1999 SCMR 1477

Per Ch. Muhammad Arif, J.(a) Constitution of Pakistan (1973), Article 185

–S. 8—Provincial Employees’ Social Ordinance (X of 1965), Preamble– Constitution of Pakistan (1973), Art. 185(3)—Leave to appeal was granted by Supreme Court to consider as to whether Special Allowance being paid to a workman in pursuance of the Punjab Employees’ Special Allowances (Payment) Act, 1989 was to be treated as part of his wage for the purpose of computing the contribution which his employer was liable to make under the Provincial Employees’ Social Security Ordinance, 1965 despite the specific exemption granted by S.8, Punjab Employees’ Special Allowance (Payment) Act, 1989. [p. 1483] A

(b) Constitution of Pakistan (1973), Articles 141, 142 & 143

—Distribution of legislative powers—Conflict between the Federal Legislature and Provincial Legislature—Resolution by judiciary—In the event of any inconsistency between the Federal Law and Provincial Law, the mandate of the Constitution, as contained in Art. 143 is to prevail— Principles—Doctrine of occupied field—Applicability.

In a unitary form of Government, all the legislative powers, of necessity, vest in the Legislature of the given country. In the Federal form of Government, however, the Legislative powers vest in the respective Legislatures in line with the dispensation under the Constitutional-document /s concerned. [p. 1484] B

It is in the sphere of distribution of legislative powers in a federal set-up that a conflict between the legislation by the Federal/Central Legislature and Provincial/State Legislature can arise for resolution by the Judiciary. [p. 1485] C

Articles 141, 142 & 143 of 1973 Constitution respectively deal with (1) extent of Federal and Provincial Laws; (2) subject-matter of Federal and Provincial Laws, and (3) inconsistency between Federal and Provincial Laws. [p. 1485] D

Under Article 141 [(Majlis-e-Shoora) (Parliament)] may make laws for the whole or any part of Pakistan and a Provincial Assembly may made law for the Province or any part thereof. Under Article 141 [Majlis-e-Shoora (Parliament)] had exclusive powers to make laws with respect to any matter in the Federal Legislative List and [Majlis-e-Shoora (Parliament) and a Provincial Assembly also have powers to make laws with respect to any matter in the Concurrent List. Under clause (c) of Article 142 a Provincial Assembly shall and [Majlis-e-Shoora (Parliament)] shall not, have power to make laws with respect of any matter not enumerated in either the Federal Legislative List or the Concurrent Legislative List. Further, in the event of any inconsistency between the Federal law and the Provincial law, the mandate of the Constitution, as contained in Article 143 is that then the Act of [Majlis-e-Shoora (Parliament)] whether passed before or after the Act of the Provincial Assembly, or, as the case may be, the existing law, shall prevail and the Act of the Provincial Assembly shall, to the extent of the repugnancy be void. [p. 1486] E

The doctrine of occupied field is a concomitant of the larger doctrine of pith and substance incidental encroachment under the doctrine of pith and substance with all its concomitants, postulates for its applicability on a competition between Federal legislation and Provincial legislation and it would be erroneous to invoke the doctrine where there is no such competition, merely because a Provincial law conflicts with another law which has not been passed by the Federal Legislature but deals with a matter in the Federal List. Similar is the case where a Federal Statute provides that the provincial Government may extend the operation of a law to any part of the Province and the legislation is brought into operation by the Provincial Government, the law does not lose its Federal Character and does not become invalid when it comes into conflict with another Federal law. [p. 1495] G

Article 143 does not apply to the resolution of inconsistency between two “existing laws” in that it applies only when there is a conflict between a Federal law passed under the Constitution and an existing law, whether Provincial or Federal. In such a case, if the Federal law is passed with respect to a matter in the Federal List or Concurrent List, it would be intra vires the Federal Legislature and as regards the question of its repugnancy to an “existing law”, the Federal law would prevail on the principle of repeal by implication which rests on the principle that if the subject-matter of the latter legislation is identical with that of the earlier one, then, the earlier law stands repealed by the latter enactment. [p. 1495] H

(c) Constitution of Pakistan (1973), Article 268

–Adaptation of laws—Principle–Constitution mandate for “adaptation” has to remain within the four corners of “adaptation” which is necessary to bring the enactment in line with the changed Constitutional position rather than take into consideration the political or economic situation, existing at any particular time. [p. 1492] F

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