P L D 1973 Supreme Court 17 (PLP)

Dates of hearing: 20th, 21st, 24th and 25th January 1972. WAHEEDUDDIN AHMAD, J.‑This judgment will dispose of Civil Appeal No. 296 of 1970 and Civil Appeal No. 297 of 1970, in:: which common question of law is involved. In Civil Appeal No. 296 of 1970, the dispute is with regard to Khasra Nos. 6628, 6616, 6645 and 6646, situated in the new Graveyard Miani Sahib, Lahore. In Khasra No. 6645, there are some graves on a small portion of the land. It is alleged that those graves are of the ancestors of the appellant Noor Din. It is further alleged that be and before him, his ancestors had been in proprietary possession of the land since 1868. In Civil Appeal No. 297 of 1970, the dispute is in respect of 2 kanals and 48 sq. ft. out of Khasra No. 6574 situated in the estate of Mozang, Tehsil and District Lahore, together with the structures thereon. The appellant's father Pir Muhammad Ashraf deceased purchased land measuring 6 kanals, 6 marlas and 1121 sq. ft. situate in the estate of Mozang, Tehsil and District Lahore, from one Kh. Gulzar Muhammad son of Kh. Dil Muhammad by means of 3 registered sale deeds dated the 4th January 1934, 4th February 1940 and 22nd August 1945. This Khasra number is situated near the public graveyard known as Miani Sahib Graveyard. It is alleged that no part of this Khasra number is or ever was a part of the said graveyard. It is further alleged that the appellant's father Pir Muhammad Ashraf purchased the aforesaid land for constructing a befitting tomb in the name of his father Pir Abdul Ghaffar Shah deceased who had been buried temporarily by way of 'Amanat' in a thick ly' populated area in Takia Sadhuan, inside Mochi Gate, Lahore., It is alleged that for this purpose the appellant's father constructed a tomb, one mosque and some residential quarters for the use of his own family and pilgrims, at a cost of Rs. 90,

000. The allegation of the respondent is that both the above properties were entered as graveyard "Goristan" in the revenue record of 1856. The allegations of the appellants were contro verted in the written statement filed by the respondent. He denied that the land in dispute ever belonged to the appellant and his fore‑fathers. According to the entries in the revenue record for the years 1856 and 1863, this formed part of the graveyard of Miani Sahib and as such was incapable of being owned privately by the appellant. Miani Sahib Graveyard is one of the oldest graveyards in Lahore and is in a most neglected state. It had been trespassed by a large number of unauthorised persons and innumerable structures had been constructed on the graveyard land. It was being used by anti‑social elements. On receipt of large number of complaints, the West Pakistan Graveyard (Preservation and Maintenance) Act XXV of 1958 was introduced on the 24th April 1958, to provide for the preservation and maintenance of the graveyards in West Pakistan. By a notification dated the 25th March 1959, a Graveyard Committee was constituted headed by the Deputy Commissioner, Lahore as Chairman. The grave‑yard land of Miani Sahib was surveyed by the Committee but in view of the practical difficulties in removing the encroachments, most of which had become permanent, the assistance of the Martial Law authorities was sought. The Martial Law authorities on the 22nd November 1961, reconstituted a. Committee under their own supervision headed by Additional Deputy Commissioner (G), Lahore, as the Chairman with five official members including a nominee of the Martial Law Administrator. This Committee was constituted to remove the encroachments. This Committee issued notices to unauthorised encroachers under Martial Law Order No. 48 and Martial Law Regulation No. 20‑A. A copy of the notice is Annexure 'G' to the supplementary paper‑book of first appellant. The Miani Sahib Graveyard Committee, by a Press‑note dated the 29th April 1962, published in Pakistan Times dated the 29th April 1962, announced the limits of the graveyards. The land claimed by both the appellants was included in the said Press note. Subsequently, demarcation of the graveyard was taken up on the 22nd February 1962 (vide page 310 of the file). Noor Din's case was decided by the Chairman on the 12th May 1962. He was ordered to vacate the graveyard (vide page 361 of the file). It appears that the property in Appeal No. 297 of 1970 was situated in the centre of the Miani Sahib Graveyard, it was, therefore, treated as a part of the Miani Sahib by the Martial Law authorities on the recommendation made to them by the Miani Sahib Graveyard Committee. The Committee unanimously decided to acquire his land and the compensation for the acquisi tion was fixed at Rs. 2,

069. It was decided that the com pensation for the building material used in the construction of the residential quarters would be assessed separately by the Municipal Engineer and paid to the appellant. This appellant was ordered to vacate the land on the 20th May 1962, by the Chairman, (vide page 347 of the file), failing which he was liable to be evicted by force summarily. Pir Muhammad Ashraf made a representation on the 17th May 1962, before Martial Law Sub‑Administrator which was disposed of by Brigadier Sadiqullah on the 30th May 1962, after inspecting the site (vide pages 3 and 4 of the second file) and final order was passed on the 31st May 1962 (vide page 1 of the second file). Thereupon, Noor Din filed a Writ Petition No. 326 of 1962 is the West Pakistan High Court, Lahore, for restraining the taking over possession, which was dismissed on the 12th April 1962, by a Division Bench. On the 31st May 1962, the Martial Law Administrator, Zone B, issued Martial Law Order No. 131 authorising the Committee to remove encroachments and impose penalties. This order was made retrospective from 22nd November 1961. The encroachments of the appellants were removed under the Martial Law Order No. 131 and it is alleged were completed long before the commencing day of the Constitution i.e., 8th June 1962. On the 7th June 1962, the Governor of the West Pakistan, promulgated Ordinance No. XLIV of 1962, called the Miani Sahib Graveyard Ordinance. This Ordinance kept alive the provisions of Martial Law Order No. 131 and bad a schedule of Khasra numbers attached to it which defined the limits of Miani Sahib Graveyard. The lands claimed by the appellants were also included in the schedule. On the 16th June 1962, mutation was effected by Special Tehsildar by removing the names of the appellants from the ownership column in respect of Khasra numbers in dispute and substituting it by the Chairman of Miani Sahib Graveyard under Martial Law Order No. 131 dated the 31st May 1962. The appellants challenged this order in Writ Petitions Nos. 1341 of 1963 and 667 of 1962. A Division Bench of the West Pakistan High Court, Lahore, by two separate judgments dated the 14th March 1969, dismissed the two writ petitions. It held that the Martial Law Order No. 131 to the extent that it was in conflict with the then existing provisions embodied in sections 4 to 11 of the West Pakistan Graveyard (Preservation and Maintenance) Act, 1958, was not competently made. The High Court further held that the Miani Sahib Grave yard Ordinance No. XLIV of 1962 was not competently made by the Governor in accordance with the Laws (Continuance in Force) Order, 1958. It further held that the possession of all the rest of the land in dispute had been assumed by the respondent long before the commencing day except for a small construction still in possession of the appellant in Writ Petition No. 1341 of 1963. Thus the transaction in question was completed, past and closed for all practical purposes before 8th June 1962. This action was, therefore, saved by the President Order No. 29 of 1962 and Article 250 of the Constitution and is immune from any attack. The appellants have challenged these orders in these two appeals before us. It is not disputed before us that Martial Law Administrator, Zone `B' Order No. 131 to the extent that It was in conflict with the then existing provisions embodied under sections 4 to 11 of the West Pakistan Graveyard (Preservation and Maintenance) Act, 1958, was not competently made. It is also not disputed that the Miani Sahib Graveyard Ordinance No. XLIX of 1962, was not competently made by the Governor in accordance with the Laws (Continuance in Force) Order, 1958. We shall, therefore assume for the decision of these appeals that these pro visions of laws were incompetently made. The only point for consideration in these appeals is whether the transaction in dispute was completed past and closed and the actions of the respondents are immune from attack in these proceedings. Sh. Muhammad Shafi and Malik Shaukat Ali, learned counsel for the appellants have contended that the mutation effected on the 16th June 1962, shows that the transaction was not past and closed and this action was taken against the appellants after the commencing day i. e., 8th June 1962. The contention of tine learned counsel has not impressed me. As observed by the High Court, the attestation of the mutation by the Revenue Officer was an altogether consequential and a formal act. The Martial Law authorities had already assumed posses sion of the land in dispute in both the cases before the com mencing day. Miani Sahib Graveyard Committee, by a Press‑note, dated the 29th April 1962, announced the limits of the graveyards. The land claimed by both the appellants were included in the said Press‑note. The demarcation of the graveyards was taken up on the 22nd February 1962. Noor Din's case was decided by the Chairman on the 12th May 1962 and he was ordered to vacate the graveyard. The second appellant Pir Mahmood Ashraf was also ordered to vacate the premises on the 14th May 1962, by the Chairman and the property in dispute was acquired by the Miani Sahib Graveyard Committee. These actions clearly show that before the 8th June 1962, the Martial Law Authorities have assumed possession of the property in dispute. The learned counsel for the appellants have placed reliance on the judgment of this Court in Mohammad Afzal v. The Commissioner, Lahore Division (P L D 1963 S C 401) and have attempted to suggest that since the Martial Law Order No. 131 and Ordinance No. XLIV of 1962 were not competently made, the action taken under them cannot stand in law. Bat as already pointed out the actions of taking over the graveyard land and ejecting the appellants had been taken by the authorities appointed by the Martial Law Administrator and these actions were protected under Martial Law Regulations Nos. 88 and

93. In these Regulations even actions, not in accordance with the Order, were made immune and protected. The effect of these Martial Law Orders were considered by this Court in the case of Azizur Rahman Chowdhury v M. Nasiruddin and others (P L D 1965 S C 236). It was held 1n that case that persons authorised by a Martial Law Regulation or Order to perform any function or exercise any power were included in term of Martial Law Authorities. It was further held in that case that action taken and completed long before the Constitution of 1962, would not be lightly interfered with. In this connection, it was observed 4n this case as under:‑ "There can be no doubt that all the acts challenged by the writ petition in the High Court by the present appellant were done long before the Constitution came into force. The forfeited and/or converted shares had been allotted to various Co‑operative Societies, a general meeting duly convened and a new Board of Directors elected to whom the Management of the company was made over. The parties who purchased the said shares and the Directors who were elected, acquired vested rights and actually by the time the writ petition came to be heard a fresh election of Directors had also been held, one Director bad retired, other Directors who were to go out of office but were eligible for re‑election, were re‑elected and the company is now being managed smoothly. Rights, privileges, obligations and liabilities were thus acquired and accrued before the Constitution came into fort. No Court would in the circumstances, lightly interfere, particularly when such interference would only have the effect of creating further chaos in the Management of the Company and a reversal to the status quo ante has become impossible. Indeed the appellant himself does not ask for such a reversal but merely challenges the authority of the present Directors of the Company and complains that the forfeited and/or converted shares should first have been offered to the existing shareholders before offering them to outsiders. In this view of the matter, it must be conceded that the facts of tail case are certainly distinguishable from the facts in the case of Muhammad Afzal v The Commissioner, Lahore Division and others P L D 1963 S C

401. No rights, privileges, obliga tions or liabilities had been acquired, accrued or incurred under the Martial Law Orders under consideration to that case and it was on that basis that this Court interfered therein. The provisions of Martial Law Regulations Nos. 88 and 93 did not also come up for examination in that case for the reason that what was there sought to be challenged was the legality of actions which were sought to be taken after the Constitution of 1962 had come into force and the Martial Law Regulations bad been repealed. In the present case, the acts sought to be challenged were all done and completed before such repeal. There is, therefore, force in the contention that by reason of the provisions of Martial Law Regulations Nos. 88 and 93 read with Article 250 of the present Constitution those acts are now immune from challenge, even though the above mentioned Regulations now stand repealed. We accordingly accept this contention and hold that the appellant is not entitled to challenge those acts now. In doing so, however, we would like to clarify that, in our view, what the Martial Law Regulations Nos. 88 and 93 rendered immure was any order made or anything done or to be done in pursuance of any Martial Law Regulation or Martial Law Order (the underlining is ours). It will be observed that even these Regulations preserve the distinction between an 'order' spelt with a small o and an Order spelt with a capital O . This distinction is not without significance and confirms the view expressed by this Court in the case of Muhammad Ayub Khuro v Pakistan P L D 1960 S C 237, that the word 'order' when spelt with a small `o' in these instruments made after the Laws (Constinuance in Force) Order does not refer to any legislative measures but to orders of other kinds. Therefore, what Martial Law Regulations Nos. 88 and 93 protected were orders of the latter kind made and acts done under Martial Law Regulations and Orders of a legislative nature. The protection thus extends in the present case to any order trade or anything done or expressed or purported to be done in pursuance of the Martial Law Order No. 104 and not the said Order itself. It is not necessary to declare the said Order ultra vires, for, it is no longer in force, but even though we are inclined to the, view that it was not competently made we hold that orders matte and acts done there under are protected, because those are now completed acts under which rights, privileges, obligations have been acquired and accrued long before the repeal of the said ,Order." It was further observed as under:‑ "It has next to be considered whether, even though the validity of the said orders and acts cannot be challenged, the action purported to be taken there under can be questioned, on the ground that they were not in accordance with the Martial Law Order. If these were completed acts and the protection given by Martial Law Regulations Nos. 88 and 93 was available for such acts then the language of clause 2 of Martial Law Regulation No. 88 as amended by Martial Law Regulation No. 93, renders them immune from attack. The utter Regulation has expressly widened the immunity so as to include any "order made or anything done whether the order or the thing is done within scope of the Regulation or Order, or not, or whether the Authority making the order of doing a thing had jurisdiction in the matter or not." Further more, under this even persons authorised by or under a Martial Law Regulation or Order to perform any function or exercise any power would be Martial Law Authorities within the meaning of the said Regulations. Thus the Provincial Government and the Administrator would have also become Martial Law Authorities pro tan to for the purposes of the said Martial Law Order No 104 and their acts would not have been open to question whilst those Regulations Nos. 88 and 93 were .in force. If those acts were consummated acts, then on the principle of past and closed transactions those acts will still enjoy the same immunity given to them by those Regulations by reasons of the provisions of Article 250 of the Consti tution." In the light of the above observations, I am satisfied that the transaction in question was completed past and closed for all practical purposes before the 8th June 1962. The above‑mentioned actions taken by the Martial Law Authorities were, therefore, saved by the President Order No. 29 of the 1962 and Article 250 of the Constitution. These actions were rightly held to be immune from attack before the High Court. There is, therefore, no ground to interfere with the orders of the High Court. In the result, the appeals are dismissed with no order ass to costs. MUHAMMAD YAQUB ALI, J.‑I agree. SAJAD AHMAD, J.‑I agree. SALAHUDDIH AHMED, J.‑I agree. K.B.A. Appeals dismissed