MUHAMMAD AFZAL LONE, J.--This judgment shall dispose of W. P. Nos. 627/1968, 704/70, 201/73, 1036/73 and 359; 75, as commons questions of law and facts are involved therein. It shall remain on the file of Writ Petition No. 627/1968.
2. The facts giving rise to this litigation are that the petitioner, Murree --Brewery Co. Ltd., is a licensed distillery. In addition to the duty, on spirit removed from the distillery, Excise Authorities in pursuance of rules 9.101, 9.101-A and 9.102 of the Punjab Distillery Rules framed by the Financial Commissioner, in the year 1932 and 1939, have been recovering duty on wastage of spirit in excess of the scale fixed by the Financial Commissioner. On 17-5-1950 the Excise & Taxation Officer, Rawalpindi raised a demand of Rs. 1,22,184/2, against the petitioner on account of duty for excess wastage, during the years 1943-44 and 1944-45 which subsequently was reduced to Rs. 1,07,214/9.
The petitioner however, on 13-1-1954 made part payment of Rs. 53,607/5 but filed a suit in the Court of the Senior Civil Judge, Rawalpindi for declaration challenging the validity of these rules and the imposition of the levy thereunder. The suit was dismissed by the learned trial Court on 9-3-1956 and the petitioner's R. F. A. 69/1956 also failed. However, Civil Appeal No. 91/1966, filed- by the Company in the Supreme Court was accepted on 24-1-1967. The Supreme Court took the view that the levy of the duty on the wastage in excess of tae prescribed scale, as on issue, was beyond the competence of the Financial Commis--sioner. Rules 9.101, 9.101-A and 9.102 were thus declared ultra vires of the Financial Commissioner, the demand raised by the Excise Authorities held illegal and a decree for Rs. 53,607/5, which had been recovered from the petitioner was granted in its favour. On the strength of the decision of the Supreme Court declaring, the Rules in question as ultra vires of the rule-making authority the petitioner put up another claim against the respondents for the refund of the duty as having been wrongly collected on wastage, from it by the Excise Department, during the period from August, 1940 to April, 1966 and accordingly, served a notice under section W, C. P. C. On the erstwhile Province of the West Pakistan. Initially the petitioner asked for refund of Rs.
1,2J,198/68 but on scrutiny the demand was modified to Rs. 1,18,485/7?, details whereof have been given in the enclosure A/I of Annex. I of Writ Petition No. 627/68, filed by the petitioner for issue of direction to the respondent to refund this amount to it.
3. It appears that in order to remove the infirmity suffered by the rules, pointed out in the Supreme Court's judgment, the Government under Notification No. 94/68/343-Exh. 111 dated 17-2-1968 amended Rule 2.1 of the Punjab Fiscal Order. This Rule provided the rates of duty leviable inrespect of spirit "removed from" any distillery and by virtue of the amendment, the expression "removed from" figuring in this Rule was substituted. By the words "manufactured in" and further the following proviso was added to it :- "Provided further that if it is found that the wastage in any distillery is excessive the Member Board of Revenue may prescribe a scale of wastage, and the licensee shall pay duty, as on manufacture, in respect of all losses attributed to wastage, in excess of the scale fixed."
Consequently, the Member Board of Revenue on, the same date amended the Distillery Rules ; as a result whereof, Rule 9.11;1 was deleted and in sub-rule 3 of rule 9.101-A which authorised the imposition of levy, 'as on issue', at the rate of still head duty, in respect of the excess wastage, the words "as on issue" were replaced by the words "as on manufacture".
4. It shall be useful to refer here, to the decision dated 19-12-1968 of the Division Bench of this Court, rendered in Writ Petition No. 1845/68, as it bad been made, the foundation of some of his submissions by the petitioner's learned counsel. The circumstances under which this writ petition was filed by the petitioner, are that in March, 1968, the Director of Excise and Taxation, Rawalpindi and the Director of petitioner's Company conducted a joint checking of all the stocks of alcohol in bulk, blending and bottled ; resultantly a shortage of 2991.4 bulk gallons was unearthed. Ors a report Lodged by the Department with the police, a case of theft was registered which later on was cancelled as it was found that there was no theft but only excess wastage had occurred.
Seemingly on re-calculation, this wastage was fixed at 2337.96 L. P. Gallons. In respect of this wastage the Excise Authorities, under the amended Rules, imposed a duty of Rs. 1,07,039.07 on the petitioner, for the period ending 30-6-1968, as on manufacture of 2337.96 L. P. Gallons of Pakistan manufactured foreign liquor.
5. The petitioner called in question this levy primarily on the ground that the Rules which were amended by the Member Board of Revenue, having been already declared ultra vires by the Supreme Court, were no longer in existence and thus could not be revived and amended by him.
The petitioner's these contentions prevailed with the learned Division Bench; the Writ Petition was accepted and inter alia it was maintained that as the Supreme Court held the Rules as ultra vires of the Financial Commissioner, these must be regarded as void ab initio ; there was no case for - their amendment and that the only course open to the Member Board of Revenue was to promulgate a new set of Rules. The impost was thus declared to %be without lawful authority. The respondent assailed this judgment by filing Appeal No. 77/69 before the Supreme Court but during its pendency the West Pakistan Duty on Excessive Wastage of Spirits in Distilleries (Validation)
Ordinance, 1969 (hereinafter called the Ordinance) was enacted and consequently the appeal withdrawn.
6. It may be observed that against the demand of Rs. 1,07,039.70, the Director Excise and Taxation, appropriated the petitioner's deposit of Rs. 29,179.38 lying with the Excise Department. On the acceptance of W. P. No. 1845 of 1968, the petitioner called upon the respondents to refund this sum to it. ,Some correspondence was also exchanged on this subject between the parties, but ultimately the Directorate of Excise and Taxation by his Letter No. 7774-RD(D), dated 6-4-1970, relying, on the Ordinance declined. To .Allow the refund and reiterated their old demand for payment of balance of Rs. 77,860.32, on account of excess wastage for the year 1967-68. This demand has been challenged and the validity of the Ordinance questioned through Writ Petition No. 704/70.
7.- During the-pendency of this writ petition, the Excise and Taxation Officer, Rawalpindi on 25-5- 1970 further demanded a sum of Rs. 23,089/50 in respect of the excess wastage of spirit for the year 1968-69. This, demand also rested on the Ordinance. Writ Petition No. 20 /73 has been filed to assail this demand on the ground similar to the one taken in W. P. No. 704/70. Likewise, a demand of Rs._ 30,152/25 raised against the petitioner by the Department for the excess wastage during the year 1969-70, 1970-71 and 1971-72 has been made the subject of Writ Petition No. 10.56/1973.
Similarly, a sum of Rs. 5,339.25 was demanded for the year 1972-73 which has been challenged by means of Writ Petition No. 359/ 75.
Writ Petition No. 627/1968
8. The learned counsel for the petitioner argued that as a result of striking down, the rules by the Supreme Court under which the duty was realized by the Excise Authorities, the petitioner became entitled to the refund of the duty wrongly collected, for, which a notice under section 80, C. P. C.
Was served on the - respondent. He relied on Art. 2 of 1962 Constitution and submitted that it was the petitioner's right to be governed in accordance with law ; the recovery made under an ultra wires law was utterly an illegal recovery and thus the petitioner was entitled to seek the assistance of the Court for its refund. He further referred to paragraph 3.20 of the Excise Manual, Vol. III, to contend that it was the statutory obligation of the Commissioner to refund the Excise duty wrongly collected from the petitioner and to get Form M. 25 prepared from the official concerned of the Department for that purpose.
9. The submissions made by the learned counsel do not call for issue of the direction prayed for by the petitioner. The Supreme Court's judgment is the whole basis of his arguments. It is correct that in Article 2 the term `law' has been used in its generic sense and would include the judicial pronouncements of the superior Courts. It is to. Be seen that the amount sought to be refunded by the petitioner. Was recovered from it long before the pronouncement of the Supreme Court's judgment.Thus what the petitioner really wants, is the enforcement of this judgment retrospectively There is, however, no legal basis for it. In Muhammad Yusuf v. Chief Settlement and Rehabilitation Commissioner PLD 1968 SC 101, an argument founded on the retrospective operation of one of its earlier judgments, was repelled by the Supreme Court and it was held that : "This 'judgment was delivered on the 2nd November, 1964, and its consequence was that- as from that date all Courts subordinate to the Supreme Court and all executive and quasi-judicial authorities were obliged by virtue of the Constitution to apply the rule as laid down by the Supreme Court in. Cases coming up before them for decision. It did not have, arid it cannot be contended that it had, the effect of altering the law as from the commencement of the Act so as to render void of its own force all relevant orders of the Settlement authorities or of the High Court made in the light of the earlier interpretation which was that the exercise of the delegated power was subject to the provisions in Chapter V1 of the Act."
The duty levied and collected from the petitioner in pursuance of the rules, before the grant of declaration to it by the Supreme Court, did not ipso facto became a wrongful recovery after the judgment dated 24-1-1967. A writ in the nature of mandamus may issue after it is shown that enforcement of a right guaranteed by law is involved or that the performance of some legal duty is to be secured. The petitioner however, can neither legitimately complain of infringement of any legal right nor in the circumstances, any statutory duty was cast on the Commissioner to allow the refund.
9-A. There are other factors disentitling the petitioner to the relief under the constitutional jurisdiction of the Court. This petition was filed in April, 1968. The petitioner had asked for refund of the recoveries made from it, during the period from August, 1940 to October, 1966, comprising 17 items, as enlisted in enclosure `C' of the writ petition. The claim for refund after three years had become barred by time. Thus all the items of the list except the three dated 4-2-1966, 23-4-1966 and 2C-10-1966 for Rs. 2,754, 2,623.50 and Rs. 189 respectively would be hit by limitation.
Unsustainability of a time-barred claim apart, the writ in respect of most of the items also suffers from laches. The petitioner filed the suit on 21-3-1955 and substantial part of the claim should have been included in it for which a cause of action had already arisen. For all these reasons, the submissions made by the learned counsel do not furnish any justification for refund.
W. P. Nos. 704/70, 201/73, 1036/73 and 359 of 1979 9-B. The learned counsel for the petitioner argued that section 3(a) of the Ordinance authorises levy on wastage of spirit in excess of scales prescribed by the Financial Commissioner/Member Board of Revenue but under the provisions of the Punjab Excise Act, 1914 such scales lawfully can only be prescribed by the Provincial Government under section 31 of the Act. It was urged that the scales already prescribed, referred in this subsection were declared ultra wires by the Supreme Court and the High Court, which stood effaced and there remained nothing to be validated. The argument was that the Ordinance fell short of the object for which it was formulated. Elaborating his. Submissions the learned counsel contended that upon the language of subsection 3(a) levy in respect of only that wastage which was in excess of the scales prescribed under the Act, was validated, but the scales in question had already been declared void ab initio and thus found not to have been framed under the Act. It was insisted that subsection (b) of section 3 is subservient to subsection (a) inasmuch as only that duty would be deemed to have been levied and charged validly which was -charged and levied under subsection (a) and as subsection (a) itself suffered from an infirmity, the legalization of the levy and the recovery was nothing but an exercise in futility.
In support of this submission that a blanket validation of the operation of the rules declared ultra vires could not be sustained, the learned counsel heavily relied on .The State v. Zia-ur-Rehman and others PLD1973SC49. It was also faintly argued that before any valid imposition of the duty under subsection 3(a) the demand should have been established as a matter of fact, after affording an opportunity of being heard to the petitioner. The contention raised was that no inquiry was made to ascertain the correct wastage and therefore, on this ground also the impost could not be upheld. According to- the learned counsel the only course open to the Legislature was to incorporate the scales of wastage in the Ordinance and thus make it a part of the Statute itself. The learned counsel also referred to The Commissioner of Income-tax Karachi v. Mst. Khatija Begum, Partner, Shakil Impex, Karachi (PLD 1965 SC 472to submit that in taxing statutes the provisions relating to imposition of tax should be construed strictly.
10. In order to appreciate the contentions of the learned counsel, we consider it convenient to .Reproduce, hereunder section 3 of the Ordinance ; "Notwithstanding anything contained in the Punjab Excise Act, 1914, or the rules and orders issued thereunder, or in any judgment, decree or order of any Court-
(a) duty shall be payable on any wastage of spirit which has occurred, in any distillery on or after 1st July, 1940, in excess of the scale prescribed for the time being for the said distillery by the Financial Commissioner, Excise Commissioner, or the Member Board of Revenue, as the case may be, under the provisions of Punjab Excise Act, 1914, at the rates chargeable on spirit manufactured in or removed from such distillery ; and
(b) any duty on wastage of spirit in any distillery, levied, charged, collected or realised before the coming into force of this Ordinance, and which is in accordance with the provisions of clause (a), shall be deemed to have been validly levied, charged, collected or realised, as the case may be."
The distribution of legislative powers under 1.962 Constitution was such that under Article 131 the Centre had exclusive powers to legislate in respect of the subjects enumerated in the .3rd Schedule and all other matters not specified therein vested in the provinces. There is no gainsaying that the duty on the manufacture of the intoxicating liquor was a provincial subject. Unless the Constitution, itself posed a bar. The provincial Legislature in this, respect, was competent to make laws prospectively as well as retrospectively.Thus the authority to make laws includes the power to give retrospectively operation to such laws. It is to be noticed that the power to validate the laws is ancillary to the jurisdiction to make laws retrospectively. This' principle is firmly established ever since the decision of the Judicial Committee, in Her Majesty's Queen v. Burha ((1875) 5 1 A 178wherein it has been laid down; "It is true that `validation' of executive orders' or any entry even remotely analogous to it is not to be found in any of the three Lists ; but I am clear that legislation for that 'purpose must be regarded as subsidiary or ancillary to the power of legislating on the particular subjects in respect of which the executive orders may have been issued."
This dictum was followed by the Federal Court of India in United Province v. Atiqa Begum (AIR1941FC16) and then reaffirmed in Piare Dushadh v. Emperor AIR1944FCI). The facts of the last precedent, are that the Special Criminal Courts Ordi--nance, 1942 having been declared void by the Federal Court, was validated by the Governor-General through promulgation of the Criminal Courts (Repeal) Ordinance, 1943. The legality of this legislation was also questioned. Grower, C. J., repelled the objection and maintained ; " . . . . . The power of validation must be taken to be ancillary or subsidiary to the power to deal with the particular subjects specified in the lists."
The object of the validation usually is to cure retrospectively the defect in the Statute and to sustain the action taken in pursuance thereof. As he in Shah Said v. The State (PLD 1958 Pesh. 151 "The validating acts are essentially designed to legalise those acts of the administrative authorities or of statutory bodies, which when done had failed to achieve the expected result only by reason of some statutory disability or irregularity."
11. Rules 9.101, 9.101-A and 9.102 had been declared ultra vires by the Supreme Court and the attempt to cure the infirmity, by the amendment thereof also failed. The argument which prevailed with the Supreme Court in striking down the Rules was; "By Rule 9.101 the Financial Commissioner is asking a licensee to pay duty "as on issue in respect of all losses attributed by wastage in excess of the scale." In other words he wants to levy duty by this rule on a notional issue by including wastage over the prescribed rate of wastage. He is really adding duty to the spirit removed from the distillery on notional basis, e.g. On the quantity which should have been manufactured. This could have been done by the Government under subsection
(c) of section 31 on the articles removed from the distillery and by the Financial Commissioner under .Clause (b) of section 32 if rate of duty had been fixed on the manufactured article. But the Government by Fiscal Order 2.1 prescribed rates of duty on articles removed from the Distillery and not on quantity manufac--tured. The Financial Commissioner, therefore, acted beyond his power in levying duty on excess notional wastage. He can only provide machinery for realization of the duty imposed by the Govern--ment under section 31. Hence, the contention that under section 31 only the provincial Government is empowered to levy duty on excisable articles and that the Financial Commissioner has no jurisdic--petition to add to it, is not without force. In this view of the matter we hold that Rules 9.101, 9.101-A and 9.102 are ultra vires of the Financial Commissioner."
These observations fall in line with the view taken by the Privy Council inGovernor-General-in- Council v. Madras Province (AIR 1.945 P C 98 " . . . . That duty of excise is primarily a duty levied upon a manufacturer or producer in respect of the commodity manufactured or produced."
12. To remedy the evil by which the rules were visited the Government amended rule 2.1 of the Punjab Fiscal Order and simultaneously the Member Board of Revenue, as already observed amended the Rules. It is to be' noticed that section 31 is the charging section. The moment the taxing event, namely the manufacture of the intoxicating liquor, occurred the charge was. Created.
In Muhammad Amir Khan v. The Controller of Estate Duty and others (PLD 1962 5 C 335)
Hamoodur Rehman, J. (as he then was) drew a distinction between the charging and the machinery provisions of a taxing statute in the following) words; "The liability to pay the tax arises by virtue of the charging sections alone, though quantification of the amount payable may be postponed.
As observed by Lord Dunedin at page 110 in the case of Whiteny v. The Commissioners of Inland Revenue, "there are three stages in the imposition of a tax : there is the declaration of the liability, that is the part of the statute which determines what persons in respect of what property are liable.
Next, there is the assessm ent. Liability does not depend on assessment. That, ex-hypothesis has already been fixed. But assessm ent particularises the exact sum which a person liable has to pay.
Lastly, comes the methods of recovery, if the person taxed does not voluntarily pay. "Again, as Romer L. J., observed in the case of Mckenna (H. M. Inspector of Taxes) v. Eaton Turner : "if the tax is clearly imposed, the omission of the Legislature to provide means for its collection must be regarded as an unfortunate omission and nothing else. It is only where a doubt arises whether the tax is chargeable by a certain section that the absence of machinery for collection becomes a relevant consideration." Thus it would seem that the mere postponement of the quantification of a tax or a defect in the machinery designed for the realization of a tax or even the absence of such machinery does not and cannot defeat the liability of the tax."
13. It is thus quite obvious, as soon as the excisable articles were manufactured by the petitioner, by virtue of the charging provisions of the statute, the liability to pay the tax on such articles, in accordance with the rates prescribed by the Provincial Government came into existence. It was just a matter of convenience and remission that instead of levying the duty on the entire bulk manufacture, some allowance was given to the distiller under the rules framed under section 32 of the Act by prescribing the scale of shortage, by way of regulating the manner of the recovery of the duty. By the amendment made in the rules on 17th February, 1968 by providing the recovery of levy iii respect of the wastage on the quantity manufactured in the distillery instead of on the one removed from it, the rules were made to conform to section 31. There was nothing wrong with the provision of the scale of wastage prescribed by the Member Board of Revenue except that the rules having already been declared void, and thus non-existent, could not be revived by means of amendment. Thus so far as the objection of the petitioner's learned counsel is concerned that the scales could lawfully only be prescribed by the Provincial Government ; we do not find any merit in his submissions.
14. The main argument addressed to us on behalf of the petitioner was anchored on the judgment of this Court delivered in Writ Petition No. 1845 of 1968 and we were asked to hold that the rules having been declared ultra vires were incapable of being validated, even by the Legislature through enactment of section 3(a) unless these were mutatis mutandls embodied in the Ordinance itself.
There is an inherent fallacy in this argument. The act of a rule-making authority, in curing a defect in the rules, is not synonymous with the Act o Legislature, promulgated in exercise of the sovereign jurisdiction, vesting in the Legislature. Rules were declared ultra vires as the Rule-making authority had exceeded its powers. It is nobody's case that even the provincial Legis--lature was not competent to legislate on the matter covered by the Rules. The objection put forth on behalf of the petitioner is that the rules must be treated as still born in the eye of law and the validation could not put life, in what was non-existant. We are unable to accept this argument. The improper exercise of delegated authority by Commissioner or for that matter by Member Board of Revenue in framing rules, cannot be equated with legislative incompetence resulting from lack of constitutional backing. There is no quarrel with the proposition, if a statute is invalid ; it having been enacted by a Legislature, outside the field of its jurisdiction, even the Parliament would not be competent to validate it. But if some statutory rules have been declared invalid by a Court, on account of some defect, the competent Legis--lature will have the power to remove the infirmity and legalise the action taken under such statutory provisions without re-enacting such provisions..
In our opinion it was not necessary that for validating the action under the rules, those provisions should have been enacted in the validating Ordinance. There is no such firm legislative practice.
We may cite here with advantage the case of validation of the West Pakistan Cotton (Control) Act, 1949. Section 30(p) of this. Act authorised the Government to make rules to give effect to the provisions of the act. It further laid down that such rules may provide for the fees to be, paid by the owners 'of the cotton ginning factories etc. Such rules were framed by the Government of which rule 26 provided that: "Government may by general or special notification impose fees on the occupiers of factories . . . . ."
Muhammad Ismail v. Chief Cotton Inspector ( PLD 1966 SC 392the Supreme Court held rule 26 authorising the 4evy of fees on the occupier of a factory as against the owner, envisaged by section 30(p), as ultra vires. Earlies Punjab Act I of 1954 was promulgated to bring section 30(p) in conformity with rule 26 but there being no deeming clause in it, the Supreme Court held that this Act was operative only prospectively. The recoveries already made thus could not be legalished. In order to remove this lacuna the West Pakistan Cotton Control (Validation of Levy of Fees)
Ordinance, 1966 was promulgated and by virtue of the deeming dause the fee already levied, charged and collected was validated. The Validating Ordinance of 1966 was questioned in Narain Das Natho Ram Cotton Ginning Factory v. Province of West Pakistan (PLD 1969 Lab. 860but its validity was upheld by a Division Bench of this Court. We find that the pattern of legislation of this Ordinance as well as the West Pakistan duty on excessive wastage of spirits in distillery (Validation)
Ordinance, 1969 is materially the same. - The argument that the validated Ordinance has failed to achieve the object for which it was enacted rested on the plea that subsection '(b)' of section 3.
Legalised the levy and collection only of that duty had been levied and collected in accordance with clause 'a' and that this clause on its turn made reference to the scales of wastage prescribed under the provisions of Punjab Excise Act, since the rules had not been framed under the Act, the validation was aimless.
15. It is to be noticed that the validating Ordinance in its very nature is a remedial statute and was promulgated to cure the mischief in the rules and the consequential legalisatibn of the duty recovered in pursuance of these rules. This is evident from the preamble of the Ordinance. As a, remedial statute the Ordinance therefore, has got to be constituted, so far as possible to render the remedy effectual and to correct the defects, mistakes and omission in the former law. In this connection, a reference to Heydon' ,case, as found at page 40 of the Maxwell on Interpretation of Statutes (12th Edn.) will provide ; "In Heydon's case, in 1584, it was resolved by the Barons of theExchequer (at p. 7b) "that for the sure and true interpretation of all statutes in general (be they penal of beneficial,. Restrictive or enlarging of the common law) four things are to be discerned and considered (1st). What was the common law before the making of the Act. (2nd) what was the mischief and defect for which the common law did mot provide. (3rd) what remedy the Parliament bath resolved and appointed to cure the disease of the common wealth. And, (4th). The true reason of the remedy ; and then the office of all the Judges is always to make such construction-as shall suppres. The mischief, and advance the remedy, and to suppres subtle inventions and evasions for con--tinuance of the mischief, and proprivato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico."
16. Apart from the attraction of the mischief rule, we have also to give effect to the intention of the Legislature, to be discovered from its language, with reference to the object of the statute. The object of the statute is quite obvious from its preamble, the language. The state of the previous law, and the curative measures taken under the Validating Ordinance. We are unable to agree with the petitioner's learned counsel that the Ordinance falls short of the object for which it was enacted. As regard the words "under the Pro--visions of the Punjab Excise Act, 1314," it may be observed that the expres--sion "under the Act" also figured in section 67. Of. The Income Tax Act 1922 and was constructed by the Privy Council in Raleigh Investment Bompanp v. The Governor-General-in- Council Pb1947PC19,in the following words :- "The obvious meaning, and in their Lordships opinion the correct meaning, of the phrase "assessm ent made under the Act" is an assessment finding its origin in an activity of the assessing Officer as such. The circumstances that the assessing Officer has taken into account an ultra vices provision of the Act is in this view immaterial in determining whether the assessment is "made under the Act". The phrase describes the provenance of the assessments it does not relate to its accuracy in point of law. The use of the machinery provided by the Act, not the result of that use, is the test."
Subsection (a) of section 3 has reference to the formulation of the rules by the Financial Commissioner or for that matter the Member, board of Revenue and not to the constitutionality of such rules. If the argument of the learned counsel is accepted that would amount to completely nullying the purpose for which the validating Ordinance was brought on the statutes.
17. Section 3 begins with the overriding expressions :-- "Notwithstanding anything contained in the Punjab Excise Act, 1914. Or the Rules and orders issued there -under, or in judgment. Decree or order of any Court."
These words have the effect of excluding whatever contrary to section 3 is to be found in the judgments of the High Court and the Supreme Court. Thus anything said in those judgments about the constitutionality of the rules, after the promulgation of the Validating Ordinance, has lost much of its aspirity. It is open to the Legislature to pass an Amending and Validating Act, with the object of during the defect in a statute, pointed out by a Court of law and then to enforce it retrospectively, to save the part transactions. The instances of sustenances of such remedial statutes and corrective legislative measures, by the Courts are not lacking.In The State v. Zia-ur- Rehman the Supreme Court held; ". . . It is not the function of the judiciary to legislate or to question the wisdom of the Legislature in making a particular law if it has made it competently without trangressing the limitations of the Constitution. Again if a law has been competently and validly made the judiciary cannot refuse to enforce it even if the result of it be to nullify its own decisions. The Legislature has also every right to change, amend or clarify the law if the judiciary has found that the language used by the Legislature conveys an intent. Different from that which was sought to be conveyed by it."
The reliance of the learned counsel on the two judgments referred to above is thus misplaced.
18. The last point yet to be determined is that the duty could have been charged only after ascertaining the wastage, as a matter of fact. This objec--petition is also ill-founded. Our attention has been drawn by the learned counsel for the respondents to the specimens of various pro forma of the registers, in the Excise Manual, Volume IV for maintenance of record both by the dis--tillery as well as the Excise Department. This record relates to distillery operations, manufacture, storage and issue of bulk spirit and bottled spirit. The two records are periodically compared and reconciled with one another. We are also told that the record maintained by the Department has always been open to inspection by the petitioner. This was not denied on behalf of the petitioner.
Such being the position, the .Wastage is conveniently ascertain--able from the record. In fact the impugned demand notices were based on the record, authenticity whereof seemingly was not questioned by the petitioner, in the past. The last objection thus also fails.
19. For the foregoing reasons we do not find. Any merit in these petitions, which are dismissed with costs.
(1) PLD1973SC 49