P L D 1969 Lahore 53 (PLP)

SARDAR MUHAMMAD IQBAL, J.‑We accepted the petitions on 16‑12‑1963 and passed the following order:‑ "For reasons to be given later on Writ Petitions Nos. 1112 of 1962, 38 of 1963 and 177 of 1963 are accepted and the order of the Commissioner, Lahore Division, dated the 6th of June 1962, by which he modified the award of the Land Acquisition Collector, Improvement Trust (respondent No. 1), is set aside as without lawful authority. (2) The Land Acquisition Collector shall undertake fresh assessment of the price to be paid to the owners of the land comprised in the Anguri Bagh Scheme, in accordance with the provisions of section 3 of the West Pakistan Establishment and Improvement of Parks and Historical Places (Lahore) Ordinance (XXII of 1963). The relevant date will be the 6th of May 1962 as already reckoned by him, but we expect that since there is no time limit by which he was handicapped in the first instance he shall make a proper inquiry into: (i) nature of the land such as building site, chahi, nehri and banjar, etc. ; (ii) the market price of the different categories of land on the aforesaid date; giving allowance for the space to be earmarked for streets, roads, etc. normally provided for by owners of land in a development scheme; and (iii) price of the structures, trees, nurseries and gardens to be included in the award. Since apart from the reassessment of price, the acquisition proceedings have not been challenged before us, it is open to the respondent No. 3 to implement the Anguri Bagh Develop ment Scheme forthwith, as directed in section 4 of the West Pakistan Establishment and Improvement of Parks Historical Places (Lahore) Ordinance, 1963 (Ordinance XXII of 1963), if so advised. In the circumstances, there shall be no order as to costs." This judgment will dispose of three Writ Petitions Nos. 1112 of 1962 and 38 and 177 of 1963. In all the cases the proceedings taken by the respondents for the acquisition of land under Martial Law Order No. 126 of 1962, have been challenged as without lawful authority and of no legal effect. In implementing the operative part of this judgment the directions given above will be kept in view, and we want to make it further clear that owners are not, to be deprived of the compensation for the lands earmarked for streets, roads etc. unless it is so warranted by the Land Acquisition Act.

2. The reasons are: The land of the petitioners is situated in village Baghbanpura, Tehsil and District Lahore. The Lahore Improvement Trust framed a scheme under section 24/28 of the Punjab Town Improvement Act, 1922, for an area measuring 56 acres situated opposite Shalamar Gardens and bounded on the north by the G. T. Road, on the east by the Shalamar Escape, on the south by the Shalamar Distributory and on the West by Shalamar Link Road, Lahore. The scheme was called Anguri Bagh Scheme. It was notified under section 36 of the Punjab Town Improvement Act, 1922, on the 15th of April 1955. The Governor of West Pakistan sanctioned the scheme under section 41(l) of the Act, enforced it immediately by notification dated the 28th of November 1958 and authorised the Lahore Improvement Trust to acquire the land either under the Land Acquisition Act, 1894, as modified by the Punjab Town Improvement Act, 1922, or by purchase, lease, exchange or otherwise the whole or any part of the land or any interest in the land comprised in the scheme. The object of the Scheme as mentioned in paragraph 3 of the Government notification was to provide well Lald‑out and orderly development having streets of adequate width and satisfactory setting of open spaces for the needs of the area to be developed. The Trust was given the authority to leasing or selling, etc. of the land to provide facility for communication, the erection of building by the Trust or by persons who purchased any of the land comprised in the scheme. The lay out of the area had to be in accordance with the drawing prepared by the Trust. It will thus be clear that the scheme prepared by the Trust was basically and primarily a "housing" scheme, and its exclusive or main or substantial purpose was not to provide public paths and gardens or to reconstruct or renovate places of historical interest in the City of Lahore. Among other conditions, subject to which the Government had granted the sanction, it was clearly provided that the implementation of the scheme had to be so phased that it was completed within a period of three years. The scheme, however, could not be implemented at all within the specified period. There were many factors which made it difficult for the Trust to enforce the scheme. Immediately after the scheme was notified under section 36 of the Act on the 15th of April 1955, the Central Government declared Enayat Bagh and Anguri Bagh as ancient monuments by a notification issued on the 23rd of June 1955 under section 3(3) of the Ancient Monuments Protection Act, 1904. Another notification dated the 24th of October 1955 was issued confirming the earlier notification. This appears to have been done to save these places from the operation of the scheme. Some property comprised in the scheme was also evacuee property and it could not be acquired except in compliance with the provisions of section 16 of Act XII of 1957. The evacuee property could be acquired by the Provincial Government after obtaining a prior sanction of the Central Government. A reference was made to the Central Government for the necessary sanction which, however, remained unattended. In the meanwhile the Central Government by a notification issued under section 3 of the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) acquired the entire evacuee property which accordingly vested in the Central Government for disposing it off for purposes specified in the Act. No sanction by the Central Government, under the circumstances, was possible under section 16 of the Pakistan (Administration of Evacuee Property) Act, 1957. The Chief Settlement Commissioner by his letter dated the 30th of July 1959 directed his subordinates that no proposal for acquisition of evacuee property should be entertained, and the local bodies can purchase the properties from transferees under the Settlement scheme. By a letter of September 1959 of the Chief Settlement Commissioner, the Secretary, Lahore Improve ment Trust, was informed that the entire evacuee property had been acquired and put in compensation pool and their proposal to acquire the property could not be entertained. The Land Acquisition Collector, Lahore Improvement Trust, also informed the Secretary, Lahore Improvement Trust, by his letter dated the 29th of July 1960 that certain land mentioned therein belonged to the Central or Provincial Government, and that steps be taken to exclude them from acquisition. It was perhaps for these reasons that although the scheme was notified in 1955 and the Provincial Government had sanctioned it in 1959 with a clear rider that it should be implemented in three years, nothing happened and the scheme could not be enforced. We have no doubt in our minds that the scheme had become a dead letter.

3. By a Notification dated the 11th of May 1962 the Martial Law Administrator, Zone V, promulgated Martial Law Order No.

126. According to the preamble it was thought expedient to make this Order in the public interest to lay out areas for public parks and gardens and also to reconstruct places of historical interest. A reference was also made in the preamble to the Scheme notified by the Trust under section 36 of the Punjab Town Improvement Act, 1922, and the sanction accorded to the same by a Government notification dated the 28th of November 1958. This order was to apply to the area which was covered by the Anguri Bagh Scheme. The Commis sioner, Lahore Division, was empowered to take possession forthwith of the land included in the Scheme. The property was deemed to have been acquired for the Trust, and it was to be transferred to them with possession. Under section 3 of the Order, the Land Acquisition Collector had to assess compensation for the land and standing crops, trees or structures on the said property. The order had to be subject to confirmation by the Commissioner. The compensation was to be paid before the 30th of May.

4. Proceedings were taken under Martial Law Order No.

126. The properties of the petitioners were acquired. The Collector made an award on the 28th of May 1962. For the purposes of determining the compensation to be paid to the owners, he fixed the 6th of May 1962, the date of promulgation of Martial Law Order No. 126, as the basis for finding out the market value and he did not rely on the earlier notification of 1955 under section 36 of the Punjab Town Improvement Act in this behalf. He moreover classified the entire land as Qabil‑e‑Ta'meer and supported his decision by reasons. He assessed the land at Rs. 400 per marla. For the buildings he agreed to the price as was assessed by the Estimator and verified by the Sub‑Divisional Officer of the Lahore Improvement Trust. He also assessed the price of crops by fixing per kanal Rs. 20‑00 for barseem and Rs.100 for tobacco. No compensation was assessed for the wall and the tube‑well. Due to the failure of the Trust to furnish any proof, he could not determine the price of fruit garden and directed the owners to remove the trees like kikar, shisham, dharek, etc. which did not yield any fruit.

5. The Commissioner did not agree with the Collector that the entire land should be assessed as Qabil‑e‑Ta'meer and fixed the rate as under:‑ Rs. Nehri, Bagh Nehri (Land only) 90 per marla Qabil‑e‑Ta'meer 110 Banjar Qadim 30 Ghair Mumkin and other type 30 The Commissioner determined the compensation with reference to the market value of the land on the first notification of the Trust dated the 15th of April 1955 and he, therefore, awarded also the damages to the owners under section 48(a) and fixed the amount at 25 per cent. of the amount assessed. He did not make any alterations in the assessment for the standing structures, except that he directed that if structures had been put up without the authority of the Corporation or the Trust no compensation should be paid and that the occupants could remove the malba. The Collector had failed to fix the compensation for the nursery and the garden, but the Commis sioner directed that the owners should remove their young plants and cuttings till the 31st of August 1962. He determined the compensation for garden at Rs. 1,000 per kanal. This was to be in addition to the compensation for the land occupied by the gardens. The case of the petitioners is that the Commissioners gave this order on the 6th of June 1962, whereas the respondents allege that the Commissioner, though he had passed the order in writing on the 6th of June 1962 had given a verbal order to the Trust on the 29th of May 1962.

6. The owners were not paid any compensation before the 7th of June 1962. On that day the President made the Martial Law Orders (Repeal) Order, 1962 (President's Order No. 29 of 1962), and thereby provided in section 2 that all Martial Law Orders made or issued by any Martial Law Authority would stand repealed immediately before the commencing day as defined fn Article 242 of the Constitution of the Republic of Pakistan. `Commencing day' means that day on which the first meeting of the National Assembly was held under this Constitution. It was provided, inter alia, in clause 3 of the said Order that the repeal of the Martial Law Orders would not affect that previous operation of any such Order or anything duly done or suffered there under, and that it would not affect any right, privilege, obligation or liability accrued or incurred under any such Order. Martial Law Order No. 126, whereby the land of the petitioners was to be acquired, stood repealed on the 7th day of June 1962. The Governor of West Pakistan by the West Pakistan Martial Law Orders (Continuance in Force) Ordinance, 1962, made and promulgated by him on the 25th of May 1962, continued the operation of Martial Law Orders Nos. 111, 112, 118, 119 and 121, and further directed that they would be deemed to have been enacted in the said Ordinance. Martial Law Order No. 126 was not included in the said Ordinance which shows that there was no intention to keep this Order alive after its repeal from the commencing day. It is a fact that the Governor's Ordinance has been declared to be invalid by the Supreme Court in Muhammad Afzal v. The Commissioner, Lahore Division (1), but that is beside the point.

7. The petitioners challenged the acquisition of the property under Martial Law Order No. 126 as illegal. The precise argument advanced on their behalf was, firstly, that Martial Law Order No. 126 was ultra vires the provisions of Article 4 of the Laws (Continuance in Force) Order (I of 1958) and secondly, that even if it be assumed that it was a valid piece of legislation, the award given by the Commissioner determining the compensation to be paid to the petitioners was against the mandatory provisions of Martial Law Order No. 126 and was otherwise invalid.

8. The learned counsel for the respondents has taken a preliminary objection that Martial Law Order No. 126 and the action taken thereunder were immune from challenge and the petitioners could not question their validity in this Court. We will deal with this preliminary objection presently after we have dealt with the vires of the impugned Martial Law Order.

9. The contention of the petitioners that as Martial Law Administrator, Zone B', was not competent in law to have promulgated Martial Law Order No. 126 as a valid piece of legislation depends on the fact whether it had made provisions inconsistent with any existing law. Once it is held that it had infringed the provisions of any existing law, it will contravene the provisions of Article 4 of the Laws (Continuance in Force) Order, 1958, and will, therefore, be of no legal effect. Article 4 reads as under:‑ "4. (1) Notwithstanding the abrogation of the late Constitu tion, and subject to any Order of the President or Regulation made by the Chief Administrator of Martial Law, all laws, other than the late Constitution, and all Ordinances Orders‑in -Council, Orders other than Orders made by the President under the late Constitution, such Orders made by the President under the late Constitution as are set out in the Schedule to this Order, Rules, By‑laws, Regulations, Notifications and other legal instruments in force in Pakistan or in any part thereof, or having extra‑territorial validity, immediately before the Proclamation, shall, so far as applicable and with such necessary adaptations as the President may see fit to make, continue in force until altered, repealed or amended by competent authority. (2) In this Article a law is said to be in force if it has effect as law whether or not the law has been brought into operation. (3) No Court shall call into question any adaptation made by the President under clause (1)." By virtue of this Article all laws prevailing in the country before the abrogation of the Constitution by the Proclamation were to remain operative until they were altered, repealed or amended by a competent authority. The laws could be changed by legislative instruments of a competent authority. The competent authority referred to in the light of Article 2 of the Laws (Continuance in Force) Order, 1958, was the one which had the power to make laws under the late Constitution. It was provided in Article 2 that although the Constitution had been abrogated, Pakistan was to be governed as nearly as may be in accordance with the late Constitution, but this had to be subject to any Order of the President or Regulation made by the Chief Administrator of Martial Law. The President had the power to make laws through Ordinances under the late Constitution. He had been making these Ordinances after the Proclamation till the new Constitution came into force on the 7th of June 1962. He had been exercising this power obviously under the late Constitution. The Governors of the Provinces of East and West Pakistan, also, under certain circumstances, could legislate under the late Constitution. It is provided in Article 5 that the powers of the Governor should be those which he would have had the President directed him to assume on behalf of the President all the functions of the Government of the Province under the provisions of Article 193 of the late Constitution and such powers of making Ordinances as he would have had and within such limitations had Article 106 and clauses (1) and (3) of Article 102 of the late Constitution been still in force. The competent authority referred to in Article 4, therefore, could also be the Governor exercising his legislative powers within the scope and limitations of Article 5 of the Post‑Proclamation Order No. 1 of 1958. The existing laws or the exercise of any legislative power by a competent authority referred to in Article 4 was, however, subject to any Order of the President or Regulation made by the Chief Administrator of Martial Law. There is no reference in Article 4 to any Martial Law Order. In this constitutional document there is a reference made to Martial Law Regulations and Martial Law Orders, and in Article 3 it was provided that no Court or person could call or permit to be called in question any order made in pursuance of any Martial Law Order or Martial Law Regulation. The Laws (Continuance in Force) Order, therefore, clearly contemplated the passing of the Martial Law Regulations and the Martial Law Orders there can, however, be no manner of doubt as to the fact that there was a difference in the scope and application of Martial Law Regulations and Martial Law Orders. Martial Law Orders passed in the context had to be either in the nature of a subordinate legislation such as rules and by‑laws made to implement the provisions of a general law or they could provide for laws in matters which were not occupied by a legislative provision. In Muhammad Ayub Khuhro v. Pakistan (P L D 1960 S C 237), by making reference to paragraph 2 of the Proclamation of Martial Law dated the 7th of October 1958, issued by the Supreme Commander of the Armed Forces, it was observed:‑ "It would appear from this provision that while the Regulations prescribe the penalties, the Orders merely provide the method of enforcing the Regulation, and in Martial Law terminology that is the correct distinction between the two. A Regulation lays down the principle and policy of the law and the penalties for its infringement; it may further lay down a broad outline of procedure, jurisdictional and processual, for the enforcement of the law. But since the area over which Martial Law may operate may be vast and unmanageable by a central agency, a wide discretion is sometimes given to the Administrators and Sub‑Administrators of Martial Law in different regions from time to time to issue Orders for the enforcement of the Regulations." Continuing it was further observed:‑ "The main legislative authority was kept by the Chief Martial Law Administrator with himself while the Administrators and other officers were to exercise a kind of delegated legislative authority." They also held that the Chief Martial Law Administrator could himself issue Orders, but those Orders had not the status of Regulations. There is no reference to Martial Law Orders in Article 4 of President's Order No. 1 of 1958. If there had been any intention that the existing laws were to be subject to the Martial Law Orders as well, there is no reason why it would not have been so provided in this Article. It is thus clear that no existing law could be altered, amended or superseded by a Martial Law Order and the latter to the extent of inconsistency can have no legal existence. The question has received an authoritative pronouncement in Muhammad Afzal v. The Com missioner, Lahore Division (P L D 1963 S C 401), and it has been held: "Clause (1) of Article 4 of the Order [Laws (Continuance in Force) Order] makes it clear that all laws prevailing in the country immediately before the Proclamation were to be continued in force until altered, repealed or amended by a competent authority, subject to any Order of the President or Regulation made by the Chief Administrator of Martial Law. Similarly clause (1) of Article 2 validates all those provisions of the late Constitution which were not repugnant to any Order of the President or Regulation made by the Chief Administrator of Martial Law. If it was intended, therefore, to make any change in that existing law, then recourse should have been had to an Order made by the President or to a Regulation made by the Chief Administrator of Martial Law and not to a Martial Law Order made by a Zonal Administrator of Martial Law." The question before their Lordships of the Supreme Court was that the Martial Law Orders Nos. 111 and 118 made by the Zonal Administrator of Martial Law being in conflict with the provisions of the existing laws, like the Punjab Town Improvement Act, etc., contravened the provisions of Article 4 and were, therefore, invalid. After examining the relevant provisions of these Martial Law Orders, their Lordships came to the conclusion that in promulgating these two orders the Martial Law Administrator, Zone B', clearly acted beyond his competence to the extent of repugnancy to existing laws.

10. The question which calls for determination is whether Martial Law Order No. 126 made or purported to make provisions which were repugnant to the existing laws. In the preamble of the impugned Order there is a specific reference made to the Scheme notified by the Trust on the 15th of April 1955 and to the sanction given by the Provincial Government of the 28th of November 1958. The land intended to be acquired under the Ordinance includes in it "Enayat Bagh" and "Anguri Bagh", which are otherwise protected monuments within the meaning of the Ancient Monuments Preservation Act, 1904, and had been so notified under section 3(3) of the said Act. It also includes the evacuee property which after its acquisition under section 3 of the Displaced Persons (Compensation and Rehabilita tion) Act, for the purposes of that Act, forms part of the compensation pool which could be utilised only for compensating the persons entitled to the transfer of such property under that Act. The Order, therefore, clearly contravened the provisions of the Ancient Monuments Preservation Act, 1904, and the Displaced Persons (Compensation and Rehabilitation) Act, 1958. It moreover empowers the acquisition of property of private persons and for ejectment of the owners or occupiers from such properties. To this extent the impugned Martial Law Order is in accordance with the provisions of the Land Acquisition Act, but the manner in which the compensation is to be determined under the Order is a departure from the provisions of that Act, and aims at depriving the owners of certain rights which they had to challenge due to the inadequacy of the compensation. Under Part III of the Land Acquisition Act a person who is dissatisfied with the award made and filed by the Collector can file an application to the Collector for a reference to the Court for an adjudication of the matter objected to. Section 18 lays down how and within what time such an application shall be made. An appeal under section 54 is provided to the High Court in the first instance and then to the Supreme Court. The provisions of Martial Law Order No. 126, therefore, are flagrantly in consistent with the existing laws. The Order moreover takes away the jurisdiction of all the Courts, including the High Court and the Supreme Court, to question the validity of the Order or anything done thereunder. The Order thus contravenes the Laws (Con tinuance in Force) Order (I of 1958) which conferred the jurisdiction on such Courts.

11. To sum up, Martial Law Order No. 126 made provisions which were in consistent with the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, the Ancient Monuments Preservation Act, 1904, the Land Acquisition Act and other existing laws and the Constitution Order 1 of 1958, which conferred jurisdiction on the Courts, including the High Court and the Supreme Court. It thus contravened the provisions of Article 4 of the Laws (Continuance in Force) Order (1 of 1958), and, therefore, was not a valid piece of legislation.

12. We may now deal with the preliminary objection raised on behalf of the respondents as to the competence of this Court to question the validity and the vires of this Order. We can do no better than to refer to the judgment of Muhammad Afzal v. The Commissioner, Lahore, Division, where, relying on President's Orders Nos. 26 and 29 of 1962 and Article 3 of the Laws (Continuance in Force) Order, a similar objection was raised questioning the jurisdiction of the Court to challenge the vires of Martial Law Orders Nos. 111 and

118. It was held: "The question, however, that next arises is as to whether this Court can question the validity of the said Martial Law Orders in the face of the provisions of Article 3 of the Laws (Continuance in Force) Order, 1958. At this stage when all Martial Law Regulations and Orders, except for a very few, have been repealed by the Constitution of 1962, the question is not of much importance, for, the Orders having ceased to exist there is no need to call them into question but what we are now concerned with is merely pronouncing upon the validity or propriety of actions initiated and now sought to be enforced in pursuance of those Martial Law Orders. So far as these are concerned, they were never protected by the Laws (Continuance in Force) Order and, therefore, their validity could, inappropriate cases, always be questioned, if that did not amount to questioning the Martial Law Order itself. The argument that Article 250 of the Constitution and clause 3 of the Martial Law Orders (Repeal) Order, 1962 (President's Order No. 29 of 1962) have, notwithstanding the repeal of all Martial Law Orders, saved the previous operation of any Order or anything duly done or suffered thereunder and does not affect any right, privilege, obligation or liability acquired, accrued or incurred thereunder, is also not of much assistance in the present case, for it will be noticed that by clause 3(1)(b) of this Order the only acts or liabilities that are saved are acts or liabilities which were `duly done or suffered thereunder'. Therefore, if they were not duly done or suffered, the protection is not available. Furthermore, no liability or obligation was acquired, accrued or incurred in most of the present cases under the impugned Martial Law Orders, for, the directives now sought to be challenged were actually served upon the bamboo merchants after the Commencing Day and in the cases of the timber merchants the directives have not yet been put into effect, for, these appellants are still in their old premises and are carrying on business there." Doubtless, the present petitioners have not been physically dispossessed from their land and they have not been paid any compensation which was to be paid to them before the 30th of May 1958. In the case of cattle‑owners their Lordships of the Supreme Court observed that even if the order directing them to remove their cattle outside the limits of the Lahore Corporation had been given effect to it could not be "immune from an attack either under Article 3 of the Laws (Continuance in Force) Order or under President's Order No. 29 of 1962". They further observed that the former gave immunity to legislative orders and the latter protected only things duly done or suffered. It was, therefore, clearly held that since Martial Law Order No. 118 was not of any legal effect it gave no valid authority to the Commissioner to issue the directions complained of, and the action taken in pursuance of such an invalid direction was not an action "duly taken" within the meaning of President's Order No. 29 of 1962 and no immunity could be claimed in respect thereof. The observations made in Muhammad Afzal v. The Commissioner, Lahore Division, are applicable to the facts of the present case, and we find the preliminary objection to be devoid of all forces.

13. On behalf of the petitioners it was also argued that even if it be assumed that Martial Law Order No. 126 was validly made and the authorities were competent to acquire the property, they, in determining the compensation, have acted in violation of the provisions of Martial Law Order No.

126. The relevant provisions in respect of compensation are as follows:‑ "(3) The compensation for the land and standing crops, trees, or structures on the said property will be assessed by the Land Acquisition Collector of the said Trust and shall be subject to confirmation by the Commissioner, Lahore Division, Lahore, whose order shall be final. (4) The compensation so assessed shall be paid by the said Trust before the 30th of May 1962." The Collector, acting under these provisions, determined the compensation for the land the standing crops and the structures. He did not make any attempt to determine any compensation for the trees, like tahli, toot, kikar, dharek, etc. He ordered that the owners could remove them ‑ before one week and in case they failed to do so, they would b:, paid nothing for the same. In so ordering he has observed that the price of the land includes the trees of this nature. The reasons given are inconsistent in themselves and carry no conviction. To say that the compensation given for the land includes the trees is not based on any statutory provision or any accepted practice. If it were really so, there hardly could be a justification for him to have ordered the removal of the trees by the owners. A standing tree is an immovable property within the meaning of the provisions of the General Clauses Act. That being so, it was necessary for the Collector to have determined its compensation. Again, his failure to have assessed the value of the gardens is not based on any sound reasoning. If the Lahore Improvement Trust had not led any evidence before him to prove the market value of the garden, that did not mean that he should not have determined the value himself when it was clearly provided in section 4 of Martial Law Order No. 126 that the compensation so assessed would be paid before the 30th of May 1962. It was clearly implied in this provision that the entire acquisition proceedings, including the determination of the compensation, had to be completed before the 30th of May. To us it seems that the Land Acquisition Collector or the Commissioner became functus officio after the 30th of May so far as their power to assess the compensation was concerned. The Collector indeed assessed the structures, but he based his decision on the estimate prepared by Muhammad Shafi, Estimator, Lahore Improvement Trust, and checked and verified by the Sub‑Divisional Officer and the Town Planner of the Trust. The Collector did not specify the amount so assessed. There is no indication that the petitioners were given an opportunity to challenge the amount estimated by the employees of the Trust. It has been specifically alleged by the petitioners, supported by an affidavit, that this was done at the back of the owners without affording any opportunity to them to challenge its correctness. The respondents have denied this allegation in the written statement, but the denial is not supported by an affidavit. We are inclined to believe the statement of the petitioners supported as it is by an affidavit and particularly for the reason that there is no indication in the award that the petitioners were ever informed of the estimate prepared by the officers of the Lahore Improvement Trust. Admittedly, there is a wall standing on the property of the petitioners, but the Collector failed to determine any compensation for the same. It would thus be clear that the Collector, though he had determined the market value of a considerable portion of the property covered by the Scheme, he had not done so in respect of the entire property. Since the compensation of the entire property covered by Martial Law Order No. 126 had not been determined before the 30th of May it could not be done subsequently.

14. Under paragraph 3 of the Order, the compensation assessed by the Land Acquisition Collector had to be subject to confirmation by the Commissioner, Lahore Division. Since the compensation had to be paid before the 30th of May it was necessary in the context of things that the Commissioner should have taken steps for confirmation before the said date. Martial Law Order No. 126 was promulgated on the 11th of May 1960 and it is indeed surprising that the authorities should have taken the matter so easy as to postpone the final determination till the 29th. The Land Acquisition Collector forwarded his award to the Commissioner on the 28th. The petitioner were heard on the 29th by the Commissioner, but it cannot be said that this is in any way a reasonable opportunity to the petitioners to present their case. Indeed there is no provision for the hearing of the petitioners by the Commissioner in the confirmation proceedings, but since it involved the determination of the compensation to the petitioners, it was necessary that they should have been given a reasonable opportunity to present their viewpoint. It is stated in Maxwell on Interpretation of Statutes that a statute conferring powers (judicial) to affect prejudicially the rights of person or property, is understood as silently implying when it does not expressly provide, the condition or qualification that before the power is exercised the person sought to be prejudicially affected shall have an opportunity of defending himself. In the case of Reg v. Chancellor and Masters and Scholars of the University of the Cambridge (1 Strange 557=93E R 698), such a condition was implied in a statute and as it was found that this condition was not observed, a mandamus was allowed to go against the University for restoration of Dr. Bentley to academical degrees. Similarly in the case of Cooper v. Wandsworth Board of Works ((1863) 143 E R 414), this condition of being heard was implied in construing the 76th section of the Metropolis Local Management Act. Byles, J. observed that a tong coarse of decision beginning with Dr. Bentley's case and ending with some very recent cases establish that although there are no positive words in a Statute requiring that the party shall be heard, yet the justice of the common Law will supply the omission of the Legislature. Their Lordships of the Supreme Court in Messrs Faridsons Ltd., Karachi and another v. Government of Pakistan and another (P L D 1961 S C 537), held that the reason ‑for an absence of an express provision in a statute to giving a hearing is clearly that the rule of natural justice is too well established to require mention. In Commissioner of Income‑tax, East Pakistan v. Fazlur Rehman (P L D 1964 S C 410), the contention raised on behalf of the appellant that the existence of the provision of notice in section 31 and its absence in section 33 of the Income‑tax Act should lead to the inference that notice of the hearing of the application under section 33‑A to the applicant was not needed was repelled and it was held that the mere absence of a provision as to notice cannot override the principle of natural justice that an order affecting the rights of a party cannot be passed without an opportunity of hearing to that party. The principles of natural justice do rot contemplate only a hearing but also a reasonable opportunity to be heard.

15. It was also contended on behalf of the petitioners that the Commissioner, though he had heard the petitioners on the 29th, did not announce his decision to the parties and he passed his order only on the 6th of June 1962. Their contention is again supported by an affidavit. There is no counter‑affidavit. On behalf of the respondents it is contended that "the Commissioner announced his award verbally to the parties present on the 29th May 1962 and the Land Acquisition Collector in accordance with the Commissioner's decision wrote his award on the same day and announced it on the spot that afternoon." In view of the clear statement on oath by the petitioners that "after hearing tae arguments on the 29th May 1962, which lasted till after dark, the Commissioner, Lahore Division, was pleased to reserve his orders on the question of compensation for land and trees" and also the statement made by Mr. Mahmud Ali at the Bar that the Commissioner heard the arguments till late at night on the 29th of May, we could not persuade ourselves to believe that the Commissioner could have given the award orally to the Land Acquisition Collector at noon or sometime in the afternoon on the 29th of May 1962 and that the latter announced the same on the spot that afternoon. There is, however, an award of the Collector dated the 29th off May 1962 which purports to say that the Commissioner, Lahore Division, had confirmed and approved the rates mentioned therein. The Commissioner gave his own written award on the 6th of June 1962. He mentioned in the last paragraph of his award that "the conclusion of the aforesaid award had already been communicated to the Lahore Improve ment Trust on the 29th May 1962". Under section 114(e) of the Evidence Act the Court may presume judicial and official acts‑ to have been regularly performed. It was, therefore, argued that unless the Commissioner had approved the award, the Collector would not have so stated in his order. No such presumption can arise in this case. We could not believe the statement of the, respondents that the Collector announced the award on the: afternoon of the 29th of May because the arguments had not concluded till late at night on that date. The order passed by the Collector purported to be based on the order of the Commis sioner is a short one. There is no reason forthcoming as to why the Commissioner should not have passed this order in writing on, that day and instead have adopted an unusual procedure of making a verbal award.

16. Even if we assume that the Commissioner in fact passed the order on the 29th of May, the order in our opinion, was not passed in pursuance of Martial Law Order No.

126. There are various reasons for it. He had been given the power to confirm the award. The power of confirmation did not carry with it the power of substituting for the award of the Collector. If the award was based on considerations which were not warranted by facts or law, the Commissioner could refused confirmation pointing out the defects, and it would have, necessitated a fresh assessment by the Collector. For the purpose of understanding the scope of the confirmation proceedings we may refer to the relevant provisions of the Code of Criminal Procedure whereby certain sentences passed on the accused have to be confirmed. Under section 374, Cr. P. C. where the Court of" Session passes sentence of death, the proceedings have to be submitted to the High Court for confirmation. Under section 376, the High Court may confirm the sentence, or pass any other sentence warranted by law, or may annul the conviction and convict the accused of any offence of which the Sessions Judge might have convicted him, or order a new trial on the same or an amended charge, or may acquit the accused person. It will, be noticed that the High Court has specifically been given the power to pass orders to reduce the sentence, to alter the sentence, or to annul the conviction in proceedings pending before it for the confirmation of the death sentence. Without such powers having been specifically given to them it would not have been possible for the High Court to pass any order in the confirmation proceedings except to confirm the death sentence or to set aside the conviction and order a new trial. Under the earlier Code of 1872 the relevant section for the confirmation of the death sentences was section

288. In Reg v. Balapa (1 Bom. 639), it was held that under section 288 of the Code of Criminal Procedure, the High Court, to which a reference was made by a Court of Session for confirmation of a sentence of death on conviction of murder, could not, in the absence of an appeal, alter the conviction to one, of culpable homicide not amounting to murder, if it be of opinion that the evidence did not establish the former but the latter offence, and that it must order a new trial for that purpose. In the absence of a power given to the Commissioner to alter the assessment, he could not, in our opinion, when he was to confirm the assessment of the Collector, pass his own order in this behalf.

17. According to the award of the Collector the material date for the purpose of determining the market value of the land in dispute was the 8th of May 1962 when Martial Law Order No. 126 was promulgated. In doing so he had agreed with the contention raised on behalf of the owners that Martial Law Order No. 126 had superseded the previous notifications made by the Improvement Trust. The Commissioner, however, was of the opinion that the acquisition proceedings started by the notification of the Trust under section 36 of the Punjab Town Improvement Act, 1922, on the 15th of April 1955, and he, therefore, took that date as the relevant date for assessing compensation and further held that the market value of the land was to be assessed according to the use to which the land was put on the operative date, i.e. the date of the first notification. He failed to notice the fact that the scheme which was framed by the Lahore Improvement Trust, had become a dead letter. In spite of the fact that the Government while granting sanction in 1958 had directed that it should be implemented within three years, nothing substantial was done during that period. It was otherwise not possible to implement the Scheme, because it included in it the old monuments, the evacuee property and also the properties belonging to the Provincial and Central Governments. The purpose of the scheme moreover was to provide housing facilities. The Martial Law Order No. 126, on the other hand, aimed at laying out areas for public parks and gardens and also to reconstruct and renovate places of historical interest. Martial Law Order No. 126, for all intents and purposes, was a legislation for the enforcement of a new scheme. If a reference was made in Martial Law Order No. 126 to the earlier scheme for the area comprised therein, it was not for the purpose of implementing that Scheme but only to indicate the area as to which the scheme contemplated in Martial Law Order No. 126 was to operate. There is, moreover, no provision in the Punjab Town Improvement Act, 1922, for making any scheme to lay out parks or construct or renovate places of historical interest. By this Order a legislative provision was made for such a scheme and the Lahore Improvement Trust was specifically empowered to acquire the property and to implement the scheme. The power of the Trust with reference to this particular scheme was, however, to be subject to the overall supervision and control of the Commissioner. There was, under the circumstances, no valid justification for the Commissioner to have relied upon the notification of the 15th of April 1955 for fixing the relevant date to make assessment of the compensation. Moreover, if there had been any such intention on the part of the framers of Martial Law Order No. 126, they would have clearly indicated that the Order was being made to enforce the scheme and in that case they would have also put in a saving clause, saying that the orders passed under the said scheme would continue to remain operative. Nothing of the kind was done. The learned Commissioner was, therefore, in error to say that the old scheme of 1955 was still alive. The material date for the determination of value, therefore, was the date of the promulgation of the Order, which was the 6th of May 1962. The entire proceedings relating to compensation by the Commissioner were invalid on this ground and they cannot be deemed to have been taken under the said Order.

18. Martial Law Order No. 126 did not in terms provide for the rules in accordance with which the compensation was to be assessed. The Order aimed at depriving the persons of their vested rights in the property and that being so, the provisions which are more favourable to the owners have to be applied to their case. The Collector had assessed their property by invoking the provisions of the Land Acquisition Act. No exception could be taken to his action and the Commissioner in having set aside those proceedings acted without any lawful basis.

19. The award given by the Commissioner otherwise is invalid. Under section 3 of the Martial Law Order the compensa tion had to be determined for land, standing crops, trees and structures. Having failed to determine any compensation for the nursery and to have instead directed the owners to remove the plants was contrary to the provisions of the Order itself. There is no doubt that certain properties were not assessed and their value was not determined. The proceedings of compensation were, therefore, not completed. Taking all these aspects into consideration the entire proceedings before the Commissioner were invalid.

20. The Martial Law Order No. 126 came to an end on the 7th of June 1962 by virtue of section 3 of President's Order No. 29 of 1962. The repeal of the Martial Law Order was not to affect the previous operation of any such order or anything duly done or suffered thereunder. The emphasis is on the words "duly done" Since we are of the opinion that the award of the Collector was not in due process of law under Martial Law Order No. 126 it was not duly done, and that being so it was not saved under the said Order.

21. We had heard this Writ Petition and were inclined to accept it when the West Pakistan Establishment and Improve ment of Parks and Historical Places (Lahore) Ordinance, 1963, was promulgated on the 6th of June 1963. We, therefore, heard the case afresh. One of the reasons for the enactment of this Ordinance was that the validity of the said Martial Law Order No. 126 and the actions taken thereunder had been questioned and a writ was pending in the High Court of West Pakistan. It incorporated in fact the provisions contained in Martial Law Order No.

126. The Ordinance was made effective with effect from the 6th of May 1962. It empowered the acquisition of the land for the purposes mentioned in the Martial Law Order, notwithstanding anything to the contrary contained in the Land Acquisition Act, 1894, the Town Improvement Act, 1923, as amended by the Punjab Town Improvement (West Pakistan Amendment) Ordinance XVI11 of 1962, the Municipal Administra tion Ordinance, 1940, or any other law for the tune being in force, or in any decree, judgment or order of any Court. According to section 5 "anything done, possession taken or delivered, ejectment made, compensation assessed or paid, allotment made, terms and conditions settled, direction given, or order issued, by the Commissioner of Lahore, the Land Acquisition Collector of the Lahore Improvement Trust, the Chairman, Lahore Improvement Trust or any other authority in pursuance of said Martial Law Order No. 126, shall be deemed to have been validly done, taken or delivered, made, assessed or paid, made, settled, given or issued respectively under this Ordinance and shall be continued."

22. Mr. Mahmud Ali, counsel for the petitioners, in view of the provisions of Ordinance XXII of 1963 did not dispute the acquisition proceedings under Martial Law Order No.

126. He, however, argued that this Ordinance did not in any way validate something which was not valid under Martial Law Order No. 126 itself. We have already observed that in awarding the compensa tion the Commissioner did not act in conformity with the provisions of Martial Law Order No. 126 and the entire proceedings before him were beyond the scope and authority of the said Order. The learned Advocate‑General, however, argued that Ordinance XXII of 1963 had not only validated Martial Law Order No. 126 and the proceedings taken under it but also the proceedings which were purported to have been taken under it. His precise argument was that even if the proceedings conducted by the Commissioner were not strictly in accordance with the provisions of Martial Law Order No. 126, but since he purported to act under the said Martial Law Order No. 126 the compensation assessed by him was validated by section 5 of the Ordinance. Section 5, according to him, validated not only what was done directly under Martial Law Order No. 126 but also what was professed to be done under the same. Under section 5 anything done or compensation assessed in pursuance of Martial Law Order No. 126 was deemed to have been validly done. Nothing, therefore, could be validated unless it was done in pursuance of the Martial Law Order. The learned Advocate‑General interpreted the word "pursuance" to mean something which was professed to have been done under the said Martial Law Order. No such meaning could be given to the word "pursuance". Webster defines "pursuance" as "chiefly carrying out or into effect the action of executing prosecution; that which is pursuant, consequence". The word "pursuant" is defined as "acting or done in consequence or in prosecution". The words "in pursuance", therefore, according to us clearly mean something which was done in the exercise of power conferred by Martial Law Order No.

126. In Emperor v. Vimalabai Deshpande (A I R 1946 P C 123), it was held that "if the orders made by Police under rule 129(1) or by Provincial Government under rule 129(4), Defence of India Rules, are invalid they are not made in exercise of a power conferred by the Act".

23. The learned Advocate‑General next argued that if a limited construction was to be given to Ordinance XXII of 1963, then there was no need for validation. He wants us to infer the intention of the Legislature. It is not competent for us to do so when the words are clear. The Legislature says what it means. The language being clear, we cannot go behind it to find out the so‑called intention. This would amount to legislating ourselves. The Legislature was conscious of the fact that the writ petition had been filed, and this fact is recited in the preamble. It had been specifically alleged in the writ petition that the compensation awarded in this case was not in accordance with the provisions of Martial Law Order No.

126. If they had intended to validate something which otherwise was not valid under Martial Law Order No. 126 there would have been no difficulty in expressing it in unequivocal terms. We may as well observe that the Legislature was perhaps aware that compensation might not have been determined in pursuance of Martial Law Order No.

126. Under Martial Law Order No. 126 there eras a specific provision for the determination of the compensation, bat the Order was conspicuous by an absence of reference as to the specific provision of law under which it should be determined. In section 3(b) of the Ordinance, however, it is clearly provided that the compensation for the land and crops shall be determined on the principles Lald down in the Land Acquisition Act. It clearly implied fresh proceedings in this behalf, because if it had not been so, there was no need of making this specific provision for the reason that the Commissioner had already assessed the compensation, and if his proceedings were valid. nothing more was left to be done. We feel no hesitation in rejecting the contention of the learned Advocate‑General, and hold that the entire proceedings before the Commissioner were invalid under Martial Law Order No. 126 and, therefore, have rot been validated.

24. The result is that the compensation already awarded by the Collector has not been confirmed. The proceedings for acquisition, therefore, will be deemed to be pending before the Collector and he will proceed to determine the compensation of the land covered by the Scheme according to thus provisions of the Land Acquisition Act. The. material date for determination of the market value will be the 6th of May 1962. In the view of the matter we take, eve pass the following order: (a) The proceedings taken for tile determination of the compensation being beyond the scope of Martial Law Order No. 126 have not been validated by Ordinance XXII of 1963 and are hereby quashed; and (b) The Land Acquisition Collector is directed to take appropriate steps for determining the compensation of the land of the petitioners in accordance with the provisions of the Land Acquisition Act. The petitions are accepted but there shall be no order as to costs. A. E. Petitions accepted.