P L D 1999 KARACHI 372


Per Sabihuddin Ahmed, J.(a) Constitution of Pakistan(1973), Article 128, 234, 2A, 24, 260.

The approval is, however, subject to the observance of all legal and codal formalities under Sindh Irrigation Act, 1879 and other rules and regulations etc. further subject to the condition that the expenditure involved in implementing the proposal will be borne by the applicants.

You are requested to take necessary action and inform all concerned accordingly, under intimation to this Department.

As is evident from the above, the sanction was subject to fulfillment of all legal and codal formalities under the Sindh Irrigation Act and the condition that legal and codat formalities under the Sindh Irrigation Act and the condition to the petitioner all such legal requirements were met.

As to the question of competence of the Governor to promulgate the impugned Ordinance, Mr. Jhamat Jethanand, learned counsel for the petitioner in C.P No. 159 of 1999 and most of the order petitions, argued that the power available to the Governor was in the nature of an extraordinary power available to the executive to legislate in an emergency situation, exercisable under Article 128(1) of the Constitution only when the Assembly was not in session and the Governor was satisfied that there was need to take immediate action. On the factual side learned counsel pointed out that the approvals sought to be annulled by the impugned Ordinance had been accorded between 23-4-1997 and 30-10-1998 (on 22-5-1998 in C.P. No. 159 of 1999) and the Provincial Assembly had already been summoned to meet on 31-3-1999 when the Ordinance was promulgated, three days thereafter were closed holidays. As such though technicallym, the Assembly was not in session, there could be no conceivable basis for the Governor to satisfy himself that immediate action was necessary and no such basis has been disclosed. To be fair to the learned counsel, it may be acknowledge that the argument does possess the merit of logical consistency though he was unable to substantiate it by any precedents.[p. 379, 380]A

The learned Advocate-General, in reply, did not dispute that the Provincial Assembly had already been summoned to meet before the impugned Ordinance was promulgated and three days thereafter were closed holidays on account of Sunday and Eid-ul-Azha. He, nevertheless, argued that the consistent view of Courts in Pakistan has been that satisfaction as to the insistence for immediate legislation on the part of the President or Governor was only subjective and not justiciable. He relied upon a Full Bench judgment of the earswhile West Pakistan High Court, in the matter of In re: Syed Akhlaq Hussain, Advocate PLD 1965 Lahore 147 and Division Bench Judgment of this Court in Kazi Adbul Majeed v. Government of Sindh PLD 1976 Karachi 600, which indeed support his contention. Moreover, he argued that even if it be assumed otherwise, once the condition of the Assembly not being in session was satisfied, one of the important consideration for the Governor’s satisfaction was whether the object could be achieved through legislation according to the ordinary process. On our request, learned Advocate-General placed before us the Rules of Provincial Assembly which show that private members bill are only required to be taken up for consideration on the day fixed for discussion on such bills and have to be taken up in the order in which they were tabled. While we are doubtful if earlier judgments regarding non-justifiability of the Governor’s satisfaction continue to remain good law after recent pronouncement of Supreme Court in cases like Farooq Ahmed Khan Leghari v. Federation of Pakistan PLD 1999 SC 57, provisions relating to Government bills and private members bills being substantially different in the Rules, we find considerable force in the argument that the situation could not be appropriately dealt with through a private bill and must, therefor, repel Mr. Jethanand’s contentions on this aspect of the controversy.[p. 380]B,C.

We may observe that in case vested rights had matured in favour of the petitioners through fulfillment of all requirements of law and had the impugned action been taken in the exercise of executive power, wear would have had unhesitatingly declared the same to be unlawful. Nevertheless we pointed out to Mr. Jethanand that what was impugned before us was not an executive order but a legislative dispensation. It was well-settled that motives of the Legislature could not be gone into by Court, the Legislature had plenary power to distroy existing rights and was under no obligation to accord prior hearing to those likely to be affected adversely by a new law.
[p. 381]D,E.

Realising this difficulty Mr. Jethanand contended that though promulgated in the form of a legislative instrument the impugned Ordinance in substance was nothing but merely an executive fiat. Moreover, he argued that the fact that it had been brought into existence by the executive only without debate and discussion by the entire house and reflected the opinion of one individual rather than collective deliberation of the representatives of the people could not be overlooked. As such the principle that Courts could not sit in judgment over legislative wisdom did not apply to such dispensation. It was amenable to judicial review as any other executive action. Learned counsel however, did not cite any case any case-law wherein the validity of legislation affected through an Ordinance has been examined from a different yardstick as compared to an Act of Legislature. Indeed we are aware that in Chaudhary Qasimuddin v. Province of West Pakistan PLD 1957 Lahore 76, Kaikaus, J. (as his Lordship then was) did take the view that the validity of an Ordinance could be questioned on the ground of mala fide as otherwise every mala fide act of the executive could be protected by promulgating it in the form of an Ordinance. This view however, was not shared by the other learned Member of the Bench, Yaqub Ali, J. and was eventually expressly overruled by the Hon’ble Supreme Court in Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457. Again in the more recent pronouncement of the Honourable Supreme Court in Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 where their Lardships found a conflict between certain provisions in Articles 203-C and 209 of the Constitution, they held that action ought to be taken under the latter provision which have been enacted through a consensus as compared to the former which was inserted through an amendment brought about by the Chief Martial Law Administrator. Nevertheless in all the opinions it was expressly clarified that the former provision was not being struck down or given a sub-Constitutional status. In view of the above we are of the above we are of the opinion that opinion that though it might be desirable, as far as possible to enact legislation through a bill presented before the Legislature, once the preconditions as to the fact of the Assembly not being in session and the satisfaction of the Governor that immediate action in necessary are met, an Ordinance must be given the same effect as an Act of the Assembly in terms of the mandate of Article 128(2) of the Constitution.
[P. 381, 382]F

Mr. Jethanand next argued that impugned section 5(1) of the Ordinance purporting to destroy the legal rights acquired by certain individuals named in the Schedule, were in the nature of “legislative judgment” and did not per se amount to legislation. Therefore, even if such provisions were enacted by the Provincial Assembly itself, they could not pass the test of constitutionality. Learned counsel contended that though the Legislature might have plenary power to destroy or impair existing rights, subject to limitations laid down by the Constitution, its powers were confined only to laying down general rules and providing a mechanism for their enforcement. Individual cases were to be dealt with by the executive or the judiciary, depending on the nature of the subject-matter. He illustrated this by stating that perhaps Legislature could have stipulated that the approvals accorded to a certain categories of land owners would stand cancelled upon happening of certain events or proof of certain facts. It could provide a mechanism for determining the persons who fell within such category or the facts necessary to entail annulment of rights. It could not, however, specify individuals whose rights were to be taken away in the legislative instrument itself. Through the case-law cited by learned counsel was not particularly helpful, the argument indeed appeared to enjoy the support of legal principle and, therefore, we decided to examine the same in some depth.

We are aware that similar arguments found favour with a Full Bench of the Lahore High Court in National Industrial Cooperative Credit Corporation v. Province of Punjab PLD 1992 Lahore 462. After the unearthing of large-scale financial scandals in cooperative societies Punjab and pursuant to a report of Commission of Inquiry constituted to look into the same, the Governor of Punjab promulgated and Ordinance known as Punjab Undesirable Cooperative Societies (Dissolution) ordinance, 1992 (Ordinance XX of 1992). The Ordinance inter alia stipulated that certain certain named cooperative societies enumerated in the Schedule thereto were to be treated as “Undesirable Cooperative Societies” and by virtue of section 12 they would cease to exist and their assets would stand vested in the Register, Cooperative Societies. The Constitutional validity of the aforesaid Ordinance was called in question and it was inter alia urged that declaration of specified societies as undesirable amounted to a bill of attainder, being one of pains and penalties as it amounted to pronouncement of “legislative judgment”. The arguments found favour with their Lordships and it was held that since the same attempted to make inroads into the power of the judiciary it was beyond the competence of Legislature.
[p. 382, 383]G.

The crux of the matter, however, is that the Supreme Court of the United States found it possible to apply the prohibition against bills of attainder to smaller penalties and deprivation of rights known as bills of pains and penalties and also to burdens of civil nature because the theory of separation of powers was viewed as a cornerstone of the Constitutional system. In this context an erudite and extremely illuminated discussion is available in the judgment of the Honorable Supreme Court in Fauji Foundation’s case paras. 167- 204) where it has been shown how the aforesaid doctrine of (separation of power) was acknowledge to be a kind of grund norm of the American Constitution and how the same is inapplicable in its pristine form to our Constitutional system. We respectfully follow the same and would humbly venture to add that even otherwise this theory propounded by Montesque, which at one time as considered to be a bulwark against despotic use of power, has been effectively eroded with the development of Constitutional law over the last two centuries wherein more practical and effective checks and balances have been evolved. The enormous amount of delegation of legislative power to the executive which is liberally upheld by Courts, the expansion of judicial review jurisdiction whereby Courts are empowered to examine the validity of administrative action, not merely to examine whether the administrative agency acted within its allotted jurisdiction but also on the principle whether public power was exercised rationally and fairly, the recognition of the power of Courts to issue directives of an executive or quasi-legislative nature in public interest litigation, the wide powers conferred upon administrative agencies or Tribunals to deal with the important rights of the people only lend support to the view taken by the Honourable Supreme Court.

Our Constitution does not contain any clear demarcation of functions entrusted to the executive, judiciary or legislature and being modelled on parliamentary system, with the Legislature controlling the executive, separation of powers in the sense envisaged in U.S.A. cannot be assumed. Though trichotomy of functions of the three arms of Government exists in a general sense, there is substantial overlapping within Constitution itself. In any event, in view of a binding precedent from the Hon’ble Supreme Court, we find ourselves unable to be persuaded to hold a legislative instrument ultra vires on the basis of a theory whose own efficacy is in considerable doubt. Accordingly, we are of the opinion the the provisions of the impugned Ordinance could only be struck down on the ground of being repugnant to a guaranteed fundamental right or any other provision of the Constitution.[p. 384]H.

We have noticed that in the National industrial Credit Corporation case PLD 1992 Lahore 463 their Lordships did observe that the ratio of the Supreme Court judgment in Fauji Foundation lost his significance upon incorporation of Article 2A of the Constitution and emphasised the stipulation in the Objectives Resolution to the effect that ‘where in independence of Judiciary of Judiciary shall be fully secured”. This, however, was done on the basic of concession accorded by the learned counsel for the respondents and apparently their Lordships did not have the benefit of hearing detailed arguments. While we fully endorse their Lordships’ view to the effect that independence of judiciary is one of the most sacred pillar upon which the edifice of our Constitutional and legal system is founded, with profound respects we find it if extremely difficult to persuade overselves to take the view that this concept had no existence till the incorporation of Article 2A i.e. when the Constitution was originally framed or the Fauji Foundation case was decided.[p. 385]I.

Learned counsel took us through various provisions of the Sindh Irrigation Act and demonstrated that sanctioned watercourses were personal properties of individual landowners, who were required to construct and maintain them from their own resources in terms of Chapter III of the Act, Learned Advocate General in reply conceded that in view of the provisions of the Act it could not be denied that watercourses through which irrigation water was supplied to the petitioners were their individual properties or shared with other co-owners. Nevertheless no individual could claim ownership to canal water who was transmitted through these watercourses. He pointed out that the impugned provisions did not purport to acquire the watercourses owned by the impugned provisions did not purport to acquire the watercourses owned by the petitioners, but only annulled the orders granting irrigation water through various canals.

We have considered the argument carefully and are of the opinion that the learned Advocate-General appears to be correct. Indeed section 16 of Sindh Irriation Act requires that any person with the permission of the duly empowered Canal Officer may constitute a watercourse on land after obtaining the consent of the holders of the land. Under section 17 land may even be acquired to enable a person for construction of a watercourse and it may also cause of be constructed by the Canal Officer, but all expenses have to be borne by the person applying for construction of watercourse, to irrigate his land. Any person desirous of obtaining the benefit of such watercourse may also apply for a joint ownership thereof and upon paying his share in construction may be treated as such. Section 21 of the Act, however, deals with rights and obligations of owners of watercourses and part from requiring them to maintain them, confers upon such owners right to have supply of water on such terms (as to rates etc.) as prescribed by the Rules. A reading of the above provisions, therefore, shows that though the right to receive water supply to the petitioners in terms of section 21 appears to have been taken away the watercourses continue to remain their individual properties.[p. 386]J.

Mr. Jethanand, however, contended that the right to receive water supply to every owner of a sanctioned watercourse would be meaningless. As such same could not be taken away without compensation. There appears to be some substance in the first contention inasmuch as the definition of “property” in Article 260 of the Constitution includes any right or interest in movable or immovable property. Neverthless, assuming that annulment of the right available to the petitioner under section 21 of the Sindh Irrigation Act amounted to deprivation of property it still remains to be considered whether the prohibition contained in Article 24(2) would be applicable and the petitioners would be entitled to receive compensation. In this context the distinction between sub-Articles (1) and (2) of Article 24, reproduced in para. 17 above, needs to be appreciated. Sub-Article (1) stipulates in general term, that no person would be deprived of property except in accordance with law, sub Article (2), however, stipulates that no property shall be compulsorily acquired or taken possession of without compensation. Indeed acquisition of property is only one form of deprivation and the Constitution does not say that compensation is required to be paid in case of every deprivation of property is only one form of deprivation and the Constitution does not say that compensation is required to be claim compensation would only arise when the deprivation takes the form of acquisition or possession.[p. 386, 387]K.

We are, therefore, humbly inclined to take the view, with profound deference to their Lordships of the Supreme Court of India, that for the purpose of deprivation of any interest in property only the existence of a law is required in terms of Article 25(1) and the right to compensation arises only when the property is acquired or taken over. Our conclusion is premised upon the principle that the Constitution is required to be read as an organic whole and no provision can be treated as surpluses.
[p. 387, 388]L.

Finally Mr.Jehtanand argued that the impugned section 5 was unconstitutional as being repugnant to Article 25 of the Constitution which guarantees that all citizens are equal under the law and are entitled to equal protection of the laws. He contended that about 4000 outlets i.e. sanctions/approvals to supply water through water courses had been granted in the Province and 145 such approvals had been granted during the tenure of the last coalition Government. The maker of the Ordinance, however, in his wisdom and for reasons known to him only chose 107 such persons, including the petitioners for the purpose of discriminatory action by requiring that only 107 specified approvals stood annulled and abrogated. He conceded that the legislature could indeed choose different people for different treatment under the law, but according to well-settled principles such classification must be reasonable, intelligible and have a rational nexus with the object of legislation. Indeed the proposition is so well-settled through several judgment of our Supreme Court that there is hardly any need for further discussion. Applying the same to the facts of present case it may be noticed that the legislation in question does not disclose any policy or principle upon which the 107 affected persons are treated as a separate class but merely purports to annul the rights conferred upon them earlier. I may be observed that though normally burdent to prove invalidity of the classfication is on the person who challenged it, when the legislation discloses no intelligible basis, such burden shifts upon the respondent as held, inter alia, in Inamur Rehman v. Federation of Pakistan 1992 SCMR 563. [p. 388]M.

The crux of the matters appears to be that as a result of the findings of a committee of experts, some parties were treated different as compared to others similarly situated because the experts did not consider their case to be at the same level as those of others. No doubt the Legislature can always required scrutiny of cases approvals through a body of experts but such scrutiny can only be undertaken upon compliance with the essential principles of natural justice. While there is nothing on record to indicate that any mala fide in the process of scrutiny was involved one of the cardinal principles entrenched in our jurisprudence is that no person should be condemned unheard. In the instant case it is an admitted position that the scrutiny was conducted behind the back of the petitioners who could have legitimately, through experts evidence or otherwise, been able to persuade the Scrutiny Committee to take a different view from the one on the basis whereof the impugned legislation was effected.

Indeed we are conscious of the principle that unlike the executive the Legislature is not under obligation on afford hearing to those who arelikely to be affected by the law intended to be made. Nevertheless, when the law is question as being discriminatory and the only basis for classification is an enqiry conducted at the lee of the executive the enquiry must, at least,
subscribe to the basic standards of fariness. In the instant case the scrutiny itself did not conform to essential requirement of the principles of natural justice. We are, therefore, of the humble view that it cannot be treated as a respect we are entirely in agreement with the observations of their Lordships of the Lahore High Court in NICC case PLD 1992 Lahore 463. As such section 5 of the impugned Ordinance is liable to be declared violative of Article 25 of the Constitution.[p.389, 390]O.

Even if rights had accured, the statute could have provided for scrutiny of cases and subsequent cancellation of approvals, but such scrutiny could only undertaken after giving the affected persons a right to be heard. The circular dated 13-4-1999 itself conveys this impression but it appears that the relevant authorities are somewhat confused in this respect. A provision for cancellation of approval after hearing the affected parties could always be enacted. However, when the rights arising form approvals already stand abrogated the question of giving notice to Khatedars becomes futile.[p. 390]P.

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