P L D 1966 Supreme Court 388

Present: A. R. Cornelius, C. J., S. A. Rahman, Fazle-Akbar and Hamoodur Rahman, JJ

Civil Appeal No. 59 of 1962

Sheikh MUHAMMAD ISMAIL & Co. LTD., LAHORE-Appellant

Versus

THE CHIEF COTTON INSPECTOR, MULTAN DIVISION, MULTAN AND OTHERS-Respondents

Civil Appeal No. 28 of 1963

Haji MUHAMMAD SHARIF-Appellant

versus

THE CHIEF COTTON INSPECTOR, LYALLPUR AND OTHERS-Respondents

Civil Appeal No. 89 of.1963

COLONY TEXTILE MILLS LTD., MULTAN-Appellant

Versus

THE GOVERNMENT OF WEST PAKISTAN THROUGH THE SECRETARY, AGRICULTURAL

DEPARTMENT-Respondent

Civil Appeals Nos. 90-92 of 1963

MESSRS SARGODHA COTTON FACTORY, SARGODHA-Appellant

Versus

THE PUNJAB PROVINCE, THROUGH THE SECRETARY, AGRICULTURE DEPARTMENT,

GOVERNMENT OF WEST PAKISTAN, LAHORE-Respondent

Civil Appeal No. 93 of 1963

MESSRS S. M. ILAHI & COMPANY, MULTAN-Appellant

Versus

THE PROVINCE OF WEST PAKISTAN-Respondent

Civil Appeal No. 104 of 1963

Makhdum-ul-Mulk Syed GHULAM MIRAN SHAH-Appellant

Versus

THE WEST PAKISTAN GOVERNMENT ANDANOTHER-Respondents

Civil Appeal No. 107 of 1963

DANISH BROTHERS-Appellants

Versus

THE WEST PAKISTAN GOVERNMENT AND ANOTHER-Respondents

Civil Appeal No. 108 of 1963

ALYANI BROTHERS-Appellants,

Versus

THE WEST PAKISTAN GOVERNMENT AND ANOTHER Respondent

Civil Appeal No. 110 of 1963

SHABBIR COTTON FACTORY-Appellant

Versus

THE WEST PAKISTAN GOVERNMENT AND ANOTHER Respondents

Civil Appeal No. 111 of 1963

MUHAMMAD ABDUL RASHID, PARTNER, ASHRAF GINNING FACTORY-Appellant

Versus

THE WEST PAKISTAN GOVERNMENT AND ANOTHER Respondents

Civil Appeal No. 112 of 1963

MANWAR MUZAFFAR ALI KHAN-Appellant

Versus

THE GOVERNMENT OF WEST PAKISTAN AND ANOTHER-Respondents

Civil Appeal No. 106 of 1963

Nawabzada MOINUDDIN AHMAD SHAHZAD-Appellant

versus

THE WEST PAKISTAN GOVERNMENT AND ANOTHER-Respondents

Civil Appeal No. 122 of 1963

Sheikh MAULA BAKHSH, PARTNER AND OCCUPIER, AGENT, FIRM COTTON GINNING FACTORY,
BAHAWALPUR DISTRICT-Appellant

versus

THE GOVERNMENT OF WEST PAKISTAN AND ANOTHER-Respondents

Civil Appeal No. 113 of 1963

Kh. MUZAFFAR MAHMOOD & SONS, MULTAN-Appellants

Versus

THE WEST PAKISTAN GOVERNMENT AND TWO OTHERS-Respondents

Civil Appeal No. 114 of 1963

(1) MESSRS M. A. WADOOD & CO., AND

(2) MESSRS MUHAMMAD ASLAM M. A. WADOOD & CO.-Appellants

Versus

THE WEST PAKISTAN PROVINCE AND ANOTHER Respondents

Civil Appeal No. 118 of 1963

Sheikh AKHTAR HUSSAIN-Appellant

Versus

THE WEST PAKISTAN PROVINCE AND ANOTHER Respondents

Civil Appeal No. 119 of 1963

Sheikh MUHAMMAD SAID-Appellant

Versus

THE WEST PAKISTAN PROVINCE AND ANOTHER Respondents

Civil Appeal No. 120 of 1963

S. M. SIDDIQUE & Co. LTD., KHANPUR-Appellant

Versus

THE WEST PAKISTAN PROVINCE AND ANOTHER Respondents

Civil Appeal No. 123 of 1963

MESSRS FARID CORPORATION, KHANPUR-Appellant

Versus

THE WEST PAKISTAN PROVINCE AND ANOTHER Respondents

Civil Appeal No. 124 of 1963

Ch. MUHAMMAD DIN, PARTNER, TAMIL & Co., KHANPUR-Appellant

Versus

THE WEST PAKISTAN PROVINCE AND ANOTHER Respondents

Civil Appeal No. 116 of 1963

ROBERTS COTTON ASSOCIATION LTD.-Appellant

Versus

THE WEST PAKISTAN GOVERNMENT AND OTHERS Respondents

Civil Appeal No. 117 of 1963

INQUILAB CORPORATION-Appellant

Versus

THE WEST PAKISTAN GOVERNMENT AND ANOTHER--- Respondents

Civil Appeal No. 121 of 1963

ROBERTS COTTON ASSOCIATION-Appellant

Versus

THE WEST PAKISTAN GOVERNMENT AND OTHERS Respondents

Civil Appeal No. 125 of 1963

MESSRS SHAH MUHAMMAD ATTA MUHAMMAD LALEKA-Appellants

Versus

THE PROVINCE OF WEST PAKISTAN AND ANOTHER Respondents

Civil Appeal No. 126 of 1963

MESSRS SAID MUHAMMAD ATTA MUHAMMAD LALEKA-Appellant

Versus

THE PROVINCE OF WEST PAKISTAN AND OTHERS Respondents

Civil Appeal No. 109 of 1964

DHANPAT JAWALA DASS GINNING FACTORY,

KHANEWAL, DISTRICT MULTAN-Appellant

Versus

THE GOVERNMENT OF WEST PAKISTAN AND OTHERS-Respondents

Writ Petition No. 11 of 1961

MESSRS MAILSI COTTON TRADERS, MULTAN-Petitioners

Versus

WEST PAKISTAN GOVERNMENT AND ANOTHER Respondents

Writ Petition No. 12 of 1961

Mian MUHAMMAD SHARIF-Petitioner

Versus

THE WEST PAKISTAN GOVERNMENT AND OTHERS Respondents

Writ Petition. No. 1 of 1962

Mian MUHAMMAD SAIWAR-Petitioner

Versus

THE WEST PAKISTAN GOVERNMENT AND OTHERS Respondents

Writ Petition No. 4 of 1962

MESSRS GHULAM FARID MUHAMMAD SHAFI-Petitioners

Versus

THE WEST PAKISTAN GOVERNMENT AND OTHERS Respondents

Writ Petition, No. 5 of 1962

MESSRS Mian MUHAMMAD SHAFI COTTON FACTORY, HAROONABAD-Petitioner

Versus

THE WEST PAKISTAN GOVERNMENT AND OTHERS- Respondents

Civil Appeals Nos. 59 of 1962, 28, 89, 90, 91, 92, 93, 104, 107, 108, 110, 111, 112, 106, 122,
113, 114, 115, 118, 119, 120, 123, 124, 116, 117, 121, 125, 126 of 1963, 109 of 1964 and Writ
Petitions Nos. 11, 12 of 1961, 1, 4 and 5 of 1962, decided on 11th October 1965.

(On appeal from the judgments and orders of the High Court of West Pakistan, Lahore, dated
the 5th January 1959, in Civil Original No. 12 of 1956, and dated the 15th June 1960, in Writ
Petition No. 747 of 1957).

AND

In the matter of Writ Petitions Nos. 11 and 12 of 1961 and Nos. 1, 4 and 5 of 1962, filed
directly in this Court under clause 2(4) of the Laws (Continuance in Force) Order, 1958.

(a) Government of India Act, 1935, S. 82-Recommendation of Governor for Bill, or

amendment making provision for imposing or increasing a tax-Not necessary where Governor
himself is legislat ing authority-West Pakistan Cotton (Control) Act (IV of 1949).

(b) Government of India Act, 1935, S. 82-"Tax" or `fee No hard and fast rule to distinguish-
Each case to be decided on basis of its special facts and circumstances-West Punjab Cotton
(Control) Act (IV of 1949)-[The Commissioner, Hindu Religious Endowments, Madras v. Sri
Lakshmindra Tirtha Swamiar of Sri Shirpur 1954 S C R 1005; Mst. Mahant Sri Jagannath
Ramanuj Das v. The State of Orissa 1954 S C R 1046; Ratilal Panachand Gandhi v. The State of
Bombay 1954 S C R 1055 ; S. T. Swamiar v. Commissioner, H. R. and C. E. A I R 1963 S C 966
and Mathews v. Chicory Marketing Board 60 C L R 263 considered.]

(c) West Punjab Cotton (Control) Act (IV of 1949), S. 30 (p) are amended by Punjab Cotton
(Control) (Amendment) Act, 1953 (I of 1954)-Purpose of fee levied-"Administration" of Act
Legitimate purpose-Fee within legislative competence of Provincial Legislature-[Government
of India Act, 1935, Seventh Schedule, List II, items 20, 27, 29, 54]-Fees realised may not
necessarily exactly correspond to expenditure incurred on administration of Act--- Seed
transactions not beyond scope of Act-"Fee" imposed not a "tax"-Method of keeping accounts
immaterial-Government of India Act, 1935, S. 82(2)-Fee imposed for servicing Act may be fee
for services rendered Clause (p) of S. 30, West Punjab Cotton (Control) Act, 1949 not excessive
or unguided delegation of power to executive-Fixing of rate of fee by rule or notification imma
terial-West Punjab Cotton (Control) Rules, 1949, r. 26-Amended cl. (p) of S. 30 operative from
date of amendment-Earlier term "owner" much narrower than "occupier" as introduced later
Fee charged from occupiers before amendment illegal.

A variety of functions are assumed by Government under the West Punjab Cotton (Control)
Act, 1949 in the interest of improvement of the cotton crop, its sowing and its marketing as
well as export. The fees to be levied under clause (p) of section 30 of the Act are now declared
to be for the purpose of covering expenses incurred by Government on the administration of
the Act. This is clearly a legitimate purpose and the servicing of the Act would justify the
imposition of a levy in the shape of a fee on such persons as handle the various processes
connected with the growing of or trade in cotton.

The fee is clearly intended to reimburse the Government for the expenditure incurred on
various functions assigned to them by or under the Act and for various transactions which
may become necessary for the development of cotton in pure varieties and for ensuring its
proper marketing. The fee in question therefore falls within the legislative competence of the
Provincial Legislature.

It is not necessary that the realizations made by way of fee for the servicing of the Act, should
correspond exactly with the expenditure incurred by Government on the services rendered.

Seed transactions are not beyond the scope of the Act. Prima facie, therefore, the levy would
appear to be a fee rather than a tax.

Mere forms of accounting however should not be regarded as conclusive in this regard. So
long as the levy is raised for the purposes contemplated by an enactment designed to serve
a parti cular trade or commodity production and the realizations made are expended actually
for those purposes, the levy would remain a fee, whatever method of keeping accounts for
other Governmental purposes may be adopted.

A fee, moreover, imposed for servicing an Act may be a "fee for services rendered" within the
meaning of section 82 (2) of the Government of India Act, 1935, irrespective of the benefit
conferred on a particular person.
Sufficient indication of the policy to be followed by the execu tive authorities is given in clause
(p) itself, by the legislating authority, by mentioning the categories of persons on whom the
fee may be imposed. So long as the rule-making authority limits itself for the levy of the fee
to these categories, it cannot be said that an unfettered discretion had been bestowed on the
executive authority.

The "choice of persons" from among indicated categories; may be within the permissible
limits of delegation and specially where, as in the instant case, the burden need not
necessarily rest where it falls.

Sobho Gyanchandani v. Crown P L D 1952 F C 29 ref.

It is only the essential legislative power that is incapable of being constitutionally delegated.
Within the framework laid down by the legislating authority, power can be delegated to a
subordi nate agency to carry into effect the purposes of the enactment by making detailed
rules in conformity with the policy thus laid down.

Willoughby's Constitutional Law of the United States ref.

It was the same authority which has framed the rule and issued the notification and in
substance, therefore, the power conferred had been exercised by the competent authority,
though in two e steps instead of one. The rules could be amended from time to time and the
notification could also be pressed into service as an additional rule, if need be.

The relevant provision in the impugned Act does not involve delegation of an essential
legislative power. The fixation of the fee has, of necessity, to be left to the executive authority
because of the variability of the schemes which may be taken in hand from year to year under
the Act and thus entailing differences in the expenditure incurred thereon.

The substituted clause (p) of section 30 introduced by the amending Act, must be construed
as operative from the date of enactment of Act I of 1954, viz., 4-1-54, in the absence of a
deeming clause which could give it force from the date of the original Act.

The expression "owner" occurring in the original clause (p) is much narrower than the term
"occupiers" used in the new claw. The latter term would include allottees of such factories,
although they may not have been transferred ownership rights or even managing agents who
may be in occupation of such factories.

By the amendment introduced by Act I of 1954 clause (p) of section 30 was brought into
conformity with the provisions of rule 26(l) of the West Punjab Cotton (Control) Rules, 1949.
Unfortunately, however, it was not realized that without a deeming provision such as could
give effect to the substituted clause from the date of the original Act, the new clause would
be operative only from the date of the amendment. Any fee; there fore, realized prior to this
amendment, from persons who may be described as "occupiers" but not "owners", would
have no legal sanction behind it.
(d) Practice and procedure-Plea involving question of fact not raised in High Court not allowed
to be raised in Supreme Court although conclusion of law from facts was covered by authority.

(e) West Punjab Cotton (Control) Act (IV of 1949); S. 30 (p) read with West Punjab Cotton
(Control) Rules, 1949, r. 26--Entire fee charged from one of several occupiers-No law or rule
con travened thereby-Occupier charged may re-imburse himself from co-allottees

Fazal Din, Senior Advocate, Supreme Court, (Dost Muhammad Khan, Advocate, Supreme
Court, with him), instructed by Maz harul Haq, Attorney for Appellant (in C. A. No. 59 of 1962).

S. M. Bashir, Assistant Advocate-General, West Pakistan, (Muhammad Aslam Khan; Advocate,

Supreme Court, with him), instructed by Ijaz Ali, Attorney for Respondents (in C. A. No. 59 of
1962).

Ifiikharul Haq Khan, Advocate, Supreme Court, instructed by Naziruddin, Attorney for
Appellant (in C. A. No. 28 of 1963).

S. M. Bashir, Assistant Advocate-General, West Pakistan, (Muhammad Aslam Khan, Advocate,

Supreme Court, with him), instructed by Ijaz Ali, Attorney for Respondent No. 1 (in C. A. No.
28 of 1963).

Respondents Nos. 2 to 6 : Ex parte (in C. A. No. 28 of 1963).

Muhammad Shafi, Senior Advocate, Supreme Court, instructed by Amjad Hussain, Attorney
for Appellant (in C. A. No. 89 of 1963).

S. M. Bashir, Assistant Advocate-General, West Pakistan, Muhammad Aslam Khan, Advocate,

Supreme Court, with him), instructed by Ijaz Ali, Attorney for Respondents (in C. A. No. 89 of
1963).

Dr. Nasim Hassan Shah, Senior Advocate, Supreme Court, (Shaukat Ali Advocate, Supreme
Court, with him), instructed by Maqbul Ahmad, Attorney for Appellants (in C. As. Nos. 90-93
of 1963).

S. M. Bashir, Assistant Advocate-General, West Pakistan, (M. A. Bajwa, Advocate, Supreme

Court, with him), instructed by Ijaz Ali Attorney, for Respondent (in C. A. Nos. 90-93 of 1963).

Raza Kazim, Advocate, Supreme Court, instructed by M. A. Rahman, Attorney for Appellants
(in C. As. Nos. 104, 107, 108, 110, 111 and 112 of 1963)

S. M. Bashir, Assistant. Advocate-General, West Pakistan, (M. A. Bajwa, Advocate, Supreme

Court, with him), instructed by Ijaz Ali, Attorney for Respondents (in all these appeals).

Nur Ahmad Perhar, Advocate, Supreme Court, instructed by Nazir-ud-Din, Attorney, for
Appellants (in C. A. No. 122 of 1963).
S. M. Bashir, Assistant Advocate-General, West Pakistan, (Muhammad Aslam Khan, Advocate,
Supreme Court, with him), instructed by Ijaz Ali, Attorney, for Respondents (in C. A. No. 122
of 1963).

A. K. Brohi and Muhammad Asaf, Senior Advocates, Supreme Court (Muhammad Shafi,
Advocate, Supreme Court, with them), instructed by Gulzar Hassan, Attorney for Appellants
(in C. A. No. 114 of 1963).

S. M. Bashir, Assistant Advocate-General, West Pakistan, (M. A. Bajwa, Advocate, Supreme

Court, with him), instructed by Ijaz Ali, Attorney for Respondents (in C. A. No. 114 of 1963).

Aftab Hussain, Advocate, Supreme Court, instructed by Mehdi Anwar, Attornery for
Appellants (m C. A. No. 124 of 1963).

S. M. Bashir, Assistant Advocate-General, West Pakistan, (Muhammad Aslam Khan, Advocate,

Supreme Court, with him), instructed by Ijaz Ali, Attorney for Respondents (in C. A. No. 124
of 1963).

Muhammad Ali Zaidi, Advocate, Supreme Court, instructed by A. H. Najafi, Attorney for
Appellants (in C. A: No. 121 of 1963).

S. M. Bashir, Assistant Advocate-General, West Pakistan, (M. A. Bajwa, Advocate, Supreme

Court, with him), instructed by Ijaz Ali, Attorney for Respondents, (in C. A. No. 121 of 1963).

Shaukat Ali, Senior Advocate, Supreme Court, instructed by M. Siddiq, Senior Attorney for
Appellants (in C. A. No. 126 of 1963).

S. M. Bashir, Assistant Advocate-General, West Pakistan, (Muhammad Aslam Khan, Advocate

Supreme Court, with him), instructed by Ijaz Ali, Attorney for Respondents Nos. 1-3 (in C. A.
No. 126 of 1963).

Muhammad Ali Zaidi, Advocate, Supreme Court, on behalf of Gul Muhammad Butt, Advocate
Supreme Court, on record, instructed by Naziruddin, Attorney for Appellant (in C. A. No. 109
of 1964).

S. M. Bashir, Assistant Advocate-General, West Pakistan, (M. A. Bajwa, Advocate, Supreme

Court, with him), instructed by Ijaz Ali, Attorney for Respondents Nos. 1-4 (in C. A. No. 109 of
1964).

A. H. Najafi, Attorney, Supreme Court for Petitioners, (in W. P. No. 11 of 1961).

S. M. Bashir, Assistant Advocate-General West Pakistan, (Muhammad Aslam Khan, Advocate,

Supreme Court, with him), instructed by Ijaz Ali, Attorney, for Respondents, (in W. P. No. 11
of 1961).

Fazal Din, Senior Advocate, Supreme Court (Ismatullah Khan, Advocate, Supreme Court,
absent), instructed by Khalil-ur Rahman, Attorney for Petitioners, (in W. P. No. 12 of 1961).
S. M. Bashir, Assistant Advocate-General, West Pakistan, (Muhammad Aslam Khan, Advocate,
Supreme Court, with him) instructed by Ijaz Ali, Attorney for Respondents (in W. P. No. 12 of
1961).

Fazal Din, Senior Advocate, Supreme Court (Ismatullah Khan, Advocate, Supreme Court with
him), instructed by Khalil-ur- Rahman, Attorney for Petitioner (in W. P. No. 1 of 1962).

S. M. Bashir, Assistant Advocate-General, West Pakistan, (M. A. Bajwa, Advocate, Supreme

Court, with him), instructed by Ijaz Ali, Attorney for Respondents (in W. P. No. 1 of 1962).

Fazal Din, Senior Advocate, Supreme Court (Dost Muhammad Khan, Advocate, Supreme
Court, with him), instructed by Mazharul Haq, Attorney for Petitioners; (in W. P. No. 5 of
1962).

S. M. Bashir, Assistant Advocate-General West Pakistan, (Muhammad Aslam Khan, Advocate,

Supreme Court, with him), instructed by Ijaz Ali, Attorney for Respondents (in W. P. No. 5 of
1962).

Dates of hearing: 22nd, 25th, 26th, 29th and 30th March 1965.

JUDGMENT

S. A. RAHMAN, J.-These 29 appeals, by special leave, and Writ Petitions Nos. 11, 12 of 1961,
and 1, 4 and 5 of 1962, raise a common question of law as to the validity of a fee imposed by
the Provincial Government under the provisions of the West Punjab Cotton Control Act, IV of
1949, as subsequently amended, and will be dealt with by this Order, Commented [Hhs1]: issue

The appeals have arisen out of two consolidated judgments of the High Court of West
Pakistan, one covering 15 suits that had, been transferred for trial to the High Court on the
original side and the other disposing of some 96 writ petitions. The five writ petitions
mentioned above were directly filed in this Court prior to the promulgation of the present
Constitution.

The facts which provide the background for this litigation may be briefly summarised.

The West Punjab Cotton Control Act, IV of 1949 (hereinafter referred to as the Act), was
promulgated as an Act of the Governor on the 5th of April 1949. Under section 30 of the Act,
the Provincial Government was empowered to frame rules to carry out the purposes of the
Act. With reference to clause (p) of this section, the Government framed the following rule:-

"26. (i) Government may by general or special notification impose fees on the occupiers of
factories, the managers of companies and the cotton dealers to cover the cost of the staff
appointed under the Act or for the improvement of agriculture relating to the cotton crop
grown in West Punjab."
In exercise of the powers vested in it by this rule, the Provincial Government issued
notifications from time to time imposing a fee on unginned cotton received in factories for
ginning. The first notification dated the 5th of December 1949, levied a fee of one anna per
maund of cotton on occupiers of cotton ginning, cotton pressing and cotton-seed oil factories,
which was raised to 8 annas per maund, by the notification dated the 23rd of February 1951.
Three days later, on the 26th of February 1951, by another notification, this fee was enhanced
to one rupee per maund. It was again reduced by notification dated the 10th of October 1952,
to 4 annas per maund, with effect from the 1st of February 1952. The last three notifications
confined the levy to occupiers of cotton ginning factories only.

The litigation commenced with a suit brought by the Punjab and Bahawalpur Cotton Ginning
Factories Association, being Civil Original No. 20 of 1956, on the 27th of January 1953. The
challenge thrown to the validity of the fee was grounded on the fact that clause (p) of section
30 of the Act entitled the Govern ment to realize fees to meet the salaries of staff only,
whereas rule 26 exceeded that power and authorized the Government to impose fees even
to cover the cost of improvement of agriculture relating to cotton crop grown in West Punjab.
The realizations made, it was complained, far exceeded the salaries of the relevant staff.
During the pendency of the suit, however, section 30 (p) was amended by Ordinance V of
1953, which was published in the Punjab Gazette on the 19th of August 1953. By this
Ordinance, clause (p) was substituted by the following provisions:-

"(p) the fees to be paid by the occupiers of cotton ginning, cotton pressing or cotton-seed oil
factories, by the cotton dealers, or by the managers of companies, to cover the expenses
incurred by Government on the administration of the Act."

The Ordinance was later replaced by Punjab Act, I of 1954 which repeated its provisions. The
Ordinance as well as this Act of 1954, had also sought to validate the fees previously realized
under the un-amended Act. Section 3 of Act, I of 1954 was couched in these terms:
"3. Validation.-Any liability hithertofore incurred or imposed or fees realised or action taken
under clause (p) of section 30 of the Punjab Cotton (Control) Act, 1949, shall, to the extent
permitted by clause (p) as substituted by section 2 of this Act, be deemed to have been
incurred, imposed realised or taken under the said clause (p) as substituted by section 2 of
this Act."

The remaining civil suits were filed during the pendency of the first suit but subsequent to the
amendment of section 30. The common issue that was framed in these suits was "whether
the imposition of the cotton fee is valid, and if so, to what extent". The same question was
raised on 96 writ petitions in the High Court: The suits were disposed of by an earlier judgment
in the High Court and the writ petitions were dealt with later, in the light of the judgment
already delivered, taking note of any additional points that were raised by some of the
petitioners in the High Court.

The learned Judges of the High Court have held that in view of the amendment of clause (p)
of section 30 of the Act and the validating provision set out above, the plea that rule 26
framed by the Provincial Government went beyond the scope of that clause, was no longer
available to the challengers. The contention that the fee levy was in the nature of a tax, was
repelled by the High Court. It was observed that the levy in the present case was a fee for
services to be rendered and could only be realized from the persons who were benefited by
those services. It was found that occupiers of cotton-ginning factories were benefited, if not
directly, at least indirectly, by measures taken for the improvement of cotton under the Act.
The argument was raised in the High Court that the Government was bound by recitals in the
budget of 1951-52, suggesting that the enhancement of the fee from one anna to 8 annas per
maund and three days later, to rupee one per maund, was intended to raise a sum of rupees
ninety lacs to enhance the Government revenues and that it led to the clear inference that
the levy was in the nature of a tax for the benefit of general revenues. It was held that there
could be no estoppel against Government in respect of recitals in the budget. The learned
Judges thought that it was for Government to show that in fact the total realizations made
were spent on the administration of the Act, fully. As, for the years 1949 to 1955, expenditure
of Government was of the order of Rs. 1,58,77,414 and the fees realized were only Rs.
1,01,43,769, though the assessment was of the order of Rs. 1,88,45,698, the opinion was
expressed that the legal powers had not been exceeded. The point was taken in the High
Court that the Act did not authorize Government to indulge in transactions of purchase of
cotton-seed, on which apparently Government had incurred losses. The learned Judges
thought that even if there was no specific provision in the Act authorizing such transactions,
the "preamble to the Act" contained a reference to this purpose and the rules which were
framed to carry out the purposes of the Act, also embodied directions for purchase of seed in
the interest of improvement of the cotton crop. The view prevailed that even if there was an
excess of realizations over expenditure by Government, this may be an illegal imposition to
the extent of the excess but that it would still retain its nature as fee. It was recognized that
the Legislature had not laid down any principles for determining which of the classes of
persons named in clause (p) of section 30 of the Act, were to be subjected to the fee, but it
was held that the Government could be expected to impose the fee, after considering all the
attendant circumstances, on any of the persons named in this clause, so that the imposition
was just, equitable and convenient. The burden of the fee could be passed on to others by
those subjected to it. The objection of excessive delegation was therefore overruled. With
regard to the objection that the fee was imposed not by a rule as permitted by the Act but by
a notification under the rule, it was pointed out that the Act, the rules and the notification
issued thereunder, were all promulgated by the same authority, namely, the Governor and
the notification could also be construed as a rule. In view of these findings all the suits as well
as the writ petitions, were dismissed.

The principal argument in these cases was .put forward by Mr. A. K. Brohi who appeared for
the appellants in appeals Nos. 113, 114 and 121 of 1963. Learned counsel in the other cases
adopted the arguments of Mr. Brohi as part of their own submis sions and further elucidated
some points peculiar to their own cases.

The main contention advanced on behalf of the appellants is that the impugned levy is a tax
and not a fee. Mr. Brohi referred to the title and preamble to the Act and pointed out that
there was no indication therein of any contemplated service to occupiers of ginning factories,
etc. In the body of the Act too, according to learned counsel, no such provision existed. The
finding, of the High Court that the cotton-ginners were actually benefited by the
administration of the Cotton Control Act by Government, is assailed as incorrect. Our
attention was invited to section 82 of the Government of India Act, 1935, which provides that
a Bill of amendment, making provision, inter alia for imposing or increasing any tax, shall not
be introduced or moved in the Legislature except on the recommendation of the Governor.
The Governor himself being the legislating authority in the present case, this constitutional
requirement must be deemed to have been satisfied. Clause (2) of this section reads:-

"(2) A Bill or amendment shall not be deemed to make pro vision for any or the purposes
aforesaid by reason only that it provides for the imposition of fines or other pecuniary
penalties, or for the demand and payment of fees for licences or fees for services rendered."

It is argued that the Government of India Act only contemplated these two kinds of fees
mentioned in clause (2) of section 82, and that the present levy did not fall within these two
categories. The distinguishing feature of a fee as compared to a tax, according to Mr. Brohi,
is that it should have a rational nexus with the service intended to be rendered to the person
concerned. He conceded, however, that the quantum of services actually rendered is not
really pertinent to the question of the validity of the fee levied. The learned counsel
postulated that three conditions had to be satisfied in order to make a fee valid, namely, that
the enacting Legislature should be competent to impose the fee; that the relevant enactment
must indicate who is to be liable and thirdly how much he is to be liable for. It was contended
that none of these three conditions was satisfied in the present case.

From the parallel Indian Jurisdiction, cases reported as The Commissioner, Hindu Religious
Endowments, Madras v. Sri Laksh mindra Thirtha Swamiar of Sri Shirpur (1) 1954 S C R 1005;
Mst. Mahant Sri Jagan nath Ramanuj Das v. The State of Orissa (2) 1954 S C R 1046 ; Ratilal
Panachand Gandhi v. The State of Bombay (3) 1954 S C R 105 and S. T. Swamiar v. Commis
sioner H. R. and C. E (4) A I R 1963 S C 966. were pressed on our attention as containing
reasoning in similar situations and therefore having some persuasive efficacy.

In the first of these cases, the constitutional validity of section 76 of the Madras Hindu
Religious and Charitable Endow ments Act, 1951, fell for consideration. This section
empowered the Government to levy a contribution not exceeding five per centum of its
income, on every religious institution] in respect of services rendered by the Government or
their officers. The matter was examined in the light of the provisions of the Indian Constitu
tion and the general connotation of the' terms "tax" and "fee". The learned Judges adopted
the definition of "tax" given by, Latham, C. J. of the High Court of Australia in Mathews v.
Chicory Marketing Board (5) 60 C L R 263. "A tax", said the learned Chief Justice, "is a
compulsory exaction of money by public authority for public purposes enforceable by law and
is not payment for services rendered". A fee, according to the learned Judges, may be
generally defined to be "a charge for a special service rendered to individuals by some
governmental agency". It was added that the amount of fee levied is supposed to be based
on the expenses incurred by the Government in rendering the service, though in many cases
the costs are arbitrarily assessed. The learned Judges were, however, conscious of the fact
that there may be various kinds of fee and that it was not possible to formulate a definition
that may be applicable to all cases. They rejected the contention that a fee is something
voluntary, which a person has got to pay if he wants certain services from the Government.
It was held that a fee may be compulsorily levied as well as a tax and that "the distinction
between them lies primarily in the fact that a tax is levied as a part of a common burden,
while a fee is a payment for a special benefit or privilege". The special advantage, it was
further said, may assume a secondary importance as com pared with the primary motive of
regulation in the public interest, as, for example, in the case of registration fees for documents
or marriage licences. The learned Judges held that the levy of fee should, on the face of the
legislative provision, be co-related to the expenses incurred by Government in rendering the
service. Quoting from Seligman, an economist, the learned Judges expressed the opinion that
"there is really no generic difference between a tax and a fee and that the taxing power of a
State may manifest itself in three different forms known respectively as special assessments,
fees and taxes". The Indian Constitution had, however, made a distinction between a tax and
a fee and fees could only be levied under that Constitution, with reference to governmental
action undertaken in respect of any of the matters entered in the legisla tive lists of the
Constitution. As in, that particular case, the money raised by levy of the contribution was not
earmarked or specified for defraying the expenses that the Government had to incur in
performing the services under the Act, all the collections were to go to the consolidated fund
of the State and the expenses were to be met not out of these specific collections but out of
general revenues by a proper method of appropriation, the levy was held to be a tax and not
a fee. The learned Judges, at the same time, pointed out that this, in, itself, might not be a
conclusive factor but that in that particular case there was found to be a total absence of any
co-relation between the expenses incurred by the Government and the amount raised by
contributions under the provisions of section 76. It followed that the taxing provision was
beyond the powers of the State Legislature to enact.

The second case related to the provisions of the Orissa Hindu Religious Endowments Act,
1939, as amended subsequently. The levy made under that Act was held to be a fee and not
a tax, in the light of, the principles laid down in the above case, as the collections made in that
case were not merged in the general revenues of the State but were constituted into a
separate fund set apart for the running of services under the Act. The same was the position
in the third case in which the vires of the Bombay Public Trust Act, 1950, which imposes
contributions on public trusts, were considered. In the fifth case it was, found that section 76
of Madras Act, XXVII of 1954 had been amended by the Legislature so as to cure the defects
which had been pointed out in -the first case. The levy now became a fee as it was paid into
a special fund for the services rendered under the Act and the fees already realized under the
old Act were validated by a specific provision having retrospective effect.

I gather that in the cases cited, no hard and fast rule was laid down, which could serve to
distinguish a tax from a fee. It would appear that the question has to be decided on the basis
of the special facts and circumstances of each case. This appears to me to be the correct
approach in a case of this kind.

A rapid survey of the material provisions of the Act may be useful at this stage. The title of
the Act describes it as intended:

(a) to provide for the licensing of cotton ginning and pressing factories ;

(6) to regulate supply of cotton (Kapas) to the factories for ginning and to prevent the mixing
of different varieties;

(c) to plan the production of cotton on a regional basis;

(d) to ensure the supply of pure seed to the cultivators; and

(e) to provide for such other matter as may be incidental thereto.

The Act contemplates the setting up of a Cotton Control Board and Advisory Committees for
the Province or a part thereof, (sections 3 to 6). The Government may, by notification, appoint
such persons as it thinks fit, to be Inspectors for the purposes of the Act, within such local
limits as may be assigned to them respectively (sections 3 to 6). No cotton ginning or cotton
pressing factory can be worked without a licence to be issued by such authority and subject
to such conditions as may be laid down in the rules (section 9). The occupier of every cotton
ginning factory is required to maintain registers containing a record of all the cotton-ginned
and of the quality ginned, for such person (section 10). He is bound to produce these registers
whenever required to do so by the Inspector. The occupiers of every cotton ginning factory
and of a cotton pressing factory are to make returns to the prescribed authority every week
showing the quantity of cotton ginned or pressed, as the case may be, in the previous week
and from the commencement of the cotton year to the end of that week (sections 12 and 13).
Serial numbers are to be placed on each cotton bale pressed in a factory before it is removed
there from (section 14). There are other regulatory provisions like those relating to scales and
weights (section 15) and structural requirements of factories (section 16). Sections 17, 18 and
19 are designed to ensure that various varieties of cotton are not mixed in the factories.
Sections 23, 24, 25 and 26 make provision for measures to be taken for' the purpose of
avoiding adulteration in the cotton grown in any area of the Province. Section 27 lays down
that the Government may direct that any cotton, which has been reserved wholly or partially
for procuring pure seed for sowing purposes, by the prescribed authority, shall not be ginned
without special permission from that authority. Such permission may be granted subject to
such conditions and penalties as may be prescribed in this behalf. By section 28, Government
may, by notification, fix the maximum and minimum prices of cotton or cotton-seed and
under section 29 they may regulate the grading and marketing of cotton. Section 30 confers
the rule-making power on the Government to carry out the purposes of the Act.

It would thus appear that a variety of functions are assumed by Government under the Act,
in the interest of improvement of the cotton crop, its sowing and its marketing as well as
export. The fees to be levied under clause (p) of section 30 of the Act are now declared to be
for the purpose of covering expenses incurred by Government on the Administration of the
Act. This is clearly a legitimate purpose and the servicing of the. Act would justify the
imposition of a levy in the shape of a fee on such persons as handle the various processes
connected with the growing of or trade in cotton. There is nothing to prevent the persons on
whom the fee is imposed to pass on part of their burdens to others dealing in cotton either
as sellers or buyers or growers. The Government seems to have chosen the occupiers of
cotton ginning factories for the levy, on the consideration that the imposition at the ginning
stage would be convenient. The "fee" under consideration seems to be clearly relatable to
the servicing of the Act.

Item 54 of List II of Seventh Schedule to the Government of India Act, 1935, enables the
Provincial Legislature to enact measures imposing fees in respect of any of the matters in that
List, excluding fees taken in any Court. Item 20 in that List refers, inter alia, to "agriculture,
including agricultural education and research and protection against pests and prevention of
plant diseases". Item 29 is in these terms--

"(29) Production, supply and distribution of goods; develop ment of industries, subject to the
provisions in List I with respect to the development of certain industries under Federal
control." Item 27, which, among other subjects, talks of "trade and commerce within the
Province", may have also some relevancy to the validity of the Act, in so far as it authorizes
imposition of fees on persons connected with trade and commerce in cotton. The fee is clearly
intended to reimburse the Government for the expenditure incurred on various functions
assigned to them by or under the Act and for various transactions which may become
necessary for the development of cotton in pure varieties and for ensuring its proper
marketing. The fee in question therefore falls within the legislative competence of the
Provincial Legislature.

It was conceded by Mr. Brohi that it is not necessary that the realizations made by way of fee
for the servicing of the Act, should E correspond exactly with the expenditure incurred by
Government on the services rendered. If such an inelastic criterion is adopted, it Would make
the Act unworkable in practice. Fees have to be levied in anticipation of the expenditure and
this introduced an element of uncertainty into the situation. It may be difficult to assess, in
advance, the expenditure liable to be incurred on various schemes of improvement of the
cotton crop or transactions under taken to provide pure seed to the persons engaged in
growing cotton. The title of the Act and section 27 which clearly contem plate the provision
of pure seed constitute sufficient justification for the transactions of purchase and sale of
pure seed by Government, if need be. It cannot be said, consequently, that seed transactions
were beyond the scope of the Act. Prima facie, therefore, the levy would appear to be a fee
rather than a tax.

It is however argued that the fee was imposed merely to raise general revenues for the
Province and it was merged in those general revenues in the budget. There was no special
fund ear marked for the purposes of the Act. Mere forms of accounting however should not
be regarded as conclusive in this regard. So long as the levy is raised for the purposes
contemplated by an enactment designed to serve a particular trade or commodity c
production and the realizations made are expended actually for those purposes, the levy
would remain a fee, whatever method of keeping accounts for other Governmental purposes
may be adopted. Even in the Government Budget for 1951-52 an account is given of the
receipts of cotton fee as well as details of the expenditure for which it was earmarked (pages
47 and 369 of that budget). The identity of the fee is thus not lost by merger in the general
budget. The Department of Agriculture which is charged with duties under the Act, has also
prepared a statement of expenses incurred by Government in the servicing of the Act (Exh.
D. W.3/1) and if the overall picture is looked at for a number of years, it would seem that
though in one particular year, the levy may have exceeded the expenditure, in other years,
there was a deficit n and the total expenditure incurred by Government over a period of five
years far exceeded the realizations made or the impositions assessed. One of the learned
counsel, Dr. Nasim Hassan Shah, referred us to statements included in the Government
Budget of 1951-52, which showed that in that year, agricultural receipts from fees were
shown as 90 lakhs and disbursements under the head of agriculture were of the order of 70
lakhs only. But in view of the detailed statement brought on record by the Agricul ture
Department, the budget figures apparently do not furnish a completely accurate picture of
the actual situation. Even if some items of expenditure in Exh. D. W. 3/1, like percentage of
salaries of high officers of the Agriculture Department be excluded, the legitimate
expenditure seems to exceed the takings. Even the losses on seed transactions, special staff
and interest charges would overstep the realizations. With respect, it seems to me, that the
view taken in the High Court that the realizations cannot exceed the actual expenditure
incurred, is erroneous. If that standard were to prevail, the amount assessed rather than
realized (as the High Court thought) would be the deciding factor. Practical considera tions
alone would militate against the correctness of that view and we have not been referred to
any provision of law or any principle which could necessitate the adoption of such a criterion.
A fee, moreover, imposed for servicing an Act may be a "fee for services rendered" within the
meaning of section 82 (2) of the H Government of India Act, 1935, irrespective of the benefit
con ferred on a particular person. It is also idle to contend that seed transactions would fall
outside the scope of the servicing of the Act, in view of the clear reference to that objective
in the title of the Act and in section 27 thereof. The Government could therefore legitimately
include on the debit side of the account, the losses incurred in purchasing, storing and
distributing pure seed, as they did. The fact again that other fees are being charged under
various sections of the Act like licence fee on transport of cotton or cotton seeds or a licence
fee to be paid by a ginning factory itself, would not be sufficient to invalidate the fee under
consideration as those other fees by no means exhaust the purposes of the Act.

Another objection raised by Mr. Brohi to the validity of the Act was that its provisions had a
bearing on the industrial aspect of cotton, a subject which was beyond the legislative
authority of the Province. This aspect, it is contended, could have formed the subject of
legislation by the Central Legislature alone. In support of this contention our attention was
called to Item 34 of List I of the Seventh Schedule to the Government of India Act, 1935, which
reads:-"Development of Industries" where development under Federal control is declared by
Federal law to be expedient in the public interest."

The corresponding Item No. 29 of the Second List also included "the development of
industries, subject to the provisions in List I with respect to the development of certain
industries under Federal control". Learned counsel then referred to the Development of
Industries (Federal Control) Act, 1949. In this Act, "industry" is defined as meaning any
industry engaged, in the manufacture or processing of specified goods or commodities and
includes any industry ancillary to such an industry. The word "Specified" means specified in
the Schedule to the Act By section 3 of this Act it was declared that the development under
Federal Control of Industries to which the Act applies, is expedient in the public interest. The
Schedules includes Item 26 which is couched in the following terms:-

"Textile-Cotton, Woollen, Jute, Silk and Rayon."

The argument that the Provincial Legislature lost all power to deal with industries based on
cotton, receives little support from the provisions of this Act. Item 26 of Act XV11I of 1949
only relates to "textiles" which is not the subject dealt with in the impugned Act. The
contention therefore is devoid of all foundation.
The validity of clause (p) of section 30 of the impugned Act was also attacked on the plea that
this clause amounted to excessive and unconstitutional delegation of power to the executive
in so far as it left unguided discretion to the Government to pick and choose, out of several.
Categories of persons mentioned in this clause, for imposition of the fee. No guidelines, it is
said, had been laid down by the legislating authority in this respect. The notification issued
thereunder is now confined to one class, namely, "occupiers of factories", to the exclusion of
the other categories. It is thus contended that naked and arbitrary power has been given to
the executive authority under this enactment. As has been observed above, however,
sufficient indication of the policy to be followed by the executive authorities is given in clause
(p) itself, by the legislating authority, by mentioning the categories of persons on whom the
fee may be imposed. So long as the rule-making authority limits itself for the levy of the fee
to these categories, it cannot be said that an unfettered discretion had been bestowed on the
executive authority. In this connection, the learned Assistant Advocate-General, on behalf of
the Province, relied on certain observations of Akram, J. of the Federal Court, in Sobho
Gyanchandani v. Crown (1) PLD 1952FC29 . The relevant extract is as follows.

"In my opinion, matters of a fundamental nature or of general policy or of great importance,

cannot be delegated, though powers may be assigned within reasonable limits and scope,
such as, the determination of time, place, persons, dutiable commodities, etc., so that rules,
regulations, schemes and bye laws may be made by anyone empowered to do so, within the
framework of the main legislation; the main legislation itself, however, cannot be dictated
(sic.-delegated?) or its contents revived under the delegated power; to say otherwise would
virtually amount to permitting an abdication or a surrender of the legislative authority itself
reposed in the person delegating it."

It would thus appear that the "choice of persons" from among indicated categories, may be
within the permissible limits of dele gation and specially where,-as in the instant case, the
burden need not necessarily rest where it falls.

In the modern administrative complex, some amount of delegation of power is found to be

unavoidable considering the very large field of regulation and control that Governments are
now-a-days required to cover in the course of implementing their economic and fiscal
policies. I do not see that the delegation in the present instance is of such a character as could
be assailed as objectionable. The field of choice has been limited by the Legislature itself
which has provided the framework within which the executive authority is to function. The
delegation is not of an unprecedented kind. For analogy, the provisions of the Sales-tax Act
may be referred to, under which Government can exempt certain commodities from the tax.
The choice of the commodities to be subjected to the tax is thus left with the executive. I find
the following in Willoughby's Constitutional Law of the United States:-

"Generally speaking, it may be said that when a power is not peculiarly and distinctly
legislative, executive or judicial, it lies within the authority of the Legislature to determine
where its exercise shall be vested."

It is only the essential legislative power that is incapable of being constitutionally delegated.
Within the framework laid down by the legislating authority, power can be delegated to a
subordinate agency to carry into effect the purposes of the enactment byl making detailed
rules in conformity with the policy thus laid down. I do not think these legal bounds have been
exceeded in the present case.

The rate of fee has also been left to be determined by the executive authority on whom is
conferred the rule-making power in this behalf. The rate of fee has been changed from time
to time by a notification under the rules. It is contended that the statute authorizes the
imposition of a fee by rule, whereas the Provincial Government has imposed it by taking two
steps, namely, first making a rule authorizing a notification to issue for the imposition of the
fee and then publishing a notification fixing the rate. It is the same authority which has framed
the rule and issued the notification and in substance, therefore, the power, conferred has
been exercised by the competent authority, though Lin two steps instead of one. The rules
could be amended from time to time and the notification could also be pressed into service
as an additional rule, if need be. The statutory practice of leaving the power to specify rates
of fee to be imposed, on the relevant executive agency has a respectable ancestry. Precedents
may be found of a similar procedure being adopted in the Special Marriage Act III of 1872
(section 14), the Official Trustees Act II of 1913 (section 17), the Sea Customs Act VIII of 1878
(section 79 and section 199) and Patents and Designs Act II of 1911 (section 57). The relevant
provision in the impugned Ac' does not involve delegation of an essential legislative power.
The fixation of the fee has, of necessity, to be left to the executive M authority because of the
variability of the schemes which may be taken in hand from year to year under the Act and
the entailing differences in the expenditure incurred thereon.

The appellants and the petitioner, however, appear to be on firmer ground when they urge
that section 3 of Act I of 1954, which was devised to validate fees imposed under the un-
amended Act, to the extent permitted by clause (p) as substituted by the amending Act, failed
to achieve that object effectively. The substituted clause (p) introduced by the amending Act,
must be construed as operative from the date of enactment of Act I of 1954, viz. 4-1-54, in
the absence of a deeming clause which could give it force from the date of the original Act.
As it stood in the un-amended Act, clause (p) of section 30 reads as under:

"(p) the fees to be paid by the owners of Cotton Ginning Factories, Cotton Pressing Factories
and Cotton Seed Oil Factories and by the Managers of any Cotton Market to cover the cost
incurred by Government on the staff appointed under this Act."
the clause substituted for it by Act I of 1954, was expressed as follows:

"(p) the fees to be paid by the occupiers of Cotton Ginning, Cotton Pressing or Cotton-Seed
Oil Factories, by the cotton dealers, or by the Managers of companies to cover the expenses
incurred by Government on the administration of the Act."

The expression "owners" occurring in the original clause (p) is much narrower than the term
"occupiers" used in the new clause. The latter term would include allottees of such factories
although they may not have been transferred ownership rights or even managing agents who
may be in occupation of factories The amendment had obviously been necessitated by the
fact that the relevant part of rule 26 framed under the original' Act was in these terms:-
"26(1), Government may by general or special notification impose fees on the occupiers of
factories, the Managers of companies and the cotton dealers to cover the cost of the staff
appointed under the Act or for the improvement of agriculture relating to the cotton crop
grown in the West Punjab."

A "factory" was defined in the rules to mean a place wherein steam, water or other
machanical or electrical power is used and where cotton is ginned or pressed or oil is
extracted from its seed. By the amendment introduced by Act I of 1954, clause (p) of section
30 was brought into conformity with the provisions of this rule. Unfortunately, however, it
was not realized that without a deeming provision such as could give effect to the substituted
clause from the date of the original Act, the new P clause would be operative only from the
date of the amendment. Any fee, therefore, realized prior to this amendment, from persons
who may be described as "occupiers" but not "owners" would have no legal sanction behind
it. The suggestion was made that the word "owners" occurring in clause (p) of section 30 of
the original Act, should be equated with "occupiers". I do not, however, see any strong ground
for adopting that course. The word "occupier" also occurs in other sections of the original Act,
but in this clause, specifically, the word "owner" has been used and it must be construed
according to its ordinary meaning as no artificial meaning has been assigned to this term in
the Act itself. To the extent, therefore, that a fee has been imposed on "occupiers" who were
not "owners", prior to the amendment in .1954, the imposition would seem to be invalid and
would require to be adjusted in the realizations to be made under the amended Act after the
date of the amendment.

It was also brought to our notice that the word "companies" occurring in the substituted
clause (p) of section 30, was not defined in the Act, though it is defined in the rules. This may
require the attention of the legislating authority, but for the present, this objection seems to
raise an academic question only considering that no Managers of "companies" in the larger
sense have been called upon to pay any fee so far.

I might now deal with certain special features of certain appeals. In Appeals Nos. 115, 118,
119, 120, 123 and 124 of 1963, Mr. Aftab Hussain advanced the argument that the impugned
fee was sought to be recovered from his clients as arrears of land revenue, without there
being any provision legalizing that procedure. It appears, however, that the question has
become academic because of the promulgation of Ordinance XXII of 1962, which authorizes
the recovery of this fee as arrears of land revenue. The point, therefore, need not detain us
as it does not involve a live issue.

Mr. Aftab Hussain also sought to raise the question as to whether the ginning machines run
by diesel engines by his clients in Appeals Nos. 1 18, 120 and 124 of 1963, were within the
purview of the Act. The Act, it seems, was amended in 1961, so as to cover diesel-run
machinery also but not, according to learned counsel, with retrospective effect. It was held
by the High Court in a case reported as Hakim-ud-Din v. Government of West Pakistan (1) P L
D 1960 Lah. 709, that in respect of issue of licences, diesel-run factories were not within the
Act. This point was, however, not taken in the High Court and involving as it does, a question
of fact as to whether the relevant factories are run by diesel engines or not, we would not
permit it to be raised for the first time in this Court. It appears that an alternative prayer for
a writ was also made in this Court by these appellants, but I would be disinclined to accede
to that request in the circum stances of the case since the point was not agitated in the High
Court.

In Appeal No. 28 of 1963, the argument was raised by Mr. Iftikharul Haq Khan that the
appellant is only an allottee of a share in the factory, whereas he has been called upon to pay
the whole fee assessed on that factory. He can, however, pay the R whole fee and ask for
contributions from the other co-allottees. He is undoubtedly an "occupier" of the factory and
no law or rule has been contravened by the demand made.

Mr. Fazal Din appeared before us for the appellant, in Appeal No. 59 of 1962, and for the
petitioners in Writ Petitions Nos. 12 of 1961 and 1, 4 and 5 of 1962. The main petition of his
clients is still pending in the High Court. He had nothing to add to the arguments advanced by
other learned counsel in these cases and stated that he will go to the High Court after the
decision by this Court, for further redress. Nothing more need be said about the special
features of his cases in consequence.

In view of the above discussion, the appeals as well as the writ petitions fail in substance and
I would dismiss all of them, except for adding the direction to the Provincial Government to
give an adjustment to the relevant parties in respect of the illegally recovered fee from
"occupiers" as contrasted with "owners", prior to the amendment of 1954, in the impositions
to be made under the amended Act. In view of the difficult nature of the questions involved,
I would leave the parties to bear their own costs in this Court.

CORNELIUS, C. J.-I agree.

FAZLE-AKBAR, J.-I agree.

HAMOODUR RAHMAN, J.-I agree.

A. H. Order accordingly.