Nishat Hotels & Properties Limited etc Vs Province of Punjab etc

Stereo.HCJDA.38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Intra-Court Appeal No.48992/2019 Nishat Hotel and Properties Ltd. etc. Vs. Province of Punjab etc.

JUDGMENT

Date of hearing 17.06.2026.

M/s Imtiaz Rashid Siddiqui, Uzair Karamat Bhandari, Ali Uzair Bhandari, Shehryar Kasuri, Raza Imtiaz Siddiqui, Syed Fazil Hassan, Imran Iqbal, Ahmad Abdul Rehman, Junaid Bin Naeem, Ali Umrao, M. Abdullah Arif, Muhammad Zain Sultan Chattha, Waseem Ahmad Malik, Haris Azmat, Shehzad A. Elahi, Salman Zaheer Khan, Muhammad Mussadiq Islam, Khawaja Omer Ghias, Muhammad Yahya, Babar Sultan, Syed Naveed Amjad Andrabi, Usman Shaukat, Khurram Saleem, Muhammad Humzah, Waleed Khalid, Muhammad Ajmal Khan, Muhammad Nadeem Sheikh, Irfan Noor Gondal, Saad Awais, Muhammad Saleem Ch., Imran Anjum Alvi, Mustafa Kamal, Rana Muhammad Afzal, Muhammad Yousaf Ch., Malik Kashif Rafiq Appellants by Rajwana, Barrister Haroon Dugal, Rashid Mushtaq, Waheed Alam, Waqas Ajwad, Khubaib Ahmad, Ghulam Akbar Khosa, Rabeel Safdar, Zaheer Abbas Cheema, Ahmad Awais, Waqas Qadeer Shaikh, Hasham Maqsood, Muhammad Baqir Hussain, Sardar Muhammad Ali, Mian Muhammad Tariq Hassan, Ammar Waseem, Muhammad Shafay Ali Khan, Ali Sibtain Fazli, Hasham Ahmad Khan, Maria Farooq, H.M. Majid Siddiqi, Farid Adil, Sikandar Javed, Muhammad Raza Qureshi, Abdul Waheed, Khalil Ur Rehman, Zunaira Tahir, Saif-ur-Rehman, Zain-ul-Abidin, Muhammad Shabbir Hussain, Muhammad Azam Zafar, Muhammad Iqbal Hashmi, Malik Bashir Ahmad Khalid, Khurram Shahzad Chughtai, Muhammad Umer Riaz, Shahjahan Khan, Abad- Ur-Rehman, Tariq Mahmood, Habib Ur Rehman,

Farhan Shahzad, Zohaib Ali Sidhu, Muhammad Taimoor Hassan, Ch. A.D. Bhatti, Malik Faisal Khalid, Dr. Ilyas Zafar, Muhammad Ahsan Virk, Muhammad Naeem Munawar, Syed Zia Haider Rizvi, Khawaja Aizaz Ahsan, Mansoor Usman Awan, Shahbaz Butt, Ibrahim Hassan, Asif Ali, Muhammad Younas Khalid, Tahir Mahmood Sandhu, Muhammad Saeed Tahir Sulehri, Mian Asif Arshad, Mirza Anwar Ul Haq, Ahtisham- Ud-Din Khan, Muhammad Yaseen Qadri, Muhammad Noman Sarwar, Muhammad Zeeshan, Syed Shafique Hussain Shah, Majid Jahangir Chohan, Muhammad Shoaib Rashid, Hameed Bukhsh Butt, Shariq Ahmad, Haris Irfan, Umair Ahmad, Fatima Naeem Qureshi, Azhar Ali Deyal, Mian Muhammad Ahmad Majeed, Muhammad Shoaib Ahmed, Rashid Khan, Zaheer Ahmad Ch., Muhammad Shaban, Muhammad Hamza Habib, Muhammad Zain Shabbir, Shoaib Ilyas, Aryan Ahmad, Rana Faisal, and Kiran Shareef, Advocates.

M/s Sajid Ijaz Hotiana, Waqas Ahmad Mir, Asma Hamid, Hassan Kamran Bashir, Sikander Ali, Tanzil-ur-Rehman Hotiana, Ali Hamza, Hammad Hussain, Saif Ullah Khalid, Haider Nazir Chattha, Abdul Rehman Malik, Mustafa Khalid, Faisal Khalid, Zafar Zulqarnain Sahi, Muzaffar Islam, Faiza Rafique, Dilnawaz Ahmad Cheema, Barrister Ahmed Pervaiz, Barrister Ahad Asif Ali, Foziya Bukhsh, Ghazanfar Farrukh, Sami Ullah, Ch. Muhammad Yasin Zahid, Jahanzeb Inam, Ahmad Jamal, Samra Malik, Hamza Shahid Respondents by Buttar, Javed Athar, Shahzad Ahmad Cheema, Farooq Minhas, Farrukh Ilyas Cheema, Muhammad Nawaz Amin, Malik Abdullah Raza, Usman Azam Gondal, Saood Ur Rehman, Ch. Nusrat Javed Bajwa, Riaz Ahmad Kharal, Imran Rasool, Ch. Muhammad Imtiaz Elahi, M. Ashraf Nawaz Cheema, Malik Abdullah Raza, Muhammad Bilal Ramzan, Qasim Mustafa, Barrister Syed Sajjad Haider Rizvi, Muzaffar Ali, Barrister Muhammad Hamza Akhtar, Barrister Syed Hussain Abbas, Barrister Muhammad Nauman Khan, Barrister Usman Malik,

Muhammad Areeb Khan, Javed Ahmad Khan, Haroon Muzaffar Hashmi, Irfan Dawood, Qari Zuhaib-ur-Rehman Zubairi, Arslan Rasheed and Zulfiqar Ali Shah, Advocates.

Mr. Sohail Zafar, Director (Legal), PRA.

Ms. Deeba Tasnim Anwar, Assistant Attorney- General for Pakistan.

M/s Barrister Zargham Lukhesar, Omer Farooq Khan, Imran Khan, Muhammad Awais Arshad, Assistant Advocates-General Punjab and Dr.

Yaser Aman Khan, Addl. Advocate-General, Punjab.

ABID AZIZ SHEIKH, J. These are the detailed reasons of our short orders of even dated 17.06.2026, through which we have dismissed the Intra Court Appeals, as enumerated in 'Appendix- A' annexed herewith.

2.This consolidated judgment shall also decide the connected ICAs, as all these Appeals emanate from and impugn the same consolidated judgment dated 19.07.2019 in Writ Petition No.23657 of 2016 rendered by the learned Single Judge in Chamber of this Court (hereinafter referred to as the "impugned judgment"), reported as "Nishat Hotel and Properties Limited and others V. Province of Punjab and others" (PLD 2019 Lahore 729), and the issues involved therein are identical.

COMMON FACTS OF THE CASES

3.The relevant common facts giving rise to the instant Appeals are that the establishment and composition of the Punjab Revenue Authority (hereinafter referred to as "PRA or Authority") under the Punjab Revenue Authority Act, 2012 ("PRA Act") had earlier been assailed in a prior round of litigation. The learned Single Judge in Chamber of this Court, vide judgment dated 25.01.2016, reported as "Institute of Architects, Pakistan (Lahore Chapter) V. Province of Punjab and others" (PLD 2016 Lahore 321) [hereinafter referred to as "case of Institute of Architects (supra)"], declared that the Authority had neither been validly established in terms of Section 3(1) of the PRA Act nor lawfully constituted, and that the appointments of the Chairperson and its Members had been

made in violation of the PRA Act; hence, all actions, decisions, and orders passed by PRA, including the rules framed thereunder, were declared to be without lawful authority and of no legal effect. It was further held therein that all the appointments of the officers purportedly made under Section 39 of the Punjab Sales Tax on Services Act, 2012 ("PSTS Act") stood vitiated. However, it was expressly observed that there existed no legal impediment preventing the Government from establishing and constituting the Authority afresh in accordance with Section 3 of the PRA Act and in conformity with the principles laid down in that judgment. The aforesaid judgment was subsequently upheld by Division Bench of this Court as well as by the Supreme Court, and thus attained finality. Prior to the pronouncement of judgment in the case of Institute of Architects (supra), the Province of Punjab promulgated the Punjab Revenue Authority (Amendment) Ordinance, 2015 (the "Ordinance") on 22.10.2015 to cure the identified defects, however, the said Ordinance lapsed by efflux of time. Thereafter, similar curative measures/amendments were enacted through the Punjab Revenue Authority (Amendment) Act, 2016 ("First Amendment Act"), which came into force on 06.02.2016 with retrospective effect from 01.07.2012, whereby clause (j) in Section 2 of the PRA Act was substituted and clauses (a) and (b) in Section 36, along with sub-section (4) of Section 5, were inserted into the PRA Act; subsequently, further amendments were introduced through the Punjab Revenue Authority (Second Amendment) Act, 2016 ("Second Amendment Act") dated 06.09.2016, whereby clause (c) in Section 36 of the PRA Act was inserted (both the amendments made through the First Amendment Act and Second Amendment Act shall hereinafter be collectively referred to as "validating amendments"). Being aggrieved of the validating amendments, the appellants instituted Constitutional Petitions before this Court, challenging the vires thereof, inter alia, on the touchstone of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution"), which were decided through the impugned

1973 ("Constitution"), which were decided through the impugned judgment, whereby Section 5(4) of the PRA Act was declared ultra vires the Constitution, while clauses (a) and (b) of Section 36 the PRA Act were held to have been validly enacted within the legislative competence of the Provincial Legislature and not offending any constitutional mandate. Admittedly, neither the respondent-department nor the Province of Punjab assailed the said judgment to the extent it operated against them; however, the private assessees, being dissatisfied with the findings adverse to their interests, have preferred these Intra Court Appeals.

ARGUMENTS BY THE PARTIES

4.Mr. Imtiaz Rashid Siddiqui, learned counsel for appellants while advancing arguments contends that the foundational defects in the establishment and constitution of the Authority, as identified in the case of Institute of Architects, have not been effectively cured through the validating amendments. He explains that under clauses (a) and (b) of Section 36 of the PRA Act, only the collection of taxes has been retrospectively validated, whereas no corresponding validation has been extended to the actions undertaken by the Authority or the rules framed thereunder, thereby leaving a substantial category of acts outside the protective ambit of the statute. Elaborating further, he submits that clause (b) of Section 36 of the PRA Act merely provides a limited deeming fiction whereby actions taken by the Chairperson till the establishment of the Authority under Section 3 of the PRA Act shall be treated as actions taken by the Authority; however, such deeming provision is inherently circumscribed by temporal limitations. Learned counsel contends that by virtue of Second Amendment Act dated 06.09.2016, clause (c) was inserted in Section 36 of the PRA Act, whereby the Authority is deemed to have been established; consequently, from the said date onwards, the Authority stood legally established with effect from 01.07.2012, and the Chairperson could not, in law, continue to exercise powers independently under clause (b) of Section 36 of the PRA Act. He

submits that upon such deemed establishment, the Authority was required to be duly and validly constituted in strict conformity with Section 3(4) of the PRA Act, which mandates the appointment of a chairperson and not less than four members; however, the constitution of the Authority was defective, as admittedly no such members were appointed during the period from 01.07.2012 till 06.09.2016 (the date from which the Second Amendment Act became effective) and even after the said date till 01.11.2018 (the date from which the Punjab Finance Act, 2018 become effective through which Section 3(4) of the PRA Act was amended). Submits that although Section 3(4) of the PRA Act was amended on 01.11.2018, dispensing with the requirement of a minimum number of members, the said amendment operates prospectively and does not cure the legal infirmities that persisted during the above mentioned intervening period; hence, while the Authority may be deemed to have been established during the aforesaid timeframe, it cannot be regarded as having been validly constituted in the eyes of law, with the inevitable consequences that all actions taken during such period were without lawful authority and, therefore, devoid of legal effect and protection. He argued that the saving clause embodied in Section 8 of the PRA Act does not advance the case of the respondents, as protection against invalidation of proceedings on account of any vacancy or defect in constitution of the Authority presupposes the lawful establishment and existence of a duly constituted body. Learned counsel submits that in the absence of such lawful constitution, the said provision cannot be invoked to cure defects of a foundational character or to legitimate actions taken by an entity that lacked legal competence ab initio. In support of his submissions, he placed reliance on "Hamid Mir and another V. Federation of Pakistan and others" (PLD 2013 SC 244) as well as Para 30 of the judgment rendered in case of Institute of Architects (supra) and emphasizes that it is a settled principle that acts performed by an Authority lacking lawful constitution are coram non judice and cannot be retrospectively validated through

curative, or amendatory legislation unless such validation is explicit, comprehensive, and unambiguous in its terms. It is thus urged that, in the absence of an express legislative mandate validating the impugned actions, the same remain legally unsustainable. Learned counsel submits that there are four major grounds of attack: (i) that notwithstanding the so-called validating amendments introduced from the year 2012 till 2022, the Authority was never constituted in accordance with the mandatory requirements of Section 3 of the PRA Act; therefore, any and all actions, proceedings, or measures purportedly taken by the Authority lack lawful jurisdiction, and are not sustainable; (ii) that Section 5(4) of the PRA Act, as initially introduced through the Ordinance on 22.10.2025 and subsequently affirmed by the First Amendment Act dated 06.02.2016, expressly provides that, until the Authority is constituted, the Chairperson shall exercise the powers and perform the functions of the Authority, according to the learned counsel, the very incorporation of this provision constitutes a clear legislative acknowledgment that, at the relevant time, the Authority had not been duly constituted in accordance with law. It is further argued that Section 5(4) of the PRA Act has already been struck down by this Court through the impugned judgment, and no appeal thereagainst was preferred by the Department; hence, any subsequent curative or validating amendments cannot, in law, cure or retrospectively legitimize the defects already identified by this Court, particularly in view of the settled principles governing retrospective validation and vested rights, as elucidated by the Supreme Court in the case of Institute of Architects (supra); (iii) that the so-called validating amendments, in pith and substance, amount to a legislative judgment rather than a valid exercise of the legislative power, being merely declaratory in nature and have ostensibly been enacted with a view to override and nullifying the binding judicial pronouncements. It is contended that such an exercise falls beyond the legislative competence of the Provincial Legislature, as the legislature cannot directly annul or set at naught

the judicial decisions without first curing the foundational legal defects or removing the basis upon which such judgments were rendered; therefore, the validating amendments are liable to be declared unconstitutional, being violative of the settled principles governing retrospective and declaratory legislation; (iv) that the Provincial Legislature lacks the requisite constitutional competence to enact curative or validating legislation, particularly through the device of legal fiction with retrospective effect, in a manner that impairs or defeats vested rights and nullifies binding judicial pronouncements, as the legislative power, if at all exercisable, is circumscribed by constitutional limitations and is primarily vested in Parliament subject to strict scrutiny on the touchstone of fundamental rights and the doctrine of separation of powers. Even otherwise, the validating amendments do not conform to the settled principles governing valid retrospective legislation, inasmuch as they neither remove or cure the legal defects or the basis upon which the earlier judgments were rendered, nor do they validly and expressly validate the past actions in accordance with constitutional recognized modalities; therefore, the validating amendments are liable to be declared ultra vires the Constitution, being an impermissible attempt to overreach judicial determinations. Learned counsel for the appellants further contends that prior to the amendment introduced in November, 2018, Section 3(4) of the PRA Act envisaged that the Authority shall consist of a Chairperson and four members, to be appointed by the Government on such terms and conditions as may be prescribed by the Rules, or, until so prescribed, as may be determined by the Government. It is submitted that the Rules were admittedly framed on 29.02.2016; therefore, any appointments made prior thereto were void ab initio, having been made without lawful authority and in contravention of the statutory scheme. Elaborating his submissions, learned counsel argues that although, in the absence of Rules, the Government could determine the terms and conditions of appointment, the expression "Government" has been authoritatively interpreted by

the Supreme Court of Pakistan in case of "Messrs Mustafa Impex, Karachi and others V. The Government of Pakistan through Secretary Finance, Islamabad and others" (PLD 2016 Supreme Court 808) to mean the Federal Cabinet/Provincial Cabinet, as the case may be, and not an individual functionary or department. He further submits that this position stands fortified by the admission of the respondent-department itself, as reflected in Para 6 of the impugned judgment, wherein it has been acknowledged that the Authority was constituted for the first time vide Notification dated 01.04.2022. According to the learned counsel, such admission unequivocally establishes that, prior thereto, no legally constituted Authority existed in the eyes of law; consequently, all actions purportedly taken by such non-existent or improperly constituted Authority are void, without jurisdiction and of no legal effect. Learned counsel next contends that while it is within the competence of the legislature to enact validating or curative statutes, the legislature cannot, under the guise of such legislation, directly or indirectly set aside or nullify judgment of a superior Court but it may remove the defects or lacunae in the statutory framework, as identified in the judgment, thereby rendering the such judgment ineffective prospectively; however, any attempt to override or defeat a binding judgment without curing the foundational defects would amount to a legislative judgment, which is impermissible under the constitutional scheme. Applying the aforesaid principle, learned counsel submits that, in the present case, the validating amendments neither validly establish nor lawfully constitute the Authority for the relevant period, therefore, the judgment rendered by this Court in the case of Institute of Architects (supra) continues to hold the field as binding precedent, and the respondents cannot circumvent its effect through defective retrospective legislation. It is further argued that the law settled in Institute of Architects (supra) has created vested and accrued rights in favour of the appellants, including the declaration that the proceedings and notices issued against them were illegal and

without jurisdiction. He submits that such vested rights cannot be taken away or impaired through the validating amendments, particularly where the underlying defects or illegalities go to the root of jurisdiction. Finally submits that the Provincial Legislature cannot, through defective retrospective and colourable legislation, cure inherent and jurisdictional defects in the PRA Act, especially where such enactment infringes the fundamental rights guaranteed to the appellants under the Constitution, which is liable to be struck down as unconstitutional and of no legal effect.

5.Mr. Uzair Karamat Bhandari, Advocate while appearing on behalf of appellants submits that the defects in the PRA Act, as highlighted in the case of Institute of Architects (supra), are of such a fundamental nature that they neither stand cured nor are capable of being cured through ordinary legislative measures, including subsequent validating amendments. He explains that in judgment, rendered in case Institute of Architects (supra), it was categorically held that the PRA had neither been lawfully established nor validly constituted; and that the appointment of Chairperson was illegal, being neither structured nor supported by duly framed rules, as required under the governing statutory framework. He contends that the Chairperson, acting unilaterally and without lawful authority, proceeded to appoint members of the Authority, which action was likewise declared illegal. There existed no prescribed procedure, rules, or statutory backing for the appointment of members or officers, thereby rendering the entire institutional framework legally infirm. He submits that in consequence of the aforesaid findings, all appointments, rules and actions undertaken were declared illegal and without lawful authority. Learned counsel submits that the validating amendments introduced subsequently do not, in law, cure the inherent and foundational defects identified by this Court in the judgment passed in case of Institute of Architects (supra) which was also upheld by the Supreme Court of Pakistan. Further submits that incorporating a validation clause through the First Amendment Act, Section 2(j) of the PRA Act was amended to

provide that an ex-officio member shall be deemed to be a member of the Authority. However, the provision fails to specify as to who shall constitute such an ex-officio member, thereby rendering the said amendment vague, uncertain, and incapable of effective implementation. He lastly argues that in comparable statutory framework, such as the Lahore Development Authority Act, 1975, the ex-officio members are expressly identified and designated. He argued that even if the Authority is assumed to have been lawfully established through a legislative validation clause, such validation, by itself, does not ipso facto cure the inherent illegality attached to the acts of its Chairperson, including the appointments, which have already been declared unlawful by this Court in case of Institute of Architects (supra). He contends that under Section 3(6) of the PRA Act, the terms and conditions of the Chairperson and members were mandatorily required either to be prescribed through duly framed rules or to be determined by the Government in accordance with law. Admittedly, neither were any rules framed nor was any lawful determination made by Government; consequently, appointments made in contravention of the statutory framework are void ab initio and offend the fundamental rights guaranteed under Article 18 of the Constitution as well as the injunctions embodied in Article 2A of the Constitution; hence, cannot be cured or legitimized through ordinary legislation or by recourse to validating amendments. Submits that in any case, the validating amendments only validate the actions of the Chairperson and not any appointments which were declared illegal by this Court (in this regard, at this stage, a pivotal question posed whether the legislature can, through validating amendments, protect the acts of the officials without curing the illegality inherent in their very appointments; to which the learned counsel answers in the negative). He further submits that Section 8 of the PRA Act is wholly inapplicable in the present circumstances, as the Authority itself was never validly established or constituted in accordance with law. He adds that the rules which had earlier been declared ultra vires and struck down by this Court

cannot be revived or afforded protection under the guise of validating amendments, in the absence of proper re-enactment in conformity with the constitutional requirements. On the question of relief, learned counsel clarifies that the appellants are aggrieved only to the extent of the proceedings initiated by such unlawfully appointed officials, and seek the setting aside of such notices which may be issued afresh but not seeking any refund, as no assessment orders were passed against the appellants. Lastly, on the aspect of legislative competence, reliance has been placed upon the judgment reported as "Chint Ram Ram Chand & others V. State of Punjab & others" (1996 (2) SCR 283) to contend that although the legislature is competent to validate actions within its legislative domain, such competence does not extend to curing defects arising from violations of constitutional provisions. It is thus submitted that where the validating amendments and appointments are in direct conflict with the Constitution, particularly Articles 18 and 2A of the Constitution, the same cannot be validated through ordinary legislation unless the Constitution itself is amended in accordance with law. Learned counsel submits that an executive action taken in patent violation of law is incurable in nature; however, when a law itself suffers from a defect, the same may, subject to constitutional limitations, be cured through appropriate legislative intervention. Submits that in the instant matters, all appointments have been made in violation of law; hence, cannot be protected by recourse to validating amendments. In support of the above proposition, reliance is placed upon "Federation of Pakistan and another V. Malik Ghulam Mustafa Khar" (PLD 1989 Supreme Court 26), "Mian Jamal Shah V. The Member Election Commission, Govt. of Pakistan, Lahore etc." (PLD 1966 Supreme Court 1), "Pakistan Chest Foundation and others V. Govt. of Pakistan and others" (1997 CLC 1379), "Adamjee Jute Mills Ltd. and others V. Controller of Imports and Exports, Dacca and others" (PLD 1968 Dacca 894) and "Haji Ghulam Zamin and another V. A.B. Khondkar and others" (PLD 1965 Dacca 156).

Learned counsel, placing particular emphasis on the case of Malik Ghulam Mustafa Khar (supra) submits that even a constitutional validation clause does not extend protection to actions that are without jurisdiction, tainted with mala fides, or coram non judice. Further submits that a legal fiction created through a validation clause cannot be stretched or construed to import or create a further fiction. He explained that the appointments, rules and notices in question have already been declared illegal by this Court in the case of Institute of Architects (supra), therefore, mere validation of the actions of the Chairperson cannot, by implication or inference, validate the consequential appointments, rules, and notices issued by the Authority, as such an interpretation would amount to impermissibly creating a second-tier legal fiction. He submits that till the rules are framed, the procedure and manner of exercising statutory powers are required to be determined by the Provincial Government, which, in view of the law settled in Mustafa Impex case (supra), and "Government of Balochistan through Secretary Mines and Minerals Department and another V. Attock Cement Pakistan Limited and another" (2024 SCMR 876), means the Cabinet and not an individual functionary. Lastly, learned counsel submits that Section 8 of the Act does not afford any protection to the impugned actions in the present circumstances; in this regard, reliance is placed upon the case of Hamid Mir (supra) and "Messrs Nishat Hotels and Properties Ltd. through Authorized Officer and another V. Province of Punjab through Secretary Ministry of Finance, Government of Punjab and 3 others" (2024 PTD 837).

6.Learned counsel for respondent-PRA, Ms. Asma Hamid, Advocate submits that the judgment rendered by this Court in case of Institute of Architects (supra) was based on an assumption that the Authority had neither been duly established nor validly constituted; however, such assumption does not accord with the true scheme, intent and legal effect of the provisions of the PRA Act. She contends that there exists a clear and well-recognized legal distinction between the "establishment" of the Authority and its

"composition", both of which operate in separate and independent fields under the PRA Act, and that the two expressions cannot be conflated or treated as synonymous. Elaborating her submissions, learned counsel argues that the establishment of the Authority is governed by Section 3(1) of the PRA Act, which brought the Authority into existence as a statutory body corporate, whereas the question of its composition, including the constitution of its membership and internal structure, is separately regulated under Section 3(4) of the PRA Act, which merely pertains to the constitution of its membership, internal structure and administrative arrangement, and has no bearing upon the legal existence or juristic personality of the Authority itself. She submits that once the Authority stood created by statute, its existence could not be made contingent upon, or invalidated for want of, any alleged irregularity relating to its composition. Learned counsel further submits that the matter was, in any case, set at rest by the validating and curative provision embodied in Section 36(c) of the PRA Act, as inserted through the Second Amendment Act, whereby the Authority was expressly deemed to have been validly established with effect from the date of promulgation of the PRA Act i.e. 01.07.2012, thus retrospectively removing and curing any perceived ambiguity, defect or challenge touching upon its lawful establishment. It is further contended that even assuming, though not conceding, that any defect or irregularity existed in the composition of the Authority, the same would not render void, coram non judice, or otherwise invalidate the actions, proceedings, assessments or recovery measures undertaken by the Authority in view of the saving and protective provisions contained in Section 3(8) read with Section 8 of the PRA Act, which preserve the validity of acts done notwithstanding any vacancy, defect or irregularity in constitution, and safeguard actions performed in exercise of the statutory powers.

7.Mr. Sajid Ijaz Hotiana, Advocate, learned counsel appearing on behalf of the PRA submits that the Authority had already stood

constituted through the Notification dated 15.06.2015, when one Chairperson, one regular member and three ex-officio members were appointed; therefore, there was no necessity for reconstitution of the Authority under the relevant validation clause, however, the Authority was established through the Second Amendment Act promulgated on 06.09.2016, whereby clause (c) was inserted in Section 36 of the PRA Act conferring retrospective validation upon establishment of the Authority. Learned counsel further contends that in Para 18 of the judgment rendered in case of Institute of Architects (supra), it had specifically been observed that the appointment of ex-officio members could not be considered as lawful, there being no enabling provision under the PRA Act, at the relevant time, permitting such appointments; however, the said defects subsequently stood cured through the First Amendment Act, whereby the definition of the term "member" contained in Section 2(j) of the PRA Act was amended with retrospective effect from 01.07.2012 so as to expressly include ex-officio members within its ambit, resultantly, the appointment of three ex-officio members made on 15.06.2015 attained legal validity, and thus the Authority is to be deemed to have been duly constituted in accordance with law. Submits that no doubt, prior to validating amendments, actions and the defects pointed out in the aforesaid judgment were required to be cured by the legislature and such legislative requirement stood fully satisfied in the present case; elaborating his submissions, he contends that, by the time Section 36 was inserted for the purposes of validation of actions and levy, the defects relating to the establishment and composition of the Authority, as highlighted in the case of Institute of Architects (supra), had already been cured through the validating amendments enacted by the Provincial Legislature, as the Authority had already been established retrospectively through the Second Amendment Act with effect from July, 2012, whereas the composition of the Authority had likewise been regularized by virtue of the amendment in Section 2(j) of the PRA Act, whereby ex-officio members were recognized

as lawful members of the Authority. Lastly submits that in view of the aforesaid curative and validating amendments, all actions, proceedings, assessments and levies undertaken by the Authority were validly protected and validated under the amended statutory framework, and, therefore, no exception can now be taken to the legality of the constitution, composition or acts of the Authority on the grounds earlier noticed in the judgment relied upon by the appellants. He submits that at the time when the First Amendment Act was promulgated, the Authority had already been constituted vide Notification dated 15.06.2015, comprising one Chairperson, one regular member and three ex-officio members. He further submits that by the time the Second Amendment Act came into force, the Authority consisted of one Chairperson and six members and, therefore, upon insertion of the validating amendments, not only did the Authority stand duly constituted, but it was also deemed to have been validly established with effect from July, 2012. He contends that any omission, irregularity or defect in the constitution of the Authority prior to 15.06.2015 stood cured and validated by virtue of Section 36(b) of the PRA Act, particularly when the same is read in conjunction with the non obstante clause embodied in Section 36 of the PRA Act, which accords overriding effect to the validating provisions notwithstanding anything contained in any judgment, decree or order of any Court or any other law for the time being in force. According to the learned counsel, the legislative intent underlying the validating amendments was to protect, preserve and save all actions, proceedings, appointments and measures taken in good faith for carrying on the affairs and functions of the Authority and to prevent disruption in the administration thereof on account of any technical defect or procedural irregularity in its constitution. Learned counsel further submits that in the judgment rendered in Institute of Architects (supra), the principal consideration which weighed with this Court, while striking down certain appointments and various rules, was that at the relevant time, the Authority was neither duly

constituted nor fully functional, otherwise, the rules framed under Section 76 of the PSTS Act had duly been approved by the Provincial Government as well as the Cabinet and were thereafter validly notified. He maintains that no fresh appointments were made by the Chairperson; rather, only postings on deputation basis were affected in exigency of service, in order to ensure continuity in the functioning, administration and operation affairs of the Authority. He further submits that even the appointments of the Chairperson had been made in accordance with the prescribed procedure and due process of law; however, since the appointments themselves were not directly under challenge in the earlier proceedings, the said process was not presented to the Court at that stage. Learned counsel also contends that mere absence or omission of subordinate rules regulating the mode or mechanism for collection of levy is not fatal to the levy itself, where the levy has otherwise been validly imposed by the legislature under the parent statute. In support of the said proposition, he placed reliance on "Lt.Col. Nawabzada Muhammad Amir Khan V. The Controller of Estate Duty, Government of Pakistan Karachi and another" (PLD 1962 SC 335). He further submits that the mode and manner of appointment of chairperson and commissioners falls exclusively within the domain and competence of the concerned appointing authority and, once the Authority stands duly constituted and established under the statute, such appointments cannot subsequently be declared illegal merely on account of procedural objections. In support of said contention, reliance has been placed upon "M. U. A. Khan V. Rana M. Sultan and another" (PLD 1974 SC 228) and "Ghulam Rasool V. Government of Pakistan through Secretary, Establishment Division Islamabad and others" (PLD 2015 SC 6). Lastly, learned counsel submits that although the judgment in case of Institute of Architects (supra) was announced on 25.01.2016, however, a certified copy thereof was not made available for nearly thirty days thereafter; certain defects were cured through the Second Amendment Act.

8.Mr. Waqas Ahmad Mir, Advocate, learned counsel appearing on behalf of the respondents submits that the power of the Province of Punjab to levy, assess, charge and collect sales tax on services emanates directly from the Constitution, therefore, the Provincial Legislature is fully competent not only to ensure the effective exercise and realization of such constitutional power but also to validate executive actions which may previously have lacked adequate statutory backing. In support of this proposition, he placed reliance on "United Provinces V. Mt. Atiqa Begum and others" (1940 FCR 110). Further submits that no vested or accrued rights had come into existence in favour of the appellants and, therefore, the principle laid down in "Al-Samrez Enterprise V. The Federation of Pakistan" (1986 SCMR 1917) is inapplicable to the facts and circumstances of the present cases. Submits that a legal fiction is often accompanied by a corresponding fiction of fact and that, in the instant case, the Legislature, by creating such a fiction, has deemed the PRA to have been established with effect from the year 2012, consequently, all actions taken thereafter are to be regarded as having been validly undertaken by a lawfully constituted Authority and, thus, stand protected from challenge. He further argues that the non obstante clause incorporated in the validating provision is of overriding effect and is sufficient to cure all defects and infirmities highlighted in the judgment rendered in case of Institute of Architects (supra) with the result that the actions sought to be validated by the Legislature stand fully protected and insulated from challenge, notwithstanding anything contained in the said judgment.

9.Learned Law Officers, appearing on behalf of the Province of Punjab, submit that even prior to the Eighteenth Amendment to the Constitution, sales tax on various services was being levied by the Government of Punjab under the Punjab Sales Tax Ordinance, 2000; however, the collection and levy thereof were to be effected through the Federal Board of Revenue. They submit that following the Eighteenth Amendment, a summary was moved before the

competent authority for the establishment of a Provincial Authority empowered to levy, collect and recover provincial taxes, including sales taxes on services. Further submit that since the proposed Authority was a newly established institution and the exercise involved an unprecedented administrative undertaking, it was considered appropriate that an experienced officer from the public administration be entrusted with the responsibility of implementing the project; it was envisaged that such officer, initially appointed as Project Director, would subsequently assume the office of Chairperson of the Authority. Learned Law Officers contend that for the appointment of Project Director, who was subsequently appointed as Chairperson of the Authority, the mode of the appointment as well as the terms and conditions of service were duly determined by the Provincial Government under Section 5(4) of the PRA Act, until the framing of the relevant rules, which were eventually promulgated in the year 2016. They, therefore, submit that no illegality whatsoever can be attributed to the appointment of the Chairperson. Further submit that the rules framed from time to time under Section 76 of the PSTS Act were duly approved by the Provincial Assembly and were also notified in accordance with law, however, the said rules were subsequently held to be defective in the judgment rendered in case of Institute of Architects (supra), as the Authority had not been formally established. They submit that through the subsequent validating amendments, whereby the Authority was deemed to have been established with effect from 2012, the defect identified in relation to the rule-making under Section 76 of the PSTS Act stood effectively cured; consequently, the validating amendments were lawfully enacted and do not amount to a legislative judgment. They contend that although the requirement of issuance of a notification under Section 3(1) of the PRA Act was not expressly repealed, however, by virtue of the Second Amendment Act, whereby the Authority stood established with retrospective effect from 2012, the said requirement has been impliedly repealed. He placed reliance on "Federal

Government Employees Housing Foundation (FGEHF), Islamabad and others V. Malik Ghulam Mustafa and others" (2021 SCMR 201) and "Collector of Customs, Appraisement (West) and others V. Messrs Marosh and others" (2020 PTD 814). Further submit that no doubt, notification under Section 3(1) of the PRA Act was not issued simultaneously with the promulgation of the PRA Act in July, 2012 for the formal establishment of the Authority, and such omission could not have been cured through the issuance of notification with retrospective effect, as the same is impermissible in law and it was in these circumstances, the Provincial Legislature enacted the Second Amendment Act to the PRA Act and established the Authority with retrospective effect from 2012 in order to cure the defect, which is not only within the domain of the Provincial Legislature but also permissible under the law. They also adopted the other arguments advanced on behalf of the other respondents.

10.We have heard the learned counsel for the parties at considerable length and, with their able assistance, have minutely perused the record.

BACKGROUND OF THE MATTER

11.Both the PSTS Act and the PRA Act were promulgated on 21.06.2012 and came into force with effect from 01.07.2012. The PRA Act was enacted to provide for the establishment and constitution of the Authority, which was entrusted functions, inter alia, with the implementation, administration and enforcement of the PSTS Act. In terms of Section 5 of the PSTS Act, the principal function of the Authority include the assessment, collection, and recovery of taxes, duties and other fiscal levies assigned to it by the Government of Punjab (hereinafter referred to as "Government"). Under Section 3(1) of the PRA Act, the Authority was to be established by a notification issued by the Government, whereas Section 3(4) thereof envisaged its constitution by the appointment of a Chairperson and four Members, a statutory requirement that remain in force until 30.10.2018. In the years 2014 and 2015,

various constitutional petitions were filed, challenging notices and notifications issued under the PRA Act and the PSTS Act. These petitions were allowed through a judgment passed in the case of Institute of Architects (supra). The Province of Punjab assailed the said judgment before a Division Bench of this Court through ICA No.92 of 2016, titled "Province of Punjab and another V. Educational Services (Private) Limited, which was dismissed vide judgment dated 20.12.2016. The matter was thereafter carried before the Supreme Court of Pakistan through Civil Petition No.423-L of 2017; however, the said Petition was also dismissed.

12.During the pendency of the aforesaid ICA, the Provincial Legislature enacted the validating amendments with effect from 01.07.2012, with a view to remove the defects pointed out in the earlier proceedings, curing the legal infirmities identified by this Court, and validating actions, proceedings, notices, assessments, recoveries and other measures undertaken under the PRA Act and the PSTS Act. By virtue of the First Amendment Act, amendments in Sections 2 and 5 of the PRA Act were introduced and Section 36 containing clauses (a) and (b) was inserted into the PRA Act. The said amendments and insertion are reproduced hereunder for ready reference:-

2.Amendment in section 2 of Act XLIII of 2012.–In the Punjab Revenue Authority Act 2012 (XLIII of 2012), for brevity cited as the said Act, in section 2, for clause (j), the following shall be substituted:

“(j) “member” means a member of the Authority and includes an ex-officio member;”.

3.Amendment in section 5 of Act XLIII of 2012.– In the said Act, in section 5, after subsection (3), the following new subsection (4) shall be inserted:

“(4) Till such time that the Authority is constituted under this Act, the Chairperson shall perform the functions and discharge the duties of the Authority.”

4.Insertion of section 36 in Act XLIII of 2012.– In the said Act, after section35, the following new section 36 shall be inserted:

“36. Validation.–Notwithstanding any omission, discrepancy or defect in the establishment or composition of the Authority or anything to the contrary contained in this Act or the Punjab Sales Tax on Services Act 2012 (XLII of 2012) or the rules made there under:

(a)any action of the Chairperson on behalf of the Authority, or anything to the contrary contained in any decree, judgment or order of any court, the sales tax or any other amount levied, charged, collected or realized by the functionaries of the Authority from any person shall be deemed to have been validly taken, levied, charged, collected or realized under the Act; and

(b)any action taken by the Chairperson till the establishment of the Authority under section 3 of the Act shall be deemed to be the action taken by the Authority.”

Through the Second Amendment Act, three amendments were introduced, including an amendment to Section 36 of the PRA Act. Since the amendment to Section 36 of the PRA Act, introduced through the Second Amendment Act, bears direct relevance to the controversy involved in the present cases, the same is reproduced below for ease of reference:-

13.The aforesaid validating amendments were challenged by the appellants in a number of Writ Petitions, which were dismissed by learned Single Judge in Chamber of this Court through the impugned consolidated judgment, holding as under:-

i)Clause (c) of Section 36 cured the lacunae of non-issuance of notification under sub-section (1) of Section 3 of the PRA Act and therefore

the Authority stands established from 1st of July 2012.

ii)Clauses (a) and (b) of Section 36 of the PRA Act have been competently enacted which have validated the levy and collection of tax under the PSTS Act, and also the actions including the framing of rules etc. by the Chairperson from the 1st of July 2012 or thereafter till the promulgation of the validating amendments.

iii)Sub-section (4) of Section 5 of the PRA Act, inserted through the First Amendment Act is declared ultra vires as this provision was "susceptible to misuse".

LEGISLATIVE COMPETENCE

14.The principal legal question that arises for determination is whether the Provincial Legislature was competent to validate laws and executive actions which had earlier been declared illegal or invalid by a Court. It is a settled principle of constitutional interpretation that, where the vires of an enactment are challenged, the Court must proceed on the presumption of its constitutionality and accord to the relevant legislative entry the most liberal and extensive construction so as to give it the widest possible amplitude. The legislative entries contained in the Constitution do not, in themselves, confer legislative powers; rather, they merely demarcate the respective fields of legislation and, therefore, are to be construed in a broad and liberal manner. Every general expression employed therein extends to all ancillary, subsidiary, and incidental matters which can fairly and reasonably be comprehended within its scope. The power of a legislature to enact validating statues and to validate executive actions is recognized as ancillary, subsidiary and incidental to its plenary power to legislate with respect to the subject concerned.

15.This doctrine was enunciated for the first time by the Federal Court of India in case of Mst. Attiqa Begum (supra). The same principle was subsequently reaffirmed and elaborated upon by the Supreme Court of India in another case reported as "Rai Ramkrishna and others V. The State of Bihar" (1963 1 SCR 897),

wherein the legal proposition laid down in case of Mst. Atiqa Begum (supra) was reiterated. The relevant extract from the said judgment is reproduced hereunder:- "The other point on which there is no dispute before us is that the legislative power conferred on the appropriate legislatures to enact laws in respect of topics covered by the general entries in the three lists can be exercised both prospectively and retrospectively. Where the legislature can make a valid law, it may provide not only for the prospective operation of the material provisions of the said law, but it can also provide for r7etrospective operation of the said provisions. Similarly, there is no dispute that the legislative power in question includes the subsidiary or the ancillary power to validate laws which have been found to be invalid. If a law passed by a legislature is struck down by the Courts as being invalid for one infirmity or another, it would be competent to the appropriate legislature to cure the said infirmity and pass a validating law so as to cure the provisions of the said earlier law effective from the date when it was passed. This position is treated as firmly established since the decision of the Federal Court in the case of The United Provinces v. Mst. Atiqa Begum."

16.The ruling settled in the case of Mst. Atiqa Begum (supra) is that the power to validate executive actions in a particular field constitutes an integral component of the legislative competence vested in the Legislature with respect to that field. Such validation, however, does not preclude the merits of the executive actions from being questioned before a Court of competent jurisdiction; rather, it merely confers upon the actions the status of having been taken under a validly enacted law. The principle enunciated in case of Mst. Atiqa Begum (supra) has repeatedly been followed by the our Courts and the most recent pronouncement of the Supreme Court of Pakistan on the subject is found in "M/s Sui Southern Gas Company Ltd. and others V. Federation of Pakistan and others" (2018 SCMR 802), wherein, while relying upon the case of Mst. Atiqa Begum (supra), it was held that none of the entries in the Legislative Lists is to be construed in a narrow or restricted sense, and that each general expression employed therein extends to all

ancillary and subsidiary matters which may fairly and reasonably be regarded as comprehended within its ambit.

17.Since the sales tax on services falls within the legislative domain of the Provincial Legislature under the Constitution, there can be no manner of doubt that Provincial Legislature is equally competent to enact validating statutes in relation thereto. Nevertheless, the exercise of such legislative power remains subject to the principles settled by the superior Courts that a validating statute must first remove, cure or neutralize the defect, infirmity, or legal basis on account of which the earlier law or executive action was declared invalid by a Court of law, and only thereafter may it validly declare the previous law or executive action to have been lawfully made or taken. In other words, a validating statute cannot merely declare an invalid act to be valid; it must effectively alter the legal foundation upon which the earlier declaration of invalidity rested. This principle was lucidly explained by the Supreme Court of India in "Sri Prithvi Cotton Mills Ltd. V. Broach Borough Municipality and others" (1969 (2) SSC 283), wherein it was observed as under:- "When a Legislature sets out to validate a tax declared by a court to be illegally collected under an ineffective or invalid law, the cause for ineffectiveness or invalidity must be removed before validation can be said to take place effectively. The most important condition, of course, is that the Legislature must possess the power to impose the tax, for, if it does not, the action must ever remain ineffective and illegal. Granted legislative competence, it is not sufficient to declare merely that the decision of the Court shall not bind for that is tantamount to reversing the decision in exercise of judicial power which the Legislature does not possess or exercise. A court's decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. Ordinarily, a court holds a tax to be invalidly imposed because the power to tax is wanting or the statute or the rules or both are invalid or do not sufficiently create the jurisdiction. Validation of a tax so declared illegal may be done

only if the grounds of illegality or invalidity are capable of being removed and are in fact removed and the tax thus made legal. Sometimes this is done by providing for jurisdiction where jurisdiction had not been properly invested before. Sometimes this is done by re-enacting retrospectively a valid and legal taxing provision and then by fiction making the tax already collected to stand under the re-enacted law. Sometimes the legislature gives its own meaning and interpretation of the law under which the tax was collected and by legislative fiat makes the new meaning binding upon Courts. The legislature may follow any one method or all of them and while it does so it may neutralise the effect of the earlier decision of the Court which becomes ineffective after the change of the law. Whichever method is adopted it must be within the competence of the legislature and legal and adequate to attain the object of validation. If the legislature has the power over the subject-matter and competence to make a valid law, it can at any time make such a valid law and make it retrospectively so as to bind even past transactions. The validity of a Validating Law, therefore, depends upon whether the Legislature possesses the competence which it claims over the subject-matter and whether in making the validation it removes the defect which the Courts had found in the existing law and makes adequate provisions in the Validating Law for a valid imposition of the tax.”

(Emphasis supplied)

18.The same principle were reiterated and affirmed by the Supreme Court of Pakistan in "Molasses Trading V. Federation of Pakistan" (1993 SCMR 1905) and "Fecto Belarus V. Government of Pakistan" (PLD 2005 SC 605), wherein it was held that the Legislature is competent to enact validating laws to cure defects and validate past actions, provided that the legal infirmities and deficiencies identified by the Court are effectively removed. A validating enactment becomes objectionable only when the legislature directly declares a judicial pronouncement to be wrong or ineffective while leaving untouched the statutory defects upon which such pronouncement was founded. However, where the legislature removes the legal basis of the judgment and retrospectively amends the governing statute, the earlier judicial

determination becomes ineffective not because the legislature has overruled the judgment, but because the law itself has undergone a fundamental change.

WHETHER DEFECTS CURED

19.The next legal question is whether the defects in the then existing law, identified in the case of institute of architects (supra), have been cured through the validating amendments and secondly, whether the decision rendered in the case of Institute of Architects (supra) would have been the same, had the validating amendments been in force at the relevant time. In order to facilitate a proper appreciation of these issues and for the sake of convenience, the relevant paragraphs 31 and 33 of the judgment passed in the case of Institute of Architects (supra) are reproduced hereunder:- "31. For the above reasons, it is declared that the Authority has never been established under section 3(1) of Act-II. It is also declared that the Authority has not been lawfully constituted and the appointments of Chairperson and Members are in violation of Act-II. Hence, all the actions, decisions and orders passed by the so-called Authority, including the Rules mentioned hereunder, are hereby declared to be without lawful authority and of no legal force................... All the appointments of the officers of the Authority made under Section 39 of the Act-I by the Authority also stand vitiated. There is no stopping the Government to establish and constitute the Authority in terms of section 3 of Act-II and the principles discussed in this judgment. .......................

33.For the above reasons, it is declared that Punjab Revenue Authority has not been established or constituted in accordance with the law. As a consequence, all notices, orders, proceedings, appointments, etc. initiated, issued or made by the Chairperson, acting as an Authority, are declared to be illegal and without lawful authority and are therefore, set aside. The Government of Punjab may seek guidance from this judgment to proceed for the establishment and constitution of the Authority in terms of Section 3 of Act-II. "

20.The findings recorded in the above-referred judgment, for the sake of convenience and clarity, can be broadly classified under the following heads:

i)The Authority was never lawfully established, as no notification in terms of sub-section (1) of Section 3 of the PRA Act was ever issued by the Government for its establishment.

ii)The Authority was never constituted in terms of sub- section (4) of Section 3 of the PRA Act, inasmuch as a Chairperson and four Members, whose simultaneous appointment was statutorily mandated, were never appointed; instead, only a Chairperson was appointed, who purportedly exercised and discharged the powers and function of the Authority single-handedly, despite the Authority not having been duly constituted in the manner prescribed by law.

iii)As the Authority had neither been established nor duly constituted in accordance with the law, all actions purportedly undertaken by the Chairperson, including the framing and promulgation of rules, were devoid of lawful authority.

iv)The appointment of the Chairperson and other officers was made in disregard of the due process of law and without adhering to the mandatory legal requirements governing such appointments.

v)In Para 18 of the above-referred judgment, it was held that although the ex-officio members had been appointed, there existed no statutory provisions authorizing or permitting such appointments.

vi)In Para 30 of the said judgment, it was held that Section 8 of the PRA Act was not attracted, as its applicability presupposes a situation where the Authority has either not been established or has not

been duly constituted, which is not the case in the present matters.

21.The defect highlighted in the case of Institute of Architects (supra) that the Authority had never been validly established owing to the non-issuance of a notification in terms of Section 3(1) of the PRA Act, stood cured by virtue of clause (c) of Section 36 of the PRA Act, inserted through the Second Amendment Act, whereby the Authority was deemed to have been established under Section 3 of the PRA Act with effect from 01st July, 2012. The contention of the appellants that notwithstanding the aforesaid validating amendment, a notification under Section 3 of the PRA Act was still required, is misconceived and devoid of substance. The issuance of a notification under Section 3 of the PRA Act was merely one time administrative act intended to effectuate the establishment of the Authority. Once the Legislature itself, by enacting Section 36(c) in the PRA Act, deemed the Authority to have been established under Section 3 of the PRA Act with retrospective effect from 01.07.2012, the issuance of a separate administrative notification became wholly unnecessary.

22.This interpretation is also in consonance with the legislative intent underlying the validating amendment because an executive notification under Section 3 of the PRA Act could not have been issued retrospectively, whereas the Legislature was competent to enact a deeming provision conferring retrospective establishment upon the Authority with effect from 01.07.2012. Such a retrospective legal fiction lies exclusively within the legislative domain and could not have been created through executive action. In any event, even if any ambiguity was assumed to exist, the subsequently enacted validating provision must prevail, and the requirement of issuance of a notification under Section 3 of the PRA Act, in the presence of deeming provision contained in Section 36(c) thereof, be regarded as having been impliedly repealed; consequently, the defect relating to establishment of the Authority stands effectively and completely cured.

23.The next identified defect pertains to the alleged non- constitution of the Authority in accordance with Section 3(4) of the PRA Act, on the premise that the Chairperson and four members had not been appointed simultaneously. Undoubtedly, Section 3(4) of the PRA Act, as it stood at the relevant time, provided that the Authority shall consist of a Chairperson and not less than four members, to be appointed by the Government in such manner and on such terms and conditions as may be prescribed and, until such prescription, as may be determined by the Government. In pursuance of this Court's direction, the Member (Legal) of the PRA has placed on record a chart containing the names, designations, and tenures of the Chairperson and members appointed from time to time, together with the relevant notifications evidencing their appointments. For the sake of convenience and ready reference, the said chart is reproduced hereunder:-

24.From the above chart, it is evident that Mr. Iftikhar Qutub remained appointed as Chairperson of the Authority from 16.07.2012 to 31.03.2015. During this period, no other member of the Authority was appointed; however, upon the appointment of Mr. Raheel Ahmed Siddiqui as Chairperson on 31.03.2015, who continued to hold office until 13.09.2018, Mr. Aftab Ahmed Asif was appointed as Member (Support Services) with effect from 01.04.2015 and remained in office until 01.07.2016. Subsequently, on 15.06.2015, three members, namely Dr. Ijaz Munir, Secretary Services; Mr. Ali Tahir, Secretary Excise and Taxation; and Mr. Ali Murtaza, Secretary Public Prosecution, were appointed as ex-officio members of the Authority. Consequently, with effect from 15.06.2015, the Authority comprised one Chairperson and four members. This legal position, however, was brushed aside in case of Institute of Architects (supra), wherein, in Para 18 of the judgment, it was observed that the PRA Act contained no provision

for the appointment of ex-officio members. In order to remove this defect, Section 2(j) of the PRA Act was amended through the First Amendment Act, promulgated on 06.02.2016, with retrospective effect from 01.07.2012. By virtue of the said amendment, the definition of the term "member" was substituted to provide that member means a member of the Authority and includes an ex- officio member. Through the incorporation of the amended Section 2(j) of the PRA Act, the Legislature expressly recognized and validated the appointment of ex-officio members with effect from 01.07.2012. Thus, the defect highlighted in Institute of Architects (supra) also stood cured with the consequence that as on 15.06.2015, the Authority consisted of one Chairperson and four members, thereby satisfying the requirement prescribed under Section 3(4) of the PRA Act regarding the composition of the Authority.

25.Regarding the argument of the appellants that the manner and terms and conditions of these appointments are not prescribed by rules, suffice it to note that although no rules had been framed governing such appointments, Section 3(4) of the PRA Act itself envisages that until rules are prescribed, the manner of appointment and terms and conditions of service of members may be determined by the Government. Perusal of the notifications appointing the ex- officio members reveals that the same were issued by the Governor on the advice of the Chief Minister, Punjab. The next argument that as per Mustafa Impex (supra), Government means Cabinet, hence, the Governor’s notification on the advice of Chief Minister was not enough, has also no basis. Since these appointments were made on 15.06.2015, the ratio decidendi laid down in the case of Mustafa Impex (supra), decided on 18.08.2016, cannot be applied retrospectively, as held in the case of "Pakistan Medical and Dental Council through President and 3 others V. Muhammad Fahad Malik and 10 others" (2018 SCMR 1956) so as to invalidate appointments made by Chief Minister prior to the pronouncement of the said judgment.

26.The argument advanced on behalf of the appellants that the substitution of Section 2(j) of the PRA Act does not cure defect because, unlike certain other statutory authorities including LDA, the ex-officio members have not been specified in the said provision, is equally misconceived and devoid of legal substance. Firstly, neither the Constitution nor any other law, including the PRA Act, mandates that the offices or designations of ex-officio members must be expressly specified in the parent statute itself. In the absence of any such constitutional or statutory requirement, no adverse inference can be drawn merely because the provision authorizes the appointment of ex-officio members without identifying the offices to be held by them. Secondly, no such deficiency was identified in the case of Institute of Architects (supra), rather in Para 18 of the judgment rendered therein, it was only observed that the PRA Act did not contain any provision enabling the appointment of ex-officio members. The legislature, while giving due deference to this observation, effectively cured this defect by substituting Section 2(j) of the PRA Act, thereby expressly providing for the appointment of ex-officio members with retrospective effect. Consequently, once the very defect pointed out by the Court stood legislatively cured, it cannot be argued that the amendment remained ineffective merely because the Legislature did not also specify the particular offices or designations of such ex-officio members.

27.In view of the foregoing discussion, it is evident that the Authority stood duly constituted with effect from 15.06.2015 and continued to satisfy the statutory requirement contained in Section 3(4) of the PRA Act.

VALIDATING AMENDMENTS AND THE DECISION

IN CASE OF INSTITUTE OF ARCHITECTS (SUPRA)

28.Now, we proceed to examine whether, had the validating amendments been in force and the Authority been duly established and constituted, the decision rendered in the case of Institute of Architects (supra) would have remained the same. In this regard, it

is pertinent to note that in Para 33 of the judgment rendered in the said case, it was held that, since the Authority had neither been established nor constituted in accordance with law, all notices, orders, proceedings, appointments, and other actions initiated, issued, or taken by the Chairperson acting as the Authority were illegal and without lawful authority. Likewise, Section 8 of the PRA Act, which stipulates that the existence of any vacancy or defect in the constitution of the Authority shall not invalid any act, proceeding, and decision, order of the Authority, was held to be inapplicable on the ground that the Authority itself had never come into legal existence by being duly established nor constituted. The foregoing discussion demonstrates that in the case of Institute of Architects (supra), the non-establishment and non-constitution of the Authority constituted the foundational and fatal defect, and it was only as a consequence thereof that the Court proceeded to declare the notices, orders, proceedings, appointments and other actions taken by the Chairperson acting as the Authority to be illegal and without lawful authority. It was for the same reason that even the de facto doctrine was not applied. Had the Authority been duly established and constituted at the relevant time, the conclusion reached by the Court would, in all probability, have been otherwise. In such circumstance, not only would Section 8 of the PRA Act have been attracted, but the de facto doctrine would have likewise been available to sustain the validity of the previous acts performed by the Authority notwithstanding any irregularity in appointments, vacancy or defect in its composition.

29.The doctrine of de facto validates the acts performed by persons holding office under the colour of lawful authority, notwithstanding that a defect in their title to such office is subsequently discovered. It operates as a shield against collateral attacks upon the validity of acts undertaken by such office-holders in the purported exercise of their official functions, with a view to preserving continuity, certainty and stability in public administration, and to safeguarding the interests of the public and

third parties who have acted in reliance upon such acts. The Supreme Court in "Mahmood Khan Achakzai V. Federation of Pakistan" (PLD 1997 SC 426) recognized the de facto doctrine. The relevant extract from the said judgment is reproduced hereunder:- "... No one is under obligation to recognize or respect the acts of an intruder ... But for the sake of order and regularity, and to prevent confusion in the conduct of public business and in security of private rights, the acts of officers de facto are not suffered to be questioned ... except by some direct proceeding instituted for the purpose by the State or by someone claiming the office de jure ... the acts of officers de facto are as valid and effectual ... as though *they+ were ... by right ... the acts of officers de facto cannot be questioned collaterally. ... An officer de facto is ... ‘one who by some colour of right is in possession of an office and for the time being performs its duties with public acquiescence, though having no right in fact’. ... This de facto doctrine is a doctrine of necessity to bring about regularity and prevent confusion in the conduct of public business and promote security of private rights." [emphasis added] Reliance in this regard is also placed upon "Malik Asad Ali and others V. Federation of Pakistan through Secretary Law, Justice and Parliament Affairs, Islamabad and others" (PLD 1998 SC 161), "Pir Sabir Shah V. Federation of Pakistan and others" (PLD 1994 SC 738) and "Qazi Hussain Ahmad, Ameer Jamaat-e-Islami Pakistan and others V. General Pervez Musharraf, Chief Executive and others" (PLD 2002 SC 853).

30.In view of above discussion, it cannot be said that, if the validating amendments had been in force and the Authority had been duly established and constituted, the outcome in Institute of Architects (supra) would necessarily have remained unchanged.

VALIDATING AMENDMENTS AND ARTICLES 4

AND 18 OF THE CONSTITUTION

31.The contention advanced on behalf of the appellants that the validating amendments, whereby unlawful executive orders and appointments have purportedly been validated, offend Articles 4 and 18 of the Constitution is equally devoid of merit. A plain

reading of the validating amendments demonstrates that the appointments of Chairperson and members of the PRA declared unlawful have not been specifically validated; rather, by virtue of the non obstante clause incorporated therein, notwithstanding any omission, discrepancy or defect in the establishment or composition of the Authority, any action of the Chairperson on behalf of the Authority, all sales tax or any other amounts levied, charged, collected, realized or recovered by the functionaries of the Authority on its behalf stand validated and are deemed always to have been validly levied, charged, collected, realized or recovered. Although learned counsel for the respondents contended that the appointment of the Chairperson was made through a due process of law by way of headhunting from amongst four senior officers of the FBR, and that the appointments of the Members were also made from public sector organizations after following the prescribed procedure, we do not consider it necessary or appropriate to examine the merits of this contention, as it would amount to revisit the case of Institute of Architects (supra). However, for the lis in hand, even if the appointments were not made strictly in accordance with law in collateral attacks against those appointments, the acts performed and recoveries effected by the public functionaries are protected not only under the de facto doctrine but have now been received legislative sanction through the validating amendments. The validating amendments cannot be set at naught merely because the aforesaid appointments have not been expressly validated before validating the acts performed and taxes recovered by the Authority. The legislative intent is manifestly to preserve and validate the acts undertaken and recoveries made by the Authority notwithstanding any defect, omission, or irregularity in its constitution, composition or the manner of appointment of its office-bearers. So long as the Legislature possesses the requisite legislative competence and effectively removes the basis upon which the earlier actions were impugned, it is competent to validate past acts and recoveries through a validating enactment.

IMPACT OF DECLARATION OF SECTION 5(4) OF

THE PRA ACT AS ULTRA VIRES

32.The next contention advanced by the appellants that in the impugned judgment, Section 5(4) of the PRA Act was declared to be ultra vires the Constitution, and since that finding was not challenged, all actions taken by the Authority, even subsequent to the promulgation of the validating amendments, stand rendered unlawful. This contention is equally misconceived. Section 5(4) of the PRA Act merely provides that until such time as the Authority is constituted under the PRA Act, the Chairperson shall perform the functions and discharge the duties of the Authority. Since it has already been held that the Authority stood duly constituted on 15.06.2015, the provisions of Section 5(4) of the PRA Act ceased to have any operation thereafter. Consequently, the declaration regarding Section 5(4) of the PRA Act has no bearing on the validity of the actions undertaken by the Authority after its constitution, including those protected and validated by the validating amendments. Once the Authority had been lawfully constituted, its acts and proceedings could not be invalidated merely on account of the declaration pertaining to a transitional provision which had become otiose upon such constitution, inasmuch as, the invalidation of Section 5(4) does not necessarily render the remaining validating provisions unconstitutional.

SCOPE OF SECTION 5(4) OF THE PRA ACT

33.The next contention raised on behalf of the appellants that Section 5(4) of the PRA Act presupposed that the Authority had not been constituted until the promulgation of the validating amendments, is equally devoid of substance. Section 5(4) of the PRA Act was inserted with retrospective effect from 01.07.2012 apparently with the object of providing legal cover to the functions performed by the Authority until its formal constitution on 15.06.2015. Although the said provision was subsequently declared ultra vires, however, the Authority already stood duly constituted on 15.06.2015, and thereafter the non obstante clause contained in

Section 36 of the PRA Act validated (with effect from 01.07.2012), all actions taken by the Chairperson on behalf of the Authority, notwithstanding any defect or irregularity in the establishment, constitution or composition of the Authority. Therefore, the mere fact that Section 5(4) of the PRA Act was declared ultra vires and that such declaration was not challenged by the Provincial Government does not, in any manner, detract from or impair the efficacy and validity of the validating amendments.

EFFECT OF VALIDATING AMENDMENTS TO PAST

AND CLOSED TRANSACTIONS

34.The argument contended by the appellants that the validating amendments do not extend to past and closed transactions or to vested rights accrued in favour of the appellants in view of the law laid down in "Molasses Trading V. Federation of Pakistan" (1993 SCMR 1905). In the facts and circumstances of the present cases, this contention is misconceived. The background of Molasses Trading (supra) is that in "Al-Samrez Enterprise V. The Federation of Pakistan" (1986 SCMR 1917), it was held that an executive authority, after creating vested rights in favour of citizens, cannot vary or rescind its earlier orders so as to deprive them of such vested rights. In that case, the importers had already entered into contracts with foreign sellers and opened letters of credit for the import of goods on the strength of an exemption notification. It was, therefore, held that a subsequent executive notification could not operate retrospectively so as to affect those concluded transactions. Subsequently, Section 31A was inserted into the Customs Act, 1969 ("Customs Act"), with a view to neutralize the effect of the judgment rendered in of Al-Samrez Enterprise (supra). The vires of Section 31A of the Customs Act came under challenge in Molasses Trading (supra), wherein the Supreme Court held that effect had to be given to the altered legal position notwithstanding the decision in Al-Samrez Enterprise (supra). It was, however, further held that although the Legislature is competent to enact laws having retrospective as well as retroactive operation, the language

employed in Section 31A of the Customs Act neither expressly nor by necessary implication manifested an intention to undo or disturb past and closed transactions i.e. concluded contracts. The present cases stand on an entirely different footing. No concluded contracts, past and closed transactions, or accrued rights of a similar nature are involved herein. Rather, the appellants seek to derive an advantage from a defect or omission in the statutory framework which the Legislature, in the exercise of its plenary powers, has subsequently removed through validating amendments. In this regard, the Supreme Court of India in "Ujagar Prints V. Union of India" (AIR 1989 SC 516 = (1989) 3 SCC 488) held that no person can claim a vested right arising out of a defect in a statute or seek to retain an unintended benefit flowing from legislative omissions, and that legislation enacted retroactively to cure defects in taxing statutes is a well-recognized and settled principle of law. In view of the foregoing discussion, it is evident that neither had any vested rights accrued in favour of the appellants nor do the validating amendments seek to reopen, unsettle or impair any past and closed transactions.

CONCLUSION

35.For what has been discussed above, we found no illegality and legal infirmity in the impugned judgment; consequently, all the Intra Court Appeals enumerated in 'Appendix-A' are meritless and for the detailed reasons recorded above, the same have been dismissed vide our short orders of even dated 17.06.2026.

APPRECIATION

36.Before parting with this judgment, we deem it appropriate to place on record our appreciation for the valuable assistance rendered by the learned counsel for the appellants, M/s Imtiaz Rashid Siddiqui and Uzair Karamat Bhandari, Advocates; the learned counsel for the respondents, M/s Sajid Ijaz Hotiana, Waqas Ahmad Mir and Ms. Asma Hamid; and the learned Law Officer Barrister Zargham Lukhesar, Assistant Advocate-General, Punjab. Their industriousness, painstaking preparation, and able assistance

in addressing the intricate questions of law and examining the relevant statutory provisions and precedents involved in these matters have been of considerable assistance to the Court in arriving at its conclusions.

MALIK JAVID IQBAL WAINS ABID AZIZ SHEIKH

JUDGE JUDGE

Approved for Reporting

JUDGE JUDGE

Arsalan*

"APPENDIX-A"

TO JUDGMENT DATED 17.06.2026 IN ICA NO.48992/2019

Sr. No. CASE No. 1 ICA No.57989/2019 2 ICA No.57991/2019 3 ICA No.57992/2019 4 ICA No.57988/2019 5 ICA No.50176/2019 6 ICA No.49698/2019 7 ICA No.48993/2019 8 ICA No.49407/2019 9 ICA No.49406/2019 10 ICA No.57995/2019 11 ICA No.58000/2019 12 ICA No.49405/2019 13 ICA No.53732/2019 14 ICA No.53705/2019 15 ICA No.53718/2019 16 ICA No.53700/2019 17 ICA No.53682/2019 18 ICA No.53697/2019 19 ICA No.53698/2019 20 ICA No.53696/2019 21 ICA No.53707/2019 22 ICA No.53730/2019 23 ICA No.53711/2019 24 ICA No.53681/2019 25 ICA No.53703/2019 26 ICA No.53737/2019 27 ICA No.53723/2019 28 ICA No.53715/2019 29 ICA No.53688/2019 30 ICA No.53651/2019 31 ICA No.53683/2019 32 ICA No.53684/2019 33 ICA No.53692/2019 34 ICA No.49697/2019 35 ICA No.51421/2019 36 ICA No.53992/2019 37 ICA No.51486/2019 38 ICA No.52952/2019 39 ICA No.51485/2019 40 ICA No.52953/2019 41 ICA No.58004/2019 42 ICA No.53987/2019 43 ICA No.49661/2019 44 ICA No.49660/2019 45 ICA No.49652/2019 46 ICA No.49657/2019

Appendix-A to Judgment in ICA No.48992/2019 (2) Sr. No. CASE No. 47 ICA No.49658/2019 48 ICA No.49654/2019 49 ICA No.49805/2019 50 ICA No.49659/2019 51 ICA No.49656/2019 52 ICA No.49655/2019 53 ICA No.55876/2019 54 ICA No.52902/2019 55 ICA No.52905/2019 56 ICA No.53750/2019 57 ICA No.53749/2019 58 ICA No.53746/2019 59 ICA No.53744/2019 60 ICA No.53743/2019 61 ICA No.62972/2019 62 ICA No.53894/2019 63 ICA No.53898/2019 64 ICA No.53897/2019 65 ICA No.50089/2019 66 ICA No.50088/2019 67 ICA No.50091/2019 68 ICA No.50099/2019 69 ICA No.50142/2019 70 ICA No.50092/2019 71 ICA No.50159/2019 72 ICA No.55185/2019 73 ICA No.50100/2019 74 ICA No.50101/2019 75 ICA No.56375/2019 76 ICA No.50098/2019 77 ICA No.52432/2019 78 ICA No.52433/2019 79 ICA No.52429/2019 80 ICA No.52431/2019 81 ICA No.52430/2019 82 ICA No.52434/2019 83 ICA No.52428/2019 84 ICA No.50174/2019 85 ICA No.50172/2019 86 ICA No.53051/2019 87 ICA No.53047/2019 88 ICA No.53046/2019 89 ICA No.51323/2019 90 ICA No.53739/2019 91 ICA No.51320/2019 92 ICA No.51322/2019 93 ICA No.51321/2019 94 ICA No.53819/2019

Appendix-A to Judgment in ICA No.48992/2019 (3) Sr. No. CASE No. 95 ICA No.54571/2019 96 ICA No.53679/2019 97 ICA No.51277/2019 98 ICA No.51279/2019 99 ICA No.51281/2019 100 ICA No.51283/2019 101 ICA No.54045/2019 102 ICA No.54105/2019 103 ICA No.55064/2019 104 ICA No.55062/2019 105 ICA No.55061/2019 106 ICA No.53821/2019 107 ICA No.54039/2019 108 ICA No.59662/2019 109 ICA No.50969/2019 110 ICA No.59443/2019 111 ICA No.50970/2019 112 ICA No.54933/2019 113 ICA No.54043/2019 114 ICA No.51371/2019 115 ICA No.51369/2019 116 ICA No.51487/2019 117 ICA No.51269/2019 118 ICA No.51287/2019 119 ICA No.51304/2019 120 ICA No.51275/2019 121 ICA No.51295/2019 122 ICA No.51274/2019 123 ICA No.51272/2019 124 ICA No.51298/2019 125 ICA No.51290/2019 126 ICA No.51292/2019 127 ICA No.51289/2019 128 ICA No.51439/2019 129 ICA No.51296/2019 130 ICA No.52464/2019 131 ICA No.52467/2019 132 ICA No.52471/2019 133 ICA No.52469/2019 134 ICA No.52465/2019 135 ICA No.53018/2019 136 ICA No.53049/2019 137 ICA No.52766/2019 138 ICA No.71632/2019 139 ICA No.55377/2019 140 ICA No.54094/2019 141 ICA No.55875/2019 142 ICA No.55843/2019

Appendix-A to Judgment in ICA No.48992/2019 (4) Sr. No. CASE No. 143 ICA No.55841/2019 144 ICA No.55852/2019 145 ICA No.55849/2019 146 ICA No.55866/2019 147 ICA No.55869/2019 148 ICA No.55870/2019 149 ICA No.55853/2019 150 ICA No.55872/2019 151 ICA No.55848/2019 152 ICA No.55845/2019 153 ICA No.55850/2019 154 ICA No.55860/2019 155 ICA No.65182/2019 156 ICA No.56612/2019 157 ICA No.58143/2019 158 ICA No.59233/2019 159 ICA No.59234/2019 160 ICA No.64947/2019 161 ICA No.61991/2019 162 ICA No.62728/2019 163 ICA No.62724/2019 164 ICA No.62721/2019 165 ICA No.62732/2019 166 ICA No.62589/2019 167 ICA No.64955/2019 168 ICA No.64590/2019 169 ICA No.64949/2019 170 ICA No.64951/2019 171 ICA No.64742/2019 172 ICA No.64665/2019 173 ICA No.64943/2019 174 ICA No.65166/2019 175 ICA No.65160/2019 176 ICA No.65162/2019 177 ICA No.65161/2019 178 ICA No.65184/2019 179 ICA No.65169/2019 180 ICA No.65164/2019 181 ICA No.65173/2019 182 ICA No.65180/2019 183 ICA No.65179/2019 184 ICA No.65175/2019 185 ICA No.64946/2019 186 ICA No.65159/2019 187 ICA No.65061/2019 188 ICA No.72834/2019 189 ICA No.44285/2020 190 ICA No.44245/2020

Appendix-A to Judgment in ICA No.48992/2019 (5) Sr. No. CASE No. 191 ICA No.44251/2020 192 ICA No.44247/2020 193 ICA No.44279/2020 194 ICA No.44274/2020 195 ICA No.4741/2020 196 ICA No.44255/2020 197 ICA No.44264/2020 198 ICA No.44272/2020 199 ICA No.44289/2020 200 ICA No.44286/2020 201 ICA No.44280/2020 202 ICA No.44283/2020 203 ICA No.44276/2020 204 ICA No.44258/2020 205 ICA No.4739/2020 206 ICA No.44282/2020 207 ICA No.44262/2020 208 ICA No.44260/2020 209 ICA No.44254/2020 210 ICA No.44253/2020 211 ICA No.44249/2020 212 ICA No.44322/2020 213 ICA No.44291/2020 214 ICA No.44294/2020 215 ICA No.44273/2020 216 ICA No.44270/2020 217 ICA No.44316/2020 218 ICA No.44259/2020 219 ICA No.54972/2020 220 ICA No.59341/2020 221 ICA No.60133/2020 222 ICA No.64055/2020 223 ICA No.65751/2020 224 ICA No.72444/2021 225 ICA No.77049/2022 226 ICA No.36959/2023 227 ICA No.42076/2023 228 ICA No.933/2013 229 ICA No.49300/2019 230 ICA No.48992/2019

MALIK JAVID IQBAL WAINS ABID AZIZ SHEIKH

JUDGE JUDGE

Arsalan*