' Similar questions of fact' and common points of law arise also in 10 other Writ Petitions bearing Nos. 962, 1256, 1272, 1273, 1313, 1314, 1761, 1827, 2009 of 1974 and No. 3531 of 1980, therefore, they were heard together and this judgment will govern all 11 of them.
2. The facts giving rise to the litigation, briefly stated, are that the concerned establishments were taken over during the night between the 2nd and 3rd of September, 1973 under rule 121 of the Defence of Pakistan Rules read with rule 213 thereof. It is, however, alleged in some cases that no order bearing on the point was shown to the petitioners. On 2-9-1973, Hydrogenated Vegetable Oil Industry (Control and Development) Ordinance XIX of 1973 was enforced. On 19-9-1973, a notification bearing No. SIMD/Veg/1-73, was issued by the Governor of the Punjab, in exercise of the powers under subsection (1) of section 5 of the aforesaid Ordinance XIX of 1973, to order, in the public interest, the take over of the establishments specified in the Schedule appended thereto. On the same day (19-9-1973) another notification bearing No. XIMD/ADM/Veg/73 was issued by the Governor of the Punjab to appoint Managing Directors for the taken over establishments in exercise of powers under section 6 thereof. In the meanwhile, on 15-9-1973 the aforesaid Ordinance XIX of 1973 had been repealed upon being replaced by Act LXV of 1973 and a notification bearing No. SRO-1297(1)/73, dated 4-9-1973 was issued by the Federal Government, in exercise of its powers under Article 146(1) of the Constitution, to entrust its functions under Ordinance XIX of 1973 to the Governments of the Provinces, with their consent, for their exercise in accordance with its directions. It was published in the Gazette of Pakistan, dated 6-9-1973. There is yet another Notification No. SIMD/VEG-1/74, dated 2-10-1974 issued by the Government of the Punjab by way of corrigendum to the aforesaid notifications dated 19-9-1973 to among others, replace the reference therein to the Ordinance with that of the Act.
3. These writ petitions have been instituted under Article 199 of the 1973 Constitution by the deposed Managing Directors/Proprietors of the taken-over establishments and arguments on the side of the petitioners have been led by M/s. Dilawar Mahmood, Eitizaz Ahsan, Abid Hassan Minto, Mian Nisar Ahmad, Syed Jamshed Ali Shah and Raja Muhammad Akram, Advocates, whereas the other learned counsel appearing in the respective writ petitions have largely adopted their arguments.
4. Elaborate arguments addressed in these cases may be broadly divided into four heads, namely,
(1) Constitutional validity of the legislation; (2) Legislative competence for the same; (3) Provision relat ing to grant of compensation and payment thereof; and (4) Property liable to be thereunder dealt with.
5. Under the first division, their arguments are that both the Ordinance and the Act are against the Constitution, being beyond the scope of Article 253 thereof; the impugned legislation is void under article 4 thereof for its being violative of the Fundamental Rights guaranteed by Articles 18, 23 and 24 of 1973 Constitution which, it is argued, continue to be available and have not been suspended lawfully in so far as Article 232 of the Constitution was not available to be pressed into service because the limits prescribed by Article 253 cannot be either transgressed or ignored in so far as the word 'such' appearing in clause (b) of Article 253 refers back to clause (a) thereof and it is urged that emergency was not lawfully continued because, having been declared on 23-11-1971, it was adopted under Article 280 of the Constitu tion which itself came into force on 14-8-1973, the commencing day, to be deemed to have been declared on 14-8-1973 so as to continue for 6 months upto 13-2-1974 and in order to give it a further lease of life steps in that behalf should have been taken before 13-2-1974 and no resolution of joint sessions of the Parliament having been passed before 13-2-1974 within the requirement of Article 232, the emergency ceased to exist on that date and such a resolution actually passed by the Parliament on 4-3-1974 cannot have the effect of continuing the emergency because of the break which occurred from 13-2-1974 and hence a fresh proclamation of emergency was required but was not made. The contention is that since, legally speaking the emergency was not in existence on 4-3-1974, therefore, it could not have been continued. An argument raised in the alternate is that Article 232 of the Constitution having been amended on 18-2-1975 by the amending Act of 1975 to make a negative provision to the effect that unless the continuance of emergency is disapproved by the joint sessions of the Parliament, it will continue and it is pointed out that the period from 13-2-1974 to 18-2-1975 being again a period of vacuum which had not been provided the cover by means of a resolution contemplated by the original clause 7(b) of Article 232, therefore, its absence had the effect of discontinuing the emergency which could not have come up for a negative resolution under the amended provision.
6. Their arguments, under the second division, are that the concept of public interest is different from public purpose and the action contemplated by the impugned legislation is not justifiable also for the reason that it is beyond the legislative competence of Federal Legislature because acquisition of property is a Provincial subject, the Federal Legislature has the power to make laws only for development and control of industries but not for their acquisition and also that Federal Legislature could only make policies by means of declaratory laws but could not itself make the laws dealing with the acquisition.
7. Validity of the impugned legislation was also challenged on the ground that it does not fully meet the requirements of payment of compensation, contained in the Constitution. It was argued also that the period of 90 days originally fixed in the Act having been removed through an amendment made subsequently in the year 1975, since the purpose of acquisition is not being served any more, therefore, the property should come back to the original owners who have a pre- emptive right for their return to themselves and the establishments cannot be sold out to others. In the same context, the questions regarding entitlement for payment of compensation, its admissibility as also of the adequacy thereof were raised on the ground that the provisions relating to compensation do not qualify to be called a money equivalent of the thing deprived of and that, in particular, a mere promise to pay in future is no compensation in the eyes of law, more so because the period for payment is not determined and the petitioners still continue to be in a state of uncertainty as to when the compensation may be actually paid to them and why nothing had been paid so far. It was contended also that the property having been taken over in the year 1973, the measure for compensation envisaged in the formula to be that of the year 1977, is really irrelevant. Inadequacy of compensation was also canvassed due to the absence of any provision to compensate for the goodwill of the establishment and the conclusion was built that there was no fair compensation at all provided for.
8. Under the last division, regarding the property liable to be dealt with under the impugned legislation, some argument was raised on the plea that the oil expellor units had been offered to be returned to the petitioners but the soap, margrine and tin units had not been, despite theirs being unrelated businesses.
9. Since there is no averment on the point made in the writ petitions, therefore, the argument on this point cannot be considered and even though this is a development which actually took place after the institution of the writ petitions, still, amendment to raise the plea could be sought but has not been claimed ever.
10. Copious references were made to various commentaries on the Constitutional Law and a large number of precedent cases even from different foreign jurisdictions were cited by the learned counsel in support of their contentions and reference was, among others, made to Ch. Sir Muhammad Zafarullah Khan and 2 others v. The Custodian of Evacuee Property, West Pakistan and Karachi PLD 1964 S C865; Nabi Ahmad and another v. Home Secretary, Government of West Pakistan, Lahore and 4 others PLD 1969 SC 599; Ashiq Ali Bhutto v. President, Summary Military Court No. 2, Karachi and 2 others PLD 1979 Kar. 814; Lt.-Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore PLD 1970 SC 98 and Haji Hashmat Ullah and others v. Karachi Municipal Corporation and others 1975 SCMR 359.
11. In opposition of the writ petitions arguments for the respondents were addressed also by their respective counsel largely by adopting the leading submissions made by Malik Muhammad Qayyum, learned Deputy Attorney-General and Dr. A. Basit, who represented the Managing Directors of the taken over establishments. Contentions of the learned counsel for the petitioners were exhaustively dealt with and it was submitted with reference to Article 38 of the Constitution that the impugned Act not only conforms with the policy laid down therein but is also in furtherance of the object thereof and can, therefore, stand independently of any other provision thereof. He defended the legislative competence for Act LXV of 1973 with reference also to Article 253 and Item '58 of the Federal Legislative List provided in Schedule IX of the Constitution and submitted alternatively that even if this Act may be beyond the scope of Article 253 even then, this will not itself be a ground to strike it down because Legislature is supreme and can frame any law within the limits laid down by the Constitution, as held in Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457 so that the Courts have to see merely that the limits thereof are not transgressed and have to give effect to the law as is framed within those limits. He reiterated that the only legal touch-stone is that limit prescribed by the Constitution and that, therefore, the Act would not get invalidated for the mere reason that it creates a State monopoly through nationalization wherein it has rather to be presumed that so was done in the public interest which, he submitted, is again a matter for the Legislature to decide and is not justiciable because in the.laws framed, under Article 253 of the Constitution, the question about existence or otherwise of public interest is only irrelevant. He further argued that Articles 23 and 24 themselves create the exception in favour of Article 253 and hence neither of them can be pressed into service to test the availability of Article 253 because the above referred two Articles are themselves subject to the provisions of the Constitution. In this context he submitted that emergency having been proclaimed initially on 23-11-1971, was extended from time to time until the Constitu tion was enforced on 14-8-1973 and that the resolution of Joint Sessions of Parliament mentioned in Article 280 to be passed within 6 months thereof could be lewfully passed in period of 8 months available for the purpose because allowance of time under para (a) of sub-Article (7) of Article 232 has also to be made and thus the resolution passed on 4-3-1974 avails for continuance of Emergency. He also referred to the Constitution third Amendment Act, 1975. (enforced on 18-2-1975) to substitute clause (b) to sub-Article (7) to lay down that the Emergency will continue until a resolution for its discontinuance is passed and pointed out that since no such resolution was in fact passed, therefore, the Emergency continues. It was next argued that by virtue of Article 2(3) of the Laws (Continuance in Force) Order (President's Order 1 o 197.7) Fundamental Rights. are not available. He placed reliance on Mir Abdul Baqi Baluch v. The Government of Pakistan through the Cabinet Secretary, Rawalpindi and 5 others PLD 1968 SC 313 for the proposition that pleas based on Fundamental Rights cannot be raised in these cases and submitted also that these writ petitions were not competent when they were instituted and are not tenable even today. Reliance for this submission was placed on a Division Bench judgment of this Court reported as Abdul Ghani Khan v.
Government of Pakistan and others PLD 1968 Lah.
1244. This judgment was cited with approval by another Division Bench in Brig. (Retd). F.B. Ali and another v. The State PLD 1975 Lah.
999.
12. I have given consideration to the contentions raised on both the sides. Bulk of the arguments of the learned counsel for the petitioners have been addressed on the point that the impugned legislation is unconstitutional and they have sought to challenge it with reference to Articles 4, 18, 23 and 24 of the Constitution. Since the Fundamental Rights had been suspended at a time before the institution of the writ petitions and have continued to remain suspended all along, this Court does not have the power under the Provisional Constitution Order to give any relief with respect to those rights, therefore, the contentions on the point raised by the learned counsel for the petitioners do not call for any detailed examination. However, the only question which survives for consideration is the legislative competence for the impugned statutes. A reference to Item 58 of the Federal Legislative List provided in Schedule IV of the Constitution, read with Article 253 thereof, manifests that the impugned legislation is intra vires. Courts have to give effect to the law as framed, which has to be presumed to be in the public interest, as held in Haji Hashmat Ullah and others v. Karachi Municipal Corporation and others 1975 SCMR 359. Moreover, challenge to Act LXV of 1973 cannot be thrown in the presence of clause (f) of Article 24 which lays down that nothing in this Article shall affect the validity of------(f) any existing law made in persuance of Article 253. It is undeniable that the aforesaid Act is an existing law. Moreover, Articles 23 and 24 of the Constitution are themselves subject to the other provision thereof, which implies reference to Article 253 as well.
Fundamental Rights were suspended under Article 2(3) of the President's Order 1 of 1977 as also under Article 2 of the Provisional Constitution Order, 1981. Since the Emergency has continued all along, without any break, and is still in force, therefore, the 'petitioners cannot claim to have the law declared invalid with reference to those rights. A case in point is .(In the Matter of Reference by the President of Pakistan under Article 162 of the Constitution of Islamic Republic of Pakistan) reported as PLD 1937 SC (Pak.) 219. Pleadings of the parties also involve resolution of disputed questions of facts which cannot be debated in these proceedings.
13. Upshot of the above discussion is that there is no force in the writ petitions and the contentions raised therein are simply untenable. Hence all the 11 writ petitions are dismissed. Parties to bear their own costs.