P L D 1965 Supreme Court 623 (PLP)

HAMOODUR RAHMAN, J.‑This appeal, by special leave, arises out of a writ petition filed in the High Court of West Pakistan challenging the validity of an order of a Border Allotment Committee which was purported to have been made in exercise of the powers given under the West Pakistan Border Area Regulation No. 9 of 1959 promulgated by the Martial Law Administrator, Zone B', on the 20th of March 1959. The appellant herein, who was the petitioner in the High Court, is a refugee from the. district of Amritsar in India. He settled in the village Chakali in the district of Sheikhupura where he .was allotted 15 acres of land. He also, it appears, obtained 30 acres of land in village Talwandi Sher Khan located on the Pakistan side of the border and situated in the same district of Sheikhupura. In addition to this, the appellant and his two brothers received by way of gift from their maternal aunt, Mst. Fatima Begum, another 1,316 kanals and 14 marlas of land in Kot Muhammad Zaman, district Sheikhupura, by a deed executed on the 1st of October 1953. This gift was actually mutated in favour of the donees on the 18th of January 1956. The appellant being a big landlord was also a Lambardar of the village Chakrali, Sarpanch of the village Panchayat and a Salar Commander of the Razakar Force. He was also an approved private contractor of the Irrigation Department of the Government of West Pakistan. One Razia Begum, wife of Rana Nisar Ahmad, the younger brother of Lt.‑General Bakhtiar Rana who, after the Proclamation of Martial Law in the country, became the Martial Law Administrator for Zone `B' at Lahore, filed a suit for having the gift in favour of the appellant and his brothers set aside. The suit was ultimately dismissed by the Senior Civil Judge of Sheikhupura on the 4th of April 1958. The appellant, therefore, suggested in his writ petition that it was due to this clash of interest with the wife of the brother of the Martial Law Administrator, Zone B', that his troubles started soon after the Proclamation .of Martial Law. On the 6th of November 1958, he was, in spite of "the respectable and honoured position" he held in his locality, directed by the District Tribunal to furnish a bond for good behaviour in the sum of Rs. 3,

000. Then on the 25th of August 1960, the Border Allotment Committee No. 4 of Narang passed the impugned order which was to the following effect : "Whereas you have been declared undesirable person for the border belt. (2) You are hereby ordered to shift from the border belt within a fortnight of the receipt of this order, (3) Surrender all immovable property within the border belt, of which you are the owner or have in any other capacity possession or control. (4) After the expiry of the above‑mentioned period you should not stay in, or enter into border, area without the permission in writing of the Deputy Commissioner of the District concerned or the Martial Law Authorities. (Sd.) MAJOR Army Member Committee No. 4, Narang, District Sheikhupura." Although this order directed the appellant to surrender all his immovable properties within the border belt, only the 15 acres of land allotted to him in village Chakrali were resumed and allotted to the respondent No. 2, herein. No further step was taken nor, we are informed, has even' to this day been taken to enforce the surrender of any of the other lands, but the appellant alleged that since the order had prohibited him from entering the border area without the permission of the Deputy Commissioner, he found it extremely difficult to manage his unresumed properties within that area. It is further alleged by him that on the 20th of August 1961, he was taken by the Police Authorities to village Chakrali on the plea that his house was to be searched but when he arrived there he was promptly put under arrest on the charge of entering the border area without the permission of the Deputy Commissioner or the Martial Law Authorities. On this charge he was kept in Jail for two months but was eventually acquitted by the Military Court. It was in this background that he challenged the legality of the order of the 25th of August 1960, as also maintained that, in any event, the said order had been made mala fide.. At this time several other petitions filed for challenging various orders of the Border Allotment Committee under the above‑mentioned Regulation were also pending in the High Court. In all these petitions the question arose as to whether the actions taken by the Border Allotment Committees during the Martial Law Regime were clothed with finality and were protected under Article 250 of the new Constitution. One Division Bench of the High Court of West Pakistan had already taken the view that they were not so protected, hence the question as to whether the legality or propriety of anything done and of any action or proceeding taken in connection with the administration of Martial Law by any Martial Law Authority or by any person on behalf of a Martial Law Authority during the Martial Law period is completely and finally protected from challenge, was referred to a Full Bench. The Full Bench of the High Court, consisting of the learned Chief Justice and two other Judges, answered this question in the affirmative by a short order on the 9th of April 1963. The reasons for this order were to be given later, but before those reasons could be given the decision of this Court in the case of Muhammad Afzal v. Commissioner, Lahore Division (PLD1963SQ401).was announced. Since this decision appeared to lay down a principle which was different from the one upon which the High Court had made the short order of the 9th of April 1963, the Full Bench briefly indicated its reasons on the 30th of May 1963, and fixed the cases for rehearing as also left the question as to whether an order passed in the writ jurisdiction can be reviewed open for argument at the re‑hearing of the petitions. The writ petitions came up for. re‑hearing on the 15th of July 1963, when it was held by the Full Bench that in the case of an order in the writ jurisdiction the provisions of Order XLVII of the Civil Procedure Code cannot be invoked and, therefore, the High Court had no power to review its decisions in the writ jurisdiction, even assuming that an error had been committed. The appellant thereupon obtained leave from this Court on the 1st of November 1963, for the consideration of the question as to whether the present case was covered by the. rule laid down by this Court in the case of Muhammad Afzal. Learned counsel appearing in support of this' appeal has contended that neither the West Pakistan Border Area Regulation No. 9 of 1959 nor actions taken under it are immune from attack. The provisions of the Border Area Regulation, it is alleged, were inconsistent with various existing laws, such as the Land Acquisition Act, 1894, the Pakistan Rehabilitation Act, 1956 and the West Pakistan Control of Goondas Ordinance, 1959, hence, as held by this Court in Muhammad Afzal's case the Zonal Martial Law Administrator had no power to make any Regulation which had the effect of making any change in any existing' law. Under Article 4 (1) of the Laws (Continuance in Force) Order such existing laws were to continue in force until altered, repealed or amended by a competent authority but subject only to any Order of the President or Regulation made by the Chief Administrator of Martial Law. The Zonal Martial Law Administrator had; therefore, no power to make Regulations which entrenched upon fields occupied by several existing laws as in the present case. It is further pointed out that in so far as paragraphs 15 and 16 of this Regulation purported to oust the jurisdiction of all Civil Courts as also the High Court and the Supreme Court, the Regulation was repugnant to the provisions of the Laws (Continuance in Force) Order itself. This again it could not do, for, this later Order was in the nature of a constitutional document which preserved the powers and jurisdiction of all Courts in existence immediately before the Proclamation of Martial Law. As against this it has been urged by the learned counsel appearing for the Border Allotment Committee that Martial Law Regulations Nos. 88 and 93 gave complete protection to anything done, expressed or purported to be done or to have been done by any Martial Law Authority in pursuance of any Martial Law Regulation or Martial Law Order during the period the Martial Law was in force and under it a Martial Law Authority included any person or body of persons authorised by or under any Martial Law Regulation or Order to perform any function or exercise any power under such Regulation or Order. Both these Regulations were made by the Chief Martial Law Administrator himself and, therefore, even according to the provisions of Article 4(1) of the Laws (Continuance in Force) Order they prevailed over all existing laws. There could be no doubt, therefore, that as long as Martial Law Regulations Nos. 88 and 93 remained operative, no Court could question anything done by any Martial Law Authority; whether that Authority acted with jurisdiction or without jurisdiction in the matter. The question, now is as to whether even after the coming into force of the Constitution of the Islamic Republic of Pakistan the protection afforded by Martial Law Regulations Nos. 88 and 93 still continued to be available. The scheme of Article 225 of the Constitution is that all existing laws are to continue in force subject to the Constitution except as expressly provided by that Article. That Article then goes on to revoke the Proclamation of the 7th of October 1958, and to repeal certain specified Orders but laws made under those Orders are made to continue unaffected by such repeal. Clause (3) of that Article goes on to repeal all Martial Law Regulations except those specified thereunder and those so specified are preserved and are to be deemed, as from the date of commence ment of the Constitution, to have become Acts of the Central Legislature and to have effect as such. The West Pakistan Border Area Regulation No. 9 of 1959. is one of the Regulations so preserved. It is, therefore, urged that this became, as from the commencement of the Constitution, an existing law and in this respect differed materially from the Zonal Regulations which came up for consideration in Muhammad Afzal's case. The Regulation under consideration not only continues to be in force but also continues to be operative, by reason of these provisions, as a law made by the Central Legislature. In this view of the matter it, under Article 134 of the Constitution, also prevails over all Provincial laws inconsistent with it and the Provincial laws are, to the extent of such inconsistency, to be invalid. Paragraph 7 of the President's Order No. 26 of 1962 is also relied upon to support the contention that the protection given to "anything done or any action or proceeding taken" in connection with the administration of Martial Law by any Martial Law Authority or by any person on behalf of a Martial Law Authority during the Martial Law period continues even after the repeal of the Martial Law Regulations. Thus, it is contended, the impugned order of the Border Allotment Committee is a past and closed transaction which cannot be re‑opened under Article 250 of ‑the Constitution. This doctrine of past and closed transaction will, no doubt, be applicable in the case of the 15 acres of land situated in village Chakrali, for, the same, it appears, had been resumed and allotted to respondent No. 2 during the Martial Law period. But so far as the other lands are concerned, there is no denial on the part of the Border Allotment Committee of the assertion that these lands have not as yet been resumed. Under paragraph 6 of the Border Area Regulation if x a property required to be surrendered is not surrendered within the period specified in the order, the Deputy Commissioner or the. Deputy Rehabilitation Commissioner in the case of evacuee property or any other officer authorised by him or the Border Committee or any officer authorised by it may take possession of the same by evicting any person in possession thereof with such force as may be necessary for the purpose. If the properties other than the Chakrali properties which were directed to be surrendered . have not yet been resumed, it cannot; in our opinion, be said that the order itself has become a past and closed transaction, for, action under it may still be taken and the lands resumed. If the impugned order is riot otherwise protected from challenge, any future action taken in pursuance of that order will not also be immune from challenge. The question then is as to whether the order of the' Border Allotment Committee itself can be challenged now? The Border Area Regulation, as already pointed out, is a Regulation which has been preserved by clause (4) of Article 225 of the Constitution and it now 'enjoys the status of an Act of the Central Legislature. Now an Act of the Central Legis lature can take away the jurisdiction of the High Court and even of this Court by reason of the provisions of Article 130 of the Constitution, which clearly provides that no Court shall have any jurisdiction that is not conferred upon it by the Constitution or by or under the law. Thus since the Border Area Regulation now has the effect of an Act of the Central Legislature, it is a valid piece of legislation by a competent Legislature and if it has taken away the jurisdiction of the High Court and this Court to call in question any order made or direction issued under the said Regulation, that protection must prevail and the order of the 25th of August 1960, will not beg open to challenge even now. In this view of the matter we would dismiss this appeal, not because of the provisions of paragraph 7 of President's Order No. 26 but because in our view, the Border Area Regulation is a valid subsisting law which competently takes away the jurisdiction of the High Court and this Court not only to call in question the validity of any order made or direction issued there under but also of any provision of the said Regulation. As the High Court has relied mainly on paragraph 7 of President's Order No. 26 of 1962, ‑it is necessary to consider what exactly this Paragraph has provided It reads as follows :‑

7. Protection.‑No Court and except as provided by this Order, no other authority shall call in question the validity, legality or propriety of anything done or any action or proceeding taken in connection with the administration of Martial Law by any Marti al Law Authority or by any person on behalf of a Martial Law Authority during the Martial Law period." It will be observed that what this paragraph renders immune from any attack is "anything done or any action or proceeding taken in connection with the administration of Martial Law . The words "done" and "taken" have been used in the past tense and this, in our view, indicates that the immunity sought to be given by this paragraph is only in respect of past‑ acts or proceedings already commenced and not in respect of future acts or proceedings to be taken in the future. Thus this paragraph does no more than adopt the doctrine of past and closed transactions which, as pointed out by this Court in the case of Azizur Rahman Chowdhury v. M. Nasiruddin and others (P L D 1965 S C 236) in Civil Appeal No. 59‑D of 1963 (announced on 13‑1‑1965), will be applicable to acts done by Martial Law Authorities during the period the Martial Law was in force even apart from the provisions of the said paragraph 7 of President's Order No 26 of 1962. Having come to this conclusion we do not think that any useful purpose will be served by considering the last argument advanced on behalf of the appellant as to the mala fides of the action of the Border Allotment Committee or as to whether the impugned order had been made in accordance with the provisions of the Regulation itself, for, if the jurisdiction of the High Court and this Court has been validly ousted by the Regulation itself, these considerations cannot restore that jurisdiction. The power under Article 98 of the Constitution is to be exercised subject to the Constitution and since according to the provisions of the Constitution itself the Border Area Regulation now takes effect as an Act of the Central Legislature, it can validly limit or oust the jurisdiction given to the High Court even under that Article. This particular Regulation, we find, cannot also be challenged on the ground that it is inconsistent with the fundamental rights conferred by the Constitution (First Amendment) Act, 1963, for, the provisions of Article 6 thereof do not apply to any law specified in the Fourth Schedule appended thereto and the West Pakistan Border Area Regulation, 1959, is one of the laws specified in Part II of the said Schedule. In the result, therefore, we dismiss this appeal but make no order as to costs having regard to the facts of this case. B. Z. KAIKAUS, J.‑I am in agreement with my learned brother Hamoodur Rahman except with respect to the question whether the jurisdiction of the High Court under Article 98 of the Constitution can be taken away by a provision in the West Pakistan Border Area Regulation No. 9 of 1959. My learned brother is of the opinion that the Central Legislature has the power always to take away the jurisdiction of the High Court under Article 98 of the Constitution and as the West Pakistan Border Area Regulation is now to be regarded as a Central Act, it could have taken away the jurisdiction of the High Court. This point had not been argued at the hearing and I thought that a reference to it which was not necessary for the decision could have been avoided. However, as the matter is now discussed in the judgment I will state my views. My learned brother has relied for his inference on the opening words of Article 98 (2) which speak of the powers of the High Court being "subject to this Constitution" and on Article 130 which states that the jurisdiction of‑the Courts should be only such as is granted by the Constitution and the law. For convenience of reference both Articles 98 and 130 are reproduced below "

98. Jurisdiction of High Court.‑(1) A High Court shall have such jurisdiction as is conferred on it by this Constitution or by law. (2) Subject to this Constitution, a High Court of a Province may, if it is satisfied that no other adequate remedy is provided by law‑ (i) directing a person performing in the Province functions in connection with the affairs of the Centre, the Province or a local authority to refrain from doing that which he is not permitted by law to do, or to do that which he is required by law to do; or (ii) declaring that any act done or proceeding taken in the Province by a person performing functions in connection with the. affairs of the Centre, the Province or a local authority has been done or taken without lawful authority, and is of no legal effect; or (b) on the application of any person, make an order‑ (i) directing that a person in custody in the Province be brought before the High Court so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or (ii) requiring a person in the Province holding or purporting to hold a public office to show under what authority of law he claims to hold that office. (3) An order shall not be made under clause (2) of this (a) on application made by or in relation to a person in the Defence Services of Pakistan in respect of his terms and conditions of service, in respect of any matter arising out of his service or in respect of any action taken in relation to him as a member of the Defence Services of Pakistan ; or (b) on application made by or in relation to any. other person in the service of Pakistan' in respect of his terms and conditions of service, except a term or condition of service that is specified in this Constitution. (4) Where ‑ (a) application is made to a High Court for an order under paragraph (a) of clause (2) of this Article ; and (b) the Court has any reason to believe that the making of an interim order would have the effect of prejudicing or interfering with the carrying out of a public work or of other wise being harmful to the public interest, the Court shall not make an interim order,‑unless the prescribed law officer has been given notice of the application and the Court, after the law officer has been given an opportunity of being heard, is satisfied that the making of the interim order would not have the effect referred to in paragraph (b) of this clause. (5) In this Article ; unless the context otherwise requires‑ "person" includes any body politic or corporate, any authority of or under the control of the Central Government or of a Provincial Government and any Court or Tribunal, other than the Supreme Court, a High Court or a Court or tribunal established under a law relating to the Defence Services of Pakistan :‑ . "prescribed law officer's means‑ (a) in relation to an application affecting the Central Government or an authority of or under, the control of the Central Government‑the Attorney‑General ; and (b) in any other case‑the Advocate‑General of the province in which the application is made.

130. Jurisdiction to be expressly conferred.‑No Court shall have any jurisdiction that is not conferred on it., b9 this Constitution or by or under the law." So far as Article 130 is concerned it only states that a Court can only have such jurisdiction as is conferred by the Constitution or the law which means that whenever the existence of some jurisdiction for a Court is claimed the source of the jurisdiction must be found either in the Constitution of some law. Here there is a distinction between the Constitution and the 10, the law having reference only to the laws apart from the Constitution which by itself is a law and a fundamental one. Referee to Article 130 while dealing with the High Court was unnecessary because Article 130, is a general Article applying to all Courts whereas for the High Court the same provision exists in Article 98(1) which provides that the High Court will have only such jurisdiction as is conferred by the Constitution or the law. Article 98 (1) cannot be read as saying that by law the jurisdic tion conferred by the Constitution can be taken away. The words "subject to this Constitution" in Article 98 (2) mean that the jurisdiction provided for in Article 98(2) can be exorcised except where the Constitution itself creates a bar. No writs can be issued to the President, the Governor or in relation to' proceedings in the Legislature on account of certain provision in the Constitution. The words "subject to this Constitution had to be inserted in order that Article 98(2) may be consistent with provisions in the Constitution which bar jurisdiction of .Courts in certain matters. The words "subject to this Constitution" do not mean subject to a law framed by virtue of the powers granted to a Legislature by the Constitution. The Central Legislature can legislate with respect to jurisdiction of Courts, but the jurisdiction granted by Article 98 is subject only to "this Constitution" and not to "this Constitution and the law". A reference to the various provisions of the Constitution will show that whenever it uses only the words "subject to this Constitution" it does not mean subject to this Constitution and the law. Whenever the intention is .that a .particular provision should be subject not only to the Constitution but to a law enacted by virtue of powers granted by the Constitution the 'de the) Constitution says so. We can go on reading side by side the various provisions of the Constitution some saying "subject to this Constitution" and some saying "subject to this Constitution and the law". For instance Articles 175 and 177 which relate to some conditions of service use only the words "subject to this Constitution" whereas Article 178 which too refers to certain conditions says "subject to this Constitution and law,". Similarly Article 179 which relates to temporary employees says "subject to this Constitution and law". Article 117 which protects the President and the Governors against proceedings simply uses the words "subject to the Constitution". It does not add the law because obviously the position of the Governor or the President cannot be affected by passing of a law. Article 101 which provides for the framing‑of rules by the High Court for regulating procedure with the approval of the Governors says "subject to this Constitution and the law". Article 110 which provides for the rules of procedure relating to proceedings in the Assembly is prefaced only by the words "subject to this Constitution", the intention being that the matter is not to be regulated by law. Article 65 which provides for the framing of rules by the Supreme Court says "subject to this Constitution and the law". So continuously there is a distinction being made between powers which are subject only to the Constitution and powers which are subject also to law. It is not necessary to multiply examples. Many more may be found on an examination of the Constitution. But really the whole of this argument is unnecessary. As long as the Constitution is not amended the High Court shall continue to have jurisdiction under Article

98. It cannot be that a provision in the Constitution exists and yet the power which it confers cannot be exercised. The only method of g taking away the power is by an amendment of the Constitution. True an amendment too can take place by an Act of the Legislature, but there is w special procedure for. it and the amendment is not effected by a Central "law" although it is by an Act of the Central Legislature. I agree that the appeal be dismissed without any order as to costs. S. A. H./s. Q. Appeal dismissed.