h1

1991 MLD KARACHI 715

MIRPURKHAS SUGAR MILLS LIMITED

v/s

DISTRICT COUNCIL, THARPARKAR AND OTHERS


CONSTITUTION OF PAKISTAN (1973), ARTICLES 151,
70, 141 & 142:

Article 151 read with Article 199 — Sindh Local Government (Amendment and Rawangi Mahsool Validating) Act, 1989 (II of 1990)

Section 3 — Object and scope of Article 151 Constitution of Pakistan discussed and analysed — Inter-provincial trade and
commerce — Imposition of tax affecting interprovincial trade — Validity of — Vires of Section 3, Sindh Local Government
(Amendment and Rawangi Mahsool Validating) Act, 1989 (II of 1990), relating to levy, assessment, collection and recovery of Rawangi Mahsool on goods exported from Province of Sindh to any area in Pakistan — [Messrs. Khyber Electric Lamps Manufacturing Ltd. v. Chairman, District Council, Peshawar 1986 CLC 533 dissented from].

The object of Article 151 is to develop inter provincial trade and commerce. It guarantees free flow of such trade which
can be restricted in a limited manner in a larger public interest. [p. 719] B

Article 151 aims ast free and unfettered inter-provincial trade, commerce and intercourse subject to such limited restriction in public interest which the Parliament may by law impose.s The freedom of trade throughout Pakistan has been ensured and guaranteed except the limitation as provided in Article 151(2) in public interest. Article 151(3) further ensures such freedom by prohibiting the Provincial Assembly or a Provincial Government from making any law or taking any executive action which may hamper, obstruct jor restrict the fre flow of inter provincial trade and commerce. The Provincial Assembly is also prohibited from imposing any tacx which may discriminate between the goods manufactured in the Province and not so manufactured and is thus favourable to the goods manufactured and produced in the province. Nor can any tax be imposed by the provincial Assembly which may discriminate between the goods manufactured outside the province and any other area in Pakistan. Therefore no preference can be given tos the goods manufactured in the province over the goods manufactured in any other area of Pakistan. No tax can be imposed by the Provincial Assembly which discriminates in favour of the goods produced in the province as against the goods produced in any other area of Pakistan. Nor can a tax nbe so imposed as to discriminate between the goods kproduced and manufactured outside the province in any area of Pakistan. Article 151(4) however permits the Provinmcial Assemnbly to make law imposing reasonable restriction in public interest as specified therein with the consent of the President. [p. 720] C

Articles 70, 141 & 142 — Sindh Local Government Amendment and Rawangi Mahsool Validiting) Act, 1989 (II of 1990), Section 3 — Legislasture’s power to make law within specified framwrok outlined by the Constitution — Limitation and extent of such powers delineated in the Constitution — Any law made by legislature offending against provisions of the Constitution to be void — Power of making law validating any statute to be subject to the provisions of the Constitution — Judgment of a Court declaring any notification to be ionvalid so long as the same did not offend the Constitution could be validated by the legislature notwithstanding the judgment — Such power, however, could not be exercised where Court had pointed out that a provision in a statute, notifcation of action was kltra vires the Constitution — Provisions of Section 3, Sindh Local Government (Amendment and Rawangi Mahsool Validating ) Act, 1989 (II of 1990), in so far as they validate the levy, assessment, charge and collection or realization of Rawangi Mahsool Tax in respect of goods exported outside province of Sindh to any area in Pakistan were ultra vires the Constitution and could snot give validity to notification dasted 12th June, 1986 to that extent.

Per Saleem Akhtar, J. –

A legislature is empowered to make laws within the specified frame work outlined by the Constitution. The limitations and the extent of such poweer are clearly defined in the Constitution and any law made by legislature which offends against the provisions of Constitution will be void. The power of making law validating any statute, rule or action rests in the legislature provided such law does not come in conflict with the provisions of the Constitution. If any notification has been issued in violation of any Ordinance or Act but is not hit by any provision of the Constitution the legislasture will be competent to validaste it. It is possible that the judgment of a Court may declare any notification to be invalide but so long it does not offend the Constitution the same can be validated by the legislature notwithstanding the judgment. We have observed a growing tendency that whenever any judgment is pronounced jdeclariong any action illegal and void or any provision of Act kultra vires a law is made to validate it notwithstanding that judgment. The proper course for legislature is to first apply its mind to the lacuna and illegality pointed out by the judgment and then try to remove it by making proper law and if necessary may even validate the previous act. But even this power cannot be exercised where the Court points out that a provision in a statute, notification or action is ultra vires the Constitution. The legislature is not supreme to the Constitution. Constitution is the lauthority behind the legislature which controls and governs thje power and jurisdiction of such legislature. Therefore any Act or Ordinance which validates any law,notification or action whcih is ultra vires the Constitution will also bek ultra vires as the leegislature cannot impose by law or validate by law which is against the provisions of the Constitution. Therefore in our view thje sprovisions of Act II of 1990 in so far they validate the levy, assessment, charge and collection or realization of Raewangi Mahsool Tax in respect of goods exported outside the Province of Sindh to any area in Pakistan is ultra vires thje Constitution and cannot give validity to the Notification dated 12th June 1986 to that extent. We may point out thast notice was issued to the Government of Sindh and the Advocate-General Sindh bukt no one appeared on the date of hearing.

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