1. ' ABDUL KADIR SBAIKB, J.-The petitioner Kazi Abdul Majid, Proprietor of Firdous Cinema, Hyderabad has challenged the vires of the West Pakistan Entertainment Duty (Sind Amendment) Ordinance, 1974 mainly on two-fold grounds. It was firstly urged by the learned counsel appearing for him that the competency of the Provincial Governor to promulgate an Ordinance is dependent upon the existence of circumstances, which render it necessary for him, if so satisfied, to take immediate action when the Provincial Assembly is not in session, and since no such circumstances had really existed, the Ordinance is ultra vires of his powers. In this connection the learned counsel further contended that no reasonable person could possibly be satisfied under the present state of affairs concerning the Entertainment duty that the requisite circumstances exist which rendered it necessary to take immediate action, as such the impugned Ordinance is a bad law.
2. ' We are not impressed by this contention for the reason that the position in law in regard to the language used in the Constitution is clear and by now well-settled that for the satisfaction contemplated by Article 128 for issue of an Ordinance, the Governor is the sole Judge as to the existence of emergency for taking an immediate action during the period the Provincial Assembly is not in session. Reference to the decision of the case of Privy Council in The Emperor v. Benorilul (1) with respect to the scope of section 72 of the 9th Schedule of the Government to India Act, 1935 which is in parallel language as in Article 128 of the Constitution would suffice.
3. ' The next contention raised by the learned counsel has reference to Article 279 of the Constitution.
4. It reads:- "Notwithstanding anything contained in the Constitution, all taxes and fees levied under any law in force immediately before the commencing day shall continue to be levied until they are varied or abolished by Act of the appropriate Legislature."
5. ' The learned counsel contended that the bar of the phrase "notwithstanding anything contained in the Constitution" is total, so as to exclude any reference to the provisions of the Constitution which include an Ordinance into an Act of Provincial or Federal Legislature. He urged that the bar of the language of the above phrase berg complete, the principle laid down by their Lordships, in the case of Commissioner of Agricultural Income, East Bengal v. B. W. M. Abdul Rehman (2) is fully applicable that there is no room for any intendment, equity or presumption about a tax, for the letter of the law must be looked into in cases of fiscal B legislation.
6. ' So far as the principle of law pointed out by the learned counsel is concerned, we may say that it is so well established that any reference to case-law is hardly necessary. The question for consideration here is as to the actual import of the language used in Article 279. It would be noticed in this behalf that Article 128 of the Constitution has itself made it clear that an Ordinance promulgated under this Article snail have the same force and effect of an Act of the Provincial Assembly, subject however to the limitation imposed on it as to the duration of the time for which it is to remain in force. Article 128 reads:- "(1) The Governor may, except when the Provincial Assembly is in {{FOOT NOTE}}
(1) AIR 1945 P C 48 (2) 1973 S CMR 445 {{FOOT NOTE}} session, if satisfied that circumstances exist which render it necessary to take immediate action, make and promulgate an Ordinance as the circumstances may require.
(2) An Ordinance promulgated under this Article shall have the same force and effect as an Act of the Provincial Assembly and shall be subject to like restrictions as the power of the Provincial Assembly to make laws, but every such Ordinance-
(a) shall be laid before the Provincial Assembly and shall stand repealed at the expiration of three months from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by the Assembly, upon the passing of that resolution; and
(b) may be withdrawn at any time by the Governor.
(3) Without prejudice to the provisions of clause (2), an Ordinance laid before the Provincial Assembly shall be deemed to be a Bill introduced in the Provincial Assembly."
7. ' The power of the President to make and promulgate an Ordinance is contained in Article 89 of the Constitution which is also in similar language. It reads as follows:- "(1) The President may, except when the National Assembly is in session, if satisfied that circumstances exist which render it necessary to take immediate action, make and promulgate an Ordinance as the circumstances may require.
(2) An Ordinance promulgated under this Article shall have the same force and effect as an Act of Parliament and shall be subject to like restrictions as the power of Parliament to make laws but every such Ordinance- (a)shall be laid-
(1) before the National Assembly if it is with respect to a matter in Part 1 of the Federal Lagislative List, and shall stand repealed at the expiration of for months from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by the Assembly, upon the passing of that resolution; (ii) before both Houses if it is with respect of a matter in Part H of the Federal Legislative List or a matter in the Concurrent Legislative List, and shall stand repealed at the expiration of for months from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by either House, upon the passing of that resolution; and (b)may be withdrawn at any time by the President.
(3) Without prejudice to the provisions of clause (2), an Ordinance laid before the National Assembly shall be deemed to be a Bill introduced in the National Assembly."
8. ' Apart from these specific provisions made in these two Articles equating an Ordnance with an Act of Legislature reference to Article 260 would be more relevant. This Article opens with Chapter 5 of the Constitution which is the intrinsic source of Interpretation of the Constitution. In clause (1) of Article 260, various expressions are defined, those that are relevant are reproduced hereunder, along with clause (2) :- "(1) In the Constitution, unless the context otherwise requires, the following expressions shall have the meaning hereby respectively assigned to them, that is to say,- "Act of Parliament" means an act passed by Parliament or the National Assembly and assented to, or deemed to have been assented to, by the President; "Act of Provincial Assembly" means an Act passed by the Provincial Assembly of a Province and assented to, or deemed to have been assented to, by the Governor; ' Article 260 (2).-In the Constitution "Act of Parliament or "Federal law" or "Act of Provincial Assembly" or "Provincial law" shall include an Ordinance promulgated by the President or, as the case may be, a Governor."
9. ' It is well-settled that the object of incorporating a definition clause or section in a Statute is generally to declare what certain words or expressions, used in that Statute shall mean, and that the definition clause is not' meant to be the operative clause of the Statute. Their Lordships of the Supreme Court in The Punjab Ca-operative Bank Ltd. v. The Republic of Pakistan and 128 others (1) observed that "the definition thus is, as a rule, of a declaratory character and normally applies to all cases which come within its ambit." Again, in Parmatha Nath Chowdhury and 17 others v. Kamir Mondol and others (2) their Lordships observed that "normally a definition has the effect of a declaratory provision and governs all cases coming within its ambit.' It is said to be the 'Golden Rule' of interpretation of Statutes that in construing the meaning of any word used in any Act, normally, it must be given the ordinary meaning in the dictionary. However, when that word has been actually defined in that Act, and such definition gives it a wider meaning, so as to include an article which would not be included under the meaning given in the dictionary, that word must be construed for the purposes of that Act, according to its meaning in such definition.
10. ' If Article 279 is to be interpreted in the light of these well-settled principles, then "the Act of the Appropriate Legislature", is normally to be construed so as to include an Ordinance promulgated by the President or the Governor as the case may be, unless of course the context otherwise requires. The question then is whether the context of Article 279 requires that we should construe the expressions otherwise than in the meaning given to it in the Interpretation clause of the Constitution. The argument advanced by the learned counsel for the petitioner was that since the expressions "notwithstanding anything contained in the Constitution" appears in the beginning of Article 279, it excludes reference to any other part of the Constitution, including the definition assigned to the words and expressions in the Constitution, under Article 260. This argument appears to be fallacious, for, the learned counsel for the petitioner himself relied upon the meaning of the word "Tax' as given in Article 260 for the purposes of Article 279 since it is the levy of duty, and not tax or fee, that is involved in the case before us. IF, therefore. Reference to Article 260 is required for the interpretation of the word "tax" that appears after expression 'Notwithstanding anything contained in the Constitution' in Article 279, the argument that reference should not be made to the same Article for the purposes of interpretation of {{FOOT NOTE}} (1)F L D 1964 SC 616 (2) PLD 1965 SC 434 {{FOOT NOTE}} the expression 'Act of the Appropriate Legislature' would not be legitimate.
11. ' During the course of arguments the learned counsel made reference to Article 77 for the contention that no tax is to be levied, except by or under the authority of Act of Parliament, and he contended that the intention behind Article 279 was to preserve this Constitutional mandate.
12. According to the learned counsel no other meaning could be given to the 'Notwithstanding contained anything in the Constitution", for, all the taxes and fees even otherwise could be levied under the laws in force immediately before the commencing day, by virtue of Article 268.
13. ' The argument canvassed by the learned counsel raises the question whether it was intention of the makers of the Constitution that all taxes and fees, which were levied under any laws in force immediately before the commencing day, were to be varied or abolished only by an Act of the Appropriate Legislature and in no other manner whatever. It would be seen that Article 268 as well as Article 279 are contained in Chapter VII of the Constitution with the heading "Transitional' provisions. These are designed to preserve intact, the fabric of Pre-existing Constitutional arrangement which governed the country. The scheme underlining this Chapter clearly is that the entire Pre-Constitution 'Statute Book' of Pakistan should remain intact, till such time as any portion thereof is altered, repealed or amended by the Appropriate Legislature or the Competent Authority.
14. Under Article 266 the Interim Constitution of the Pakistan, 1972, together with the Acts and President's Orders making omission from, additions to, modifications of or amendments in, that Constitution stood repealed, and as result, unless any other Constitutional arrangement was to be made, all the Existing-laws in force before the commencing of the Constitution would have automatically lapsed, with the disappearance of the Interim Constitution 1972. This type of device, of preserving the pre-existing fabric which governed the country after the new set-up is created under the new Constitution, is now quite familiar, for even in the Government of India Act, 1935, section 292 was to achieve the same purpose. Similar provisions were made every time the old Constitutional set-up in the country was replaced by a new one. It is for these reasons that in the Repealing Constitutional Act, a provision is incorporated which sanctions the continuance of the pre-existing laws, despite the repeal of the pre-existing Constitutional Instruments governing the country.
15. ' It is true that the basic rule in a democratic form of Government is that no tax is to be levied or collected except under the authority of law and the control of public funds, including Revenue and public expenditure, vests in a popularly elective Legislative Assembly. The assential feature of a democratic Government, be it Parliamentary or Presidential, is that the Government depends on the Legislative Assembly for financing its entire administrative machinery, for year to year, and the refusal of supplies by the Assembly is tantamount to a Vote of No Confidence, in Parliamentary form of Government, compelling the Government in power to resign, or to ask for dissolution of the Assembly and fresh election.
16. ' It is in this light that approach is to be made to the Transitional provisions made in the Constitution, including in Article 279. The question is whether the Makers of the Constitution intended, by the language used in Article 279, that the taxes and fees which were made to continue to be levied by existing laws were to be varied or abolished by an Act of Parliament, or an Act of Provincial Legislature, and not by an Ordinance, as otherwise provided under Article 89 and 128 or 260.
17. ' In my opinion, the answer cannot be in the positive, for, even Article 77 cannot bear the interpretation that the taxes and fees cannot be levied by or under the authority of an Ordinance promulgated by the President under Article 89. The language of Article 7 / is no doubt to the effect that no tax shall be levied except by or under the authority of Act of Parliament, but Article 89 which grants the power to the President E to make and promulgate an Ordinance makes it clear that such Ordinance shall have same force and effect as an Act of Parliament. Article 77 is followed by Article 89, and there is nothing by way of contrast to suggest that an Ordinance made under the later Article is not covered for the purposes of the former Article. The position is, on the contrary, further clarified in Article 260 that an Act of Parliament shall include an Ordinance promulgated by the President. The meaning that is to be given to the words and expressions through the Constitution, as a general rule, must he according to what is assigned to them by the special prevision made in the Constitution itself. Speaking generally, the words and expression in the Constitution are to be substituted for the words defined in the Interpretation Clause of the Constitution, wherever these occur, unless the context anywhere provides to the contrary. A provision similar to Article 279 was contained in Article 230 (6) of the Constitution of 1956, and their Lordships of the Supreme Court examined the effect of this Article in Pakistan Textile Mill Owners Association v. The Administrator of Karachi (5) with reference to the sanction by the Chief Commissioner of Karachi of a revised Schedule of Terminal Tax imposed by the Karachi Municipal Corporation under the Karachi Municipal Act 1933. Their Lordships upheld the validity of the revised Schedule and the sanction given to it by the Chief Commissioner only to the extent of goods imported by Railway. An argument was raised before their Lordships that even the revision of taxes to this extent could be made only by an Act of Appropriate Legislature as required by Article 230 (6) of the Constitution of 1956. This argument was rejected on the ground that the power to revise the Schedule of Terminal Taxes was conferred under the Karachi Municipal Act 1933 which was an existing law within the meaning of Article 224, and that the imposition of Terminal Tax did not bring about any variation in the meaning of Article 230 (6) because the tax was in a variation in the then existing rates imposed under the existing law. In Ahmed Khan v. Member, Board of Revenue, West Pakistan and another (2) an amendment made by the High Court of West Pakistan, in exercise of its Rule-making power under clause, 27 of the Late's Patent, read with para. 5 of Part II, Schedule III of the Constitution of 1956, was challenged on the ground that it was ultra vires of Article 237 of the Constitution, which was in the same language as the provision of the Constitution now under challenge before us, namely Article 279. The Rule-making power of the High Court to vary the court-fees, in regard to the petitions under Article 170 of the Constitution, was upheld for the reasons which may be reproduced hereunder:- "The learned counsel for the petitioner has next raised a subtle objection to the amendment in question in rule 10, Chapter 4-J, Volume V, High Court Rules and Orders introduced by correction slip No. 175 on the 13th April 1966, to the effect that it is ultra vires of Article {{FOOT NOTE}}
(1) PLD 1963 SC 137 (2) P L I) 1967 Lab. 1030 {{FOOT NOTE}} ' 237 of the Constitution and we have given or serious thought to the arguments addressed to us in this connection. This Article lays down as under:- 'Notwithstanding anything in this Constitution, all taxes and fees levied under any law in force immediately before the commencing day shall continue to be levied until they are varied or abolished by Act of the appropriate Legislature.'
18. ' The provisions of the Article are overriding in their charcter and are applicable notwithstanding anything to the contrary in the Constitution. But the meanings to be assigned to the expression 'law' used in the context, will determine the true scope of the Article. This term is nowhere defined in the Constitution. Article 225 (1) lays down that except as provided by that Article, all "existing laws" shall, subject to this Constitution, continue in force, so far as applicable and with necessary adaptations, until altered, repealed or amended by the appropriate Legislature. In that context and for the purposes of that Article, clause (7) has defined the expression "existing laws" to mean "all laws (including Ordinances, Orders-inCouncil, Orders, rules, bye-laws, regulations and Letters Patent constituting a High Court, and any notification and other legal instruments having the force of law) in force in Pakistan or any part of Pakistan, or having extra-territorial validity, immediately before the commencing day". The purpose behind these two Articles is the same, i.e. To continue in force certain laws by adaptation and from a contrast in their language it is evident that the expression law' in the context of Article 237, is not used in the wider but a narrow sense. In the restricted sense, in the context, it does not mean that the rules prescribing fees, which are subordinate in their force and validity, were adapted by the Constitution and suddenly placed at a much higher pedestal; so that the subordinate authority which had made the rules is also bereft of all its powers to amend, modify, alter and even to withdraw them. To give effect to the argument by the learned counsel would mean that this Article has gone to the extent of altogether abrogating the powers in the authorities wherever residing in that respect. This does not appear to be the intention behind Article 237 of the Constitution. Therefore, in or opinion Article 237 is applicable to all taxes and fees levied under any law made by legislative enactments, which can be varied and abolished by Act of the appropriate Legislature after the commencing day. It has no application, say to the rules on the subject made by a subordinate authority."
19. ' We may respectfully add that the validity of the variation in a tax made under the authority of an Existing-law cannot be open to doubt, as, though such variation in tax may he made or an extra tax levied by a subordinate body, the source of power for the levy of the tax is the Act of the Legislature or the Existing Law made to continue by virtue of the Constitutional Provision like Article 266. Article 279 of the Constitution, therefore, cannot be interpreted in a way so as to exclude conferment by the Act of Appropriate Legislature or by an Existing Law the power on a subordinate-body to levy the taxes. The answer to the question raised by the learned counsel as to the necessity of a special provision made in Article 279 in regard to the continuance of the levy of all taxes and fees under any law in force immediately before the commencing day is indicated by the very fact that it has been emphasized and repeated. It would be seen that the Constitution prohibits the levy of taxes, except by or under the authority of 'Act of Parliament', or 'Act of Provincial Assembly', as the case may be, and both these expressions have been assigned the definite meaning given in Article 260.
20. 'Act of Parliament' means an Act passed by Parliament or the National Assembly and assented to, or deemed to have been assented to by the President. Similarly, 'Act of Provincial Assembly' means an Act passed by the Provincial Assembly' of a province and assented to, or deemed to have been assented to, by the Governor. Under the new Constitutional arrangement there being a constitutional prohibition in regard to the levy of taxes, except by or under the Authority of the 'Act of Parliament' or 'Act of Provincial Assembly', all doubt were to be resolved in regard to the continuation of taxes under the pre-existing laws, for the smooth running of the Governmental machinary. The intentio of the makers of the Constitution for making the provision under Article 279 and using the expression "Notwithstanding anything contained in the Constitution" was obviously, not to put an embargo on the variation or abolition of taxes and fees except by the Act of Appropriate Legislature, but the real intention was to reiterate and further clarify the position in regard to the continuation of the levy of taxes, beyond any doubt that may arise in any thing contained in the Constitution. This emphasis is no doubt legitimate for the cost of the entire Administrative Machinery of the Government, as well as the implimentation of schemes of public utility and welfare are necessarily to be met by the moneys collected from the public under the tax laws. The Makers of the Constitution, therefore, wished that no doubt be left in regard to continuation of levies of all taxes and fees as were imposed of levied under any law in force immediately before the commencing day. The expression, "Act of Appropriate Legislature" can, therefore, be given no different meaning than what the Constitution itself has assigned to them under Article 89, 128 or 260. We, therefore, find no force in the contention raised by the learned counsel in this regard.
21. ' The learned counsel for the petitioner lastly urged that no order having been issued by the Provincial Government as required under section 5 (2) of the Act, the petitioner is in quandry as to the manner in which duty is to be paid, and he is therefore not liable to pay any amount, unless the liability is finally fixed. The learned counsel, however, made it clear that the Petitioner is willing to deposit the amount of the duty in Court in the sum he was liable to pay before the promulgation of the West Pakistan Entertainment Duty (Sind Amendment) Ordinance, 1974. In order to appreciate this contention, section 5 of the Act may be reproduced herewith:- "5. Method of levy.-(l) Save as otherwise provided by this Act, no person shall be admitted on payment to any entertainment where the payment is subject to entertainments duty except-
(i) with a ticket stamped with an impressed, embossed, engraved or adhesive stamp (not before used) issued by the Government for the purposes of revenue and denoting that the proper entertainment duty has been paid; or
(ii) with a ticket sealed or printed in the manner prescribed by rules framed by the Government.
(2) The Government may, by an order in writing require the proprietor of any entertainment in respect of which the entertainment duty is payable under section 3, or on the application of any such proprietor permit him, on any such conditions as the Government may prescribe to pay the amount of the duty due-
(a) by a consolidated payment;
(b) in accordance with returns of the payments for admission to the entertainment and on account of the duty; or
(c) in accordance with the results recorded by any mechanical contrivance that automatically registers the number of persons admitted."
22. ' It may be pointed out that before its substitution by the West Pakistan Finance Ordinance (VII of 1969), subsection (2) of section 5 as originally incorporated, read as follows:- "Section 5 (2).-The Government may on the application of the proprietor of any entertainment in respect of which the entertainments duty is payable under section 3, premit the proprietor on such conditions as the Government may prescribe to pay the amount of the duty due-
(a) by a consolidated payment, or
(b) in accordance with returns of the payments for admission to the entertainment and on account of the duty; or
(c) in accordance with the results recorded by any mechanical contrivance that automatically registers the number of persons admitted.
(3) The provisions of subsection (1) shall not apply to any entertainment in respect of which the duty is payable in accordance with the provisions of subsection (2)."
23. ' This subsection was substituted by West Pakistan Finance Ordinance (VII of 1969) which had also brought about a different mode of levy of Entertainment Duties on Cinemas, by the addition of section 6A to the Act. Popularly speaking, this mode is known as Entertainment Duty on capacity basis. The West Pakistan Entertainment Duty (Sind Amendment) Ordinance, 1974 has omitted section 6-A from the Act as from 18th April 1974. No change has however been brought about in the mode of method of levy of Entertainment Duty payable under the Act but this appears to be not necessary as the liability to pay the tax is incurred by the owner of the Cinema or the management thereof by the charging section 3. The petitioner has option to make an application to the Government to permit him, on any such condition as may be prescribed, to pay the amount of duty by any of the methods prescribed under section 5 (2), and it is upto the Government, in its discretion, to grant or refuse the request. We do not see how the petitioner can be said to be in quandry when his liability to pay the tax has already been prescribed under section 3. There is, therefore, no substance in this objection also.
24. ' For the reasons given above the petition is dismissed in limine. KHUDA BAKHSH MARR1, J.-I agree.