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1997 SCMR 641

MESSRS GADOON TEXTILE MILLS AND 814 OTHERS
V/S
WAPDA AND OTHERS

Per Ajmal Mian, J.
FRAME : 3

(a) Constitution of Pakistan(1973) Art. 97

Executive authority of Federation–Extent–Subject to constitution, the executive authority of the federation shall extend to the matters with respect to which parliament has power to make laws including exercise of rights, authority and jurisdiction in and in relation to areas outside Pakistan–said authority, however shall not, save as expressly provided in the constitution or in any law made by parliament, extend in any province to a matter with respect to which the provincial Assembly has also power to make laws. [p. 687]B(b) Constitution of Pakistan(1973) Art. 137

Executive authority of province–Extent–Executive authority of the province shall be co-extensive with its legislative power–In any matter with respect to which both parliament and the provincial Assembly of a province have to which both parliament and the provincial Assembly of a province have power to make laws the executive authority for the province shall be subject to, and limited by the executive authority expressly conferred by the constitution or by law made by parliament upon the federal government or authorities thereof. [p. 688]C

(c) Constitution of Pakistan(1973) Art. 268

Power of adaptations in the existing laws by the president–Extent– President has the power to make necessary adaptations in the existing law for a period of two years which is intended and designed for the limited purpose of bringing the constitution in operation and existing laws in accord with the constitution and not to make substantial amendments either in the constitution or in any existing law. [p. 690]D

(d) Constitution of Pakistan(1973) Art. 97, 145, 161 & Fourth Sched

Concurrent Legislative list, Item No. 34 and federal Legislative list, Part II Item No. 3–Executive Authority of Federation–Water and power Development Authority–Electricity–Federal Government has executive power in respect of WAPDA in terms of Art. 97, constitution of Pakistan–fact that electricity is given as Item No. 34 in the fourth Sched ., Concurrent legislative list of the constitution of Pakistan is of no consequence, for fourth Sched., Federal legislative List, part II, Item No. 3 of the constitution of Pakistan would exclude the application of former in the case of WAPDA subject to Arts. 154 & 161 of the constitution of Pakistan.
[p. 691]F
(e) Constitution of Pakistan (1973) Art. 97 & 137

Executive authority of Federation and Province—Extent.

The executive authority of the Federation extends to all such matters and subjects in respect of which Majlis-e-Shoora (Parliament) has power to make laws. But this authority under Article 97 is subject to the Constitution. Thus, if Constitution anywhere limits the executive authority of the Federation conferred under Article 97, it shall stand so curtailed to that extent. Article 97 is subservient to the other provisions of the Constitution. Although the executive authority of the Federation extends to the matters in respect of which the Parliament has power to make laws, restriction has been placed in respect of matters mentioned in the Concurrent Legislative List. The proviso to Article 97 has placed embargo on the executive authority of the Federation in respect of matters in the Concurrent Legislative List. The Federation can exercise executive authority in matters which also fall within the legislative competence of the Provincial Assembly only if it is specifically so provided by the Constitution or in any law made by the Parliament. Thus, the Federation does not enjoy unfettred executive authority over the matters with respect to which Provincial Assembly has also power to make laws. [p. 773] SS

Under Article 137 the executive authority of the Province extends to matters with respect to which Provincial Assembly has power to make laws. Proviso to Article 137 incorporates the same principle which is contained in proviso to Article 97, viz, in matters with respect to which both Parliament and Provincial Assembly of a Province have power to make laws, the executive authority of the Province shall be subject to, and limited by, the executive authority expressly conferred by the Constitution or the law made by the Parliament upon the Federal Government or authorities thereof. It is by express provision in teh Constitution or under the law made by the Parliament that the Federation can exercise executive authority in respect of subjects and matters in the Concurrent Legislative List. [p. 774] TT

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