Court repelled the contention of the learned counsel for the respondents that the petition suffered from ]aches. 3t was held that a person holding a public office without lawful authority commits a continuous wrong and that such wrong whenever in question has got to be set right. It was further observed that the question of laches is to be considered on the facts and circumstances of each case and in some cases, the delay of three months may be fatal and in another the delay of years may have to be condoned.
(ii) Habibullah Khan and others v. Qazi Muhammad Ishaq and others P L D 1966 S C 505. In the above case, the Honourable Supreme Court while hearing an appeal against the judgment of a D. B. of the erstwhile High Court of West Pakistan at Peshawar, dismissing a suit for specific performance of an agreement on the ground of unreasonable delay in filing of the suit, held that equity never treated delay simpliciter as a bar, unless the delay has caused some prejudice to the other party and that equity has not intervened to excuse performance of a contract so long as the suit is filed within the limitation period.
(iii) Mian Miraj‑ud‑Din v. Tire Senior Superintendent of Police, Lahore District, Lahore and others P L D 1970 Lah. 569, in which, a Division Bench of the erstwhile High Court of West Pakistan at Lahore held that since the impugned order being in the nature of a continuing wrong, the petitioner had continuous cause of action and the objection of the respondent's department as to the lashes, was not maintainable. In the above case, the petitioner's name was entered in the surveillance register by the police without complying with the requirements of the relevant rules.
10. We are inclined to hold that the question, whether laches or estoppel or acquiescence can defeat a constitutional petition will depend on the facts and circumstances of each case. In some cases, the delay of few months may be fatal to a constitutional petition, but in some other cases, the delay of few years may be explainable and may not be fatal. We are also inclined to hold that if the condonation of laches is to prejudice the other patty, the delay is not condoned generally unless there are some other compelling reasons, which will foster the cause of justice. Further more, in a case of continuing wrong, the petitioner may have a cause of action to maintain a petition even after the expiry of a few years, at least for the recurring cause of action. In the instant case, it is the case of the respondent No. 3 that it had chalked out its development programmes and already spent money on such development schemes and, therefore, if the above lathes are to be condoned, it will cause serious prejudice to it. In this behalf, it may be observed that apart from seeking certain declarations, tae petitioners have prayed for the refund of a sum of Rs. 71,15,526.77, which according to the schedule of payment annexed to the petition, was paid during the period commencing from January, 1982 to December, 1984 and, therefore, the present petition was filed after the expiry of nearly one year and five months from the date of last payment. In this view of the matter, we are inclined to hold that the petitioner's claim for the refund in any case, suffers from laches as the condonation of delay will cause serious prejudice to the respondent No. 3, which hash already spent money recovered as Octroi. It may again be observed that uptil August, 1984, at no point of time, the petitioners challenged the competency. or legality of the respondent No. 3's right to levy the Octroi. The only protest was as to the excessive rate.
It was then contended by Mr. Tahir Muhammad Khan, learned counsel for the petitioners that the petitioner's contention that the levy of 3 per cant Octroi being excessive, arbitrary and in violation of Article 4 of the Constitution, cannot be defeated on the ground of laches or estoppel or acquiescence, admittedly, the petitioners had been urging the above point from the very inception. It is true that the petitioners have been con testing the question of percentage and, therefore, if we were to hold that the levy of 3 per cent ad valorem was violative of Article 4 of the Constitu tion, the doctrine of estoppel or acquiescence cannot be pressed into service against the petitioners. Furthermore, the petitioners have a recurring continuing cause of action and, therefore, the petition cannot be said to have suffered from laches in respect of the dues which are still outstanding and are being pressed, nor there would be any question of estoppel and acquiescence in respect thereof.
It may also be stated that Mr. Tahir Muhammad Khan, learned counsel for the petitioners has referred to the following cases on the question of estoppel :‑
(i) Municipal Committee, Multan through its Chairman v. Burmah‑Shell Storage and Distributing Company of Pakistan Limited and another P L D 1976 Lah. 72 in which a learned Single Judge of the Lahore High Court observed as follows :‑
"Para. 7.‑Admission by representative of the company acknowledging the liability before the Chairman, Municipal Committee, Lyallpur, would not stand in his way, for, the imposition of duty was not in accordance with law, upon the well‑Known principle of expression facit cessare tacitum (if doing of a particular thing is made lawful, doing of something in conflict of that will be unlawful). Reliance is placed on E. A. Evans v. Muhammad Ashraf P L D 1964 S C 536.
(ii) Messrs Sethi Straw Board Mills Ltd. v. Punjab Labour Court No. 3, Lyallpur and 2 others P L D 1977 Lah. 71. In the above case, a writ petition was filed by a Company against its employee who was a workman in terms of Industrial Relations Ordinance, 1969 against the orders of the Junior Labour Court and the Labour Court. It was, inter alia, contended by the employer that the workman after having received his dues was not entitled to claim any further dues.' It was held by a learned Single Judge of the Lahore High Court that there is no estoppel against statute and that a workman on termination of his services and even .after receiving his dues, can still lay claim for what was due to him under the law and was not paid.
11. It may be pertinent at this stage to take up the contentions advanced by the learned counsel for the petitioners.
Adverting to Mr. Tahir Muhammad Khan's contention that the factory is not located within the respondent No. 3's Octroi limits, it may be observed that Mr. Amirul Mulk Mengal, learned Advocate‑General and Mr. Raja M. Afsar, Advocate have vehemently urged that since this is a disputed question of fact, it cannot be investigated into by this Court in a constitutional petition. Thereupon, it was submitted by Mr. Tahir Muhammad Khan, learned counsel for the petitioners that from the record available before this Court, it is evident that it is not a disputed question of fact, but the admitted position is that the petitioner's factory does not fall within the respondent No. 3's Octroi limits. He has also produced during the arguments on the last date i.e. on 13th November, 1985, a photostat of original copy of petitioner's letter, dated 8th December, 1984, a photostat copy of the petitioner's letter office copy, dated 4th December, 1984 and a photostat copy of extract from the register.
He has also referred to the comments and the counter‑affidavits filed by the respondents Nos. 1 and 3. He has also made a reference to the above reproduced Notification in order to urge that a factually the petitioner's factory was situated within i he respondent No. 3's Ontroi limits, there was no occasion to have issued the above Notification retrospectively for slicing away certain portion, inter alia, from Chib Mandra, and including the same in the respondent No. 3's limits. Here it may be pertinent to observe that technically the above documents produced on 13th November, p 1985 unsupported by any affidavit, cannot be looked into as the respondents Nos. 1 and 3 had no opportunity to rebut them. Be that as it may, we have examined the same. It will not be out of context to point out that the petitioner's above letter. dated 8th December; 1984 which according to the petitioner contains an endorsement of the respondent No. 3's Secretary to the effect that Chib Mandra was not included within the respondent No. 3's limits is belied by the above‑quoted para. 1 of the respondent No.' 3's Secretary letter, dated 24th February, 1985, which was incidentally signed by the same Secretary, who is no longer in the service of the respon dent No. 3. In the above‑quoted para. 1, it was stated by the then Secretary that the petitioner's' representative failed to produce any document to substantiate that the petitioner's factory was not situated within the limits of Town Committee, Uthal and, therefore, the Octroi could not be recovered by the Town Committee. If the above Secretary would have made the above alleged endorsement on 8th December, 1984 on the peti tioner's above letter, dated 8th December, 1984, he could not have stated the above fact and the petitioners would have produced the above endorse ment before him. Furthermore, normally this document would have been filed along with the petition, as a number of other documents were filed. On the contrary,. the documents filed by the petitioners indicate that they admit the factum that their factory was situated within the Industrial Area at Uthal. In this regard, it will not be out of context to reproduce hereinbelow para. 2 of the petitioner's letters, dated 26th March, 1981 and 9th February, 1982 (Annexures G and H/1 to the peti tion), which read as follows :‑
"G" "2. The collection of Octroi at Uthal has been entrusted to a contractor who is to pay Rs. 3,00,100 for the whole year to the Local Government, whereas he will earn and estimated sum of Rs.2 million exclusively from the industries located in Industrial Area at Uthal. Thus while the contractor will mint money no benefit will occur to the Government or the people of the area or con sumers."
"H/1" "2. Your honour is well‑acquainted with the fact that we are already overburdened with high production costs due to non availability of infrastructure and industry being located in a very backward area of the country as compared to our competitor Honda, Suzuki, Vespa and Kawasaki established in developed areas of the‑country. Therefore, it is difficult for us to compete with them in open Market. Due to this obvious reason no entrepreneur is coming forward to establish an industry at Uthal and on other hand there is a tremendous rush for setting up industries at Hub where not only infrastructure is available but also Octroi is payable at rate of 1 % of the value of goods."
However, at the same time, it is true that in the comments as well as in the counter‑affidavits, the respondents Nos. 1 and 3 have not expressly stated that from the inception the factory was situated within the Octroi limits of the respondent No. 3, but reliance has been placed on para. 1 of the Notification reproduced hereinabove, which purported to include the entire industrial estate area situated in Chib Mandra 2, Chak Kharar and Chak Sarkar Karari within the limits of Town Committee Uthal, with effect from 1st July, 1980. As pointed out hereinabove, the boundaries of the respondent No. 3 given in the above reproduced Noti fication, dated 12th June, 1976 have been differently described than the boundaries given in the aforesaid Notification, dated 3rd July, 1983. It was urged by Mr. Amirul Mulk Mengal, learned Advocate‑General that Pillar No. 2 mentioned in the above Notification, dated 12th June. 1976 includes the area where the petitioner's factory is situated. It was further submitted by him that the reason for issuance of Notification was that in the above Notification, dated 3rd July, 1983, which according to him came into force after the issuance of Notification, dated 29th May, 1985 this area was included and, therefore, the doubts were to be removed.
In this regard, it may be pertinent to mention that under clause (b) of unamended section 8 of the Ordinance, the Government has been empowered to extend, curtail or otherwise alter the limits of a local area and declare that any area shall cease to be a Union, Mohalla, Tehsil, Town, Municipality. Town or a City as the case may be. The above section has been amended by the Validation Ordinance and in subsection (2) of section 2, it has been provided that the Government may if it so desires, give retrospective effect to any notification issued under the above section. As pointed out hereinabove. the Validation Ordinance was made applicable retrospectively, with effect from 1st July, 1980. The question, whether factually the area where the petitioner's factory is situated was within the respondent No. 3's limits cannot be decided : on the basis of material available on record. On the one hand there are admissions on the part of the petitioner that the factory is situated in Uthal Industrial Area referred to hereinabove, whereas the respondents Nos. 1 and 3 in their comments and the counter‑affidavits have not expressly averred that the fact that the petitioner's factory is situated in the respondent No. 3 s limits but the reliance has been, placed on the Notification referred to hereinabove. It may be observed that in any case, in view of the express validation of the tax, rate, toll or fees levied, charged, collected or realized by the newly‑added subsection (3) of section 8 by the Validation Ordinance, the above con troversy has lost its significance. The effect of the Validation Ordinance shall be dilated upon in detail hereinbelow.
12. As regards, Mr. Tahir Muhammad Khan's contention that the Schedule does not contain the items C.K.D. Kit; it may be observed that it has been vehemently urged by Mr. Tahir Muhammad Khan, learned counsel for the petitioners that C.K.D. Kit is an item known in the business parlance and, therefore, it should have been specified specifically in the Schedule and the fact that the same has not been mentioned indicates that Octroi is not leviable on its import. It is true that C.K.D. Kit has not been specifically mentioned in the Schedule but the question is whether any item mentioned in the Schedule covers the above item. We cannot overlook the fact that in the Schedule relating to Octroi, the names of all possible items of goods cannot be specified. There are certain general items in the Schedule catering for particular kinds of goods. In this view of the matter, if any of the items of the Schedule can cover C.D.K. Kit, the above contention will' have no force. The point, whether C.K.D. Kit is covered or not, is dealt with hereinbelow in detail.
13. Referring to Mr. Tahir Muhammad Khan's contention that C.K D. Kits are not imported for consumption, use or sale in terms of section 2‑A of the Schedule to the Ordinance, which was added to by Ordinance III of 1980, it may be observed that alongwith the above contention, it will be appropriate to take up another controversy between the parties, namely, whether C.K.D. Kits are covered by item No. 163 as in the ‑alter native, it was contended by Mr. Tahir Muhammad Khan, or item No. 169 as was urged by Messrs Amirul Mulk Mengal and Raja M. Afsar. In this regard, it may be pertinent to reproduce items Nos. 163 and 169 of the Schedule. which are mentioned under the caption "Class XIII Articles for Metal, Surgical and Mechanical Purpose", which read as follows :‑
"Item No. 163.‑Tools and Appliances not specified elsewhere."
"Item No. 169.‑All tools, goods, appliances, instruments, and appa ratus to be used for mehanical purposes not specified elsewhere."
A perusal of the above‑quoted items indicate that item No. 163 relates to tools and appliances not specified elswhere, whereas, item No. 169 covers all tools, goods, appliances, instruments, and apparatus to be used for mechanical purposes not specified elsewhere. In our view, item No. 169 has wider Scope, which inter alia, includes all goods to be used for mechanical purposes. In this behalf, Reference may be made to Black's Law Dictionary, Revised Fourth Edition, for ascertaining the meanings of the words "mechanic", "mechanical" and "purpose", which read as follows :‑‑
"Mechanic.‑A person skilled in the practical use of tools. Warner Memorial University v. Ritenour, Tex. Civ. App. 56 S. W. 2d 236, 237. A workman employed in shaping and uniting materials, such as wood, metal, etc. into some kind of structure, machine, or other I object, requiring the use of tools. story v. Walker, 11 Lea, Tenn. 517, 47 Am. Rep. 305 ; In re Osborn, D.C.N.Y. 104 F 781: Baker v. Maxwell, 183 Iowa 1192, 168 N. W. 160, 2 A.L.R. 814."
"Mechanical.‑Having relation to, or produced or accomplished by, the use of mechanism or , machinery. Used chiefly in patent law. Of, pertaining to, or concerned with, manual labour ; engaged in manual labour; of the artisan class ; of, pertaining to, or concerned with, machinery or Mechanism ; made or formed by a machine or with tools. State v. Crounse, 105 Neb, 672, 181 N. W. 562, 563, 16 A. L. R. 533."
"Purpose.‑That which one sets before him to accomplish : an end, intention, or aim, object, plan, project, State v. Paten, 64 Mont. 565, 210 P 748, 750: Macomber v. State, 137 Neb 882, 291 N. W. 674, 680."
14. In our view, use of C.K.D. Kits and converting them into motor cycles is covered by the word "mechanical purpose". However, it was contended by Mr. Tahir Muhammad Khan that the above item 169 will be attracted to if the C.K.D. Kits are imported by an artisan and not by a company havi g a factory for assembling motor cycle, from C.K.D. Kits. The above contention, in our view, is devoid of any force. Further more, it may also be pointed out that the word "consumption" has been given definition by the Ordinance itself by incorporating clause 7‑A in section 3 of the Ordinance, by the Baluchistan Local Government (Second Amend ment) Ordinance, 1982 (Baluchistan Ordinance No. VI of 1982), which provides as follows : ‑
"(7‑A) "Consumption" means utilization of an article by causing change in its existing position and nature, which may include con version of a ship or any other floating structure into its pieces, scraps and other articles of similar nature, commonly known and styled as ship breaking."
A plain reading of the above quoted definition indicates that the word "consumption" has been given wide connotation, inasmuch as, as to include utilization of an article by causing change in its existing position and nature. However, it was contended by Mr. Tahir Muhammad Khan, learned counsel for the petitioners that the two parts of the above clause are to be read together i.e. (i) "consumption" means 'utilization of an article by causing change in its existing position and nature" and (ii) "which may include conversion of a ship or any other floating struc ture into its pieces, scrap and other articles of similar nature, commonly known and styled as ship breaking". It was further contended that if they are read together, it will be evident that the above definition is exclusively applicable to ships.
We are inclined to hold that the use of comma between the two portions and the employing of the words "which may include conversion of a ship . . . . . " indicate that the second portion of the above clause does not control or restrict the meaning of the first portion thereof. It will not be out of context to observe that there is a marked distinction between the words "include" and "means" inasmuch as, when the former is used, it implies that the definition is not exhaustive, but when the latter is used, it indicates that the definition given by the statute is exhaustive. In the present case, the definition of the word "consumption" given in clause 7‑A will include utilization of an article by causing change in its existing position and nature whatsoever that article may be. It will also include the conversion of a ship or any other floating structure into its pieces. Mr. Tabir Muhammad Khan, learned counsel for the petitioners has referred to the definition of the word "consumption" given in Black's Law Dictionary, which reads as follows :‑
"Consumption Act or process of consuming ; waste decay ; destruction; and using up of anything, ac food, heat, or time, Moore v. Pleasant Hasler Const. Co. 50 Ariz 370, 72 P. 2d 573, 578, Destruction by use. Revzan v. Nudelman, 370 111, 180, 18 N. E. 2d 219, 222."
Mr. Tahir Muhammad Khan has also referred to the following cases :‑
(i) G. N. Dalmia v. The State P L D 1963 (W. P.) Lah. 474, in which, the petitioners had challenged the proceeding initiated against them under Pakistan Coal Control Order, 1948 for furnish ing incorrect information as to the amount of coal allegedly sold or loaned to others. While accepting the petition, a learned Single Judge referred to the definition of word "consumption" given in the Shorter Oxford Dictionary, 3rd Edition, and held that when the word "consumption" was capable of wider import, restricted meaning could not be given.
(ii) Shershah Industries Limited, Karachi v. Government of Baluchistan and 4 others P L D 1982 Quetta 19. In the above case, a D. B. of this Court observed that in terms of the 5th Schedule to the Basic Democracies Order, the Government can levy tax on the import of goods for consumption, use or sale in a local area.
(iii) Unreported judgment in Constitutional Petition No. 101 of 1984 Noor Muhammad Sheikh v. S. Ahsan & Bros. and 3 others given on 2nd June, 1985 by this D. B., in which while construing item No. 62 of the Schedule of Octroi levied by the Union Council, Sanjavi, the following observations were made as to its construction :‑
Para. 5.‑"From the above‑quoted passage, it is evident that general expression is to be read as comprehending only things of the same kind as that designated by the preceding particular expressions, unless there is something to show that a wider sense was intended. Applying the above principle to the present case, in our view, the words AMARTI LAKRI preceding to the words DIGAR SAMAN shall regulate the nature of the item which would be covered by the expression DIGAR SAMAN . The item should be of the specie which is specifically mentioned, namely, AMARTI LAKRI .
Even otherwise, it is a well‑settled principle of interpretation of fiscal statutes or schedule that in case of any ambiguity, it is to be resolved in favour of a tax‑payer."
On the other hand, Mr. Amirul Mulk Mengal, learned Advocate -General has referred to the following cases :‑
(i) Haji Saleh Muhammad and 2 others v. Haji Juma Khan Agha and 4 others, 1983 S C M R 587, in which, the Honourable Supreme Court while construing the provisions of section 3(1) and second Schedule of West Pakistan Civil Procedure (Special Provi sions) Ordinance, 1968 read with Article 185(3) of the Constitution of Pakistan, held that the words of common usage are to be given their usual, ordinary and natural meaning or significance, unless some indication to the contrary exists in the statute itself.
(ii) Mst. Nargis Bibi and others v. Muhammad Ibrahim and another 1983 C L C 370. In the above case, the Honourable Acting Chief Justice of the Azad Jammu and Kashmir High Court while construing the provisions of Azad Jammu and Kashmir Interim Constitution held that the provisions of law to be interpreted in accordance with intention of Legislators and Court should refrain to be wiser than law=makers.
15. It is a well‑settled principle of law that when a statute gives definition of a term, the Court will have to apply the same and will not make a reference to any dictionary for ascertaining its meaning. In the present case, since clause 7‑A of section 3 of the Ordinance has provided a 9 meaning of the term "consumption" the reference to dictionary meaning of the same is not permissible. Furthermore, we are inclined to hold that the use of C.K.D. Kits for conversion into motor cycles is also covered by the word "use" employed in item 2‑A of the second Schedule to the Ordi nance.
16. Adverting to Mr. Tahir Muhammad Khan's contention that 3 per cent. ad valorem of octroi is violative of Article 4 of the Constitution, it may be observed that Article 4 provides the right of individual to enjoy the protection of law and to be treated in accordance with law, which has been described as inalienable right of every citizen wherever he may be and of every other person for the time being within Pakistan. It further provides that in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law; no person shall be prevented from or be hindered in doing that which is not prohibited by law; and no person shall be compelled to do that which the law does not require him to do. The respondent No. 3 has imposed Octroi at the various rates for the various items mentioned in the Schedule for everyone without any discrimination. If the respon dent No. 3 would have been charging different rates from different persons for the same item, in that event, it might have been urged that the above act was discriminatory, but this is not the case. We do not see any violation of Article 4 of the Constitution even if we hold that the peti tioner's‑company being juristic person is covered by the term individual or citizen used in the above Article.
17. This lead us to the question of validity of the Notification, which has been reproduced hereinabove in para. 4. It may be observed that the above Notification has three paras. The first para. purports to include entire industrial estate area situated in Mauza Chib Mandra 2, Chak Karari and Chak Sarkar Karari within the limits of Town Committee, Uthal, with effect from 1st July, 1980, whereas, para. 2 in terms of clause (d) of section 70 of the Ordinance, purports to direct that the amount of Octroi already levied, charged, collected or realized by the Town Committee, Uthal, with effect from 1st July, 1980, from industrial units located in the industrial estate area, Uthal, shall be deemed to have been validly levied, charged, collected or realized, as the case may be, as if the Notification was in force on the day on which the Octroi was levied, charged, collected or realized. It may further be observed that para. 3 notifies the date for the enforcement of the aforesaid Notification, dated 3rd July, 1983, referred to hereinabove in para. 2 for the purpose of enforcement of the same as the first day of November, 1983, subject to the provision as to the areas covered by the above para. 1 of the Notification. It was vehemently urged by Messrs Tahir Muhammad Khan and Muhammad War learned counsel for the petitioners and the respondent No. 4, respectively that the first para. of the above Notification violates the provisions of sections 9 and 11 of the Ordinance. It was further urged that if the conditions mentioned in subsection (1) of sec tion 9 of the Ordinance were to be dispensed with the Government was required to record the reasons for waiver. It was also contended that since certain areas were to be taken out from the respondent No. 4, the person elected, one Mr. Bachho from Chib Mandra, was not declared as elected for the respondent No. 3 in terms of subsection (2) of section 11 of the Ordinance. In this regard, it may be pertinent to observe that clause (b) of section 8 empowers the Government to extend, curtail or otherwise alter the limits of a local area and declare that any area shall, cease to be a Union, Mohalla, Tehsil, Town, Municipality or a city, as the case may be. In our view, the above clause is independent from the provisions of sections 9, 10 and 11, but even if it is to be held that the above provisions of the Ordinance are to be read together, it is an admitted position that no material has been placed on record either by the petitioners or by the respondent No. 4 to indicate that there has been any violation of subsection (1) of section 9 or that the curtailment of the area necessitated declaration of Mr. Bachho in terms of subsection (2) of section 11 as Member of the respondent No. 3. It is an admitted position that entire area of Chib Mandra 2 has not been taken away from the respondent No. 3, but only a portion thereof, which is known as industrial area or industrial estates area, has been affected by the above Notification.
18. It was then contended by Mr. Tahir Muhammad Khan, learned counsel for the petitioners that the above area could not have been included in the respondent No. 4 retrospectively. It is true that prior to the promulgation of the Validation Ordinance, clause_(b) of section 8 did not empower the Government to issue a Notification retrospectively for the curtailment of an area or for the change bf the limits. However, by subsection (2) of section 2 of the Validation Ordinance, it has been provided that the Government may give retrospective effect to any Notification issued under the above section 8. As pointed out above, the Validation Ordinance has been enforced retrospectively, with effect from 1st day of July, 1980. The question whether such power could have been conferred on the Government by the legislature is to be dilated hereinbelow.
19. As regards para. 2 of the Notification, it may be observed that clause (d) of section 70 (which was incorporated by Ordinance VI of 1982),N empowers the recovery of a tax from any date even with retrospective effect. It was vehemently urged by Messrs Tahir Muhammad Khan ands Muhammad War that there was distinction between the recovery and levy and that there are three stages involved for raising a valid demand of a tax, namely, imposition, assessment and recovery. Suffice to observe that clause (d) of section 70 of the Ordinance does not empower the Government to levy any tax retrospectively. What it contemplates is recovery. The word "recovery" does not include levy or imposition of tax, whereas, the word "levy" embraces both imposition and realization o of tax or fee. In this regard, reference may be made to the case o Syed Said Muhammad and another v. The Quetta Municipal Committee an 2 others (P L D 1970 Quetta 1), in which, a D. B. of the erstwhile High Court of West Pakistan while construing the West Pakistan Municipal Committees (Octroi) Rules, 1964, read with Appendix 'A' and Municipal Administration Ordinance (X of 1960) dilated upon the above aspect and held that the term 'Levy' means any proceeding taken to impose the tax as well as to determine the liability of a person to a tax and finally collecting the tax. It was pointed out by Mr. Amirul Mulk Mengal, learned 'Advocate‑General that the levy of the Octroi was already made by the revised schedule in 1980 as admitted by the petitioners in para. 3 of the petition, reproduced hereinbelow, and therefore, the above para. 2 of the Notification only relates to the recovery and not to the levy:‑
"3. Para. 3 of the Petition.‑That the Town Committee Uthal revised its tax schedule and submitted it is to the District Council for approval. From Notification, dated 22‑7‑1980, it transpires that the District Council approved the proposed tax schedule. Copy of Notification alongwith tax schedule is filed as "ANNEXURES‑D/1 and D/2".
20. It is true that in the above‑quoted para. 3 of the petition, the petitioners have admitted the factum that the respondent No. 3 had revised the schedule of Octroi by a Notification, dated 22nd July, 1980. The Notification enclosed to the petition indicates that the requirement of obtaining the approval of the District Council in terms of section 68 of the Ordinance was also fulfilled. Mr. Tahir Muhammad Khan, learned counsel for the petitioners has also contended that, in any case, a Notification cannot be given retrospective effect being in the nature of subordinate legislation. He has referred to the following oases in support of the above contention:‑
(i) Commissioner of Sales Tax (West), Karachi v. Messrs Kruddsons Limited P L D 1974 S C 180 in which, inter alia, it was held that the Notification cannot operate retrospectively to impair existing right or nullify the effect of a final judgment. However, it was also held that curative statute passed during pendency of appeal before Supreme Court destroyed the finality of the High Court judgment. It was also held that in view of the amendment brought in the Sales Tax Act by the Finance Act, 1967, recovery of sales tax though originally n, t legal, became legal.
(ii) Kohl‑Noor Textile Mills Limited v. Commissioner of Income‑tax. Lahore P L D 1974 S C 284 In the above case, the Honourable Supreme Court while construing the provisions of Business Profits Tax Act, 1947 (XXI of 1947) and the Notification issued thereunder held that the Central Board of Revenue could not give the Notification retrospective effect, for, a Notification can never be made retrospective.
(iii) Messrs Firdous Spinning and Weaving Mills Limited and others v. Federation of Pakistan and 2 others P L D 1984 Kar. 522, in which, a D. B. of the Sind High Court while deducing the principles of law from the cited cases, held that a Notification cannot have effect retrospectively, so as to affect or take away vested right.
(iv) Muhammad Bashir Butt v. M. V. Taheri ‑ P L D 1980 Kar. 458. In the above case, a learned Single . Judge. while construing the provisions of Karachi Port Trust Act, held that the Authority exercising rule‑making powers in absence of power in a statute, cannot affect vested rights or create new obligations yr liabilities retrospectively.
21. The proposition that a Notification is to operate prospectively and not retrospectively is a well‑settled proposition of law and does not need any citation. However, the only point of difference in the instant case is, that the statute itself empowers the Government to issue a Notification retrospectively. In such event whether the same can be assailed on the ground that it is retrospective. It may be urged that in the absence of any guideline or constrain in the statute, it is a case of excessive delegation of Legislative power. In our view, it is not necessary to go into the above question as the Validation Ordinance which has been pro mulgated on 7th November, 1985, is a curative piece of legislation and has cured and rectified all the defects or flaws, which if existed. In this regard reference may be made to sections 1 and 2 of the Validation Ordinance,. which read as follows:‑
"1.‑‑‑(1) This Ordinance may be called the Baluchistan Local Govern ment (Amendment) Ordinance, 1985.
(2) It shall come into force at once and shall be deemed to have taken effect on the 1st day of July, 1980.
2. In the Baluchistan Local Government Ordinance, 1980, the existing section 8, shall be numbered as subsection
(1) of that section and after subsection (1), as so numbered, the following new subsections shall be added:
"(2) The Government may. if it so desires, give retrospective effect to any notification issued under this section.
(3) Notwithstanding anything contained in any law for the time being in force, any tax, rate ‑ toll or fees levied, charged, collected or realized before the commencement of this Ordinance shall be deemed to have been validly levied, charged, collected or realized, as if this Ordinance was in force on the day on which such tax was levied, charged, collected or realized."
22. A plain reading of the above‑quoted sections indicates that the Validation Ordinance was made applicable retrospectively, with effect from 1st July, 1980. It is also evident that under subsection (3) oil section 2, it has been expressly provided that notwithstanding anything contained in any law for the time being in force, any tax, rate, toll or fee, levied, charged, collected or realized before the commencement of this Ordinance shall be deemed to have been validly levied, charged, collected or realized, as if this Ordinance was in force on the day on which such tax was levied, charged, collected or realized. However, this was contended by Mr. Tahir Muhammad Khan, learned counsel for the petitioners that the above Validation Ordinance does no affect the pending cases or takes away any vested right. In furtherance of his above submission, he has referred to the following cases:‑
(i) Barkat All v. Administrator, Thal Development, Bhakkar P L D 1978 Lah. 867, in which, a learned Single Judge of the Lahore High Court held while construing section 74‑A of Thal Development Act amended by Punjab Ordinance XIX of 1975, that in the absence of clear language, vested rights are not taken away by a statute, nor it affects a right of pending action and the statute should not be given retrospective effect, more than the language itself permits.
(ii) Abdul Rashid and 10 others v. Maj. Ziaul Hassan and another 1981 C L C 239: In the above case, the trial Court exten ded the time under section 149 of the c ode of Civil Procedure read with section 28 of the Court Fees Act for making payment of deficit Court Fee beyond the period of limitation. It was held by a D. B. of the Lahore High Court that such an order could not have been passed particularly without any notice, as it destroyed the valuable right of the vendee in a pre‑emption suit.
(iii) Pakistan International Airlines Corporation v. Messrs Pak Saaf Dry Cleaners P L D 1981 S C 553 in which, the Honour able Supreme Court while construing section 1(2) of the Law Reforms (Amendment) Ordinance, 1972, held that since the above Ordinance was promulgated, on 12th September, 1972, the same could not retrospectively amt the appellant's right of appeal vested in him under section 34 of the Arbitration Act, 1940, on 19th August, 1972. It was further held that the right of appeal was not mere a matter of procedure, but a substantive right and the same could not be taken away in absence of express or necessary intendment.
Mr. Tahir Muhammad Khan, learned, counsel for the petitioners has also referred to para. 278 from the Crawford on the Construction of Statutes, 1940 edition, which reads as follows:‑
"278. Statutes Relating to Vested Rights.‑The rule that statutes should not be given a construction while giving them retroactive effect, is, as already indicated, especially applicable to statutes where such a construction will either destroy or impair vested rights. Consequently, such statutes, should be construed, if possible, as applying only to future cases, that is, as having no retrospective operation. In fact, hereto, prospective operation is to be presumed. This rule has been applied to statutes abolishing community property, creating separate estates for married women, modifying the nature and tenure of estates through inheritance, interfering with contractual obligations or impairing the validity of contracts already in existence, and other statutes of similar nature.
The rule is founded on 'the proposition that, since every citizen is presumed to know the law and to enter into business engagements in accordance with its provisions, it would be unjust, even where the legislature has the power to enact a law with. retroactive effect, unless it is clear that such is the legislature's purpose, to allow the enactment of legislation to operate in retrospection."
On the other baud, Mr. Amirul. Mulk mengal, learned Advocate‑General appearing for the respondent No. 1 bas referred to the case of
Mst. Aisha Begum and others v. Chairman, Federal Land Commission (1982 S C M R 1074) in which, the orders passed by the Members and the Chairman of the Federal Land Commission were validated though they were held to be incompetent individually. It was contended before the Honourable Supreme Court that the decision coram non judice could not be brought back to life. It was held by the Honourable Supreme Court that no such limitation exists on process of Legislature in enacting curative or validating statues. Reliance was placed, inter alia, on the case of Dossa Limited Karachi v. Province of Punjab (P L D 1973 S C M R 2) from which, a passage was quoted with approval. The relevant observation is as follows :‑
"A similar argument was advanced before this Court in the case of Dossa Limited, Karachi v. Province of Punjab 1973 S C M R 2 and was dealt with in the following words :‑
"The last contention, namely, that the Ordinance of 1971 could not validate something which was void ab initio in terms of the Act of 1949, loses sight of the fact that it is open to the Legislature to confer retrospective operation on the laws made by it. A reference to the provisions of this Ordinance leaves no doubt that the law maker expressly made its operation retrospective with the avowed object to conferring validity on a demand which was not valid under the original Act of 1949.
The avowed object of the curative act now under consideration was to rectify the illegality that crept in and had been taken note of in the decision referred to. There being no impediment or, fetters on the legislative power to achieve such a curative effect the same cannot be defeated by an argument not based on any principle or provision of law."
Whereas, Raja M. Afsar, learned counsel for the respondent No. 4 has referred to the following cases in addition to the above case of Dossa Limited, Karachi v. Province of Punjab, referred to hereinabove :‑
(i) Sayeedur Rehman v. Chief Election Commissioner, Dacca and 2 others (P L D 1965 S C 157), in which, the Honourable Supreme Court while considering sec tion 2 of the Representation of the People (Repeal) Act (XXIII of 1963) held that the appellant was entitled to take advantage of the removal of bar by the above Repealing Act promulgated during the pendency of the appellant's appeal, as the above Repealing Act was retrospective. It was also held that the Supreme Court can take into account the provisions of the new Act which repealed the Act of 1957.
(ii) Messrs Haider Automobile Limited v. Pakistan (P L D 1969 S C 623). In the above case, the Honourable Supreme Court while considering the provisions of Legal Practice (Disqualifications) Ordinance (i1 of 1964) and Red ed Judges (Legal Practice) Order (XXI of 1962) made the following observation as to the competency of the Legislation to legislate retrospectively or to take away vested right by express words : ‑
"The Legislature, however, which is competent to make a law, has full and plenary powers in that behalf and can even legislate retros pectively or retroactively. These is no such rule that even if the Legislature has by the use of clear and unambiguous language, sought to take away a vested right yet the Courts, must hold that such a legislation is ineffective or strike down that Legislation on the ground that it has retrospectively taken away a vested right."
(iii) Commissioner of Sales Tax (West), Karachi v. Messrs Kruddsons Limited (PLD 1974SC180), which has already been referred to by the learned counsel for the petitioners hereinabove in some different context. In the above case, certain Sales Tax amounts were recovered illegally, which became the subject‑matter of the Civil Reference before the erstwhile High Court of West Pakistan, Karachi Bench, which held that the recovery was illegal and that the department was liable to refund. Against the above judgment, an appeal was filed before the Honourable Supreme Court and during the pendency of the appeal, by finance Act, 1967, a new section :0‑A was inserted in the Sales Tax Act, 1951 validating, the recovery. It was conten ded by the respondent/ assesses that the above validating section could not take away his vested right accrued to him by virtue of the judgment of the High Court. While repelling this contention, it was held that since the appeal was pending in the Supreme Court, there was no final judgment. It may be advantageous to reproduce hereinbelow the relevant observation, which reads as follows :‑
"The effect of final determination' of the rights of parties to a litiga tion was considered by the Privy Council in John Lemm v. Thomas Alexender Mitchell 1912 A C 400 and the principle laid down was that the effect of the judgment which in the absence of appeal (operates as) as a final determination of the rights of the parties' rests on the general principle that a man is not to be vexed twice for the same cause of action unless, it is "excluded by the Legislature in explicit and unmistakable terms". In the instant case, the pendency of the certificated appeal in this Court had destroyed the finality of the High Court's order, dated 11‑10‑1966, and therefore, was hit by the new dispensation in section 30‑A of the Act."
(iv) Messrs Mamukanjan Cotton factory v. The Punjab Province and others (PLD 1975SC 50). in which, the facts were that the petitioner in each of the appeals was the owner of a ginning factory in the Province of Punjab. They were subjected to the levy of Cotton fee under the West Punjab Cotton (Control) Act, 1949 and the rules framed thereunder. However, the expression "factory" as originally defined in the Act did not include ginning factory run by diesel engine. Nevertheless, the petitioners were charged with the cotton fee despite the fact that their ginning factories were run by diesel engine. The High Court by a judgment given in the case of Hakimuddin v. Chief Cotton Inspector (P L D 1960 Lah 709), declared the above levy as illegal, The above recovery was ‑validated by the West Pakistan Ordinance XII of 1961, where by the scope of section 2 providing the definition inter alia, of the term "factory" was enlarged as to include a factory run by diesel engine, but it did not validate the recovery already made. Consequently, in another case, namely, Writ Petition No. 532 of 1969 decided on 5th August, 1970, the High Court held that the above Ordinance did not validate the recovery. Thereupon, the Punjab Ordinance XIX of 1971 was promulgated to undo the effect of the aforesaid judgment of the High Court and to validate the recovery, though the original recovery was made illegally. It was contended by the learned counsel for the petitioner before the Honour able Supreme Court that since the judgment of the High Court was passed in pursuance of an Article of the Constitution in exercise of constitutional writ jurisdiction, the Validating Ordinance, which was a sub‑constitutional legislation could not destroy the effect of the judgment of the High Court. The above contention was repelled. In this behalf, the following observa tions were made :‑
"The argument, in my opinion, is without substance and which if accepted would indeed lead to startling results. It would strike at the very root of the power of Legislature. Otherwise competent to legislate on a particular subject, to undertake any remedial or curative legislation after discovery of defect in an existing law as a result of the judgment of a superior Court in exercise of its cons titutional jurisdiction. The argument overlooks the fact, that the remedial or curative legislation is also "the end product" of cons titutional jurisdiction in the cognate field. The argument if accepted, would also seek to throw into serious disarray the pivotal arrange ment in the Constitution regarding the division of sovereign power of the State among its principal organs, namely, the executive, the Legislature and the Judiciary, each being the master in its own assign ed field under the Constitution."
23. The cases relied upon by Mr. Tahir Muhammad Khan, learned counsel for the petitioners are not directly relevant to the point in issue. There cannot be any cavil to the proposition that a statute or its provision is to be applied prospectively and not retrospectively. It is also a well‑settled principle of law that the vested right cannot be taken away in the absence of an express provision. It is equally well‑settled that the right of a party to file an appeal or other legal proceeding cannot be taken away by subsequent enactment in the absence of an express provision to that' effect,
The point, however, in issue before us is as to whether subsection (3) of section 2 of the Validation Ordinance referred to hereinabove, can be given effect by this Court. It is a provision of curative of nature. it has been held by the Honourable Supreme Court in the case of Commis sioner of Sales Tax (West), Karachi v. Messrs Kruddsons Limited that the Legislation can pass a curative enactment or enact a curative provision and may destroy even the judgments of High Court, if the matter is sub Judice before the Supreme Court. To put it precisely, it has been held that till the final judgment is given by a competent Court, a curative Act can be enacted.
There seems to be no impediments or fetters on the legislative power to achieve curative effect. The Legislature has plenary powers to make law retrospectively, and to take away even vested rights, provided the language and intent employed/manifested are clear and admit no ambiguity. In the present case, there is no judgment of the High Court in favour of the petitioners. It may be pointed out that the Validation Ordinance has been enacted during the pendency of the present petition, which manifests the intention of the law‑maker to cure the defect, if any, in respect of levy and recovery made from the petitioners. The above manifest intention can not be ignored by this Court. Once the language of a provision of an enactment is clear, the Court cannot decline to enforce the same on any ground of equity or because of hardship etc.
24. A number of rulings were cited on the question of male fide. The above question has been recently dilated upon by the Honourable Supreme Court in the case of Fauji Foundation and another v. Shamim‑ur‑Rehman (P L D 1983 S C 457), in which, inter alia, it has been held that neither mala fide has any next with legislative power, nor there is any distinction between an Act and a legis lative measure promulgated by an individual in whom power is reposed.
In our view, the legislature is competent to enact any provision retros pectively event to undo the judgment of superior Courts, as has been held T by the Honourable Supreme Court in the above referred case of Commis sioner of Sales Tax (West), Karachi v. Messrs Kruddsons Limited. The question of mala fide does not arise.
25. We are, therefore, of the view that even if there was any defects in the levy or recovery of the Octroi from the petitioners by the respondents‑. No. 3, the same stood cured and regularized on account of subsection (3)I" of section 2 of the Validation Ordinance and, hence, the above petition has no merits and is dismissed as such with no order as to cost.
26. Before parting with the above discussion, we may observe than the petitioners have been making representations on the ground that 3 per cent ad valorem Octroi is excessive for the reason that Hub Town Committee which is adjacent to the respondent No. 3 is charging only 1 per cent ad valorem Octroi. The respondents may consider their above representations and may dispose of the same after taking into consideration all the relevant factors.
A. A. Petition dismissed.
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