This order will dispose of Criminal Miscellaneous Petitions Nos. 5327 and 5607 of 1968 file under sections 561-A of the Criminal Procedure Code. The petitioners in these cases are Khan Umar Khan and M/s. Ch. Bale, Ismail Muhammad Yasin, respectively. They are being prosecuted under rules 29(4) and 29(9) framed under the Agricultural Produce Markets Act of 1939 (hereinafter called the Act) for evasion of market fees etc. Both the cases were filed in the Court of the Additional District Magistrate, Jhelum.
2. By Notification No. 3(1) S O (F & M)/65-Market, dated 11 of March 1967, issued under section 4 of the Act, the market area or Market Committee, Jhelum was extended to Police Station Jhelum including the Cantonment. The allegations against the petitioners are that they supplied meat and agri--culture produce to the Station Supply Depot in the Jhelum Cantonment from 11th of March 1967 to 30th of June 1967, but failed to pay the market fees due from them in the light of the provisions of the Act.
3. The petitioners have asked for the quashment of the criminal proceedings pending against them, mainly, on the ground that the notification extending the application of the Act to cantonment areas was bad in law in view of the fact that the Central Government have exclusive powers to legislate with regard to cantonments and the operation of any Provincial Law in those areas is in clear contravention of Item 1(e) of the Third Schedule read with Article 131 of the Constitution of 1962. Some other factual allegations have also been made but no argument was addressed to me with regard to them and in my view these factual allegations can be determined only after full evidence has been recorded in these cases by a competent Court.th
4. The cases were being adjourned from time to time on account of the protracted illness of Sh.
Muhammad Shafi who had filed these petitions and ultimately Mr. Fazal-e-Mahmood appeared for the petitioners.
The learned counsel argued that in view of the language of Article 131 of the Constitution the Central Legislature has exclusive powers to frame laws with regard to the matter enumerated in the Third Schedule. He referred to entry No. 1 of the Third Schedule, the relevant portion whereof reads as follows:-
1. Defence of Pakistan and of each part of Pakistan, including-
(a) ---------------------------------------
(b) ------------------------------------..
(c) ------------------------------------..
(d) ------------. .------------------..And
(e) ------------------ cantonment areas, including-
(1) the delimitation of such areas;
(ii) local self-Government in such areas, the constitution of local authorities for such areas and the functions and powers of such authorities; and
(iii) the control of housing accommodation (including control of rents) in such areas."
The argument of the learned counsel was that the above portion of the Third Schedule was so worded as to exclude the applicability of any statute passed by the Provincial Legislature to the cantonment areas.
5. Mr. Dilawar Mahmood, the learned Additional Advocate-General argued that a law could not be attacked by filing a petition for quashing of proceedings and according to him the 5 validity of a law could be called into question only by a writ petition. He said that under Article 132 of the Constitution the Provincial Legislature had full powers to make laws with regard to matters other than those enumerated in the Third Schedule. He further said that under Article 141 of the Constitution a Provincial Legislature could impose taxes on persons engaged in professions, trades, callings or employments. According to him the fees levied by the market authorities were covered by Article 41 referred to above and this was the exclusive domain of the Provincial Legislature.
6. There is no substance in the argument of the learned Additional Advocate-General that the validity of a law could be called into question only by a writ petition. The petitioners A in this case are being prosecuted for violation of a Provincial Law which according to them is beyond the competence of the Provincial Legislature. They can, therefore, ask for quashing of proceedings under section 561-A of the Code of Criminal Procedure because according to them the prosecution is entirely unwarranted under the law and amounts to an abuse of the process of Court. Reference to the case of Ghulam Muhammad (PLD 1967 SC 317) is not apt because in that case the Supreme Court drew a distinction between the Revisional powers of the High Court and the inherent powers under section 561-A, Cr. P. C. Here the petitioners are assailing the very validity of the law under which they are being prosecuted. It is always open to a citizen to invoke the provisions of section 561-A, Cr. P. C. If the prosecution launched against him has no legal foundation.
7. The argument advanced on the basis of Articles 132 and 141 is correct in its own place but the matter does not end at that. It appeared that the learned Additional Advocate-General was wholly unprepared to meet the challenge to the vires of the Act and had no notion as to what was the crucial matter involved in the case. He had to be reminded by the Bench that in cases, where it is alleged that a Provincial Legislature had made an invasion on the legislative sphere of the Central Legislature, the doctrine of pith and substance, which has been evolved by the superior Courts of the countries whose con--stitutions are founded on written organic instruments, has to be looked into in order to find out whether there was 79 actual invasion or not. The case had to be adjourned and on the next hearing the learned Additional Advocate-General quoted some authorities including the case of Ghulam All Shah (PLD 1970 SC 253). It was observed in the precedent case that where a Constitutional Act distributes legislative powers between different law-making bodies, a statute enacted by any such body should be examined to ascertain its "pith and substance", or its 'true nature and character' for the purpose of determining the real field of legislation within which the subject-matter of the statute lies.
8. The Constitution has defined the legislative boundaries of the Central Legislature and it cannot be said that the Provincial Legislature in whose sphere of legislation the cantonment areas are situated is debarred from making-laws within their own bounds which affect persons residing in cantonment areas. A number of Provincial Laws are prevalent in cantonment areas. If we accept the argument of the learned counsel for the petitioners then these Laws shall have to be struck down vis-a-vis their application to the cantonment areas. The Criminal Law except offences against Laws mentioned in entry No. 47 of the Third Schedule of the Constitution of 1962, is a provincial subject and if we accept this argument, any penal law framed in future by the Provincial Legislature will become ineffective against the residents of cantonments and there will be administrative chaos in the country. In, the words of Sir Maurice Gwyer, the then Chief Justice of the Federal Court of India in Subrahmanyan v. Muttuswami Gondan (1940 FC R 188) "blind adherence to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the Legislature enacting them may appear to have legislated in a forbidden sphere".
9. It was further argued in the alternative by the learned counsel for the petitioners that in any case the marketing committee was a local Authority as it administered certain funds and its constitution in the cantonment areas exclusively rested with the Central Legislature. This argument is again fallacious. The Central Legislature is empowered to regulate the constitution of Local Authorities for the cantonment areas, but this does not mean that these areas are completely closed to the Provincial Legislature for purposes of legislation. In Government of India Act of 1935 and the Constitution of 1956 while dealing with the legislative powers of the Central Legislature in respect of cantonment areas the words "constitution, powers and functions within such areas, of cantonment authorities" were used. The phrase `local authority' has been used in the Constitution of 1962 perhaps to introduce C modern phraseology and for the sake of brevity. There is no radical departure in the Constitution of 1962 from the two previous Constitutional Acts with regard to the law-making powers of the Central Legislature vis-a-vis the cantonment areas. The authors of the Constitution cannot be attributed the intention of depriving the Provincial Legislature of the powers to set up any Local Authority in the cantonment areas in connection with a Statute which would validly fall within the ambit of their legislative powers. The powers to regulate the Local Self- Government and the constitution of Local Authorities given to the Central Legislature by the Constitution is essen--tially with reference to Defence of Pakistan and of each part of Pakistan. The regulation of these bodies by the Central Legislature, therefore, should primarily be in relation to the Defence of Pakistan or matters incidental or ancillary thereto.
10. The task of the judicial interpreter is to find out the real object and substance of the impugned law and to find out whether at all there is any invasion of the prohibited field and even if there is one, is it so substantial as to result in repugnancy or usurpation of legislative powers vested by the Constitution in a Legislature. The presumption should always be against the invalidity of an Act. An interpretation which makes the law, which is subject-matter of attack, operative, will n always find favour with the Courts of law. It is only when reconciliation is not possible and trespass is glaringly apparent that the Courts will strike down a Provincial Law on the ground that it encroached upon the legislative powers of the Central Legislature. The legislative powers of a Legislature have not to be circumscribed by a narrow and superficial construction but have to be given a liberal interpretation in view of the nature of the subject so that the Legislature concerned rules supreme in its own sphere.
11. The controversy regarding the validity of the Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act of 1938, was referred to the Federal Court of India by the Governor- General under section 213 of the Government of India Act, 1935 (AIR 1939 FC 1). The attack on the impugned Act was that it transgressed into the sphere of the Central Legislature regarding imposition of duties on excisable articles and that the imposition of the sales tax by the Provincial Government on Motor Spirit and Lubricants was unconstitutional. The answer to the reference was in favour of the validity of the Act. It was observed that the Provincial Government had a right to impose a sales tax which power was quite different from the excise duty payable to the Central Government during the process of the manufacture. We find the following weighty observations by Jayakar, J. At page 31 of the report:- "It is duty of the Courts, however, difficult it may be, to ascertain in what degree, and to what extent, authority to deal with matters falling within these classes of subjects (mentioned in the Central and Provincial Lists) exists in each Legislature and to define, in the particular case before them, the limits of their respective powers."
Again, it was observed at page 32 of the report that where the text was ambiguous, as for example, when the words establishing two mutually exclusive jurisdictions are wide enough to bring a particular power within either, recourse must be had to the context and scheme of the Act. In Hammer v. Dagenhat ((1918) 247 U S 251) the Supreme Court of United States was con--sidering the effect of a statute enacted by the Congress prohibiting an the transportation in inter-State commerce of goods manu--factured by factories where children of certain specified ages had been employed. It was argued before the Supreme Court that since the subject of inter-State commerce rested with the Congress, it had very wide powers to control the transportation in inter- State commerce and the impugned law was only a manifestation of that power. The majority of the Supreme Court repelled this contention and held that in effect the law was intended to regulate the hours of Labour of children in factories which was a purely State subject. The judgment was delivered by Day, J. And the relevant portion thereof may be quoted hereunder with advantage: "A statute must be judged by its natural and reasonable effect . . . . . We have neither authority nor disposition to question the motives of Congress in enacting this legislation. The purposes intended must be attained consistently with constitutional limitations and not by an invasion of the powers of the States. This Court has no more important func--tion than that which devolves upon it, the obligation to preserve inviolate the constitutional limitations upon the exercise of authority, Federal and State, to the end that each may continue to discharge, harmoniously with the other, the duties entrusted to it by the Constitution. In our view the necessary effect of this Act is, by means of a prohibition against the movement in inter-State commerce of ordinary commercial commodities, to regulate the hours of Labour of children in factories and mines within the States, a purely State authority . .. . The far-reaching result of upholding the Act cannot be more plainly indicated than by pointing out that if Congress can thus regulate matters entrusted to local authority by prohibition of the movement of commodities in inter-State commerce, all freedom of commerce will be at an end, and the power of the States over local matters may be eliminated, and thus our system of Government be practically destroyed."
12. Agriculture being a subject exclusively in the domain of the Provincial Legislature the Provincial Legislature should be presumed to have all incidental powers regarding the cons--titution, establishment and regulation of Market Committee and levying of fees etc. The Provincial Government have the rule-making power and they have framed rules within the guide-- lines indicated by the Legislature. The object of the Act is to provide for the better regulation of purchase and sale of agri--cultural produce in the province and to establish markets for the purposes. The Provincial Government has the power tot make a declaration under section 4 of the Act to specify and declare by notification any area to be notified market area. It is further said in subsection (2) of section 4 that after such a notification no person unless exempted by rules, can deal agricultural produce except under a licence granted in accordance with the provisions of the Act. Under section 19 the powers of levying fees has been given to the Provincial Government on the agricultural produce bought or sold by the licensee in the notified areas. It was open to the Provincial Govern--ment to notify the area of Jhelum Cantonment as market for the purposes of the Act. The impugned notifications are I therefore, valid.
13. I was also referred to a Notification No. 6110-D dated 17th of November 1942, which has been issued in respect of the Lahore Cantonment area. This also shows that there is precedent for holding that the Act was being administered in cantonment areas even before Partition.
14. The main argument regarding the legality of the criminal proceedings pending against the petitioners having failed, both the petitions are dismissed. The learned Magistrate shall be free to take notice of other questions raised in these petitions at the time of hearing of arguments in these cases.