Through the instant Constitution petition levy of luxury tax on vehicles pursuant to the provision of section 7 of the Punjab Finance Act, 1997 (Act IX of 1997) has been assailed.
2. The case as set up by the petitioner in the instant Constitution petition was that although his vehicle was a luxury vehicle within the meanings of the law and was a 1994 Model vehicle yet it was registered in the year 1996. The Punjab Finance Act was brought on the Statute Book in June, 1997 and was made applicable w.e.f. 1-2-1994. It was maintained by the petitioner that such a retrospective effect could not be given to the aforesaid enactment and that the same was ultra vires the powers of the Provincial Assembly.
3. Pursuant to the submissions made by and on behalf of the petitioner at the Bar by his learned counsel, a notice was directed to issue to respondent No. l so as to appear before this Court and to meet the case as set up by the petitioner. Respondent No. l accordingly appeared in the Court alongwith Malik Muhammad Kabir, learned A.A.-G. In defence of the Constitution petition. The learned Law Officer as also respondent No. l controverted the position taken by and on behalf of the petitioner and maintained that the position taken by the petitioner in the Constitution petition was wholly misconceived and against the law on the subject. They maintained that if a particular law was procedural in character, it would operate retrospectively as per settled position of such a law. If the law on the other hand was substantive in character, the same would apply prospectively i.e. From the date of its enforcement to the future transaction. However, it was competent for the Legislature while enacting a substantive piece of legislation to make provision therein so as to make the law enacted as applicable from a back date. No exception could, thus, be taken to such a law being made applicable with retrospective effect as the Parliament or an Assembly is vested with the power and jurisdiction to make the law so applicable from a back date.
4. I have considered and evaluated the respective submissions of the learned counsel for the parties and have perused the record as also the Punjab Finance Act, 1997. It is not the case of the petitioner that the Punjab Finance Act, 1997 has not been made applicable from retrospective effect. The precise submission on behalf of the petitioner is that though made applicable from retrospective effect it could not be so made applicable. The, contention was that such a levy was destructive of the rights of the petitioner as available to him in 1994 when the law in question was not on the Statute Book. The submission was that there being no law to that effect at the time the vehicle was purchased by the petitioner, he came to acquire a right not to be taxed and that the said right having come to vest in the petitioner could not be impaired subsequently through a subsequent enactment. The submission made by and on behalf of the petitioner is wholly misconceived. It is the settled position of the law that there is no estoppel against law. If the law permits the doing of a particular thing, the same cannot be objected to' and adherence to law denied on any hypothesis whatever. The law in question though brought on the Statute Book in June, 1997 was made applicable from retrospective effect i.e. w.e.f. 1-7-1994.
Ordinarily, it being a substantive piece of legislation ought to have operated prospectively.
However, the correct position with respect to such a law is that it shall apply retrospectively also if an express provision had been made to that effect in the law itself. It is not the case of the petitioner that such an express provision does not exist in the law in question or that it has not been made applicable from retrospective effect. This being so, no valid challenge could be thrown to the validity and the legality of the piece of legislation in question. In support of the stand taken by the learned Law Officer as to the restrospectivity of the law, reference was placed by him on the following judgments:-------
(1) Jawaharmal v. The State AIR 1966 SC 704,
(2) Messrs Chootbhai etc. v. Union of India AIR 1962 SC 1006,
(3) LohiaMachines v. Union of India AIR 1985 SC 421
(4) Tambil Bhogalal v. The State AIR 1957 Bom. 130 The sum total of the legal position which emerges out of the aforesaid judgments is the Legislature of a State is a sovereign authority in the sphere of legislation p in State subjects and in exercise of that authority it has competence to enact legislation with retrospective effect.
5. It is within the domain of the Legislature to appoint a date for the commencement of the law made by it including the date preceding the making of the laws. In short the authority to legislate includes the authority to legislate with retrospective effect even to a date earlier than the formation of the body. Reference in this behalf was placed on the following judgments:--
(1) Sh. Amin Ullah v. Pannu Ram PLD 1967 SC 289,
(2) Haider Automobile Ltd. v. Pakistan PLD 1969 SC 623,
(3) Karachi Panjrapore Association v. Custodian, Evacuee Property and another PLD 1957 Kar. 147,
(4) Maula Bakhsh v. Chairman Federal Land Commission and another 1982 CLC 37,
(5) Mst. Saeeda Begum v. Government of Pakistan etc. PLD 1977 Kar 226,
(6) Inamur Rehman's v. Federation of Pakistan PLD 1977 Kar. 524.
6. The effect of Al-Samerz's case 1986 SCMR 1917 was negated by enacting section 31-A in the Customs Act, 1969, in the year 1988 and the said provision was given retrospective effect in Molasser Trading Export Ltd. v. Federation of Pakistan 1993 SCMR 1905. It was held that the Legislature has full plenary powers to legislate retrospectively and, therefore, vested rights can be taken away. It was held in Mst. Farida and others Rehmatullah etc. PLD 1984 Pesh. 117 that the Legislature having a sovereign authority in sphere of legislation, is competent to enact certain provisions of statute with retrospective and certain provisions with prospective effect.
7. The legal position as discussed hereinabove is not in any measure different in other countries of the world. Higgins, J., observed:-- "The British Parliament admittedly has power to make laws retrospectively and I know of no instance in which a legislation enacted by the British Parliament has been held to have overstepped its power by making the legislation retrospectively."
Kin v. Kidman 20 CLR 424 - 451 -552, Jada Ram v. Fasiullah Khan AIR 1934 Pesh. 30.,
8. According to the Supreme Court of India every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. Keshavan Madhava Menon v. The State of Bombay AIR 1951 SC 128.
9. In France there is a general presumption established by Article 2 of Civil Code that the statute is not retrospective, the statute must be interpreted so as not to be retrospective, unless it has explicitly stated otherwise.
(Interpretation of Statute---"A compactive study by D. Neil Mac Cormick and Robert Summer--- page 196).
10. In United Kingdom the presumption is that the legislation is not to be retrospective but this would be rebutted by a clear and unambiguous legislative provision to the contrary.
(Statutory Interpretation in U.K.)
(i) Payne v. Lord Harris of Greenwhich (1981) 2 All ER 842 at 145,
(ii) Re-Athlumney (1892) 2 Queen Bench 547 at 551.
The same position was re-affirmed in Gopal Vakta and another v. Gopal Munshi AIR 1941 Cal. 432 wherein it was held that when-the intention is clear that the Act shall have retrospective operation, it must unquestionably be so construed even if the consequences may appear unjust and hard.
11. The aforesaid legal position as to the retrospectivity of the law was re--affirmed in the following judgments:-----
(1) Salim Akbar v. Government of Sindh PLD 1984 Kar. 358,
(2) Ghulam Haider Shah v. The Chief Land Commissioner and. 2 others 1983 CLC 1585,
(3) Messrs Zaman Textile Mills Ltd. v. Messrs Anwar & Company 1981 CLC 685,
(4) Kunir Mondal v. Paramatha Nath Chowdhary PLD 1963 Dacca 886,
(5) Harjina & Co. (Pak.) Ltd. v. Commissioner of Income-tax (Central) Karachi PLD 1963 Kar. 996,
(6) Noor Muhammad v The Province of West Pakistan PLD 1966 - Baghdad-ul-Jadid 19,
(7) Sh. Fazal-ur-Rehman's v. Dr. Abdur Rashid PLD 1967 Lah. 828,
(8) Sukut Lakpat Ram v. Raghu Koeri and others AIR 1928 Pat. 109,
(9) B. Chint Ram v. Firm Kirpa Ram Dhani Ram AIR 1946 Lah. 209
(11) Ghote Lal Nand Kishore Nath Shah v. Tula Singh and others AIR 1926 Pat. 561.
12. There being no doubt as to the applicability of the Punjab Finance Act, 1997 from a back date yet the learned counsel for the petitioner insisted that notwithstanding the aforesaid position of the law in question, this Court should strike it down on the ground that it was made applicable retrospectively. In other words what the learned counsel for the petitioner asked this Court was to hold contrary to the clear intention of this piece of legislation. Such, however, could not be done by this Court. For, the duty of the Court is to enforce the law as it is. It is not for the Court to decline to give effect to a valid piece of legislation. IG Reliance for the view as to this is placed on Bengal Oil Mills Ltd. v. Dada Sons PLD 1964 (W.P.) Kar. 18.
13. The net- result of the above discussion is that there being an express provision in the Punjab Finance Act, 1997 making it applicable from a back date, the same could not be struck down on the ground that it purported to impair the so-called vested rights of the petitioner. The respondents have, therefore, unquestionable right to demand of the petitioner the payment of the Luxury Tax sought to be evaded by the petitioner through the instant petition. The Constitution petition in view of the reliefs sought, is clearly misconceived and untenable at law. The same is accordingly dismissed as being without any merit. Parties are, however, left to bear their own costs.
14. Before parting with this judgment, I must place on the record my deep sense of appreciation for the hard labour put in by Malik Muhammad Kabir, learned A.A.-G. In attending to the questions raised in the instant Constitution petition.