1. ' MALIK MUHAMMAD ASLAM KHAN, J.-All the above six appeals arise from the judgment of the High Court dated 17-31977 by which six writ petitions filed under section 44, Azad Jammu and Kashmir Interim Constitution Act, 1974 (hereinafter to he called the Constitution Act) were accepted. As all these appeals involve the same legal and constitutional issues and arise from the operation of the same Act timber Trade (Nationalisation) Act, 1976) (hereinafter to be Galled the Timber Trade Act), they are being disposed of by this single judgment.
2. Prior to the passing of the Timber Trade Act in Azad Kashmir the Forest Department generally used to lease out the forests to the lessees who, under the terms of their leases, used to carry on the timber trade. All the respondents are such lessees who had been given leases of different forests by the Forest Department and at the relevant time the lessees were carrying on their work which was in different stages of felling of the trees, their extraction and the stocking of the timber at their sale depots etc. It was in the year 1976, it appears, that the Azad Kashmir Government thought of nationalizing the timber trade and accordingly on the 14th of July, 1976 an Ordinance called 'The Timber Trade (Nationalisation) Ordinance, 1976' was promulgated. Its salient features can be gathered from the following sections. Under section 3 of this Ordinance, from 30th June, 1976, the trade of felling, extracting and conversion of trees was to be carried on by the Azad Government or a Corporation wholly owned or controlled by the Government to the total exclusion of other persons. Under section 4 of this Ordinance all the forest leases and agreements stood terminated with effect from the 30th of June, 1976. Under section 5 of the Ordinance all trees and timber, in whatever shape, were to vest in the Government. Section 6 of the Ordinance required every person who, in pursuance of an agreement or a lease, had in his possession or custody any timber or tree, to deliver the same to the Forest Department. Sections 7 and 8 dealt with the compensation to be given to the lessees. Section 9 of the Ordinance barred the Courts from calling in question anything done or action taken under the Ordinance. On the expiry of its normal life of four months, another identical Ordinance (Ordinance IX of 1976) was promulgated. This Ordinance was, later on, approved by the Assembly and thus it became the Timber Trade Act.
2. ' It was in pursuance of section 6 of the Timber Trade Act that the C. C. F. Issued notices on 20-7- 1976 to all the lessee respondents for handing .Over to the Forest Department all the timber whether felled, extracted or ,stocked. The lessee-respondents, under these circumstances, challenged the -order of the C. C. F. As well as the vires of the Timber Trade Act in the High Court through six writ petitions. In the writ petitions many legal and constitutional points were raised one of them being that the Timber Trade Ordinance and the Timber Trade Act were ultra vires of the powers of the President as well as of the Legislative Assembly since such enactments fell exclusively within the legislative power of the Azad Jammu & Kashmir Council as provided by section 31 read with Schedule III of the Constitution Act. The High Court vide its judgment dated 17- 1-1977 struck down the Ordinances and the Timber Trade Act and the notices issued thereunder by the C. C. F. Holding that neither the President nor the Azad Jammu and Kashmir Assembly had the power under the Constitution Act to promulgate such Ordinances or to pass such an Act respectively. It was also held that such a legislation could he enacted only by the Azad Jammu & Kashmir Council as it was a clear case of nationalisation of timber trade which squarely fell in the Council's legislative list given in the III Schedule of the Constitution Act. It is against this decision that the Azad Government has come up in appeal before us.
3. At first, on behalf of the Government, certificated appeals were lodged after obtaining certificates from the High Court. On objections being taken by the respondents that the certificates issued by the High Court suffered from certain defects, petitions for Leave to appeal were also filed before this Court by the Government. Thus at present before us the certificated appeal as well as the petitions for Leave to appeal are pending.
4. The learned counsel for the respondents have raised a preliminary objection to the effect that the certificates issued by the High Court are defective as they do not fulfil the mandatory requirements of Order LXV, rule 3, C. P. C. The flaw pointed out is that the petitions for certificates do not contain the grounds of appeals and further that the High court, before issuance of these certificates, did not issue show-cause notices to the respondents as required under Order XLV, rule 3 (1) and (2), C. P. C.
3. ' It is conceded by the learned Advocate-General that no show-cause notice was issued by the High Court before issuance of the certificates for lodging the appeals but his contention is that Order XLV, rule 3, C. P. C. Has no application in Azad Kashmir. He has elaborated his argument by referring to Resolution No, 279 of 1948 by which alongwith other 9 Acts, the Code of Civil Procedure as then in force in the West Punjab was adapted in Azad Kashmir. For this he has relied upon the following passage of the Resolution (In those early days, it seems, law was enacted in Azad Kashmir by Resolutions) : "As recommended by the Secretary Law and Order Azad Kashmir Government in his memorandum dated the 22nd March, 1948 (Appendix 'C') the following enactments will come into farce in the Azad Kashmir territory as they are in force in the West Punjab and they shall also be deemed to have been in force in the liberated territory as far as practicable and subject to the provision of any other Law for the time being in force."
4. ' According to him as neither the High Court nor any Judicial Board or Supreme Court existed in Azad Kashmir at the time of passing of this Resolution and adaption of the Civil Procedure Code, Order XLV, C. P. C. Was neither practicable nor applicable in Azad Kashmir. For this he lays over to the Forest Department all the timber whether felled, extracted or stocked. The lessee- respondents, under these circumstances, challenged the order of the C. C. F. As well as the vires of the Timber Trade Act in the High Court through six writ petitions. In the writ petitions many legal and constitutional points were raised ; one of them being that the Timber Trade Ordinance and the Timber Trade Act were ultra vires of the powers of the President as well as of the Legislative Assembly since such enactments fell exclusively within the legislative power of the Azad Jammu & Kashmir Council as provided by section 31 read with Schedule III of the Constitution Act. The High Court vide its judgment dated 17-1-1977 struck down the Ordinances and the Timber Trade Act and the notices issued thereunder by the C. C. F. Holding that neither the President nor the Azad Jammu and Kashmir Assembly had the power under the Constitution Act to promulgate such Ordinances or to pass such an Act respectively. It was also held that such a legislation could be enacted only by the Azad Jammu & Kashmir Council as it was a clear case of nationalisation of timber trade which squarely fell in the Council's legislative list given in the 1I1 Schedule of the Constitution Act. It is against this decision that the Azad Government has come up is appeal before us.
3. At first, on behalf of the Government, certificated appeals were lodged after obtaining certificates from the High Court. On objections being taken by the respondents that the certificates issued by the High Court suffered from certain defects, petitions for Leave to appeal were also filed before this Court by the Government. Thus at present before us the certificated appeal as well as the petitions for Leave to appeal are pending.
4. The learned counsel for the respondents have raised a preliminary objection to the effect that the certificates issued by the High Court are defective as they do not fulfil the mandatory requirements of Order LXV, rule 3, C. P. C. The flaw pointed out is that the petitions for certificates do not contain the grounds of appeals and further that the High Court, before issuance of these certificates. Did not issue show-cause notices to the respondents as required under Order XLV, rule 3 (1) and (2), C. P. C.
5. ' It is conceded by the learned Advocate-General that no show-cause notice was issued by the High Court before issuance of the certificates for lodging the appeals but his contention is that Order XLV, rule 3, C. P. C. Has no application in Azad Kashmir. He has elaborated his argument by referring to Resolution No, 274 of 1948 by which alongwith other 9 Acts, the Code of Civil Procedure as then in force in the West Punjab was adapted in Mad Kashmir. For this he bas relied upon the following passage of the Resolution (in those early days, it seems, law was enacted in Azad Kashmir by Resolutions) : "As recommended by the Secretary Law and Order Azad Kashmir Government in his memorandum dated the 22nd March, 1948 (Appendix 'C') the following enactments will come into force in the Azad Kashmir territory as they are in force in the West Punjab and they shall also be deemed to have been in force in the liberated territory as far as practicable and subject to the provision of any other Law for the time being in force."
6. ' According to him as neither the High Court nor any Judicial Board or Supreme Court existed in Azad Kashmir at the time of passing of this Resolution and adaption of the Civil Procedure Code, Order XLV, C. P. C. Was neither practicable nor applicable in Azad Kashmir. For this he lays emphasis on the words 'as far as practicable' occurring in the Resolution which, according to him, ruled out the application of Order XLV, rule 3, C. P. C.
7. ' The learned counsel for the respondents have contended that although the High Court/Judicial Board/Supreme Court did not exist in Azad Kashmir at the time of the adaption of the Civil Procedure Code, Order XLV, C. P. C. Remained dormant and revived as soon as the High Court and then the Judicial Board and later on the Supreme Court were constituted. They have also referred to 'Appeals to His Highness Act' 1996 Bikrimi which, according to them, was also in the field even at the time of the passing of this Resolution and required a certificate before lodging of the appeal.
8. The High Court in Azad Kashmir was constituted in May 1948 by virtue of the Azad Jammu and Kashmir Courts and Laws Code Act 1948, and the Judicial Board on 4th September, 1974 under the Azad Jammu and Kashmir Judicial Board (Constitution and Jurisdiction) Act, 1974. The Judicial Board was later on redesignated as the Supreme Court of And Jammu and Kashmir on 7th November, 19/5 under the Azad Jammu & Kashmir Interim Constitution (Tat Amendment) Act, 1975.
9. In view of this we hold that as soon as the Judicial Board was established the application of Order XLV, rule 3, C. P. C. Became practicable even if it were not so at the time of passing of the Resolution No 279.
10. ' This view finds support from another angle. By virtue of section 3 of the And Jammu & Kashmir Courts and Laws Code Act, all laws and enactments of the Dogra Regime which were not inconsistent with the provisions of the And Jammu & Kashmir Courts and Laws Code ; ('Appeals to His Highness Act', 1996 Bikrimi being one of them) were very much in the field. Section 2(b) of 'Appeals to His Highness Act', 1996 Bikrimi also required certificate like the one provided in Order XLV, rule 3, C. P. C. Before an appeal could be lodged. Although at the time of the inception of the Azad Government the superior Courts had not been constituted yet 'Appeal to His Highness Act' was very much in existence even prior to Resolution No, 279. An Act cannot be struck down on the mere ground that the machinery for its application is non-existent. As soon the machinery is provided the provisions of such an Act become operative. It could, therefore, be said that Order XLV remained in suspended animation and revived when the superior Courts were constituted.
11. Therefore, accordingly to our view, the issuance of show-cause notice was a must before the grant o such certificate.
12. ' The learned counsel for the appellant has taken an alternate plea that even if Order XLV, rule 3, C.
13. P, was applicable issuance of show-cause notices was a mere formality and its non-compliance did not affect the validity of the certificates.
14. ' To repel this plea the learned counsel for the respondents have cited a long list of authorities, out of which PLD 1968 SC (Pak.) 270, PLD 1969 SC (Pak.) 514 and PLD 19%3 SC (Pak.) 406 may be referred. In P L 1968 SC 270, in a case under Motor Vehicle Act; the High Court had granted certificate without satisfying itself about the presence of the question of law. The Supreme Court held that so question of law was involved but disposed the appeal as no objection was taken by the other side. In PLD 1969 SC 514 the certificate issued by the High Court was found defective. The Supreme Court dismissed the appeal holding that the appeal was not properly constituted. In PLD 1973 SC 406, a case under the Administration of Evacuee Property Ordinance, the Supreme Court held that the Custodian was bound to reject the application for confirmation in the absence of a certificate from the Income-tax Department as required under section 16 of the Ordinance. After studying the case-law and the porovisions of Order XLV, rule 3, C. P. C., we are of the view that issuance of the certificate under Order XLV, rule 3, C. P. C. Is not a matter of mere formality but a mandatory legal requirement which cannot be ignored. The petitioner has also to briefly state the grounds of appeal in a petition for obtaining certificate. The Court too I duty bound to direct a notice to be served on the opposite party to show cause as to why the said certificate should not be granted. These are not the formalities and if the certificate granted by the High Court does not fulfil the requirements of Order XLV, rule 3 the certificate even can be revoked or the appeal based on it rejected.
15. ' We also agree with the learned counsel for the respondents that even if Order XLV, rule 3, C. P. C.
16. Was not applicable the principle of audi akeram partem will come into play necessitating the issuance of a notice to the affected party before the High Court coat grant such a certificate.
17. Because after a person gets a decree from a Court a very valuable right accrues to him and the principles of natural justice require that before a certificate is issued the person affected must be heard. The Courts granting the certificate cannot take it as mere mechanical or formal process. For this reason also we do not agree with the contention of the learned counsel for the appellant that in a writ certificate under section 42 of the Constitution Act issuance of show-cause notice is not required.
5. The learned Advocate-General, as an alternate argument, has urged that even if the certificate is defective for want of show-cause notice Supreme Court can go into the grounds of appeal or grant petition for leave to appeal and decide the appeals if it finds that substantial questions of law of public importance are involved. For this he has relied on PLD 1956 SC (Ind.) 249, PLD 1956 SC (Pak.) 309, P 1. D 1957 SC (Ind.) 30, 147 and 183, PLD 1958 SC 203 and PLD 1971 SC 334. These authorities fully support the plea of the learccd Advocate General. Our considered view is that in spite of defective certificate if the Supreme Court is satisfied that substantial questions of law or questions involving interpretation of the Constitution are involved it can hear the appeal and decide it accordingy. Therefore the plea of the learned counsel for the respondents that the appeals should be dismissed on the mere ground of defective certificates is not tenable. Because we find that in these appeals the legal issues that are involved are of public importance besides requiring interpretation of the provisions of the Constitution Act.
18. ' Another objection raised in this respect by the learned counsel for the respondents is that the certificated appeals and the petitions for leave to appeal cannot be entertained simultaneously.
19. Therefore, it is urged that the appeals as well as petitions for leave to appeal should be dismissed.
20. We have given due consideration to this m but find little force in it. It is true that a certificated appeal and objection petition for leave to appeal cannot co-exist but there is no bar for the appellate Court, if it is otherwise satisfied, to ignore the one and proceed with the other. This view of Coure, finds support from PLD 1959 SC (Pak.) 387, PLD 1956 SC (Pak.) 309, PLD 1957 SC (Ind.) 183 and PLD 1958 SC (Ind.) 203. However, as we have found that the certificates granted by the High Court were defective we accept all the petitions for leave to appeal and treating them as appeals proceed to decide them. We would like to make it clear that even if the petitions for leave to appeal had not been filed we still would have gone into the certificated appeals and decide them in spite of the defective certificates because of the constitutional and legal points involved therein in order) to do full and complete justice.
6. Having disposed of the preliminary objections we advert to the main points canvassed before us.
21. The first point raised by the learned Advocate-General is that the term 'Nationalisation' occurring in Council legislative List at Serial No, 1 should be read in its context and taken to mean as 'Naturalisation'. For the appreciation of this point it may briefly be stated chat section 31 of the Constitation Act bifurcates the legislative powers between the Legislative Assembly and the Council. Under subsection (2) (a) of section 31, the Council has exclusive powers to make laws with respect to any matter mentioned in the Council Legislative List set out in the HI Schedule. Likewise the Legislative Assembly, under clause (b) -subsection (2) has power to make laws with respect to any matter not enumerated in the Council Legislative List. This means that barring the matters given in the Council Legislative List the Legislative Assembly of Azad Jammu and Kashmir has powers to legislate on all other residuary matters. But it has no power to legislate on matters mentioned in Schedule III which are the exclusive preserve of the Azad Jammu & Kashmir Council.
22. Item I of the Council List, with which we are concerned in these appeals, reads as : "(1) Subject to the responsibilities of the Government of Pakistan under the UNCLE' Resolutions, nationality, citizenship and nationalisation, migration from or into Azad Kashmir, admission into, and emigration and expulsion from, Azad Jammu & Kashmir, including in relation thereto the regulation of the movements in Azad Jammu & Kashmir of persons not domiciled in Azad Jammu & Kashmir."
23. ' It will be seen that 'Nationalisation' being inc:uded in the Council Legislative List falls within the exclusive legislative powers of the Council under section 31 subsection (2) of the Constitution Act.
24. The High Court struck down the Timber Trade Act on this very ground holding the timber trade could not be nationalized either through an Ordinance by the President or under an Act of the Legislative Assembly as it was only within the powers of the Azad Jammu & Kashmir Council to do so. The point canvassed by the learned Advocate-General is that the term 'Nationalisation' has two meanings 'Nationalisation' and 'Naturalisation' and as such it should he read in its context and the one that fits in with the context should be accepted, which, according to him, is 'Naturalisation'. In support of this proposition he has cited a large number of authorities out of which the following may be referred:
(I) PLD 1959 SC (Pak.) 177;
(ii) PLD 1956 FC 209 ;
(iii) PLD 1965 Lab. 425 ; (Is) AIR 1945 Lah. 154 ; (r) PLD 1965 Dacca 669 ; (vi) AIR 1941 All. 110 ;
(sit) PLD 1975 SC (Pak.) 244 ;
(viii) AIR 1943 Lah. 148 ;
(ix) PLD 1963 Dacca 669 ;
(x) AIR 1942 Lab. 114 ;
(xi) PLD 1975 SC 413 and
(xii) AIR 1921 P C 240.
25. ' Besides these he has also referred to Maxwell and Crawford which support the broad principle of interpretation. From these authorities the following principles of interpretation of statutes emerge-
(1) that a Constitutional instrument should be read as a whole and its provisions construed harmoniously ;
(2) that the Courts, as far as possible, should lean in favour of saving rather than destroying the provisions of a Constitution ;
(3) that the empowering provisions of an enactment should be liberally construed ; and
(4) that if a term or expression used in an enactment has various connotations, those should be accepted which accord with the context.
26. ' The counsel for the respondents have rightly argued that no fault can be found with the principles of interpretation laid down in these authorities but the key question is as to whether the term 'Nationalisation' can be construed as 'Naturalization' when the language used in the Constitution Act is very clear and unambiguous. According to them, the term 'Nationali-ation' has only one accepted meaning and cannot be construed to mean 'Naturalization' and that in view of its plain common dictionary meaning no interpretation is involved in this case. Some of the authorities cited by them in support of this proposition may be referred here : PLD 1967 SC (Pak.) 483 ; PLD 1947 P C 1 ;
(iii) PLD 1956 Lab. 376 ;
(iv) PLD 1959 SC (Pak.) 470 ;
(v) PLD 1970 SC (Pak.) 253 ;
(vi) PLD 1963 SC (Pak.) 137 (iii) PLD 1966 SC (Pak.) 559 ;
(viii) PLD 1965 SC (Pak.) 527;
(ix) PLD 1965 Lab. 59 ;
(x) AIR 1946 MI. 408 ;
(xi) PLD 1973 SC (Pak.) 394 ; and
(x) PLD 1962 SC (Pak.) t42.
27. ' We need not discuss these authorities as they contain the well established general principles of interpretation of statutes which are not disputed by the learned Advocate-General. These authorities contain the cardinal canon of interpretation that when the meaning of a word or term used in a statute is clear and unambiguous, the Court cannot go beyond them and has to take them in their ordinary dictionary meaning. In such a case, in fact there is nothing to interpret as the words or the terms used themselves best expres the intention of the law maker. The main contention is about the principle of interpretation which should apply in interpreting the term 'Nationalization' in these appeals. The learned counsel for the respondents have also relied upon the rulings referred to by the learned Judges of the High Court in the impugned judgment.
28. ' After careful consideration of the authorities and the arguments addressed at the bar concerning this point, we are of the view that the term 'Nationalization' used in III Schedule cannot be construed as "Naturalization'. We may state that the main purpose of interpretation of a document or a statute is to find out the intention of the legislator. The intention is to be gathered from the language used in an enactment. If the language is plain and clear it requires no interpretation as the Court cannot go behind the Act and dive into the background and the proceedings of the Assembly or refer to other Acts even if they are in part materia with the Act under consideration as the learned Advocate-General would like us to do. In such a case it will be a safe principle to accept the plain language as conveying the intention of the Legislature because it has been rightly said that the Legislature intends what it says. The question of interpretation will arise only if either the language or the term is ambiguous or susceptible of different interpretations. The golden rule is that the words of a statute must prima fade be given their ordinary meaning. Therefore, in construing the meaning of the term 'Nationalisation' we cannot be guided by the Government of India Act 035, the Constitutions of Pakistan of 1956, 1962 and the Islamic Republic of Pakistan, 1973 where the term 'Naturalisation' instead of 'Nationalisation' has been used in the comparable list.
29. Tho term 'Nationalisation' has to be read according to its plain dictionary meanln especially when it is not defined in the Constitution Act. The learned Judger / of the High Court have rightly referred to the meanings of the 'National's tion' and 'Naturalization' given in Chamber's 20th Century Dictionary and Webster's International Dictionary spelling out the difference in the meaning and import of these two terms. We are, of the view that the terms 'Nationalization' and 'Naturalization' have different meanings and connotations and are not interchangeable. 'Nationalization' in the general accepted sense means to bring any property under the national management, that is to say, to take it out from the ownership of private persons and to bring it exclusively under the management of the Government. Through this process the State takes over the private property or industrial organizations in the interest of the State to the exclusion of private ownership and management. As against this the term 'Naturalization' in the common accepted sense means granting the privilege and the status of natural born citizen to an alien. In fact these two terms are terms of Civics and can be best understood in this context. In the 'Civics and Government' Section of the Readers Digest Great Encyclopaedia Dictionary' Nationalisation' has been defined as 'process of transferring from private to public ownership and control the means of production, distribution and exchange ; such as the coal, gas, electricity, railway services, heavy industries. Transport and land'. In this very section 'Naturalisation' is defined as process by which a citizen of on country assumes the nationality or citizenship of an other'. Thus looked either from the general meanings or the civic meanings of these two terms, it cannot be said that they have the same meanings and connotations so as to read 'Nationalisation' as meaning 'Naturalisation' in the HI Schedule. The authorities relied upon or the rule of ejusdem genents or nosettur a soclts propounded, by the learned Advocate-General, are not applicable here for the simple reason that the terms 'Nationalisation' and 'Naturalization' are not susceptible of analogous meanings. The rule rather applicable is Ivories In Perlis nulla est ambfguitas ibt nulla expositio contra express a fienda est' when in the words there is no ambiguity then no interpretation contrary to the actual words is to be adopted. Hence we repel the argument that the term 'Nationalisation' occurring in III Schedule should be read as meaning 'Naturalisation' bringing the Timber Trade Act within the legislative!
30. Powers of the Legislative Assembly.
7. Another attack launched by the learned Advocate-General against the judgment of the High Court is that even if it were held that the term 'Nationalisation' could not mean 'Naturalization' the Court could not declare the whole Timber Trade Ordinance or the Act as illegal since only its section 3 deals with the 'Nationalisation' of timber and the other sections being quite independent and separate could still hold the field. Elaborating this point he has contended that if a part of an Act is found void or ultra vires the whole Act cannot be declared as void or ultra vireo. On this reasoning his contention is that only section 3 of the Timber Trade Ordinance/ Act could be declared ultra vires of the powers of the President and the Astembly but not the rest of the sections which are quite separate and independent. For this proposition he has refereed to PLD 1947 P C 387, PLD 1957 Ker. 320 and AIR 1944 Nag.
31. 201.
32. ' For determining as to whether the whole enactment or only its that part which is ultra *es is to be struck down, the general principle is that if such a portion of an Act is severable from the rest the whole Act cannot be declared ultra vires. But if the provisions are inextricably bound o interwoven in such a way that they cannot stand independently the who! Act goes and is to t e declared ultra !Tires if some of its provisions are found Z' to be ultra vires of tee powers of Legislature. Applying this principle to the Timber Trade Ordinance/Act we find that section 3 deals with the 'Nationetization' of the trade of felling and extraction etc. Of the forest trees. Section 4 and the consequent sections are inter-linked in such a way that they cannot be separated or stand independently of section 3.
33. The preamble of the Ordinance/Act also shows that the intention of the Legislature was the nationalization of the timber trade in Azad Kashmir and for this main purposes the Timber Trade Ordinance/Act was enacted. In our vie] section 3 nationalises the timber trade and rest of the sections flow from and are subservient to it. Hence we cannot agree with this contention of the learned Advocate-General and hold that since all the sections of the Timber Trade Ordinance/Act are inextricably woven together, the whole Ordinance/Act was rendered ultra vires even if it be conceded that only section 4 deals with 'Nationalisation'. The fact of the matter is that the whole enactment deals with Nationalisation of timber trade which was not within the legislative powers of either the President or the Legislative Assembly.
8. The learned counsel for the respondents have attacked the constitutionality of the And Jammu and Kashmir Interim Constitution (IV Amendment.) Act, 1977 (hereinafter to be called the IV Amendment Act). They have specially attacked its section 3 by which during the pendency of these appeals. In the first entry of III Schedule of the Interim Constitution Act (Act VIII of 1974) for the word 'Nationalization' the word 'Naturalization' was substituted and was deemed always to have been so substituted. Section 3 reads as :-- "3. Amendment of III Schedule (Act VIII of 1974).-In the said Act in the III Schedule, in entry (I), for the word 'Nationalization' the word 'Naturalization' shall be substituted and shall be deemed always to have been so substituted."
34. ' This Act it may be stated here was passed in the joint sitting of the Azad Jammu & Kashmir _Legislative Assembly and the Council which received assent of the President on 18th July, 1977. The point canvassed by the learned counsel for the respondents is that this amendment does not fulfil the provisions of section 33 of the Constitution Act and as such is null and void. As already stated section 31 of the Azad Jammu & Kashmir Interim Constitution Act 1974 bifurcates the legislative powers of the Legislative Assembly and the Council', Schedule III containing the matters falling within the exclusive legislative powers of the Council. Section 33, as it originally stood, provided that section 31 could not be amended at all. Later on, through the let Amendment Act (Act IX of 1975), section 33 was amended to provide that section 31 could be amended with the prior approval of the Government of Pakistan, the amendment to be passed in the joint sitting of the Legislative Assembly and the Council The argument developed is that as the prier approval of the Government of Pakistan was not obtained when passing the IV Amendment Act, the IV Amendment Act is null and void. This assertion was categorically repudiated by the Advocate- Genera) who produced the file containing the prior approval of the Government of Pakistan qua the IV Amendment Act. Therefore the authorities PLD 1971 SC 124, PLD 1973 SC 49 and PLD 1973 SC 236 referred to by the learned counsel for the respondents are not applicable in this case. In view of this we repel this objection.
9. Since the IV Amendment Act was passed, during the pendency of the appeals, on the application of the Advocate-General, we allowed him to raise and argue the point concerning the effect of such an amendment.
35. ' The stand of the learned Advocate-General is that since the term 'Nationalization' has been substituted by the term 'Naturalization' retroactively in the III Schedule, the Timber Trade Ordinance/Act have become valid and Intra fres of the powers of the Legislative Assembly. For this he has referred to
(i) PLD 1995 SC 681 ; (ii) PLD 1961 Lah. 256 ;
(iii) AIR 1949 Born. 210 ;
(iv) AIR 1942 Lab. 102 ;
(v) AIR 1941 FC 5 ;
(vi) PLD 1964 Ku. 18 ; (WO PLD 1975 SC 1 ; and (viii) PLD 1964 SC 673.
36. ' He has also quoted extensively from Maxwell and Crawford in this respect. These authorities need not be discussed in detail as these contain the generally accepted principles qua the amendment in law during the pendency of a suit or an appeal. The broad principles concerning the change in law daring the pendency of a suit or an appeal are:-
(1) that a suit is to be decided according to the law existing at the time of its institution
(2) that a substantive enactment unless expressly or by necessary implication provides otherwise, is prospective in application ;
(3) that a procedural enactment is generally retrospective unless provided otherwise ; and
(4) if in a substantive law amendment is made during the pendency of a suit or an appeal with retrospective effect them it will be applied retrospectively even if it affects the rights of the parties.
37. ' The learned counsel for the respondents finds no fault with the authorities or the principles enunciated above. But he has raised the following points t-
(a) that since there is neither validating clause nor non obstante clause in the IV Amendment Act the decision of the High Court would remain unaffected in spite of the amendment ; and
(b) that the deeming clause in section 3 of the IV Amendment Act can have retrospective effect at the most on and from the date it was passed in the joint sitting ; that is to say, the 18th July 1977 and not before it.
38. ' In support of these contentions he has referred to the following authorities :-
(i) PLD 1971 SC 124 ;
(ii) PLD 1973 SC 49, 89-90 & 236 (iii)PLD1974SC151;
(iv) PLD 1957 Ku. 320 ;
(v) PLD 1969 SC 599 ;
(vi) PLD 1970 SC 514 ; and (vii) PLD 1971 SC 249.
39. ' The authorities contain the broad principles concerning the application of law when it is amended during the pendency of a civil action in a Court. The learned Advocate has no quarrel with these authorities 1 but his contention is that they have no application to appeals before us. Here we may state some of the principles generally applied :-
(a) that the validating Act does not affect the validity of the acts done corum non JudIce ;
(b) that it is open to the Legislature to validate the actions after a statute was declared ultra vires (PLD 1957 Ku. 320). This is what has happened in the present case ;
(c) that the purpose of the non obstante clause is to take away the effect of the Courts' judgment declared earlier ; and
(d) that when a statute is passed altering the law, unless the languag states expressly to the contrary its effect is prospective and not retrospective.
40. ' After having considered the authorities cited by the learned counsel for the parties on this point we are of the opinion that absence of, non obstantei clause or validating clause, in section 3 of the IV Amendment Act, in no way affects its operation retrospectively because of the deeming clause contained therein. The deeming clause in an enactment is introduced for something supposed to exist rctrospectively which, in fact, did not exist prior to the introduction of such a clause. This is a legal fiction but the Comes have to give effect to this fiction ignoring the factual position obtaining prior to the introduction of the deeming clause. So unless the context provid otherwise all the consequences that flow from such a clause have to recognized and acted upon. At this stage we would like to refer to a few authorities which deal with the effect of change of substantive law during the pendency of an appeal. In PLD 1961 Lah. 256, while the appeal against an ejectment decree, passed on with May 1158, was pending before the High Court, the provisions of the Rent Restriction Ordinance were deemed to have taken effect from the 15th of January 1958. The question before their Lordships (Mr. Justice Mohammad Yaqoob Ali and Mr. Justice A. R. Changes as they then were) was as to whether the decree or ejectment passed by a Civil Judge before the change in law could be set aside. It was held that though the decree was passed before the enforcement of the Rent Restriction Ordinance 1959, the decree could not stand because of the deeming clause of the Ordinance under which the provisions of the Ordinance were deemed to have taken effect from the 15th of January 1958. In this case reliance was placed on AIR 1936 P C 49, AIR 1941 FC 5 and PLD 1958 SC (Pak.) 533. Another authority to the same effect is PLD 1965 SC
681. Although it was a case of a change in procedural law (amendment of section 257, Cr, P. C.) the broad principle laid down may be reproduced as:- "The general principle is that when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun unless the new statute shows a clear intention to vary such rights (vide Maxwell, p. 212). Where the Legislature has made its intention clear that the amending Act should have a retrospective operation, there is no doubt that it must be so construed even though the consequences may entail hardship to a party."
41. ' The following observations contained in AIR 1949 Born. 210 may also be referred : 'Now, it is a well-established canon of construction of every statute that ordinarily every legislation is prospective in its effect and it does not affect vested rights. But it is always competent to the Legislature to make any piece of legislation retrospective.'
42. ' Views contained in PLD 1975 SC 1 (6) and 397 (433) reproduced below ate to the same effect :- 1(6).-'Dealing with the first the limb of the argument of the appellants' learned counsel, it is not controverted that the two amendments to section 13 of the principal Ordinance set out above, are matters of substantive law as distinguished from mere procedural matters. And it is well established principle, that in general, when substantive law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new Statute shows a clear intention to vary such rights.'
43. 397(433).-'There is still another aspect of the matter, namely, the true effect of the retrospective inclusion of the subject of land reforms in the Concurrent Legislative List. Could it be the intention of the deeming provisions contained in the two Presidential Orders to invalidate Provincial laws which had been properly and competently made at the time of their enactment ?
44. ' When a statute contemplates that a state of affairs should be deemed to have existed, it clearly proceeds on the assumption that in fact it did not exist at the relevant time but by a legal fiction we are to assume as if it did exist.'
45. ' We may also refer to the Construction of Statutes by Crawford, at page 597 :- 'As with statutes generally, an amendment will have no retrospective operation, unless its terms clearly indicate a different intent. There is also a presumption that amendments are effective prospectively consequently, rights acquired under a statute before its amendment are not affected, unless the amending statute, expressly or by necessary Implication so provides. But if the legislative intent requires it retroactive operation must be given to the amendment.'
46. ' At pages 212.213, Maxwell in this 'Interpretation of Statutes', 11th Edition, offers the same view as:- 'In general, when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it exacted when the action was begun, unless the new statute shows a clear intention to vary such rights.
47. ' It is hardly necessary to add that, whenever the intention is clear that the Act should have a retrospective operation, it must unquestionably be so construed, even though the consequences may appear unjust and hard.'
48. ' Judging against the principles elaborated in the above authorities we find that by virtue of section 3 of the IV Amendment Act the substitution of the term 'Naturalisation' for the term 'Nationalisation' in Schedule 111 of the Constitution Act is to take effect retrospectively. Since appeal is a continuation of the suit leaving the rights of the parties not finally decided this amendment will have effect retrospectively on the appeals pending in this Court. We do not find any force in the contention of the learned counsel for the respondents that the IV Amendment Act should be construed to have retrospective effect only up to the date of its assent and not before. A cursory glance at the preamble of the IV Amendment Act shows that the amendment was introduced In the Azad Jammu & Kashmir Interim Constitution Act, 1974 (Act VIII of 1914) and as such the deeming clause will take affect from 24th August, 19'4 when Act VIII of 1974 received the assent of the President. We also do not agree with the contention that because of absence of non obstante clause or validating clause in section 3, the amendment is inoperative retrospectively. In view of this we uphold the contention of the learned Advocate-General that because of the I Amendment Act the term 'Naturalisation' is to be read in place of 'Nationalisation' retrospectively rendering the Timber Trade (Nationalisation) Ordinance/Act as quite valid and Intro vires of the legislative powers of the President and the Assembly.
49. ' In the result upsetting the judgment of the High Court dated 17-3-1977 all the appeals are accepted and the cases remanded back to the High Court for deciding all other points raised by the parties which were left undecided by the High Court. The costs will abide by the result.