' FAQIR MUHAMMAD KHOKHAR, J.--- These petitions for leave to appeal under Article 185(3) of the Constitution of Islamic Republic of Pakistan, involving common questions of law and fact, are directed against judgments, dated 7-4-2005 passed by the Lahore High Court, Lahore in Writ Petitions Nos.7788 of 2003, 7961 of 2003, 8154 of 2003, 8314 of 2003, 8165 of 2003, 8166 of 2003, 8167 of 2003, 8184 of 2003, 8332 of 2003, 8333 of 2003, 7841 of 2003, 7843 of 2003, 8258 of 2003, 2802 of 2004, 4168 of 2004 and 4174 of 2004.
2. The Government of Pakistan, Revenue Division, Central Board of Revenue, Islamabad, issued a Notification S.R.O. No,633(1)/2002 on 14-9-2002, in purported exercise of powers conferred by section 240 of Income Tax Ordinance, 2001, (XLIX of 2001) (hereinafter referred to as the Ordinance), whereby certain amendments were made in sections 114, 122, 137, 147, 161, 221 and 239 of the Ordinance. It was further directed that for making any assessment for the year beginning on the first day of July, 2002, or making any deduction or collection of tax for the year beginning on the last day of July, 2002, the said Ordinance would have effect accordingly. The respondents filed the aforesaid writ petitions calling in question the validity of the notification dated 14-9-2002, as being ultra wires the Ordinance. A learned Single Judge of the Lahore High Court, Lahore, allowed the same by the impugned judgments dated 7-4-2005.
3. Mr. M. Ilyas Khan, Senior Advocate Supreme Court, for the petitioners respectfully submitted that by virtue of enabling provisions of subsection (1) of section 240 of the Ordinance, the Federal Government was empowered, by notification in the official Gazette, to make an order, not inconsistent with the provisions of the Ordinance, as might appear to be necessary for the purpose of removing any difficulty. Therefore, the notification, dated 14-9-2002, issued by the Federal Government, was perfectly valid. It was next contended out that the amendment in section 122 of the Ordinance made through S.R.O. Dated 14-9-2002 was also substantially carried by the Finance Act No,I of 2003 with effect from 1-7-2002. Therefore, the defect, if any, stood cured by the legislative approval.
4. On the other hand, Mr. Andrabi Naveed, Advocate Supreme Court, the learned counsel for the respondents (in C.P. No,1032-L of 2005) argued that through the notification dated 14-9-2002, the Federal Government had acted like a parallel Legislature by making substantial amendments in various provisions of the Ordinance, which was not permissible by the Constitution and the Ordinance.
5. We have heard the learned counsel for the parties at length. Before proceeding further, it will be useful to reproduce below the provisions of section 240 of the Ordinance:-- "Section 240 ' Removal of difficulties.--- (1) Subject to subsection (2), if any difficulty arises in giving effect to any of the provisions of this Ordinance, the Federal Government may, by notification in the official Gazette, make such order, not inconsistent with the provisions of this Ordinance, as may appear to it to be necessary for the purpose of removing the difficulty.
(2) No such power shall be exercised under subsection (1) after the 30th day of June, 2004."
6. The power of the Federal Government to make an order under section 240 of the Ordinance was exercisable if a difficulty had arisen or was likely to arise in giving effect to any of the provisions of the Ordinance. However, such an order was required to be in conformity with the provisions of the Ordinance and also necessary for the purpose A of removing the difficulty. The Federal Government was not empowered to bring about drastic changes in the Ordinance to achieve the purpose of removing the difficulty which might or might have not arisen. By notification dated 14- 9-2002, the Federal Government, instead of removing any difficulty, made substantial amendments in sections 114, 121, 122, 137, 147, 161, 221 and 239 of the Ordinance. The essential legislative functions were not conferred by section 240 of the Ordinance on the Federal Government. Rather there is a specific prohibition against making an order which was repugnant to provisions of the Ordinance. The law making power was not intended by the legislature to be given to the Government. Only the incidental or ancillary powers were delegated for the purpose of removing a difficulty. The provisions of the Ordinance were amended by the Government in such a manner that it was not possible to reconcile them with the original enactment. If an amendment of a statute made by the Government, in exercise of delegated power, is of fundamental character, then the distinction between an amendment and repeal of a statutory provision is some time obliterated. A reference may be made to the case of Saeed Ahmed v. The State PLD 1964 SC 266 wherein late B.Z. Kaikaus, J. (as he then was) made the following observations at page 290:- "Every enactment contains a repeal for the law in the form in which it stood previously disappears and a new law comes into force. There is no difference at all between a case where the Legislature says that particular section will stand amended in a particular way and a case where it says that the section stands repealed and its place will be taken by a new section, even if the new section is the same as the amended section. Whenever there is amendment the Legislature could very well have said, that the previous provision would be omitted and the provisions as amended would be inserted. There is no reasons for giving any different effect to these two methods which achieve the same result. At the same time there is no difference in principle between repeal and amendment."
7. The question of scope of delegated legislation was considered in a number of cases. In.Mr. Fazlul Quader Chowdhry and others v. Mr. Muhammad Abdul Haque PLD 1963 SC 486, the President had issued Removal of Difficulties (Appointment of Ministers) Order No,34 of 1962, in the purported exercise of powers conferred on him by Article 224(3) of the Constitution of Islamic Republic of Pakistan, 1962. By the said Order, a Member of National Assembly was allowed to continue as such even after he was appointed a Central Minister. It was held that the responsibility at the highest level was given to vary the provisions of the Constitution not for the purpose of altering the Constitution itself but in order that Constitution as a whole would be brought into force. However, what had actually been done was that instead of implementing those basic provisions, they had been altered in a fundamental way so as to change the form of Government from the pure Presidential to an anomalous Parliamentary. The expediency and necessity were for producing an effect contrary to that clearly stated in the Constitution, and not for the purpose of bringing the Constitution, as it was granted to the country, into operation. The word 'difficulty' must receive a restricted meaning was also apparent from the fact that clause (3) of Article 224 talked of adaptation of Constitution by way of modification, addition or omission. The word 'adaptation' provided the key to the interpretation of that clause. It savoured as a machinery provision inserted to facilitate the enforcement of the Constitution. Late B.Z. Kaikous, J., in his separate opinion observed at pages 530-531 that the President could promulgate an Order under Article 224(3) for the purpose of removing any difficulties that might arise in bringing the provisions of the Constitution into operation. Every difficulty that arose did not attract that provision. It was only a difficulty that arose in bringing the Constitution into operation that did so. There was a clear distinction between amendment and adaptation. The President could not extend the scope contemplated by Article 224(3). The Removal of Difficulties (Appointment of Ministers) Order (34 of 1962) was declared to be ultra vires the Constitution.
8. In Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457 at page 688, Mr. Justice Muhammad Haleem former Chief Justice of Pakistan (as he then was) speaking for the Court, observed in para.337 of the judgment that "Power to remove the difficulties could only be exercised by exertion of legislative power and not by an executive act".
9. In Sobho Gyanchandani v. Crown PLD 1952 FC 29, the Federal Court of Pakistan considered the scope and validity of subsection (3) of section 1 of the Pakistan Public Safety Ordinance No,XIV of 1949 by which the Ordinance was to remain in force for a period of one year. However, the Central Government was empowered, to direct, from time to time, that the Ordinance would remain in force for such further period specified in a Notification. On 16th October, 1950, the Central Government issued a notification extending the operation of the Ordinance for a further period of one year i,e, from 8th October, 1950 to 8th October, 1951. Yet another notification was issued on 1st October, 1951, extending the operation of the Ordinance, for a further period of one year from 8th October, 1951. Late Sir Abdur Rashid, former Chief Justice of Pakistan, observed that:- ".... It is necessary to determine what constitutes conditional legislation. When a law is made to take effect on the happening of a certain event, the Legislature in effect declares the law but leaves to an external agency to bring it into force, whenever it considers it expedient to do so. A law may be regarded as inexpedient in certain events but expedient if certain events should take place. In passing conditional legislation, the Legislature completely performs the duties which are imposed by the Constitution upon it. That is, it places legislation on the Statute Book, and the only function that it delegates to an external authority is to bring the legislation into force if certain events should happen and the enforcement of the legislation should be considered necessary. The Federal Court of India in the case of Jatindra Nath Gupta v. The Province of Bihar and others AIR 1949 FC 175 also held that the power to extend the operation of the Bihar Maintenance of Public Order Act, for a further period of one year with such modifications, if any, as may be specified was a legislative power; and that the proviso to section 1(3) which delegated such power to an authority other than the Provincial Legislature was not a conditional legislation and such a delegation of the legislative power was ultra vires". It was further observed at "a Legislature could not delegate its powers of making, modifying, or repealing any law to an external authority. It if did so, it would be creating a parallel Legislature. The power of extending the duration of an enactment, which would have terminated but for the interference of the external authority, was invalid. Extension of the life of an act was tantamount to re-enactment ... It was not correct proposition that the delegation of legislative powers by a Legislature to an external authority was invalid or ultra vires only if it amounted to self-effacement and abdication. If any Legislature delegated legislative functions to an external authority such delegation would be invalid."
10. In Major Matloob Ali Khan v. Additional District Judge, East Karachi and another 1988 SCM R 747, the question of validity of Rule 13 of the West Pakistan Family Courts Rules, 1965 was considered.
The said rule fixed a limitation period of thirty days for making an application for setting aside an ex parte decree passed by a Family Court. Under section 9(6) of the West Pakistan Family Court's Act, 1964 such an application could be made within a reasonable time. It was observed that since the Act itself provided for making the application within reasonable time, therefore, fixing a period of limitation by Rule 13 for general application to all cases could not be in consonance with the provisions of the Act. The question as to what constituted reasonable time would obviously depend upon the facts of each particular case and it would not be possible to lay down a rule of thumb that in all cases the fixed period of thirty days would be reasonable time. The subordinate power of framing rules granted by the Statute could not be exercised to override the express provisions of the Statute. It was, therefore, held that Rule 13 was ultra vires the power of the rule making authority and an excessive delegation of legislative power.
11. In Jalan Trading Co. Private Ltd. v. Mill Mazdoor Sabha AIR 1967 SC 691, the Indian Supreme Court had examined the scope of section 37 of the Payment of Bonus Act, 1965. Under the said provision, the Central Government was empowered to remove doubts or difficulties in giving effect to the provisions of the Act. The Court held the section to be invalid as it delegated legislative power to executive authority which was not permissible. Late Fazal Ali, J., speaking for the Court observed that the order made must not be inconsistent with the purposes of the Act. Section 37 was not saved from the vice of excessive delegation of legislative authority as the said provision had purported to authorise the Government to determine for itself what the purposes of the Act were and to make provisions for removal of doubts or difficulties. If in giving effect to the provisions of the Act any doubt or difficulty arose normally it was for the Legislature to remove that doubt or difficulty. The power to remove the doubt or difficulty by altering the provisions of the Act would in substance amount to exercise of legislative power which could not be delegated to an executive authority. Subsection (2) of section 37 which purported to make the order by the Central Government in such cases final accentuated the vice in subsection (1). By enacting the provision, the Government was made the sole judge whether difficulty or doubt had arisen in giving effect to the provisions of the Act, whether it was necessary or expedient to remove the doubt or difficulty, and whether the provision enacted was not inconsistent with the purpose of the Act.
12. The Supreme Court of India gave its advisory opinion to the President in Delhi Laws Act AIR 1951 SC 332 on the scope of adaptation of the statutes by the executive. Late Fazal Ali, J., observed that "the power of introducing necessary restrictions and modifications in the provisions in question was incidental to the power to apply or adapt the law. The modifications were to be made within the framework of the Act and they could not be such as to affect its identity or structure of the essential purpose to be served by it. The discretion given to modify a statute was by no means absolute or irrevocable in strict legal sense. The Legislature could not abdicate its legislative functions, and therefore, while entrusting power to an outside agency, it must see that such agency acted as a subordinate authority and did not become a parallel Legislature."
13. If the power of the Federal Government to bring about changes in the Ordinance is conceded, then it may be exercised for the repeal and re-enactment of the whole of the Ordinance. Merely because the Federal Government is vested with the power to remove the difficulties in giving effect to any of the provisions of the Ordinance does not empower the Government to go ahead with making amendments or repealing the provisions of the Ordinance. Section 240 of the Ordinance had placed an embargo that the order passed by the Federal Government for removal of difficulties would not be inconsistent with the provisions of the Ordinance. To our mind, the word "inconsistent" used in section 240 of the Ordinance is of broad significance. It implies contradiction, qualities which cannot co-exist, not merely the lack of uniformity in details. When judicially defined it means contradictory, disharmonious, logically incompatible; contrary the one to the other, so that both cannot stand; mutually repugnant or contradictory. Things are said to be inconsistent or repugnant when they are contrary the one to the other, so that one infers the negation, destruction or falsity of the other or the acceptance or establishment of the one implies the abrogation or abandonment of the other, as we speak of 'inconsistent defences' or "the repeal by a statute of all laws inconsistent therewith". The delegated power of the Federal Government was required to be canalized within the banks to keep it from overflowing. The learned counsel for the petitioners, could not satisfy us that any difficulty or genuine doubt as to the interpretation or operation of the Ordinance had arisen or was likely to arise for the removal of which it had become necessary for the Federal Government to issue the notification in question. We may also observe that the notification dated 14-9-2002 cannot co-exist with the original provisions of the Ordinance which were sought to be amended. The Federal Government exceeded its powers of delegated legislation as contemplated by section 240 of the Ordinance. In our view the High Court was quite justified in declaring the Notification S.R.O. No,633(I)/2002, dated 14-9-2002 to be without lawful authority and of no legal effect. Since the question of validity and effect of amendment in section 122 of the Ordinance by the Finance Act No,1 of 2003 is not directly involved, therefore, we would not like to examine the same in these proceedings.
14. For the foregoing reasons, we do not find any merit in these petitions which are dismissed and leave to appeal is refused accordingly.