MUMTAZ ALI MIRZA, J.- 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. 1.7.1994 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. 1 so as to appear before this Court and to meet the case as set up by the petitioner. Respondent No. 1 accordingly appeared in the Court along with Malik Muhammad Kabir, learned AAG in defence of the Constitution petition. The learned Law Officer as also respondent No. 1 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 mis-conceived 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 further 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 mis- conceived. 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 arid 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 retrospectivity of the law, reference was placed by him on the following judgments:--
(1) Jawaharma! \/s. The State (AIR 1966 S.C. 764)
(2) M/s. Chhotbhai etc. \/s. Union of india (AIR 1962 S.C. 1006)
(3) Lohia Machines Vs. Union of india (AIR 1985 S.C. 421)
(4) Tamloli Bhoga/al Vs. The State (AIR 1957 Bombay 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 on 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 j date for the commencement of the law made by it including the date proceeding 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) PLD 1967 S.C. 289 Sh. Amin Ullah Vs. Pannu Ram.
(2) PLD 1969 S.C. 623 Haider Automobile Ltd. Vs. Pakistan.
(3) PLD 1957 Karachi 147, Karachi Panjrapore Association Vs. Custodian, Evacuee Property and another.
(4) 1982 CLC 37 (DB) Maula Bakhsh Vs. Chairman Federal Land Commission & another.
(5) PLD 1977 Karachi 226 (D.B.) Mst. Saeeda Begum Vs. Govt, of Pakistan etc.
(6) PLD 1977 Karachi 524 (DB) Inamur Rehman Vs. Federation of Pakistan.
6. The effect of Al-Samerz 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. Vs. 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 \/s. Rehmatullah etc. (PLD 1984 Peshawar 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 here-in-above is not in any measure different in other countries of the world. Higgins J,, observed:-- "The British Parliament admittedly had 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 retrospectively1'.
Kin Vs. Kidman (20 CLR 424-451-552).
Jada Ram Vs. Fasiuiiah Khan (AIR 1934 Peshawar 30).
8. According to the Supreme Court of India very 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 S.C. 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 Vs. Lord Harris of Green which (1981)
2 All ER 842 at 145.
11. Re-Athlumney 1892) 2 Queen Bench 547 at 551).
The same position was re-affirmed in Gopal Vakta & another Vs. Gopal Munshi (AIR 1941 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) PLD 1984 Karachi 358 (Salim Akbar Vs. Govt: of Sindh)
(2) 1983 CLC 1585 (Ghulam Hayder Shah Vs. The Chief land Commissioner and 2 others)
(3) 1981 CLC 6 (M/s. Zaman Textile Mills Ltd Vs. M/s. Anwar & Company).
(4) 1979 CLC 685 (M/s. Zaman Textile Mills Ltd M/s. Anwar & co.f Karachi)
(5) PLD 1963 Dacca 886 (Kunir Mondal Vs. Paramatha Nath Choudhury).
(6) PLD 1963 Karachi 996 (Harjina & Co. (Pak) Ltd Vs. Commissioner of Income-tax (Central)
Karachi).
(7) PLD 1966 Baghdad-ul-Jadid 19 (Noor Muhammad Vs. The Province of West Pakistan).
(8) PLD 1967 Lahore 828 (Sh. Fazal-ur-Rehman Vs. Dr. Abdur Rashid).
(9) AIR 1928 Patana 109 (Sukut Lakhpat Ram Vs. Rahau Koeri and others).
(10) AIR 1946 Lahore 20 (B. Chint Ram Vs. Firm Kirpa Ram Dhani Ram).
(11) AIR 1926 Patana 561 (Ghote Lai Nand Kishore Nath Shah Vs. Tula Singh and others). in which it was held that a statute touching a right in. existence at the time of passing of an Act would not operate retrospectively unless legislature had either by express enactment or by necessary intendment had given legislation retrospective effect.
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. Reliance for the view as to this is placed on Bengal Oil Mills Ltd. Vs. Dada Sons (PLD 1964 (W.P.) Karachi 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 mis-conceived and untenable at law. The same is accordingly dismissed as being without any merit. The 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 AAG in attending to the questions raised in the instant Constitution petition.