' KARAM ELAHEE CHAUHAN, J.-Messrs Dada Sons (hereinafter called the vendors/appellants) entered into a contract on 18-7-1958 to sell to Messrs Bengal Mills Ltd. (hereinafter called the purchasers/respondents) 51,000 maunds of new crop of N.T. Sawgin Cottonseed (1958-59 season) at Rs, 17/40 per maund F.
0. R. Setharja, District Nawabshah. The purchasers in that respect made advance deposit of a total amount Rs, 50,500 on the dates mentioned in the suits, The weighment was to be at the vendor's factory, godown and compound at Setharja and continuous delivery of the contracted goods was to be given from the first ginning. Empty bardana-(i.e, gunny bags)-were to be supplied by the purchasers.
2. In pursuance of the said contract the purchasers by their letter dated 29-9-1958, sent an R/R for 100 bundles of bardana and applied for delivery. This was followed by a reminder dated 7-10-1958 and a further letter dated 21-10-1958, remitting another R/R for further 50 bundles of bardana and repeating the request for expediting the delivery of goods.
' The vendors showing preparedness to perform their part of the contract on 5-11-1958, asked the purchasers to send their representative for weighment and taking delivery of the contracted goods and intimated that the 1st ginning will commence from 6-11-1958. Along with this letter a delivery order dated 5-11-1958, was also sent to the purchasers.
4. The purchasers failed to comply with the requirement of the said letter, therefore, the vendors again by their letter dated 10-11-1958, called upon the purchasers to send their representative within 48 hours and to take delivery within 3 days of the receipt of the said letter failing which the vendors would sell the contracted goods at purchasers' risk.
5. It appears that on 1-11-1958, there was promulgated Martial Law Regulation No, 42 which was published in the Gazette Extraordinary dated 4-11-1958, which gave to the Central Government the power of "price control" and authorised them to fix prices of goods mentioned therein. Paragraph 11 of that Regulation stated that prices fixed by a Notification under the Regulation would be operative from 17-11-1958. It was further indicated that to sell or re-sell any goods in violation of the control price would be an offence. This obviously created a suspense and uncertainty in the concerned quarters, therefore, by their letter dated 12-11-1958, the purchasers drew attention of the vendors to that Regulation and desired that the position should be examined or re-examined in the light thereof. It may be mentioned that on 10-11-58 the Government had fixed the control price of cottonseed at Rs, 12 per maund which got circulation in the "Evening Star" Karachi, dated 11-11-1958, though publication of the relevant Notification took place in the Provincial Gazette on 14-11-1948.
6. Considering the aforesaid letter of the purchasers as amounting to a breach of the contract, the vendors by letter dated 14-11-1958, treated the contract broken and intimated that the bill for loss would be sent to them in due course. Accordingly by letter dated 21-11-1958, the vendors after giving adjustment of Rs, 50,500 deposited by the purchasers, claimed Rs, 2,17,250 as and by way of damages for the breach of the contract.
7. Thereafter the purchasers filed a suit being Suit No, 74 of 1959, claiming refund of Rs, 50,500 and a further sum of Rs, 15,000 as price of the Rs, 15,000 bardanas, on the ground mainly that owing to promulgation of Martial Law Regulation No, 42 on 1-11-1958, and fixation of price by the Central Government on 10-11-1958, the contract became impossible of performance.
8. Later the vendors also filed a suit, being Suit No, 176 of 1959, claiming Rs, 2,17,250 (after adjusting purchasers deposit of Rs, 50,500) as and by way of damages for breach of the contract pleading that the purchasers had committed breach of the contract as price of the contracted goods, as a result of promulgation of the Martial Law had fallen considerably and the purchasers refused to take delivery of the goods at the contracted price.
9. Both the suits were consolidated by consent and were disposed of by one judgment dated 20-9- 1963 by Mr. Justice A. S. Farooqi on the original civil side of the High Court of West Pakistan, Karachi Bench, Karachi, whereby vendors' suit was dismissed and purchasers' suit was decreed leaving both the parties to bear their own costs. The learned trial Judge held that the contract became impossible to be performed at the contracted price and thus got frustrated by law, therefore, the vendors were liable to refund the benefit/advance, etc. Received by them.
10. That against the said judgment the vendors preferred two Letters Patent Appeals being L. P. A.
No, 87 of 1965, from Suit No, 74 of 1959 and L. P. A. No, 88 of 1963 from Suit No, 176 of 1959. Both the appeals were heard together and dismissed by a common judgment dated 17-11-1968 by Division Bench of the said Court.
11. The vendors have now filed the present two appeals-(being Civil Appeals Nos. K-23 of 1969, and K-24 of 1969)-by special leave which was granted by order dated 16-2-1967 to examine the question posed therein in the following words :- "The question is whether the contract was frustrated by the fixing of a statutory control price of Rs, 12 per maund by the Central Government, acting under power derived from Martial Law Regulation No, 42, and what was the effect thereof on the claims advanced by the contesting parties in their respective suits. The High Court has, by a judgment in Letters Patent Appeal, upheld the decree awarding to the respondents return of their deposit money and refund of cost of gunny bags supplied, as well as the decree of dismissal of the petitioners suit for damages for non-fulfilment of the contract, that had been made by a learned Single Judge ' The subject-matter of both suits is of high value, and a question of law general public importance arises, in the difficult field of frustration of contracts by interposition of statutory control orders. It is urged also that the Control Order itself was ultra vires of the Regulation."
12. As the main arguments of the learned counsel for the parties to Martial Law Regulation No . 42, the same is reproduced here for facility of reference. It reads as follows :- ' Martial Law Regulation No, 42 "(1) If any existing Central, Provincial or local law or any Martial Law Regulation or Order is repugnant to the provisions of this Ragnlation, it shall have no effect to the extent of that repugnancy.
(2) The Central Government shall control the prices of-
(a) imported goods,
(b) goods manufactured within Pakistan, and
(c) selected foodgrains.
(3) No Provincial Government, Martial Law Administrator or other authority shall in any way interfere with the operation of this Regulation or the orders made thereunder.
(4) For the goods mentioned below the price shall be fixed by the Central Government.
(i) Textiles-cotton, woollen and art silk, and their yarns,
(ii) wheat, rice and gram,
(iii) vegetable ghee and edible oils.
(iv) Sugar.
(v) Iron & Steel including galvanised iron pipes.
(vi) Cement.
(vii) Newsprint.
(viii) Bicycles.
(ix) Cigarettes.
(x) Tea.
(xi) Shaving blades.
(xii) Electric lamps.
(xiii) Mechanically propelled vehicles, and
(xiv) School and college text-books: This list may be varied as circumstances require.
(5) For the goods mentioned in the Schedule to this Regulation, prices will be regulated, as follows : -
(a) For imported goods the retail price shall not exceed landed cost plus the percentages mentioned in para. 6 below.
(b) For goods manufactured in Pakistan, the ex-mill price shall be so fixed as to allow a tax-free dividend of not more than six and a quarter per cent. To the manufacturer. The retail price shall not exceed the ex-mill price plus the percentages mentioned in para.
6. Below.
(6) (a) For goods in Category I in the Schedule, the retail price shall not exceed the landed cost or ex-mill price plus 20 per cent. In either case, so, however, that the retailer gets at least half of that percentage.
(b) For goods in Category II in the Schedule, the retail price shall not exceed the landed cost or ex- mill price plus 33-1/3 per cent. In either case, so, however, that the retailer gets at least 18 per cent.
Of such cost or price.
(c) For goods in Category III in the Schedule, the retail price shall not exceed the landed cost or ex- mill price plus 50 per cent. In either case, so, however, that the retailer gets at least 20 per cent. Of such cost or price.
(7) No person shall sell or re-sell any goods at a price higher than the maximum price determined under this Regulation.
(8) "Hoarding" shall mean-
(a) failure to mention goods in any declaration or return asked for by a competent authority.
(b) failure to mention goods in any stock register required to be maintained, and
(e) keeping more than the quantity prescribed in any particular case.
(9) Any- sale or re-sale above the prices determined under this Regulation will constitute 'black- marketing' for the purposes of Martial Law Regulation No, 26.
(10) The contravention of the provisions of this Regulation shall be punishable under Martial Law Regulations 21, 23, 25 and 26, or any other law in force.
(11) The prices determined under this Regulation shall come into force from November 17, 1958. Each retailer shall exhibit in the prominent place the prices so determined.
(12) The prices determined under this Regulation will be the maximum prices. It will not be an offence to sell below those prices."
13. The other document to be taken note of is a Notification of the Central Government dated 10-11- 1958, published in the Gazette of Pakistan, Extra on 14-11-1958, in which it was stated that "under the Martial Law Regulation No, 42, the maximum sale prices of the following edible oilseeds and edible oils are hereby fixed by the Central Government as shown below. These prices will remain in force, until further orders...., ' Cottonseed Rs, 12 per maund without bags.
14. Keeping the aforesaid text in view the first point argued by the learned counsel for the vendors- appellants was that since "cottonseed" did not fall in the category of goods mentioned in para. 2 of the Regulation, therefore, the Central Government had no jurisdiction, authority or power to fix price of that item by its notification aforesaid. The contention has no merit. A persual of para. 2 of this Regulation will show that it imposed a duty on and nominated the Central Government to "control the prices of (a) imported goods, (b) goods manufactured within Pakistan, and (c) selected foodgrains''. It is well known as explained in Messrs Noorani Cotton Corporation v. The Sales Tax Officer (1), and Colony Textile Mills Ltd. v. Commissioner of Income-tax, Lahore Zone, Lahore (2) that taking out or separation of cottonseed from raw cotton after ginning through ginning machines is a process of manufacture, and as the ginning in this case was to be done in Pakistan therefore the cottonseed from that point of view could be said to be goods manufactured in Pakistan. As a matter of fact after seeing the above precedents learned counsel did not seriously dispute that "cotton seed" would fall within the category of "goods manufactured within Pakistan".However, when confronted with this situation Mr. Khalid Ishaq, learned counsel for the vendors/appellants raised another point which we will mention in the next paragraph. At this place it may be mentioned that neither the learned trial Judge nor the learned Judges of the Letters Patent Bench referred to this clause of para.
2. Of the Regulation and they proceeded to examine the matter with reference to certain relevant items in para. 4 of the Regulation or Reconstituted Regulation and placed "cottonseed" under the
(1) PLD 1965 SC 161 (2) PLD 1976 Lab. 143 ' heads edible seed/edible oil. An aspect with which, in view of the finding recorded by us above we need not deal.
15. It was argued that there was a difference between the powers of the Central Government to "control the prices" as contemplated with regard to the general types of goods mentioned in para 2 on the one hand, and the duty of the said Government under para. 4, on the other hand, where it was stated that with regard to the specific goods listed therein, their "prices shall be fixed by the Central Government". Though the nominee to perform the functions both in para.
2. As well as 4 was the same namely the Central Government, but in para. 2, it was submitted, its role was merely to "control the prices" whereas in para. 4 it was itself to "fix" the same. In other words, it was contended, that "fixation" of price was a function and a job different from and did not fall within the concept of the "control of prices" because otherwise, according to the learned counsel, there was no justification for the law-maker to deal with these subjects separately in two distinct paragraphs namely 2 and 4 by noting only a few selected items in the later section if the functions under both the paragraphs were one and the same. It was argued that he who has power to "control the prices", need not necessarily possess the power to "fix" the prices as well inasmuch as his control may be limited in this respect. Conversely even if it was included in the concept of "control of prices", but in the instant case by providing a separate list of goods for which the Central Government shall "fix" the prices, it was evident that regarding the rest of the goods the power in para. 2, was simply confined to "control of prices" short of fixing their prices. Taking the argument further to its logical end, it was argued, that unless any item fell in the list contained in para. 4, (which could be varied only by the law maker itself) the Central Government had no authority to fix prices of all and every kind of goods which did not specifically fall in the list mentioned thereunder, though it may have fallen in para.
2. If the Central Government at any time felt in the exercise of its powers of control under para. 2 that prices of goods other than those already listed in para. 4 need certain official interference, it should, according to the learned counsel, first apply to or move the law giver, who may include or list that item under para. 4 and when that was done, then and then only the Central Government could fix its price and not by invoking its power of mere general "control of prices" under para.
2. Under general heads of commodities mentioned therein. "Control" it was submitted, here was confined simply to keep a watch on and not fix the prices.
16. We have given our anxious consideration to these apparently attractive submissions but we must say that we have not been able to find any merit therein. The relevant Martial Law (known as Martial Law of 1958), whereunder Martial Law Regulation No, 42 was promulgated was imposed in the country by "Proclamation" dated 7-10-1958, whereby the Constitution of 1956, was abrogated.
But according to Article 2 of the Laws (Continuance in Force Order). P. O. 1 of 1958), notwithstanding the abrogation of the Constitution the country was to be governed as far as possible in accordance with the late Constitution subject to any Order of the President of Regulation by the Chief Martial Law Administrator. According to 1956 Constitution the subject of "price control" as per entry No, 7 in Part II of the "concurrent list", vested as laid down in Article 106(2) both in the Parliament as well as the Provincial Legislature, subject to the rider mentioned in Article 110 that in case of conflict, the law of the Parliament was to prevail. Now if para. 2 of Regulation 42 is read in this background then it becomes clear that the purpose of that paragraph was to put the subject of "price control" under the controlling sphere of the Central Government exclusively. That this was an essential measure and need of the day is evident from the relevant "Proclamation of Martial Law" itself wherein the President stated that "despite my repeated endeavours, no serious attempt has been made to tackle the food crisis. Food has been a problem of life and death for us in a country which should be really surplus. Agriculture and land administration have been made a handmaiden of politics so that in our present system of Government, no political party will be able to take any positive action to increase production. In East Pakistan, on the other hand, there is a well organized smuggling of food, medicines and other necessities of life. The masses there suffer due to the shortages so caused in and consequent high prices of, these commodities. Import of food has been a constant and serious drain on our foreign exchange earnings in the last few years, with the result that the Government is constrained to curtail the much needed internal development projects." To continue a little further so as to complete the survey of the constitutional history on the subject it may be mentioned that there was no item in the Government of India Act, 1933, corresonding to the aforesaid entry (price control) and the power was deduced in favour of the Provincial Legislature under its power over distribution of goods under Item No, 29 of List No, II.
See Kheteidas v. Pratapmull (1). When the Martial Law was imposed it will thus be evident that there were various laws of pre- or post-1956, Constitution period dealing with the subject of "price control" at Provincial and Central level. Reference may be made to the West Pakistan Foodstuffs (Control) Act XX of 1958, and the Hoarding and Black Marketing Order, 1956 (P.
0. XIV of 1956, promulgated under Article 211 of 1956 Constitution and enforced in the Federal Capital etc. Etc. We have no intention to exhaust the list of all such laws and the purpose of our mentioning this aspect of the matter is, that by means of Martial Law Regulation 42 the subject of "price control" of the goods mentioned para. 2, was given over exclusively to the Central Government because para. 1 provided that if any existing Central, Provincial or local law or any Martial Law Regulation or order is repugnant to the provisions of this Regulation, I shall have no effect to the extent of that repugnancy". Para. 2 stated that "No Provincial Government, Martial Law Administrator or other authority shall in any way interfere with the operation of this Regulation or the orders made thereunder." This aspect of the matter shall have to be kept in view for appreciating the discussion hereinafter following.
17. Now taking up the point of the scope and extent of the powers of the Central Government in the above context and background in general, and in the matter of the "control of prices" of goods mentioned in para. 2, in particular, we need not go so exhaustively into the same so as to indicate what actions, or steps could be taken or what orders could be passed and what measures could be adopted to achieve the aforesaid object. But confining ourselves to the subject directly before us, there can be no two opinions on the point that when the Central Government possesses the powers to "control the prices", of any item, the subject of fixation, and variation of its price would definitely fall thereunder, because of the use of the specific word "prices" about which control was being given to them. By what other measures the prices could be controlled, is a matter which is not to be gone into in this case, but "fixation" of a price obviously is a measure towards keeping control over the prices, so as to stop their unnecessary fluctuations and to discourage others to increase or vary the same unnecessarily. If the power of "control of prices" was once so exclusively given
(1) AIR 1946 Cal. 197 ' to the Central Government then the intention of para. 4, thereafter could not be to make that control over the goods mentioned in para. 2 to b ineffective or a limited control confined merely to few items listed in para.
4. Para. 2 was very wide in scope so far as the categories of goods which could fall thereunder was concerned but para. 4 was confined merely to few goods listed therein. In our opinion para.
2. Gave the general power t control the prices with reference to the types and kinds of goods mentioned therein, and then, if we can say so, without prejudice to the generality of the provisions contained therein, para. 4 particularly gave list of items about which it was stated that the Central 1 Government shall fix their prices. The word "shall" is used both in para. 2, as well para. 4 and it cannot said that whereas in para. 4 it became the duty of the Central Government to fix the prices of goods mentioned therein, there was no such duty to fix the prices of goods mentioned in para.
2. In other words para. 2 is the general provision and items mentioned in para. 4, were just in addition and ancillary to and illustrative of para. 2 and not in exhaustion thereof in any sense so as to deprive the Central Government of its power to fix prices of good which may not have been specifically listed in para. 4 though otherwise the squarely fell under para.
2. Any other construction would tantamount to take away or dwindle down that power which was bestowed in para. 2 and would otherwise make that bestowment an exercise in futility on the part of the law given in the sense that it will take away with one hand which it had given with the other.
The contentions which were being raised by Mr. Khalid Ishaq, learned counsel for the vendors/appellants therefore have no substance and are hereby repelled.
18. The matter can be approached from another angle as well. Assuming that under para. 4, the law-maker imposed a duty on and made it obligatory for the Central Government to fix prices only of goods listed therein. In that perspective if any goods mentioned in that list were for example an end product of various other goods, not independently mentioned in that para. Then while fixing the price of that end product, a question arises can the price controller-(in this case the Central Government)-not also fix the price of the aforesaid contributory goods which lead to the manufacture of the relevant end product. In our opinion that incidental power should not be denied to the price controller subject to the rider that in this respect the contributory goods must fall within and not outside the scope of the generality F of goods specified in para.
2. In this way both para. 4 and para. 2 can read complementary to one another and the suggested conflict, if any between the two can be avoided. Applying this principle to the facts of the present case we note that one item in para. 4 is Item No, (iii) headed as "vegetable ghee and edible oils"- (like cottonseed oil). It is well known that both these items are the end products of and manufactured from cottonseed. The price controller while fixing the price of both these items namely the vegetable ghee and edible oil may therefore first take note of, fix or regulated as the case may be, inter alia, the price of cottonseed, and if in fact he does so, can it be said that his action in this respect is in excess of his authority or power under para.
2. In our opinion the answer is in the negative because "cottonseed" being a commodity, as earlier explained, manufactured in Pakistan, it fell squarely in the kinds of goods price whereof could (as well) be controlled and fixed by the Central Government. Worked in this way the relevant provisions of law can achieve their objective efficaciously and any other construction will tend to create unnecessary hurdles and difficulties in that respect and must be avoided.
18-A. At this stage it was argued that a violation of notification of the kind involved in this case was punishable under para. 10 read with para. 9 and Martial Law Regulation No, 26 therefore provisions of this Regulation should be very strictly construed. It will be evident that we have not violated this principle and our views are based on strict construction of the Regulation and we have not tried to be liberal in any manner in that respect. In fact our effort in all this discussion was to give to the words "price control" their normal and natural meaning and neither to expand and nor to curtail them in any manner. We have recorded our findings by keeping this line of approach in view. For the proposition that the words "price control" authorise the fixing of maximum as well as minimum prices, reference can be made to Secretary to Government v. A. G. Factory (1).
19. It was then argued that as the new price according to para.
11. Of the Regulation was to be effective from 17-11-1958, therefore, there was a breach on the part of the purchasers much prior thereto when they did not start lifting the goods after 14-11-1958 this being the date upto which the sellers had themselves kept the contract alive by their letter dated 10-11-1958, Exh.
22. The finding of the learned trial Judge as well as the Letters Patent Bench however, is that mere failure to lift the goods on that date could not constitute a breach because in such a situation the contract provided for storage with the sellers upto 10,000 maunds, whereafter the goods could be disposed of and as that situation never materialized therefore there was no breach. When confronted with this factual aspect of the contract the learned counsel had no answer. The plea as raised therefore fails on the terms of the contract itself.
20. Mr. Khalid Ishaq then argued that since the supply was to start from the "first ginning" and was to continue thereafter without break therefore, from this point of view, time was of the essence of the contract, and if after the start of "first ginning" which according to him took place on 6-11-1958, the purchasers on 12-11-1958 wrote a letter suggesting to the vendors to also take into consideration the provisions of Martial Law Regulation No, 42, they were guilty of what he termed as "anticipatory breach of contract", and from that point of view, the sellers would be eligible to claim damages from them regardless of the fact that they were not able to perform their part of the contract and did not have in stock with them the total quantity of cottonseed to be supplied by them on 12/13-11-1968 when they considered the contract as broken. This plea found favour with the learned trial Judge who found further support for it from the statement of the purchaser as his own witness Exh. 37 wherein he conceded that in view of Martial Law Regulation 42 even on 13-11-1958 also he would not have lifted the goods. In this context, the learned trial Judge observed, that on this basis he would have decreed the vedors' suit for damages but as according to him since the rates fixed by notification dated 10-11-1958 became effective from 11-11-1958 (when they were published in the Evening Star) as per terms of Martial Law Regulation 42 when it was promulgated in "Reconstituted Form" with a retrospective effect therefore the contract got frustrated from that date and as such it was not a case of breach of contract. The Letters Patent Bench held that the contract was alive upto 14-11-1958 but that it got frustrated on 11-11-1958, when the notification was published in the Evening Star and as such the question of claiming damages for any breach thereafter did not arise. They gave no finding on the point whether the time in this case was of the essence of the contract or that but for the retrospective nature of the notification it was otherwise a case of any
(1) A 1 R 1959 Andh. Pra. 538 ' anticipatory breach and if so from which date.-though it can be implied that in a way they overruled this plea.
21. To get out of the above, Mr. Khalid Ishaq submitted that the view of the learned Judges of the High Court that the notification dated 10-11-1958 which according to Martial Law Regulation 42 as originally framed as per its para. 11 was to be effective from 17-11-1958, but due to the reconstitution of that Regulation became operative from 11-11-1958 is not correct because, there was nothing in the re-constituted Martial Law Regulation to point out any such thing, with the result that the said notification remained operative only from 17-11-1958 and as such the breach or to be more precise "the anticipatory breach" on which he now solely relies in this case became actionable with effect from 13-11-1958 when his clients re-sold the goods and as such were justified in claiming the damages from the purchasers in that behalf. Though the plea of factual re-sale was later given up but the position that anticipatory breach took place on 12/13-11-1958 is still being pressed before us.
22. Taking up the question whether the "Reconstituted Martial Law Regulation 42" was itself retrospective or whether it gave retrospective operation to notifications already issued prior to its own promulgation so as to make them operative from the dates of their publication (which dates were earlier in point of time) instead of 17-11-1958 which was the date mentioned for this purpose in the original Regulation) we will have to make a little closer study of both the Regulations which follows hereinafter.
23, The Re-constituted Martial Law Regulation was promulgated by Government of Pakistan Notification No, 1197/58 dated 4-12-1958 and it will serve our purpose if we point out the points of difference between the new and the old Regulation, which without trying to be exhaustive are as follows:
(a) The original para. 4 authorised only the Central Government for fixing the prices of the goods mentioned therein whereas the re-constituted (para. 4) authorised both the Central Government as well as "an officer authorised in this behalf" which shows that earlier the power was not delegateable but now it was made so;
(b) In Item (iii) of para. 4 the words "edible seeds" were added;
(c) Paras. 5 and 6 which dealt with regulating/fixing the prices of goods mentioned in the schedule also underwent certain variations, but as we are not concerned with any of the "scheduled goods" in this case, we need not go into their details;
(d) Para. 7 of the original Regulation prohibited sale or re-sale of goods at higher prices. The corresponding para. 7 in the Reconstituted Regulation provided sale or re-sale of both "used or unused" goods. In the original Regulation the word "unused" did not exist. Again old para. 7 prohibited sale or re-sale at prices higher than the maximum determined under this Regulation, whereas in new para. Reference to maximum price was of "similar goods" (the words "similar goods" were thus added afresh).
(e) Para. 10 was new and stated that prices of goods mentioned in paragraph 4 will be deemed to come into force from the date of their notification;
(f) Para. 10 of the new Regulation also stated that the prices of goods mentioned in the Schedule to this Regulation were to come into force from 16-124958. At this place it may be mentioned that in the original Regulation in corresponding para. 11 all "prices" determined under this Regulation shall come into force from 17-11-1958". The point mentioned in (e) and (f) now presented a scheme different from one contained in the corresponding para. 11 of original Regulation ;
(g) Para. 11 of the new Regulation directed the maintenance of the stock register and this was to apply only to a dealer who was liable to pay income-tax;
(h) Para. 12 of the new Regulation authorised the Central Government to make rules or issue such orders as it may consider necessary to give effect to the provisions of this Regulation or matters connected therewith. The original Regulation did not contain any specific provision of this type;
(1) Para. 13 of the new Regulation prohibited taking cognizance of an offence under this Regulation except with the previous sanction in writing of the Central Government, or if the Central Government so authorises it in this behalf, by the Provincial Government or any other authority; (0 Para. 14 which dealt with the punishment was wider than the earlier Regulation and also covered the contravention of this Regulation (or of the rules or orders made thereunder); and
(k) Para. 15 was on the same lines as the earlier corresponding para. 12 in the original Regulation.
24. The above comparison will show that the changes brought about in the reconstituted Regulation are very significant. There is not an iota of any express indication in the Reconstituted Regulation that it was to be operative from any past date and if so which. Violation of the provisions of the Regulation and rules and orders passed thereunder was an offence,J and obviously, an intention cannot be attributed to the law marker that he desired to create offence retrospectively i.e, from a date when commission or omission of the relevant acts was not an offence. Again in new para. 10 prices of goods mentioned in para. 4 were to be deemed to come into force from the date of their notification-(i.e, publication in any manner not necessarily in the official Gazette)-the word 'notification' herein was used in the sense of an announcement. The word "deemed" does not necessarily mean that it applied to prices already fixed under the old Regulation which at their own place as para. 11 of that Regulation showed had to come into force from 17-11-1958 and from that point of view had already come into force much before the date of the promulgation of the Reconstituted Regulation. Here it may be mentioned, that very often controversy arises,-(to give an example)-whether a declaration of a public nature is to come into force from its own date or from the date of its publication in the official Gazette or publication otherwise. Para. 10 (new) was simply a guide in that respect that "prices of" goods mentioned in para. 4 will be deemed to come into force from the date of their notification" i.e, date of publication in any manner, which means as distinct from the date on which it was signed or issued in the official Gazette. In this sense since the operation was being made from a date different from the date of publication in the official Gazette, hence the deeming feature was added in that respect, to meet the objection that without publication in the official Gazette it could never in law come into operation. Again it will be noticed that whereas old para. 11 in the matter of operation of the "price fixed" was uniform, for the same came into operation with effect from 17-11-1950 and to highlight the point which we presently want to make, was applicable to prices fixed with regard to all goods, whether falling under para. 2, para. 4 or the Schedules but now the dates for each of these have been shifted in the new Regulation, whereunder, strangely though, no date for operation of prices fixed under para. 2 has been given, in case they pertain to goods other than those specifically mentioned in para. 4 which probably means that their dates will be regulated by the Central Government through relevant notifications. In the face of all these shifts, changes and involvements, it is clear that the Reconstitute Regulation was operative from the date of its own promulgation and has no retrospective effect with the result (if we can say so) that the price fixed under the old Regulation got their operation date from that Regulation and not from the Reconstituted Regulation, and would frustrate or render void only those contracts which were alive on 17-11-1958.
25. When confronted with the above Mr. Brohi submitted that Martial Law Regulation 42 was reconstituted on 6-12-1953 and was published in the Gazette on 9-12-1958. He submitted that the concept "Re-constitution" of a law in its very nature would mean re-constituted from the date of the original law. We asked him to quote any legal principle, precedent, text or any maxim on the subject but he could not do so. However, proceeding to justify his submission, he argued, that this theory may not be applicable to ordinary enactments but could be invoked during the days of any Martial Law in general and according to him was particularly adopted in the Martial Law of year 1958 with which we are concerned in this case. He submitted that a Martial Law always has its own features and characteristics and the Military General who imposes a Martial Law is not bound to apply the principles relevant for enforcing ordinary laws, to his own Commands, Orders, and Regulations, which if he no intends, he can promulgate and enforce in any manner and from any date he likes. We are not here concerned with laying down the kinds, features and characteristics of a Martial Law, or its limitations and scope, and our sole and simple endeavour in this case is to find out as to from which date the then Chief Martial Law Administrator desired that the re- constituted Martial Law Regulations 42 should come into force and whether he gave any indication in that respect. In our opinion since he did not indicate any specific retrospective date, therefore, in the circumstances explained already, it can safely be held that he intended to enforce it only from its own date and not any back date, viz. When it was originally framed, due to the obvious difficulties and involvements which it could have as such created. For example if he intended that the prices which originally had come into force from 17-11-1958 should now be deemed to have come into force from the back date of the publication of the relevant price which was 11-11-1958 then obviously for the six days during which it was not in force, viz. From 11-11-1958 to 17-11-1958 lot of sales and re-sales took place according to the normal and ordinary order of the day, If now the date of operation of prices was to be relegated back for six days there is no indication how the sales, re-sales-(wholesale or retails)-were to be dealt with, how the goods were to be taken from or given to, whom, and how the affairs of the aforesaid six days were to be set right, controlled or managed both on the civil and criminal side. Non-existence of all these details leads only to the one conclusion that the re-constituted Martial Law Regulation was not retrospective because had that been the intention all these matters and aspects could not have gone unattended. In this state of affairs to find that the re-constituted Martial Law Regulation was retrospective would lead to hold that instead of solving the difficulties of the people it created more for then. Obviously such an intention cannot be given to the relevant law-giver, especially when no ostensible reason in that respect was put forward or proved before us. Respectfully speaking, the view of the High Court, as also the submission in this respect of Mr. Brohi to the contrary for all the reasons aforesaid on the subject in hand, cannot be endorsed.
26. As regards the plea of "anticipatory breach of contract" on the part of the purchasers it may be pointed out that it is being attributed to them on the ground that the purchaser stated in his deposition Exh. 37 that they would not have lifted the goods even on 13-11-1958 therefor; it meant anticipatory breach. We have already held above by endorsing the concurrent findings of the learned Letters Patent Bench and learned trial Judge that the sellers had themselves kept the contract alive till 14-11-195g by their letter Exh.
22. In this state of affairs to accuse the purchasers of any anticipatory breach on 13-11-1958 does not arise, and I the vendors on their own part despite having kept the contract alive uptil the date above-mentioned, terminated it-(strangely enough by their own plea or action of having re sold the goods on 13-11-1958 which plea they later gave up)-how can they accuse the purchasers of anticipator breach. Rather the position which will turn out to be would be that having kept the contract alive uptill 14-11-1958 they themselves committed its anticipatrory breach on 13-11-1958 when in their letter Exh. 24 dated 14-11-1958 they told the purchasers that goods have already been disposed of by re-sale a day prior thereto. It is further to be noticed that having accepted the position that on 13/14-11-1958, they had no stock with them to supply and that the plea of alleged re-sale on 13-11-1958 was also incorrect-(as the position even otherwise turns out to be from the record)-then the letter dated 5-11-1958. Exh. 21, asking the purchasers to send their weighmen, and the letter dated 10-11-1958 Exh. 22, telling the purchasers to lift the goods within three days of its receipt, i.e, up to and inclusive of 14-11-1958 would all appear to be a hoax and show that the sellers themselves were not in a position to perform their part of the contract and were simply looking for an oportunity to fix fault on the purchasers which they tried to do first by pleading re-sale on 13-11- 1958 which has factually turned out be a false assertion and then by taking plea of anticipatory breach. The latter plea in this context in our view fails on factual plane and the further question of examining its consequences against the purchasers does not arise. Mr. Khalid Ishaq to cover this aspect of the case submitted that the mills of his clients had a capacity of ginning 2,000 maunds of cotton a day and therefore we should bold that as the ginning started from 6-11-1958 therefore the sellers were in a position to fulfil their part of the contract. This plea his clients tried to support from the statement of Ram Khan D. W. 1, who brought record of the returns submitted by sellers of the cotton ginning. He deposed that ginning in the Factory used to be done by saw ginning as well as by Rollers. (It is to be noticed that cottonseed to be sold in this case was to be of saw ginning and not of Rollers)-The witness deposed that from the returns submitted to their office, he could not state how much cotton was ginned from sawgins and how much from rollers. His statement does not establish as to how much, if any, cottonseed from saw ginning machines was or would have been available with the sellers on the date or dates relevant in this case. The plea of Mr. Khalid Ishaq in the circumstances leads him nowhere. Mr. Khalid Ishaq then submitted that the letter of the purchasers Exh. 23 dated 12-11-1958 whereby they had drawn attention of the vendors to Martial Law Regulation 42 could constitute and be considered as anticipatory breach of contract on their part. The contention has no merit and can be repelled to excuse repetition by the simple answer that in view of all the facts and the relevant state of affairs prevalent at that time, it was the sellers themselves who had kept the contract 'alive till 14-11-1958 unconditionally and without any strings-(as none appear in that letter)-therefore, any accelerated termination of contract or re- sale or any other similar act would place that breach and termination on their part and on no other.
27. For the reasons above mentioned, which in certain respects are different from those given by the High Court, these appeals fail and. Are dismissed with cost throughout. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.