Law: Cantonments Act, 1924

Section: 60,80,106,200

Law: Constitution of Pakistan, 1973

Section: Section:-Fourth Sched., Part I, Entry No. 50, 70(6), 270A

Law: Income Tax Ordinance, 2001

Section: 15A

CANTONMENT ACT, 1924---Sections: 60, 80, 106 & 200 - Cantonment (Urban Immovable Property Tax and Entertainment Duty) Order, 1979, Section: 3 - Govt. of India Act, 1955 - West Pakistan Urban Immovable Property Act, 1958 - Constitution of Pakistan, 1973, Articles 7, 140A, 142 & 270A - Presidential Order 13 of 1979 - Tax demand on annual rental value of property - Tax on immovable property - Tax on capital value of assets - Levy and collection of tax - Competency of Cantonment Boards - Constitutional Petitions - The Petitioner�s assertion is that it is a kind of tax & levy that remains with the province only, whereas the Federal Government and the Cantonment Board claim such levy to be their competence - Validity -

FACTS
The subject matter of these petitions is demand from the petitioners of tax based on annual rental value of property by different Cantonment Boards. The petitioners� assertion is that it is a kind of tax that remains with the provinces only whereas the federal government and the cantonment boards claim such levy to be in their competence.

ARGUMENTS
Mr. Ayan Mustafa Memon, learned counsel for petitioner contended that after omission of the Seventh Schedule of the Constitution, which was protected for a period by the Presidential Order of 1979, levying of all property tax now rests with the Provincial Government. Contended that Entry 2 of the Fourth Schedule relied upon by the petitioners was not a tax entry.

Further contended that as per the Benazir Bhutto case, the referred principles had been further expanded. Mr. Khawaja Shamsul Islam was asked to address only those points which are not covered by other counsel to save time. He then took us to the history of cantonment and their formation. It is claimed that these cantonment boards are essentially civil/housing societies and cannot be identified as cantonments.

He claimed that under the garb of Cantonment board, the authority under the act are trespassing provincial land and federal land abutting seashore and the geographical extension is not permissible in such way.

Mr. Zeeshan Adil, learned advocate general Sindh argued that property tax had always been a provincial subject. To illustrate this he took us through several laws, starting from the Government Act of India of 1935, 1956 Constitution, the Constitution of 1962 and the Constitution of 1973.

Mr. Abdullah Munshi, learned counsel for Respondent/Clifton Cantonment Board commenced submissions with the history of cantonments in the Indian Subcontinent - pre-partition till present. Provided a backdrop of how the Cantonments came about in the Indian Subcontinent, starting from the Cantonment Act of 1864, Cantonment Codes of 1899, 1912 and finally, the Cantonments Act of 1924, which regulated the municipal functions of the Cantonment Boards.

Mr. Farooq Naek contended that the entry mentioned in Fourth Schedule did not expressly refer to annual rental value and that all entries were silent with regard to annual rental value. In the circumstances, he argued that Entry No.2 was relevant to the case at hand. He argued that Entry 2 has empowered the Cantonment/federal government to impose tax.

Barrister Farogh Naseem argued that the tax being collected by Cantonments was, although being referred to as a tax, it was, in fact, not a tax. Therefore, argued that because it is not a tax, it does not fall squarely within the tax entries in the Fourth Schedule of the Constitution relating to tax i.e, 43 to 53.

Further submitted that the amount collected is used as an expenditure, and on this count too it is not a tax regardless of whatever name is used to describe it.

DECISION
(a) Cantonment cannot levy, impose, charge or recover such taxes on immovable property after the date of restoration of Constitution - Thus, as could be seen for the purposes of this subject i.e. taxes on immovable properties, that it has been excluded from the domain of the federation, the Federal Legislature, and consequently, the Cantonments cannot levy, impose, charge and/or recover such taxes as levied by it, on immovable property, from the date of restoration of Constitution and more particularly after 18th Amendment, either under Cantonment Act, 1924 or under Cantonments Urban Immovable Property Tax and Entertainment Duty Order, 1979. Such levy (levies) by the Cantonment Board(s) seem to have been initiated in terms of the Cantonment Act, 1924.

(b) On the touchstone of constitutional frame, the law on the basis of which Cantonment Boards were recovering taxes could only be termed ultra vires - On the touchstone of the Constitutional frame, the law on the basis of which the Cantonment Boards were recovering subject taxes is thus seen to have opposed the constitutional/legislative competence and beyond their legal powers and capacity, which could only be termed ultra vires under the present frame of the Constitution and we hold it accordingly, on legislative competence alone.

(c) Notwithstanding the area itself is classified as a category, but within that category there should be one regulator to deal their evaluation -

However, one should understand that different properties in an area/common area may have different values notwithstanding the area itself is classified as a category but within that category the value of the property/building may vary, depending upon its characteristics to evaluate and measure and rental value it may fetch, hence the fact that property situated in a particular local body/municipality, itself, should not form the basis of classification. Hence it is all the more necessary that there should be one regulator to deal with their evaluation with common tools of evaluations.

(d) Tax is imposed on immovable property and it runs on the property itself and not on the owner or occupier - The argument of the learned Counsels that it is not a tax on property but on annual rental value and therefore be deemed to be a tax on income from property, appears weak because this would violate their own submission as Section 80 of the Cantonment Act, 1924 suggests that non-payment of tax on annual rental value of immovable property is a charge created on the property itself. It is therefore clear that as per section 80 tax is imposed on immovable property and it runs on the property itself and not on the owner or occupier. Thus, it is a tax on the immovable property and not a tax on a person�s income. Reliance is placed on the case of Nirmaljit Singh Hoon and Jalkal.

(e) Before amendment of section 60 and insertion of the word �fee� the Cantonment Board could have imposed only taxes u/s 60 and not any other levy - Section 60 of the Cantonment Act 1924, was amended, and the Cantonment Boards have been purportedly empowered to impose any or all taxes, fee, tolls or charges specified in Schedule 7.

(f) The Cantonment Boards have no power to levy tax on immovable property including tax on annual rental value of immovable property -

Thus as far as the power to levy, charge, impose and recover any or all tax(es) separately on immovable property is concerned it is an alien object under cantonment laws in the present frame of the Constitution. The tax on the annual rental value of immovable property is a tax and not a fee or any other genre of levy. The Cantonment Boards have no power to levy tax on immovable property including tax on annual rental value of immovable property. The Presidential Order 13 of 1979 has no effect on the subject after the revival of the Constitution and the 18th Amendment, and the subject law to the extent of provision of section 3 as applied, is no longer protected.

(g) As a consequence of 18th amendment in the Constitution, Federation and all Cantonment Boards lack competency and power to levy, charge, impose and recover any tax.

[Case-law referred.]

JUDGMENT:
MUHAMMAD SHAFI SIDDIQUI, JUSTICE:---.---

The subject matter of these petitions is Tax demand based on annual rental value of property by different Cantonment Boards from the petitioners. The petitioners� assertion is that it is a kind of tax and levy that taxes remain with the provinces only whereas the federal government and the cantonment boards claim such levy to be in their competence. In support of such questions raised, both sides counsel have assisted us and summarized their structural points as under:-

COUNSELS� BULLET POINT SUBMISSIONS MR. AYAN MUSTAFA MEMON

Mr. Ayan Mustafa Memon, learned counsel for petitioner in C.P. No. D- 2603/2023) has made the following submissions:

� Post-18th Amendment, the subject of levying property tax rests with the Provinces. Placed reliance on Entry No.50 of the Fourth Schedule of the Constitution of Pakistan, 1973.

� Contended that after omission of the Seventh Schedule of the Constitution, which was protected for a period by the Presidential Order of 1979, levying of all property tax now rested with the Provincial Government.

� Argued that property tax had always been a provincial subject.

� Contended that Entry 2 of the Fourth Schedule relied upon by the petitioners was not a tax entry.

� Argued that after the 18th Amendment, with regard to tax entries, there was no provision for concurrent taxation. Placed reliance on PLD 1975 SC 37, PLD 1978 Karachi 500 and PLD 2022 Peshawar 46.

� Submitted that omission of 79 Order via P.O would not create any vacuum on account of the Sindh Urban Immovable Property Tax Act, 1958 via 18th Amendment to Constitution.

� Additionally, argued that any statute not in consonance with the Constitution of Pakistan is invalid and be held accordingly. Pleaded that Respondents� reliance on the Cantonment Act, 1924 was misconceived. Relied on PLD 1989 SC 416.

� Contended that the above case law had been followed and approved, cited by the Supreme Court in 1993 SCMR 1523.

� Further contended that as per the Benazir Bhutto case, the referred principles had been further expanded. Relied on pages 1528 page 1530 of the Benazir Bhutto case.

� Concluded that the Provinces had domain over property tax, and not the federal government, and relied on Freight Forwarder�s case (2017 PTD 1).

� Relied heavily on the interpretation of Article 270A of Constitution of Islamic Republic of Pakistan in terms of Benazir�s case.

MR. KHAWAJA SHAMSUL ISLAM, Learned Counsel For Petitioner in C.P. NO. D- 2603/2023).

� Mr. Khawaja Shamsul Islam was asked to address only those points which are not covered by other counsel to save the time. He then took us to the history of cantonment and their formation. It is claimed that these cantonment boards are essentially civil/housing societies and cannot be identified as cantonments.

� He claimed that under the garb of Cantonment board, the authority under the act are trespassing provincial land and federal land abutting seashore and the geographical extension is not permissible in such way.

� Additionally he took us to the impugned notification in his petition which unilaterally enhanced the assessment to many folds thus rendering the mechanism of Section-60 to 64 of Cantonment Act as redundant.

� It is claimed that person issuing the said notification is not identified by Cantonment Act, 1924. He objected to the creation of new cantonment after urbanization and notification in this regard by Federal Government.

MR. ZEESHAN ADHI, LEARNED ADDITIONAL ADVOCATE GENERAL, SINDH

� Argued that property tax had always been a provincial subject. To illustrate this he took us through the several laws, starting from the Government Act of India of 1935, 1956 Constitution, the Constitution of 1962 and the Constitution of 1973.

� He argued that any statute not in consonance with the Constitution of Pakistan is invalid. Pleaded that Respondents� reliance on the Cantonment Act, 1924 was misconceived and also relied upon PLD 1989 SC 416 (relevant page 509 placitum AA, page 511, both paragraphs and 512 second paragraph).

� Contended that the above case law had been approved by the Supreme Court in 1993 SCMR 1523.

� Concluded that the Provinces had domain over property tax, and not the federal government.

� Also relied upon Benazir�s case as far as application of Article 270A is concerned.

MR. ABDULLAH MUNSHI, learned counsel for Respondent/Clifton Cantonment Board (CP No.D-4985/2018. CP No.D-5166/2018. C.P No.D-5167/2018).

� Commenced submissions with the history of the cantonments in the Indian Subcontinent - pre-partition till present. Provided a backdrop of how the Cantonments came about in the Indian Subcontinent, starting from the Cantonment Act of 1864, Cantonment Codes of 1899, 1912 and finally, the Cantonments Act of 1924, which regulated the municipal functions of the Cantonment Boards.

� Argued that there was nothing in the Cantonments Act, 1924, which violated Articles 8 and 25 of the Constitution of Pakistan. Relied on I.A. Sharwani and Others v, Government of Pakistan through Secretary, Finance Division, Islamabad and Others, 1991 SCMR 1041 and Lucky Cement Ltd. v. Khyber Pakhtunkhwa through Secretary Local Government and Rural Development, Peshawar, 2022 SCMR 1994.

� Further, argued that if there was/is a difference of opinion with regard to the powers under Cantonments Act, 1924, between the Federal Government and the Provincial Governments, Article 184 of the Constitution of Pakistan should intervened. The private petitioners challenging the constitutionality of the federal government�s powers under Article 199 of the Constitution of Pakistan were/are acting contrary to Article 184.

� Contended that in case of an action initiated by any of the Provincial Governments without adopting the procedure highlighted under the Articles of the Constitution of Pakistan, such matter is to be agitated before the Supreme Court of Pakistan only and not the High Courts. He relied on Haider Mukhtar and Others v. Government of Punjab and Others, PLD 2014 Lahore 214, and Khalid Mahmood and Others v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and 74 Others, PLD 2003 Lahore 629.

� As a corollary argued that the Petitions filed before us are malafide and he relied on The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan, Rawalpindi v. Saeed Ahmad Khan and Others, PLD 1974 SC 152.

� Further contended that under Article 270-A of the Constitution of Pakistan, the laws promulgated under the Seventh Schedule (Article 270-A (6)) were saved. The Seventy Schedule included the Cantonments (Urban Immovables Property and Entertainment Duty) Order 1979, which would remain in place. Contended that after Article 270-A, when the Eighth Amendment ratified the said provision, the Presidential Order, which included Cantonment�s power to tax, was protected and could not be assailed until and unless the Parliament enacted fresh legislation on the same subject.

� Additionally, argued that none of the Petitioners had challenged the validity of the Presidential Orders which continued to remain in place. He relied on the Federation of Pakistan and Another v. Ghulam Mustafa Khar, PLD 1989 SC 26, Mehmood Khan Achakzai and Others, v. Federation of Pakistan and Others, PLD 1997 SC 426, and Sargodha Textile Mills v. Federation of Pakistan through Secretary Ministry of Defence, Rawalpindi and 3 Others, PLD 2004 SC 743.

� Further submitted that section 14 of the Sindh Local Government Act, 2013, specifically excluded �Cantonments� and tax on annual rental value was also excluded under Schedule �V� of the said Act.

� Submitted that the Cantonments had the power to charge property tax and placed reliance on Pakistan v. Province of Punjab and Others, PLD 1975 SC 37, PLD 2022 Peshawar 46.

� Further submitted that for all practical purposes, the Government of Sindh has conceded that they will not administer the collection of tax on cantonment lands. To this end, he argued that in fact, by applying �de facto� doctrine, Cantonment had the powers to levy and collect tax impugned in the Petitions.

� Argued that the Cantonments were local municipal governments and Entry 2 of the Fourth Schedule to the Constitution of Pakistan would become redundant if the power to tax is taken away. Cantonment would be unable to render services.

� Lastly argued that if the Court concludes that there is no competency for Cantonments to levy tax, then equally, there is no legislation on the part of province to impose such tax. The Cantonments Act, 1924, has not been repealed after the 18th Amendment, and Cantonments being a strategic area require preservation, which can only be achieved by way of tax.

MR. FAROOQ HAMID NAEK

Mr. Farooq Naek, who was engaged subsequently, while cases were being heard, appeared for Faisal Cantonment Board. and argued in line with Mr. Munshi�s arguments and raised the following additional grounds:

� At the outset, Mr. Naek contended that Entry No.50 of the Fourth Schedule specifically referred to �taxes on immovable property� and no other genre of tax involved i.e tax on rented value of immovable property.

� Argued that taxes on immovable property were/are of four kinds classified as:

a) Capital value tax on assets;
b) Capital gain tax on property;
c) Income tax on property; and
d) Annual rental value.

� With regard to (a) Capital Value Tax on Assets, Mr. Naek referred to Section 4 of the Sindh Finance Act, 2010. He claimed that the capital value tax was payable by the owners of the property whereas capital gain is payable on sale of property. Next, he took the Court to Section 15 of Income Tax Ordinance, 2001 and contended that income tax from property income, triggered under Income Tax Ordinance, 2001 does not deal with value of property and it is in relation to rent received hence it was a tax on rent being collected on the rental income only and precisely includes the tax on annual rental value also.

� Contended that all these three categories of tax were not covered by Entry No.50 of the Fourth Schedule of the Constitution of Pakistan.

� Contended that the entry mentioned in Fourth Schedule did not expressly refer to annual rental value and that all entries were silent with regard to annual rental value.

� In the circumstances, he argued that Entry No.2 was relevant to the case at hand. He argued that Entry 2 has empowered the Cantonment/federal government to impose tax.

� He also argued the applicability of Article 7 to be read with entry 54 and Article 2 of Constitution of Islamic Republic of Pakistan.

BARRISTER DR. FAROGH NASEEM for Cantonment Board.

� Barrister Farogh Naseem argued that the tax being collected by Cantonments was, although being referred to as a tax, it was, in fact, not a tax. Therefore, argued that because it is not a tax, it does not fall squarely within the tax entries in the Fourth Schedule of the Constitution relating to tax i.e, 43 to 53.

� Argued that the tax imposed by Cantonments was �something else� but not a tax. He relied upon the Workers Welfare Fund and GIDC cases to support his contention. The crux of his argument was that the �revenue� collected by the cantonment is for cantonment fund for a purpose and its place either in consolidated fund of Federation or province is not going to alter the status of revenue collected as �sums� for cantonment fund and not being tax.

� Argued that whatever was/is being collected goes to the Cantonment fund under section 106 for its application under section 109.

� He argued that if the collection by Cantonment was not a tax, then it was covered by entry 54 as a �Fee�. Thus, if it is, then Entries 54 and 2 would regulate the recovery of cantonment tax, which was/is a tax by name only. He argued that the taxing power is given under the Fourth Schedule between Entry 43 to 53 and that the collection by the Cantonments is not in the nature of a tax but closer to a fee in terms of its utility and application.

� Further submitted that the amount collected is used as an expenditure, and on this count too it is not a tax regardless of whatever name is used to describe it.

� Article 142 and Article 7 of the Constitution disclosed separate entities and Article 142 cannot be read in isolation.

� Seventh Schedule may not be available but the listed laws are still in force. Any item in Seventy Schedule is subject to amendment by simple majority.

� Article 279 - the laws listed in Seventh Schedule have not been replaced by appropriate legislation.

� Cantonment Boards are transprovincial - hence federal subject.

ATTORNEY-GENERAL/DEPUTY ATTORNEY GENERAL QAZI ABDUL HAMEED SIDDIQUI

Notices under Section 27A CPC were served and DAG addressed the Court.

� Adopted arguments of Dr. Farogh Naseem.

� Argue that Provincial Government is �sleeping on its right.�

� In CP D-2149, page 27, Government of Sindh has stated that they wish to claim tax on annual rental value but if this is so, then the Provincial Government must proceed to the Supreme Court.

2. Heard counsels and perused record.

3. For the sake of brevity, in response to some common arguments, the cumulative and required reasons are provided, whereas individual points raised have been responded to separately in the later part of judgment.

4. The primary object of concern in understanding the subject, i.e. tax on immovable property, is the legislative competence as restored by the restoration of the constitution via 14th Presidential Order 1985, followed by the 18th Amendment to the Constitution of the Islamic Republic of Pakistan, 1973. In order to understand its effect with clarity, a brief history of such legislative competence on the subject is needed.

5. Tax on immovable property has always been a provincial subject. If we trace history since 1935, i.e. from the date of promulgation of the Government of India Act, 1935 passed by the British Parliament, which received royal assent in August 1935, we understand that the subject always remained part of the provincial pool.

6. A comparative table of taxes on land and buildings is given below:-

7. Last horizontal column provides only the Federal Legislative List (FLL) whereas the Concurrent Legislative List (CLL) omitted and the subject was not available in the FLL, whereas second last horizontal column shows both FLL and CLL but the subject is not available.

9. The constitutional history of the later subject, i.e. �taxes on the capital value of assets,� shows that this subject always remained within the domain of the Federal Legislature, as against taxes on the immovable property.

10. After examining the above history, it becomes clear that the subjects of �taxes on land and buildings� and �taxes on the capital value of the assets� are separate subjects/entries; the prior one primarily belongs to the provincial legislature, and the later subject belongs to the federal legislature, historically.

11. As of now, after the 18th Amendment, the Federal Legislature is not constitutionally empowered to levy, impose, charge and/or recover (directly or indirectly) any tax on immovable property, including a tax on the annual rental value of immovable property within a province, under a law legislated by Federation.

12. For a brief period, the subject identified above, i.e. tax on the immovable property, came into the basket of the federation during the Marshal Law period, and a brief history is required to understand such �reroute� of the legislature.

13. In 1958 (per constitution 1956), the provincial government enacted the law called West Pakistan Urban Immovable Property Tax Act, 1958, and the subject tax on land and buildings continued to vest in the province since the promulgation of the India Act, 1935.

14. This core issue of charge, levy and recovery of such taxes, identified above, came for consideration before Courts earlier when the cantonments intervened and consequently the issue decided by the Supreme Court of Pakistan in the case of Pakistan through Ministry of Defence v. Province of Punjab[1]. The Supreme Court clarified that since the cantonment areas are located within the respective provinces, they were/are, therefore, part of the provinces and do not constitute a federal territory. The Supreme Court summed up that tax on immovable properties is a subject to be dealt with by the provincial statute of 1958 in cantonment areas in consonance with the 1956 constitution.

15. This judgment was then followed particularly in the case of Gulzar Cinema[2].

16. The two judgments provide that imposition of tax, i.e. levy of property tax by the provincial government in areas lying within the limits of the cantonment board, is valid.

17. Now comes the period when martial law was imposed in Pakistan and Chief Martial Law Administrator acting as President of Pakistan, finding it as an alternate way, promulgated the �Cantonments (Urban Immovable Property Tax and Entertainment Duty) Order, 1979� commonly called Presidential Order 13 of 1979. This is based on 5 sections only, and purposely, by virtue of section 3, the effects of the Act of 1958 ibid ceased on properties within the cantonment areas, and the said order of 1979 was then applied to such properties.

18. Mr. Munshi emphasised that notwithstanding the 18th Amendment and revival of the constitution in 1985, the subject law of 1979 is in line with the Cantonment Act, 1924 read with Presidential Order 13 of 1979 and that cantonments are competent to levy and collect such taxes as the scheme of such statutes are not overshadowed either by restoration of constitution or assumption of a constitutional frame after 18th Amendment.

19. Per section 3 of the Presidential Order No.13 of 1979 the operation of The Urban Immovable Property Tax Act, 1958 was ceased to be given effect in the cantonment areas available in the provinces, apparently, to circumvent the two judgments of Supreme Court of 1975 and 1978, referred above; it was legislated that the cantonments could impose taxes to be assessed on the annual rental value of the building and lands as per provisions of Cantonment Act, 1924. The Said Order of 1979 was then given effect for a brief period as identified in the 8th Amendment to the Constitution of 1973 when it was introduced. The Presidential Order No.13 of 1979, amongst other Orders, laws etc. were given protection (for a specified period), in terms of amendment in the Constitution, which is being identified as Article 270A and the 7th Schedule to the Constitution of Islamic Republic of Pakistan, 1973 where the Cantonments (Urban Immovable Property Tax and Entertainment Duty) Order, 1979 was placed and protected which then lost its effectiveness after the revival of constitution and 18th Amendment to the Constitution.

20. A reading of Article 270A as a whole provides that the protection was given to two types of laws: (a) those which were mentioned by reference to their date of promulgation in Article 270A and (b) those which were specifically mentioned in 7th Schedule. This particular Order, which now seems to be overlapping and transgressing the constitutional mandate and provincial law of 1958 after the restoration of the constitution and enactment of 18th Amendment, is mentioned in the 7th Schedule, now omitted.

21. Sub-clause 1 of Act 270A clarified the period of effectiveness of the law made available between July 1977 to 30th December 1985, i.e. when Article 270A was introduced in the constitution. Sub-clause 2 of Article 270A saved all actions orders, proceedings by any authority/any person �again clarifying� between July, 1977 to the date of Article 270(A). Sub-clause 3 emphasised that such Orders, Ordinances, Regulations, Martial Law Orders, Enactments, Notifications and Rules etc, which were in force immediately before the date of Article 270A shall continue until repealed, amended or altered by the competent authority, whereas sub-clause 6 requires clause 1 amendment by the appropriate legislature.

22. Article 270A of the Constitution of the Islamic Republic of Pakistan, 1973 and its effect came for consideration and interpretation before the Supreme Court in the case of Benazir Bhutto[3]. Although the subject matter in the said judgment of the Supreme Court is to the extent of certain amendments which were made through Presidential Orders to the Political Parties Act in the year 1978-1979, during the period of Martial Law governing the country, however, the subject amendments were challenged (as are in this case in one of the petitions as far as 1979�s Order is concerned) as it claimed to have been protected by Article 270A (as cantonments claimed now for 1979 Order), which amendments (under the Political Parties Act) deprived the citizens of one of their fundamental rights. The judgment distinguished the effect of the law promulgated during the period in two categories, i.e. (i) those laws that are protected by Article 270A as they fell within the time zone specifically mentioned therein and (ii) those laws that were specifically protected under the 7th Schedule. The said amendments in the Political Parties Act fell within the first category, referred above, and the Supreme Court held that future operation of all laws protected under Article 270A would be �subject to limitations contained in the Constitution� (emphasis applied), which include that not only can such laws be struck down for violation of fundamental rights, as enshrined in the Constitution, but also on the touchstone of constitutional competence i.e. no such laws could be deemed to have been valid, after the period, as identified, against constitutional mandate and frame, as it exist and existed on the day of restoration of Constitution and/or 18th Amendment, whatever the case may be.

23. The Hon�ble Mr. Justice Muhammad Haleem, Chief Justice of Pakistan (as he then was), extended the reasoning for the conclusion drawn by the Bench in the aforesaid Benazir case as under:-

The most important legal instrument which follows hereafter is the Revival of the Constitution of 1973 Order, 1985 (P.0.14 of 1985), which was promulgated on 2nd of March, 1985. Although this Order came into force at once but by Article 4, its revival was deferred to such dates on which the President was authorised, by notification, to revive its different provisions. Again by Article 5 of this Order, the President was authorised to make such provisions and pass such orders in case any difficulty arose in giving effect to any of the provisions of this Order. However, by Article 2 of this Order extensive amendments were made in the 1973 Constitution, including the insertion of Article 270-A. By notification issued under Article 4 of the Order on 10th of March, 1985, provisions other than Articles 6, 8 to 28, clauses (2) and 2(A) of Article 101, Articles 199, 213 to 216 and 270-A were revived. By Constitution (Second Amendment) Order, 1985 (P.0.20 of 1985), promulgated on 17-3-1985, amongst certain other amendments clause (6) of Article 270-A was substituted for the following: �(6) The President�s Orders referred to in clause (1) shall not be altered, repealed or amended without the previous sanction of the President.� The earlier text of this clause was: �Any of the President�s Orders referred to in clause (1) may be amended in the manner provided for amendment of the Constitution.� On the 19th of March, 1985, Constitution (Third Amendment) Order, 1985 (President�s Order 24 of 1985) was promulgated. Thereafter on 11th of November, 1985, Constitution (Eighth Amendment) Act, 1985, was promulgated which came into force at once except section 19 which was to take effect on the date on which the Proclamation of the fifth day of July, 1977, was revoked. This Article related to the substitution of Article 270-A of the Constitution as enacted by the Majlis-e-Shoora for that earlier inserted by the President in the Revival of the Constitution of 1973 Order, 1985 (President�s Order 14 of 1985) and a new Schedule called the Seventh Schedule was added by section 20 ���..

The constitutional validity given by Article 270-A(1) is retrospective as it achieves to give validity to laws enacted between a specified period. This validity is, therefore, of a pattern of a curative or validating statute and must be understood and be operative in that context. In Black�s Law Dictionary, Fifth Edn., p.1390, validating statute is stated to be: �A statute, purpose of which is to cure past errors and omissions and thus make valid what was invalid, but it grants no indulgence for the correction of future errors�.

In Pandit Ram Parkash v. Smt. Savitri Devi (A I R 1958 Punjab 87), it was held that curative and (Emphasis validating statutes operate on conditions already applied) existing and can have no prospective operation.� In Moti Ram v. Bakhwant Singh (A I R 1968 Punjab and Haryana 141), it was held: �A curative act is a statute passed to cure defect in a prior law and has prospective operation�. In Sutherland on Statutory Construction, Vol.II, 3rd Edn., p.243. it is stated: �Retroactive operation will more readily be ascribed to legislation that is curative or legalising than to legislation which may be disadvantageously though legally, affect past relations and transactions�. In Amalgamated Coalfields, Calcutta v. State (A IR 1967M.P. 56), it was held:
(Emphasis applied)

�An invalid Act can be validated by subsequent statute of the competent legislative authority, if the validating statute authorises the doing of the act at the time when it was done. In the absence of such authorisation, the validation will be futile as that will only amount to an attempt to exercise a power ex hypothesis, which does not exist.�

Having regard to the purpose of validation, the defects in the legal measures when enacted during the specified dates had to be cured in the state of things as they existed which, of course, did not include any violation of a constitutional norm; and validity in this context could not be said to have achieved anything more than this. This is not all.

The learned Attorney-General relied on the non obstante expression �notwithstanding anything contained in the Constitution� to extend the validity to the covering of the violations of constitutional norms. This expression only occurs in Article 270-A(1), which I have already held to be referable to the ouster of the jurisdiction of the Court. It has not been used in sub-Article (3) nor can it be read into it as this would amount to re-writing the Constitution which is not the purport of interpretation. If the Legislature itself did not consider it appropriate to give protection to the existing laws against violations of Fundamental Rights then this cannot be achieved by taking aid of this expression from Article 270-A(1). This legislative intention is clear from the progress of the Bill of the Constitution (Eighth Amendment) Act, 1985 Bill (N.A. Bill No.13 of 1985) in the National Assembly until it become an Act of the Legislature:

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The language of this Order and that of para. 9 of President�s Order No.26 of 1962 and para.7 of President�s Order No.14 of1972 is in pari materia. In his view, the words �the provisions of this Order shall have effect� meant that in spite of the repeal of Martial Law Regulations and Martial Law Orders, they continued to operate in future on being validated by Article 270-A(1). In other words they survived the repeal and were continued as laws under sub-Article (3) of the 1973 Constitution. This contention hits at the proviso to Article 270-A(1) which limits the power of the President and the Chief Martial Law Administrator to make only (Emphasis such Martial Law Regulations and Martial Law appHec)) Orders after the thirtieth day of September, 1985, which would facilitate or were incidental to the revocation of the Proclamation of the fifth day of July, 1977. Therefore, the Legislature only gave validity to this extent and if they were to survive and operate as Martial Law Regulations and Martial Law Orders it would be against the purpose of legislation for in that event it would entrench the Martial Law rather than to facilitate the revocation of the proclamation of the Martial Law. There is also the further reason that if the Martial Law Regulations and Martial Law Orders were to survive then they would be in conflict with some of the paragraphs of this Order and in particular paragraph 5 which could not be the intention of the maker.

In my view, in the expression �the provisions of this Order shall have effect�, the key words are �shall have effect�, which mean: �shall have legal effect.� (See Venkataramaiya �s Law Lexicon, Second Ed., Volume 3, p .2217). The purport of using these words is to give legal protection to the several provisions of the Order as a result of the change-over from Martial Law to rule of law under the Constitution. This device was earlier adopted for the same purpose so as not to leave a vacuum. Accordingly, this submission of the learned Attorney-General is untenable.

Another Member of the Bench Mr. Justice Nasim Hasan Shah expressed himself as under:-

According to the learned Attorney-General, the effect of sub-Article (1) of Article 270-A is that not only are the laws made during the period 5th July, 1977 to 30th December, 1985 alongwith their contents deemed to have been competently made and enacted but also that the jurisdiction of all Courts has been taken away to question the validity of the said laws on any ground �whatsoever�. This blanket validation and complete immunity, to any scrutiny thereof is further reinforced by the provisions of sub-Article (3) of Article 270-A, which saves their future operation and renders them immune from scrutiny in the like manner.

On the other hand, according to Mr. Yahya Bakhtiar what has been saved from all challenge by the provisions of Act 270-A is the entertainment of any plea to the effect that the laws made during this period were not made by a competent authority and the liability to be struck down on that ground. In any case, the jurisdiction of the Courts to see whether such a law, in its future continuance, constitutes a violation of any of the Fundamental Rights, which have now been restored is not ousted.

While considering the scope and effect of the provisions of Article 270-A it is not without interest to refer to the background and history of the enactment of this important provision. It will be recalled that this provision was inserted into the 1973- Constitution by the Constitution (Eighth Amendment) Act, 1985 which was passed into law on 11th November, 1985.

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On a careful consideration of the various provisions of Articles 270-A I have reached the conclusion that none of them has the effect of giving immunity to all the laws made between 5th June, 1977 to 30th December, 1985, from being tested on the touchstone of the inconsistency with the Fundamental Rights. Full reasons for this views have been given by my Lord the Chief Justice with which I respectfully agree. This interpretation moreover gets support from the history of the legislation noticed above.
(Emphasis applied)

The next Member of the Bench Mr. Justice Shafiur Rahman framed questions, and the significant one being at serial No.2 is as under:-

(2) The affirmance, the adoption, the declaration and the validation of laws specified in Article 270-A(1) of the Constitution coupled with the clause ousting sweepingly the jurisdiction of all the Courts has not the effect of either effacing, eclipsing or of subordinating the Fundamental Rights guaranteed by the Constitution to the citizens of the country.

The next Member Mr. Justice Zaffar Hussain Mirza in relation to the question arising out of the matter before him, expressed as under:-

Even otherwise the extreme position taken by the learned Attorney-General does not stand the test of scrutiny if the consequences flowing therefrom are taken into account. In the first place it may be pointed out that clause (3) of the Article in question seeks to continue in force not only the existing laws but also notifications, rules, orders or bye-laws. Accepting the argument that the words �notwithstanding anything contained in the Constitution� would also govern clause (3), would (Emphasis result in giving the overriding effect to such aPPlied) notifications, rules, orders, or bye-laws as against the Fundamental Rights. This in my opinion could not be the intention of the legislature. Secondly clause (3) covers not only the legislative measures adopted during the Martial Law period as specified in clause (1), but even pre-existing laws and there appears no rational basis for imputing to the legislature the intention to continue such pre-existing laws free from all constitutional limitations in the future. It is, therefore, clear that the non obstante clause under consideration does not control clause (3) of Article 270-A. Apparently the object underlying clause (3), as in case of similar provisions in the earlier Constitutional instruments, was to maintain the continuity of laws and to prevent interruption in the legal force of the existing laws so that legal rights are not affected by the disappearance of the laws under which the rights and obligations accrued or were incurred. It may be pointed out again that clause (3) embraces all the existing laws including enactments which were in force at the relevant time. Such enactments and laws included some of the laws which were in existence at the time of the enactment of Article 268(1) or even earlier. Therefore, it will be unreasonable to attribute to the legislature an intention to convert an existing law which was to continue in force subject to the Constitution, into a law which would override the Constitutional limitations, after being continued under Article 270-A. I find no good reason for adopting such a construction. (Emphasis applied).

This conclusion is further reinforced by another consideration. It will be observed that clause (3) of Article 270-A has the effect of continuing in force all the existing laws that were in force immediately before the date on which the proclamation of withdrawal of Martial Law was issued and all the provisions of the Constitution were revived. Accepting the argument of the learned Attorney- General will mean that all the existing laws en masse would achieve supra-Constitutional status free from every constitutional limitation or constraint. Such unbridled supremacy would mean the virtual continuation of the entire legal order existing on the date of withdrawal of Martial Law, over and above the Constitution which, in consonance with the settled principles of interpretation, is difficult to attribute to the legislature. (Emphasis applied).

24. In Benazir Bhutto case the Hon�ble Bench members have agreed that the future operation of laws protected under Article 270A would be subject to the limitations contained in the Constitution, which include that not only can such laws be struck down for violation of fundamental rights recognised by the Constitution but also on the touchstone of legislative competence identified in the Constitution. This view, as authored by Mr. Justice Zaffar Hussain Mirza, was agreed by other Members of the Bench as followed, such as Mr. Justice Abdul Kadir Shaikh, Mr. Justice Javid Iqbal, Mr. Justice Saad Saood Jan, Mr. Justice Hussain Qazilbash and Mr. Justice Usman Ali Shah.

25. Somehow, a similar view was taken by the Federal Shariat Court wherein Presidential Orders� protection vide Article 270A ousted the jurisdiction of the Federal Shariat Court in the FATA territory. A challenge to the Presidential Order was made not only on the basis of fundamental rights� infringement but also that the said Order was �violative of Constitutional frame�, as restored when Marshall Law was lifted. In terms of paragraph 19 and 21 of the judgment in the case of Sajjad Hussain case[4], the Federal Shariat Court has relied upon the judgment of Benazir Bhutto to rule that the effect of laws protected under Article 270A cannot travel beyond the line that was drawn by Article 270A itself i.e. when it came into force and concluded its effectiveness could be equated as sunrise and sunset. Article 270A itself does not sanction the infinite applicability or continuity of the legal instrument beyond the date when the legislative pillars (assemblies/senate, etc.), through the restoration of the Constitution, resurrected and started functioning. Thus, the law developed by the Federal Shariat Court, as well as by the Supreme Court, was that the law that was enacted in a period where the Constitution was in abeyance cannot be given a sanction beyond the date when it was said to have been protected and that too to override the Constitutional frame. It is (79 Order P.O 13/79) nowhere a protected instrument in absolute sense, specially its section 3, and cannot be termed to have a sanction of the Constitution of Pakistan, as restored. Needless to mention that such findings of the Federal Shariat Court in the reported judgment identified above were upheld in appeal before the Supreme Court[5].

26. Thus, it can be safely said that laws which were protected, for a period, by Article 270A and which cannot withstand the constitutional mandate and frame, when it was restored, have to fall and sink, and can be struck down by the Court if found to either overlapping or violating the fundamental rights protected/ guaranteed by the Constitution or violative of the Constitutional scheme itself and Article 270A cannot be read as if it had an effect of saving such laws even after the cut-off date of 1985 when constitution was restored via Presidential Order-14 of 1985.

27. The supremacy of the Constitution has to be safeguarded. The laws which could not withstand the legislative competence must yield their way to parliamentary and constitutional supremacy, and laws after such scrutiny, if found transgressing such mandate, must be seen to have been melted down to the frame of the Constitution. Such laws made during the period mentioned in Article 270A it found violative, must be eclipsed by the supreme law, i.e. Constitution and it cannot be vice versa, and laws in derogation of such principle be held ultra vires, such as in the case of section 3 of P.O 13/79.

28. The 18th Amendment played a pivotal role in further understanding the legislative competence of federation and the provinces. The first impact created by the 18th Amendment was that Article 270A, which carved a new dimension along with the 7th Schedule and the special status as assigned to the laws of the 7th Schedule, was removed to save the protection. Consequently, for the purposes of present proceedings, the effect is such that the said entry 50 of FLL (the only list now available) of the 4th Schedule of the Constitution of the Islamic Republic of Pakistan, 1973 was amended. Entry 50, as seen before and after the 18th Amendment, is thus essential to be read for the purposes of their real application. A comparative statement is as follows:-