P L D 1969 Lahore 1087 (PLP)

(v) That the judgments of the High Court and the Supreme Court passed in earlier proceedings in favour of the owners, granted them a right to ask for and receive the compensation as assessed in pursuance of the said judgments. The precise argument is that the judgment rendered in exercise of power granted to the superior Courts by Article 98 read with Article 58 of the Constitution could not be frustrated by another functionary acting under the same Constitution, by enacting retrospective law.

13. Mr. Bhatti, the learned counsel for the Trust, has controverted the points raised by the learned counsel for the owners and has contended :‑ (i) That Zonal M. L. O. No. 126 having been declared as void by the High Court did not and in fact could not create any rights in favour of the owners. If at all any right was created in favour of the owners, it was by Ordinance No. XXII of 1963, which has been validly repealed by Ordinance No. X of 1968. (iii) That the repeal, of Ordinance XXII of 1963, is neither "under" nor "by virtue of" Article 250 of the Constitution; and that in this situation only the General Clauses Act will apply. (iii) That neither Article 2 nor Article 98 read with Article 58 of the Constitution is a bar to retroactive legislation under the present Constitution; and if that is so, the repealing Ordinance could affect the rights created under the repealed law or by virtue of the judgments of the superior Courts. (iv) That the proceedings in the case; whether taken under M. L. O. No. 126 or under Ordinance No. XXII of 1963, did not mature into acquisition and the property bad not yet vested in the Trust before the payment of compensation, when the re pealing Ordinance was promulgated which, in such circum stances, need not have provided for divestiture; and that the restoration of possession and payment of compensation for use and occupation in the intervening period were to be provided only. In any case, he maintained that the repelling Ordinance in subsection (6) of section 5. read with other provisions of the Ordinance, has provided for the required divesting and on this account the Ordinance could not be assailed. Mr. Fazle Hussain, the learned counsel assisting Mr. Brohi in the case, addressed us in rely to the arguments advanced by Mr. Bhatti and reiterated the points taken by Mr. Brohi, with further supporting arguments.

14. The questions raised cannot be determined without r deciding as to what was the nature and stage of proceedings, when different laws were enacted and the judgments were given by the High Court and the Supreme Court, relating to this case. It is true that the Scheme originally framed under the Town Improve ment act had almost finished when the Zonal M. L. O. No. 126 provided for the acquisition of and grant of compensation for the land covered by that Scheme. The possession was initially taken and compensation was assessed under that Martial Law Order. The provisions contained therein in this behalf are:‑ "(1) That the Commissioner, Lahore Division shall take posses‑ion forthwith . . summarily ejecting, if necessary, any person or persons in occupation of any part thereof. (2) The said property shall be transferred to the said Trust who will be put in possession thereof and the said property shall be deemed to have been duly acquired by the said Trust free from encumbrances. (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. (41 The compensation so assessed shall be paid by the said Trust before the 30th May 1962." The possession was taken over by the Trust under this law on the 28th of May 1962. Therefore prima facie, by virtue of para. (2) quoted above, the Trust shall at that stage be deemed to have acquired the land. But the matter is not so simple and clear as that. The compensation was determined by the Collector on the date of possession, i.e., the 28th of May 1962, but the Commis sioner passed the order on the 6th of June 1962, modifying the award of the Collector. According to the M. L. O., the compen sation was to be paid before the 30th of May 1962. This requirement, undoubtedly, was not fulfilled. Before the payment could be made, the matter was taken to the High Court, challenging both the acquisition as well as the award of compensation made under the M. L. O. In fact, the challenge was against the M. L. O. itself. During the pendency of pro ceedings before the High Court, Ordinance No. XXII of 1963 was promulgated on the 6th of June 1963. The provisions relating to acquisition and compensation contained in this Ordinance are:‑ "

3. Acquisition of land.‑Notwithstanding anything to the contrary contained in the Land Acquisition Act, 1894 (Act I of 1894), the Town Improvement. Act, 1922 (Punjab Act IV of 1962), as amended by the Punjab Town Improvement (West Pakistan Amendment) Ordinance XVIII of 1960, the Municipal Administration Ordinance, 1960 (Ordinance X of 1960) or any other law for the time being in force, or in any decree, judgment or order of any Court or Authority‑ (a) The Commissioner, Lahore, shall forthwith take posses sion of the land, summarily ejecting if necessary, any person in occupation of any part thereof; (b) the compensation for the land and crops, if any, standing thereon shall be assessed by tire Collector, Lahore, on :he principles laid down is the Land Acquisition Act, 1894. and the assessment, subject to confirmation by the Commis sioner, Lahore, shall be final, (c) the compensation awarded shall be paid by the Lahore Improvement Trust; (d) the said land shall be transferred to, and put in the possession of, the Lahore Improvement Trust and thereupon .shall be deemed to have been duly acquired by the Lahore Improvement Trust free from all encumbrances." No doubt, section 5 of this Ordinance provided for the saving and continuance of the actions taken under M. L. O. No. 126, notwithstanding some other laws mentioned therein; but it is significant to note that the actions taken under the M. L. O. No. 126, which were contrary to the parallel provisions of the Ordinance itself, were not specifically saved. The Ordinance made some changes in the law in respect of acquisition and the compensation, as it was originally contained in the M. L. O. It is pertinent to mention also that in the preamble of the Ordinance, it is specifically mentioned that the validity of the M. L. O. and the actions taken there under had been questioned and that a writ petition was pending in the High Court. It was for this reason and also for the reason that some changes in the law relating to the acquisition of the property in dispute were necessary, that the Ordinance was promulgated. There is one more circumstance which provides a very important background to the promulgation of the Ordinance. Zonal M. L. O. Nos. 111 and 118 issued by the same Zonal Martial Law Administrator (Zone B) dealing with the similar subjects as in M. L. O. No. 126, came under challenge before the High Court. The appeals were filed in the Supreme Court which were heard on 9th, 10th, 11th January and 11th March 1963. Luring the hearing before the Supreme Court, the nature of challenge to the two Martial Law Orders (111 and 118) had become known to the parties in those cases. The Commissioner, Lahore Division, and the Lahore Improvement Trust were also parties in those appeals. 'Those appeals were decided on 7th of May 1963, and the M. L. O. Nos. 111 and 118 were struck down as ultra vires the powers of the Zonal Martial Law Administrator. The judgment of the Supreme Court is cited as Muhammad Afzal's case. The Trust and through them the Provincial Government were fully aware of the attack on the Martial Law Orders mentioned above and also of the attack on those very lines on the M. L. O. No. 126, during the course of the hearing of Afzal's case and this case in. the first round. Therefore the Governor of the West Pakistan promulgated Ordinance No. XXII of 1963 on the 6th of June 1963. Thus it was in realisation of the fact that the said M. L. O. was, in any case, going to be hit down as an ultra vires legislation and that a substitute legislation had become necessary; therefore, the Ordinance was brought in. This Ordinance, as already mentioned, did not simply validate the actions taken under the M. L. O. No. 126; but also enacted complete separate law to cope with the situation. It is in this light that the earlier judgment given by this Court and confirmed by the Supreme Court is to be seen and interpreted. The arguments having been concluded, the case was fixed for announcement of judgment on the 11th of June 1963. The order passed on that day is clear enough to show that the High Court was inclined to accept the writ petitions filed by the owners challenging the vires of the Martial Law Orders. The judgment, delivered after the rehearing, in unmistakable terms declared the M. L. O. No. 126 as an invalid piece of legislation. The two issues involved in the case were resolved in the following manner:‑ "(a) Acquisition.‑It was observed in para. 12 of the judgment that "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". In view of this position taken by the owners, the question of acquisition under the M. L. O. itself was not examined. Therefore, it cannot be said that the acquisition was considered to have been duly done under the M. L. O. No.

126. In fact, the subsequent proceedings show that every one concerned with the case treated the acquisition also, as being valid by virtue of Ordinance No. XXII of 1963. We are of the opinion that but for the provision contained in section 3 relating to acquisition and section S relating to validation contained in that Ordinance, the acquisition could not be considered to be valid. Therefore, if the acquisition was considered as not under dispute, it was because of Ordinance XXII of 1963, and not because of M. L. O. No. 126, which was declared invalid in most unequivocal terms in the judgment of the High Court. (b) Compensation.‑The High Court came to the conclusion that for various reasons, including "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"‑(para. 13); the compensation, awarded under the M. L. O. by the so‑called confirmation order passed by the Commissioner on the 6th of June 1962, was a nullity. It was further decided that the compensation not having been assessed and awarded duly under M. L. O. No. 126, had not been validated by the saving provision contained in Ordinance XXII of 1963. 1t is necessary here to reproduce the two concluding paragraphs of the judgment:‑

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 that 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 Legis lature 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 was a specific provision for the determination of the compensation, but 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 laid 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 not 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 the 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, we pass the following order:‑ (a) The proceedings taken for the 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 reference to the Land Acquisition Act apparently is because of the provisions contained in Ordinance XXII of 1963 and the judgment is absolutely clear on the point that the compensation proceedings were not validated by that Ordinance and that the compensation was to be assessed and awarded afresh under the Ordinance XXII of 1963. The above judgment of the High Court, nobody disputes, was confirmed by the Supreme Court. It is true that all the matters discussed in the judgment of the High Court were not made the subject of contention before the Supreme Court; but the fact remains that the judgment of the High Court was not disturbed on any question by the Supreme Court; and therefore it holds the field in so far as the parties to the dispute are concerned. Again same parties are before us. The owners as well as the Trust understood the judgment of the High Court and the law, as it stood then, in the same way as analysed by us above. In respect of acquisition, it is not pertinent to note that the owners, i.e., the successors of Mian Iftikhar‑ud‑Din, stated in their application filed in the High Court on the 17th of June 1964, as follows:‑ "

4. That according to the provisions of the Land Acquisition Act and Ordinance XXII of 1963 the assessment of compensation and its payment to the petitioners are condition precedent before the Lahore Improvement Trust acquires any title over the land or takes any action transferring the property of the petitioners to any other person. Section 3 of the Ordinance XXII of 1963 contemplates the following steps before the land is transferred to the Improvement Trust, Lahore for taking action under section 4 :‑ (a) . . . . . . . . . . (b) . . . . . . . . . . (c) . . . . . . . . . . In their Writ Petition No. 1119 of 1968, which is, the subject matter of the proceedings before us, it is specifically asserted an paragraph 16 that "Ordinance XXII of 1963 was promulgated only for one transaction, i.e., acquisition of land under the Angoori Bagh Scheme and payment of its compensation. Under section 3 (c) of the said Ordinance, a respondent No. 3 , wader it mandate from the Legislature to pay the compensation as assessed by respondent No. 2 and confirmed by respondent No. 3". In the prayer, the relief is claimed that "a direction in the nature of mandamus requiring respondent No. 1 to perform his statutory obligation under section 3(c) of Ordinance XXII of 1963 and to finalise the proceedings by making the payment of the compensation awarded to the petitioners be issued". It will have to be kept in mind that it is by means of this petition and the connected petition that the owners are now seeking a remedy from the High Court. Thus it is clear, and we hold, that the acquisition was to be completed by virtue of Ordinance XXII of 1963 and the compensation was to be assessed and awarded under the same law. The direction given by the High Court for the assessment and award of compensation was under the same law; and the claim of the owners in the present proceedings as well as in the earlier proceedings was that the compensation is to be assessed, awarded and paid as a statutory obligation only under that law, i.e. Ordinance XXII of 1963. It is needless to add that apart from the clear legal exposition done in the earlier judgment ands our own analysis of the whole question the above position is beyond challenge due to the bar of res judicata and estoppel also. It is interesting to mention that in the first hearing of this matter by us, before the promulgation of the repealing Ordinance X of 1968, one of the main arguments of Mr. A. K. Barohi, for the enforcement of the compensation awarded by the Collector and confirmed by the Commissioner (in the second round), was based on these very principles, meaning thereby that the Trust was bound by the decision of the High Court arid by its own conduct. Same argument now applies to most of the pointy raised by the learned counsel himself in this reaching after the promulgation of the repealing Ordinance.

15. In the light of our finding about the nature and source of the acquisition and fresh assessment of compensation (being tinder Ordinance XXII of 1963), the argument by Mr. Brohi, that the action started under M. L. O. No. 126 was protected by P. O. No. 29 read with P, O. No. 26 of 1962 by virtue of its saving clause 3 (c), loses all force. The acquisition, as discussed above, will be deemed to be under Ordinance XXII of 1963, and the same was to be completed under that law. Same is the position about the compensation. Therefore, P. O. No. 29 of 1962 has no application to the present case. Two rulings of the Supreme Court were cited in this connection; one is Muhammad Afzal's case already referred, and the other is Azizur Rahman Chowdhury's case (PLD 1965 S C 236). In the latter case, the proceedings were finally completed and closed under a Zonal Martial Law Order which was held to be protected. On page 240 of the report, it is mentioned:‑ "Notices were issued between the 20th and 23rd of May 1962, and served by post to all registered share‑holders and were also published in the local newspapers. Thereafter, a meeting was held on the 3rd of June 1962, at which the respondents Nos. 1 to 5 herein were duly elected as Directors of the Company. After such election the Provincial Government by a Notification published on the 4th of June 1962, cancelled the appointment of the Administrator and vested the affairs of the Company in the new Board of Directors with immediate effect . . . . . . The appellant filed the present writ petition on the 11th of June 1962, challenging the legality of the election of the new Board of Directors as also the validity of the notice given by the Administrator on the 18th of May 1962, for allotment of certain forfeited shares of the company and of the notice of the 23rd of May 1962, calling the meeting of the shareholders to elect the Board of Directors." This challenge, of course, was based on the further challenge to the vires of Zonal Martial Law Order No. 104 promulgated, on the 3rd of December 1960, which provided for the new administration and composition of the Company running the Chittaranjan Cotton Mills, i.e., the company referred in the above quotation from the judgment. It is evident that the action under the Martial Law Order No. 104 in that case was complete, when it was challenged by means of a writ petition. The other case, i.e., Muhammad Afzal's ease, would have been more near to the present case, if we would have held that the acquisition was to be completed under the M. L. O. No.

126. If that were so, the compensation would have had to be assessed and paid, as an action and proceeding to be continued under the M. L. O. And because the substantial part or for that matter the real part of acquisition qua the owners, i.e., the payment of compensation was yet to be made, on the analogy of Muhammad Afzal's case, it could have even then been held that the actions and proceedings could not be continued under a void piece of legislation, i.e., M. L. O. No.

126. Because in that case, though it is mentioned at page 412 of the report that "no liability or obligation was acquired, accrued or incurred in most of the present cases under the impugned Martial Law Orders", yet it was noted in an earlier part of the judgment on the same page of the report that what their Lordships of the Supreme Court were then concerned with, was merely pronouncement upon validity or propriety of `actions initiated' and at that time sought to be enforced by the relevant Martial Law Orders; and that in so far as these were concerned, they were never protected by the Laws (Continuance in Force) Order and therefore, their validity could in appropriate cases, always be questioned, if that did not amount to questioning the Martial Law Order itself. It was further held that 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) had, notwithstanding the repeal of all Martial Law Orders, saved the previous operation of any Order or anything duly done or suffered there under and did not affect any right, privilege, obligation or liability acquired, accrued or incurred there under was also not of much assistance in that case; because under clause 3 of P. O. No. 29 of 1962, the acts and liabilities which were saved were the acts and liabilities which were duly done or suffered thereunder. In the present case, we have no doubt that the actions as to acquisition and compensation were not duly done under M. L. O. No. 126 and so was held in the earlier judgment of this Court. Therefore, the reasoning of Muhammad Afzal's case as well does not help the owners in this case. There is another aspect of this matter. After having held that M. L. O. No. 126 was an invalid piece of legislation, the High Court directed fresh assessment and award of compensation. It cannot be imagined that after having found the M. L. O., as invalid legislation, the High Court would have directed the continuance of proceedings for the remaining part of acquisition or compensation under that very invalid legislation. Therefore, in any case at least, from the stage that the High Court directed a fresh compensation to be assessed, awarded and paid, it will have to be held that it was not to be done under M. L. O. No. 126 but under the valid law which had by then been enforced, i.e., Ordinance XXII of 1963, which incorporated, in itself, the provisions contained in the Land Acquisition Act, by the process of reference. Therefore, apart from the fact that the High Court held that the assessment of compensation was not duly done, and for that reason P. O. No. 29 of 1962 is not attracted to the case; but also for the reason, that the fresh assessment started by virtue of the High Court judgment could not in any case, be under the invalid legislation, the contention loses all force. There is still another aspect of this very matter. The argument of the learned counsel for the owners is that the P. O. No. 29 of 1963 being an existing law under Article 225(7) of the Constitution, saved and kept in tact the proceedings and actions taken under M. L. O. No. 126; and, therefore, it could not now be annulled by a law made under the Constitution, i.e. Ordinance X of 1968. It is true that P. O. No. 29 of 1962 was Article 225 and it will be held to be an existing law under Article 225(7) on the day the Constitution came into, force; but it is not correct to say that that law cannot subsequently be changed or repealed by valid legistation. The existing law mentioned in Article 2257; will have to remain in force only, in so far as, it is protected in clause (1) of Article 225 which provides that all existing laws, subject to that Article (Article 225) and other provisions of the Constitution, shall continue in force until altered, repealed or amended by the appropriate Legislature. Again in clause (6) of Article 225, it is provided that the powers exercisable under clauses (4) and (5) thereof were subject to the provisions of any Act of the appropriate Legislature. Reacting Article 225 as a whole, creates an irresistible conclusion that the existing laws saved by that Article were undoubtedly subject to the subsequent repeal, alteration and amendment by laws enacted under the Constitution. Ordinance XXII of 1963 brought about a complete reversal from M. L. O. No. 126 (if at all it was saved by P. O. No. 29 of 1962; and Ordinance X of 1968 by repealing Ordinance XXII of 1963, if not directly, at least impliedly, also repealed M. L. O. No. 126 (if, at all, it stood saved by P. O. No. 29 of 1962). Therefore, there is no force in this contention of the learned counsel which is based on the provisions of P. O. No. 29 of 1962, Article 225 of the Constitution and Martial Law Regulations Nos. 83 and 93.

16. The contention of the learned counsel for the owners that in case the acquisition and compensation was to be under Ordinance XXII of 1963 the repeal of that Ordinance by Ordinance X of 1968 will have to be treated as under the Constitution and that the incidence of this repeal is provided in Article 250 of the Constitution which, regardless of any intention to the contrary, saves the rights and obligations created under the repealed Ordinance and that the same can be enforced by virtue of the same provisions, i.e. Article 250 of the Constitution, had no force either. In other words, the contention is that whenever sub‑constitutional law made by virtue of the power given by the Constitution repeals another law, this repeal is under/by virtue of the Constitution; therefore, Article 250 of the Constitution will apply to this repeal; and because the provisions contained in this behalf in the General Clauses Acts (section 6 of General Clauses u Act of 1897 and section 4 of West Pakistan General Clauses Act, 1956) do not apply to such a repeal, therefore the phrase contained therein, i.e., "unless a different intention appears" and which is missing from Article 250, will have no application; and if that is so, rights and obligations once created by a law have to be continued and enforced under the present Constitution for all times, by virtue of Article 250 of the Constitution. This, in effect, is the attack on legislation with retrospective effect. This last aspect of the contention, we will deal with, when considering the other argument of the learned counsel in respect of Article 2 of the Constitution. So far as the contention about application of Article 250 of the Constitution to the repeal in question is concerned, it is necessary to make mention of the language used in some of the provisions of the Constitution which, according to the learned counsel; support his contention. They are Article 29(2) and (5); Article 30(7) and (8); Article 79(2) and (5); Article 40; Article 130; Article 140; Article 143; Article 225; Article 242 (definition of Legislature). These provisions were cited in order to demonstrate the use of the words "by", "under" or "by virtue of", in the Constitution. It is true that these words have been used in the Constitution at different places, as pointed out by the learned counsel, and sometimes in different contexts: but for the purpose of interpreting these very words used in Article 250 of the Constitution, we will have to keep in view the concept of repeal of laws, provided in the Constitution. Mr. Brohi frankly conceded that he did not find any difference between the phrase "under the Constitution" and the phrase "by virtue of the Constitution"; and that they were not different from each other. According to him, they represent the same situation; but it was vehemently argued by him that "by the Constitution" and "under/by virtue of the Constitution" are totally two different concepts. According to him, when the repeal is directly provided in the Constitution, it is "by the Constitution"; and when the repeal is by a law made under the Constitution, it is "under/by virtue of the Constitution". Apart from the fact that this interpretation, if taken to its logical ends; will lead to most extraordinary results, which were never intended by the Constitution, one of which will be that no retrospective legislation would be possible under the Constitution, the plain language of Article 250 itself does not support the view canvassed by the learned counsel. It is evident that the Constitution itself contains the incidence of repeal in more than one provisions. In order to cover the whole concept of repeal provided in various provisions of the Constitution and undoubtedly in different forms; Article 250 used a comprehensive phrase, i.e., "by, under and by virtue of"; so as to cover every conceivable situation dealing with repeal provided in the Constitution itself. That is also why the words "or is deemed to have been repealed" were used immedi ately after the word "repealed" in Article

250. This shows that the repeal mentioned in this Article is only that which is some how‑ or other provided in the Constitution itself. The Constitutional (Fourth Amendment) Act (XV of 1965), by its section 6, added the following words at the end of the opening part of Article 250:‑ "Except as otherwise provided in the Constitution." These words also provide some assistance in interpreting the earlier part containing "by, under or by virtue of". The words added by the amendment, read together with the words already together existing, further show that the repeal, which is referred in this Article, is provided in the Constitution. It means that if the saving or otherwise has been provided in a particular repeal ing provisions of the Constitution then, the saving provided in the general provision, i.e., Article 250, will not apply. This is the clear effect of the said amendment. Apart from the above direct interpretation of the language used in Article 250 of the Constitution, the provisions contained some other Articles also support the sama interpretation. Sub‑Article (2) of Article 225 contains a clear example of repeal by the Constitution, when it provides: "The Presidential Proclamation made . . . . and the Order . . . are repealed with effect as from that day, but this clause shall not affect any existing laws made under those Orders". Article 29(2) and Article 79(2) provide for another situation, where repeal is provided in the Constitution. The provision is: "An Ordinance made and promulgated under this Article shall, as soon as is practicable, be laid before the National Assembly" and shall, subject to the provisions of clauses (3) and (4) of this Article, stand repealed upon the expiration of the prescribed period, or if a resolution disapproving it is passed by the Assembly, upon the passing of that resolution. This can be said to be an example of a repeal "under" the Constitution; because it is not a repeal "by" the Constitution but reference is to a situation, when a law shall stand repealed upon the happening of a certain thing. Keeping in view the position taken by the learned counsel that "under" and "by virtue of" relate to the same concept, the above‑mentioned are the clear examples of the two separate concepts of repeal, mentioned in Article 250 of the Constitution, as provided in the Constitution. But another type of repeal might also be mentioned which can be taken as a repeal by force of the deeming clause. That is provided in Articles 6 and 134 of the Constitution. Article 6 provides that "any taw ~ . . in so far as it is incon sistent with the rights conferred by this Chapter, shall to the extent of such inconsistency, be void". This voidance of laws, which are inconsistent with the fundamental rights, can be con sidered to be an implied repeal, for the time being, of those laws by the help of the deeming clause; because any such law will be deemed to have been repealed by its voidance by the force of Article 6 of the Constitution. Similarly, Article 134 provides that "when a Provincial Law is inconsistent with a Central Law, the latter shall prevail and the former shall, to the extent of the inconsistency, be invalid". This also provides for an implied repeal, by force of the deeming clause, of a Provincial Law which is inconsistent with the Central Law, because of its invalidity. Both these Articles can be considered to be the, examples of repeal, neither "by" the Constitution nor "under" the Constitution; but "by virtue of" the Constitution. One of Mr. Brohi's arguments was that the Constitution of 1962 provided a complete interpretation code, built in itself, in the form of Chapter 4 Part XII and some other provisions in the body of the Constitution. That being so, according to him, General Clauses Act was not applicable for the interpretation of the Constitution; therefore, the repeal under discussion in this case will have to be governed by Article 250 which falls in that Chapter. It is not necessary, in this case, to examine the question whether the General Clauses Act has altogether been excluded as an aid for the interpretation of the Constitution. It might be that if a specific provision as to interpretation of the Constitution is contained in the Constitution, the application of General Clauses Act will, for that reason, be excluded; but it will be open to argument that if a particular situation is not provided for in the Constitution and the same is provided for in the General Clauses Act, the latter might well be applied for interpreting the Constitution also. The question, however, does not arise in the present case because the reliance is only on Article 250 of the Constitution in respect of repeal which, we are of the considered opinion, deals with the repeal provided in the Constitution, as explained above. The argument advanced by the learned counsel, qua, the exclusion of General Clauses Act, in so far as the Constitution is concerned, however to some extent, supports the view we have taken of Article 250 and its application. Keeping the historical and constitutional background in view, it will not be out of place to consider that various measures of constitutional and legal import, which prevailed during the Martial Law in the form of Presidential Proclamation, Laws (Continuance in Force) Order/Orders and Martial Law Regulations, etc., were repealed by the Constitution. The effect of their repeal was not considered proper by the Constitution‑makers to be left to the interpretation through the General Clauses Act. Special provision was needed to keep alive the effect of some of them in a particular manner. That may be one of the reasons why Article 250 was enacted. If Mr. Brohi's argument is applied in a plain manner for interpretation of Article 250 itself, it will mean that this provision, amongst others, was meant for the interpretation of those Articles of the Constitution which provided repeal "by, under or by virtue of" the Constitution itself. In other words, Article 250 and not General Clauses Act was to apply to the repeal provided in the Constitution, as explained by us above. The learned counsel then cited some cases from English jurisdiction to support his contention that the use of words "by" and "under" in a statute can be in totally different context, i.e., the use of the words "by an Act" implying direct provision in the Act, and the use of the words "under an Act" implying something not provided in the Act but by the force of the Act. They are Re: Smith Davidson v. Myrtle ((1896) 2 L R 1 Ch. D 590), Elve v. Boyton ((1891) 1 L R Ch. D 501) and Attorney‑General v. Dodenten ((1897) 2 Q B D 373). These cases relate to a distinction brought out between an incorporation of a Company by Charter/Act of Parliament and under an Act of Parliament. In those cases, the powers of some trustees, under the peculiar circumstances to invest the trust funds in particular Company, were in question. It was held that a Company incorporated "by" an Act of Parliament meant one which "by" an Act is brought into existence, and did not include a Company incorporated "under" an Act. Therefore, the power to invest in the shares, etc., of a Company incorporated "by" the Act did not include the purchase of shares etc, of a Company registered "under" the Companies Act. In Stroud's Judicial Dictionary, Volume IV, we have noticed, from various meanings given to the word "under" in English laws, that this word has not been clothed with uniform meaning. Similarly, the word "by" has been used in different senses in those laws. The phrase "under or by virtue of" has also been used, some times, in the sense of "in pursuance of", in English statutes. In our own jurisdiction and systems of laws, we may also come across statutes using the word "under", in the meaning that the acts done in pursuance of the rules, made under those statutes, themselves (acts) be considered to have been done under those statutes. Therefore, we refrain from laying it down as a general proposition that whenever the word `under" is used in a statute, it must necessarily mean that the acts to be done under the statute cannot be under the rules and bye‑laws made under that statute. It all depends upon the language used in and circumstances of a particular statute. In so far as the interpretation of Article 250 of the Constitution is concerned, in view of the above discussion, we have come to the conclusion that it is a special provision which is to be interpreted having regard to the words used and the subject dealt therein, the peculiar circumstances in which it was enacted and in context of the repealing provisions contained in the Constitution itself. Therefore, we are of the view that Article 250 of the Constitution deals with the repeal provided in the Constitution and not to the repeal by sub‑constitutional enactments passed in pursuance of the ‑powers of legislation granted by the Constitution. To this type of repeal, the provisions contained in the General Clauses Acts will apply. This view is also supported by the observations in the case of Syed Akhlaq Hussain (P L D 1965 Lah. 147). Though that case came under appeal in the Supreme Court, but the observations at page 171 of the report have not been disapproved. Thus the ordinary and plain effect of repeal of Ordinance XXII of 1963 by Ordinance X of 1968, is provided in section 4 of the West Pakistan General Clauses Act of 1956. In that Act, it is clearly mentioned that the rights and liabilities will continue and be enforced, "unless a different intention appears" in the repealing law. The repealing law in this case is Ordinance X of 1968 which, by its section 3, directly repeals Ordinance XXII of 1963. There is no saving provision in the repealing Ordinance, except for the incidence of restoration of possession, etc., an the payment of compensation for use and occupation. More over, the intention, as gathered from the chain of events, the matter involved in the law, the preamble and the provisions of the repealing Ordinance, is more than clear that the rights and obligations created by the repealed Ordinance, i.e., XXII of 1963, as claimed by the owners, have not been saved. It will not be out of place to mention here that none of the learned counsel appearing for the owners argued that this was not the intention of the repealing Ordinance. This, of course, is subject to the arguments raised by the learned counsel on the basis of language used in section 4 of Ordinance X of 1968, in so far as the incidence of the acquisition and vesting is concerned which is dealt hereinafter.

17. This leads us directly to the consideration of contention No. (iv) raised on behalf of the owners and mentioned in paragraph No. 12 of this judgment, which is with regard to the effect of the repealing Ordinance on acquisition and the rights which had already accrued in their favour. According to the learned counsel, the land stood acquired by the Trust under the Zonal M. L. O. No. 126, and in any case under Ordinance XXII of 1963, and thus vested completely in the Trust. The compen sation had already been assessed and what remained was only the payment of that compensation to the owners, when the repealing Ordinance came into operation; and that the repealing Ordinance provided for the surrender of possession only, thus leaving ‑intact the liability of the Trust to pay the compensation for `acquisition'. We do not agree with the learned counsel on the very premises of his argument. The acquisition was deemed to have taken place on transfer of possession by the Commissioner to the Trust under clause (d) of section 3 of M. L. O. No. 126; but this cannot be considered in isolation from the remaining provisions of that Order which, inter alia, provide that the compensation was to be paid before the 30th of May 1962. This was not done and as observed earlier, the judgment of this Court in the earlier proceedings is conclusive that the question of acquisition and payment of compensation was to be considered under the provisions of Ordinance XXII of 1963. Section 3 of that Ordinance read as a whole provided a complete process of acquisition and compensation; which process finds its parallel in the Land Acquisition Act; and indeed the provisions of Land Acquisition Act have been made applicable by reference to that process, by means of clause (b) of section

3. The Commissioner was to take possession under clause (a); the compensation in accordance with the principles laid down in the Land Acquisition Act was to be awarded by the Land Acquisition Collector subject to confirmation by the Commissioner; the compensation was then to be paid by the Trust; and finally the land was to be transferred to and put in possession of the Trust whereupon it was deemed to have been duly acquired by the Trust. Strictly speaking, the process provided in section 3 had not yet been completed, when the repealing Ordinance was promulgated; therefore, it is not possible to hold chat the acquisition under Ordinance XXII of 1963 was complete when it was repealed. The learned counsel for the owners tried to draw a comparison between the incidence of requisition/derequisition provided in the Defence of Pakistan Ordinance of 1965 and the provisions in some laws prevailing in East Pakistan on the one hand and the provisions contained in the repealing Ordinance X of 1963 on the other, and contended that the repealing Ordinance only provided for derequisitioning and did not, in fact, provide for the divestiture. What had, in fact, happened, if looked at with reference to the provisions contained in section 3 of Ordinance XXII of 1963, was short of complete acquisition. Therefore, the repealing Ordinance, in the circumstances, was to provide for up to the stage of acquisition which had reached under the repealed Ordinance, and that stage was the taking over of the possession and the use and occupation of the property in the interregnum. That is why the surrender of the possession and compensation for the use and occupation is provided in the repealing Ordinance Apart from that, we are not convinced that, even if the parallel provisions of the Land Acquisition Act, in respect of incidence of vesting, were to be superimposed on the provisions of Ordinance XXII of 1963, the vesting was complete in the present case. Section 31 of that Act provides for the immediate tender for payment of compensation "on making an award. The use of words on making an award . . . . . the Collector shall tender payment of the compensation" in section 31 indicates the making of an award to be followed in quick succession by the tender of payment under the award. Section 16 provides that when the Collector has made an award, he may take possession of the land which shall thereupon vest in the Government absolutely. In this case, the tender of payment of the award had not yet taken place when the repeal took place. The same matter can be looked at from another angle. Section 31 of the Act provides that on making an award under section 11, the Collector shall tender payment. Section 16 thereof provides that when the Collector has made an award under section 11 and has taken possession of the land, thereupon the land will vest in the Government. Sections 16 and 31, if read in juxtaposition to each other, result in a legitimate deducible inference that after the snaking of the award under section 11 and after taking the possession, the tender of payment and the vesting have to take place at one and the same time. In this case, the payment had not yet been tendered, therefore, the vesting had not yet taken place; and in this view of the matter, the repealing Ordinance could, only, have provided for the surrender of possession and the payment of compensation for use and occupation. This interpre tation and conclusion, incidentally, happens to be in line with volition taken by the owners in para. 4 of their application, dated the 17th of June 1964, reproduced in paragraph 14 of this judgment, to the effect that acquisition could not be complete, in this case, without payment of compensation. Even if it is considered that the vesting had taken place under the repealed law, it cannot be said that the repealing Ordinance did not provide for the divestitute. It is true that in section 3 of Ordinance X of 1968, no mention is made of divestitute. However, if we read the following provisions contained in the Ordinance together, a complete divestiture appears to have been intended by the law‑maker:‑ "(i) 4. (3) The delivery of possession of land . . . . . shall be a full discharge of the Trust from all liability in respect of such land . . . . . (ii) 4. (5) Where a notice referred to in subsection (4) is published in the official Gazette, the land specified in such notice shall be deemed to have been delivered to the person entitled to possession thereof, and the Trust shall not be liable for any compensation or other claim in respect of such land

(iii) 5. (6) The payment by the Trust of compensation shall be a full discharge of the liability of the Trust in respect of such land and notwithstanding anything contained in any other law for the time being in force or in any decree, judgment or order of Court, the Trust shall not be liable to pay any other compensation for the acquisition or use of occupation of such land." These provisions, particularly subsection (6) of section 5, are a complete answer to the argument of the learned counsel. The word "acquisition" in section 6 (5) appears to have been used to remove all doubts about divestiture. Even if it is used by way of abundant caution, it has the intended effect of conveying divestitute. It is also significant to note that there is no saving provision in the repealing Ordinance, except in respect of the payment of compensation for use and occupation. This also shows the intention. Moreover, the law itself is very clear. It does not leave any doubt that the divestiture, if at all was necessary, is provided in the repealing Ordinance. There is another aspect of the same matter. The acquisition under the Martial Law Order or under Ordinance XXII of 1963 was by means of a deeming clause, i.e., on the taking of the possession, the acquisition was deemed to have taken place. The repealing Ordinance contains sufficient provisions to nullify the effect of the above‑mentioned deeming provisions. If that is so, the position reverts back to the stage of possession only; and that position has sufficiently been reversed by the repealing provisions. Mr. Fazle Hussain appearing on behalf of the owners, in reply to the arguments of Mr. Bhatti, cited some judgments (including those from Indian jurisdiction) to show as to what is meant by acquisition under various laws. In view of our finding on the question of the language used in the repealed and repealing Ordinance, the intention contained therein and the application of the General Clauses Act for purpose of interpreting the repeal, we have come to the conclusion that the repealing Ordinance leaves no doubt that the repeal in this case was complete and there is no saving in respect of the payment of compensation, qua, the alleged acquisition. Therefore, it is not necessary to examine those. Mr. Fazle Hussain also contended that there are no specific provisions in the repealing Ordinance for compen sating the owners in respect of the nursery and some structures which have since been removed. Mr. Bhatti's reply was that the structures and nursery, if they have been removed during the period of occupation by the Trust, will be considered as falling within the terms "use and occupation" and compensation will certainly be assessed; but he added that the amount, according to the repealing Ordinance, if not agreed upon, will have to be issued by the Deputy Commissioner. In view of this statement by the learned counsel for the Trust, we need not comment any Further on this matter; because on the decision we have taken about the repeal, no further comment is called for, in this behalf, in these proceedings.

18. The contentions raised by Mr. Brohi, in respect of challenge to retrospective legislation under the present Constitution, whether based on Article 2 of the Constitution or on the concept of finality of the decisions by the superior Courts under Article 98 read with Article 58 of the Constitution, mentioned as Nos. (iii) and (v) in para. 12 of this judgment, can be considered together. Mr. Brohi agreed that the power to make law under the Constitution carries along also the power to make law retrospectively; but he asserted that as soon as the law so made touches vested rights, the bar in Article 2 will become effective. Similarly, his contention on the basis of Article 98 is that no law, particularly an Ordinance, can be made so as to take away the vested rights having accrued under the decision of the High Court given under constitutional jurisdiction contained in Article 98, particularly when that decision has been confirmed by the Supreme Court. The right that he refers to in this case, is the right to receive compensation as ordered by the High Court and confirmed by the Supreme Court in earlier proceedings. The question does not require a detailed examination by us; because it has now been decided by the Supreme Court and has also been considered in two judgments of this Court. It will suffice to make reference to, and quote, some observations contained in those rulings. In Muhammad Yusuf v. The Chief Settlement and Rehabilitation Commissioner and others (P L D 1968 S C 101), their Lordships of the Supreme Court observed:- "As a result of the Supreme Court judgment in Jalal Din's case, such exercise of power by subordinate Settlement authorities was required to be interpreted as a final order, not subject to appeal and revision under Chapter VI, if it came before an executive or quasi‑judicial authority or a Court subordinate to the Supreme Court, after the 2nd November 1964. The Ordinance, however, had the effect that in such a case the executive or quasi judicial authority or Court in question, and equally, the Supreme Court, would be bound to act, in respect of the order under examination, as if at the time when it was made, it was subject to appeal and revision . . . . .To give the fullest effect to this argument would operate as a prohibition against the making of laws with retrospective effect in respect of all matters that are specified in Article

2. We do not conceive that the Article was intended to produce so wide an effect in relation to the well‑established practice of retros pective, or retroactive legislation. It is difficult to construe Article 2 as conveying a fundamental right in every citizen of Pakistan and every person for the time being within Pakistan against the making of laws by the established Legislature, which expressly operate retrospectively or retroactively against his interests." While dealing with this question, an earlier judgment of the Supreme Court in the case of Mir Ahmad Nawaz Khan Bughti v. Superintendent, District Jail, Lyallpur and others (P L D 1966 S C 357), was also referred. In the latter judgment, their Lordships of the Supreme Court were pleased to observe that the distinction between retrospective legislation which affects rights or liabilities of persons and that which does not do so is without foundation; and further that ail legislation affects rights or liabilities, because Legislature either creates a right or takes away a right or restricts or enlarges a right or similarly affects liabilities. These observations read with the ruling in the case of Muhammad Yusuf, are clear answer to the contentions of the learned counsel whether based on Article 2 or Article 98 of the Constitution. The case of Muhammad Yusuf was referred and relied by their Lordships of the Supreme Court, while dismissing Civil Appeals Nos. 19, 63, 88, 89 and 94 of 1967, on the 20th of May 1968. It may be mentioned that in one of those appeals, i.e., Civil Appeal No. 19 of 1957, the case, which is known as Ghulam Mohi‑ud‑Din's case, had earlier gone up to the Supreme Court; and it was after the proceedings conducted on the remand by the Supreme Court, that the case again came up before the Supreme Court. In fact, the retrospective legislation referred in all these cases had nullified the effect of the decision of the superior Courts on interpretation of the unamended Displaced Persons (Compen sation and Rehabilitation) Act, 1958. The question of retrospective legislation under the present Constitution came up for decision before a Division Bench of this Court, in a very recent case relating to Cotton fee, in Writ Petition No. 417 of 1967, decided on the 23rd of September 1968. In the judgment, written by one of us (Muhammad Iqbal, J.), it was observed: "The power to amend and repeal legislation as well as the power to enact it, is vested in the Legislature. A legislative act does not bind a subsequent Legislature. It has the right to pass the laws even to have a retrospective effect, with reference to any matter covered by law of an earlier Legislature unless it is forbidden by the Constitution. We know of no principle of construction by which the legislative act may be made irrepealable, because if any legislation is given a permanent character it would give rise to most injurious consequences, affecting both the citizens and the State." While dealing with the question of Article 2 of the Constitution being a bar to such legislation, the case of Muhammad Yusuf referred above and an earlier case cited as Muhammad Sharif v. Muhammad Saeed‑uz‑Zaman (P L D 1968 Lah. 122), were referred and it was held that Article 2 was not a bar to retrospective legislation. In presence of the view held by the Supreme Court as well as this Court and expressed in the above‑mentioned rulings, we find no force in the contention raised by the learned counsel. As the questions about the taking away, retrospectively, of rights created in different relevant situations, in our view, are fully covered by decided cases; therefore, we have refrained from making any further comment on the scope of jurisdiction under Article 98 of the Constitution. We should not be considered to have held that the right to invoke constitutional jurisdiction granted to the High Court under Article 98, can, in any way, be taken away or whittled down by a subordinate legislation. That is a separate subject and is not germane to the point raised in this case.

19. After Mr. Brohi had concluded his arguments on the points raised by him and before we called upon Mr. Bhatti to address us, Mr. Brohi suggested that if his contentions were not accepted by the Court, we will then make a request for impleading the Provincial Government and the Provincial Governor, in respect of the allegation of mala fides in enacting the repealing Ordinance X of 1968. On our comment that it will not be proper to decide the case piecemeal, Mr. Brohi stated that "at present the matter is complete for final disposal in one way or the other", and therefore he had nothing more to say in this behalf. We have not dealt with the question of mala fides and other related matters; because, as explained above, the question was not agitated before us during the arguments, and also because of the difficulty, as was also felt by Mr. Brohi, that all the parties concerned in the matter and sufficient date were not before us.

20. Before concluding the arguments in this case, Mr. Fazle Hussain, who addressed us in reply to the arguments of Mr. Bhatti, vehemently argued that no relief should be granted to the Trust, because of its tainted conduct in the matter of the acquisition of land in the Angoori Bagh Scheme. He particularly referred to the public interest involved in the question of expen diture by the Trust of about 15 lac rupees, incurred so far in respect of the said Scheme, which will go waste if the repealing Ordinance is implemented. Mr. Bhatti, with equal vehemence, contested the amount of expense and asserted that it was not more than 2 lac rupees. The question of conduct of parties in this case presents one of the most extraordinary pictures, one can come across. Leaving aside the genesis and early history of the Angoori Bagh Scheme, the motives for which it was framed and the difficulties which were encounted in implementing it up to 1962, when Zonal M. L. O. No. 126 was promulgated; we have been struck by the contradiction in positions and pleas at different stages of the litigation, in so far as the conduct of both the parties is concerned. In the earlier writ petition filed in the High Court in 1962, the position taken by the owners initially was that the acquisition was invalid; and in the alternative, they claimed an amount of Rs. 400 per marla as compensation for the land. This position, both on the question of acquisition is well as on the question of compensation, was seriously contested by the Trust in their written statement. During the pendency of that writ petition, Ordinance XXII of 1963 was promulgated which evidently helped the Trust out of difficulty, even if it was not promulgated at their instance. The result was that the‑ owners gave up the plea of invalid acquisition, and claimed for fresh assessment of compensation; but did not, at any stage in those proceedings, modify their stand as to the value of the land being Rs. 400 per marla. When the case was taken .up by the Collector, Improvement Trust for assessment of compensation afresh, he appears to have conducted in somewhat unusual manner in not assessing the compensation afresh, in respect of owners other than the successors of Mian Iftikhar-ud‑Din. In matter of assessment, he increased the award from Rs. 400 to Rs. 600 per marla, which was Rs. 200 per marla more than the claim of the owners in the High Court. Mr. Fazle Hussain wag at pains to explain both the circumstances. We do not think it necessary to comment any further on this particular part of conduct of the Collector which, according to the Trust, was not above board. The Trust took up the matter in appeal to the Supreme Court; but it is again significant to rote that it did not challenge the decision of the High Court on the question of acquisition. On the contrary, the only question raised in the Supreme Court was of the date with reference to which the compensation was to be assessed. The Trust, after the fresh award by the Collector, tried to avoid the payment on one or the other pretext. It also appears from the replies, given by the Trust to the demand made by the owners, that the Trust approached the Provincial Government for advice/assistance in the matter. The owners filed the present writ petitions in the High Court seeking a direction to the Trust to perform their statutory obligation of making the payment. Surprisingly, the Trust, in reply to these petitions and contrary to their earlier stand, took the position that the Zonal Martial Law Order No. 126 and Ordinance No. XXII of 1963 were invalid legislation. They also filed a belated writ petition, during the hearing of the petitions of the owners, to challenge the legislation as ultra vires. But for reasons best known to them, it was only in respect of lands of few owners, including, of course, Mian Arif Iftikhar and his family. The owners, in reply to the last-mentioned writ petition, took the position, contrary to what they had asserted in their own writ petitions in the earlier round. No doubt, the Trust tried to get relief by filing writ petition in the High Court; but it appears that, simultaneously, thinking/effort was going on in the concerned Departments to bring in a legislation, which ultimately came in the form of Ordinance No. X of 1968. One practical result of this status quo anti by legislation, undoubtedly, is a substantial waste of public money and time; frustration of, and allegation of mala fides by some owners apart. Some; because most of the owners have willingly accepted the position created by Ordinance No. X of 1968 and we have decided their petition accordingly. Be that as it may, one thing is clear that but for this legislation, the judgment which we were going to announce, would have been against the Trust. In these circumstances, the grievance of Mr. Fazle Hussain is that in reality, and if not so, in appearance at least, the Trust, in order to get out of a difficulty, has procured the legislation by means of an Ordinance. And on this basis and also due to the conduct of the Trust related hereinbefore, he argued that no relief should be granted to the Trust. A similar contention based on the conduct of the owners has been raised by Mr. Bhatti, in respect of their two writ petitions seeking a direction under Article 98 for relief as to the payment of compensation to them. The learned counsel appear to be under a misapprehension about the use of discretion under Article

98. It is true that in a proper case, under Article 98, the petitioner can be refused relief due to his conduct, even if otherwise he is able to assail successfully the impugned order or action. The authority for this proposition is clearly available in the ruling of their Lordships of the Supreme Court in Ghulam Mohi‑ud‑Din's case (P L D 1964 S C 829). But we cannot adopt that course in the three writ petitions being dealt in this judgment, for the reasons:‑‑ (i) In the peculiar circumstances of this case summarised in this para. it becomes very difficult and it will be improper to apportion the responsibility and give a decision on the basis of the conduct of any of the parties. In fact, apart from the history of the case and its narrative in different forms, we do not have sufficient data to decide the question of conduct adversely to any of the parties concerned, in these proceedings under Article 98: (ii) The decision on the basis of conduct will involve a detailed and lengthy probe into the circumstances in which various legislative measures were promulgated and actions were taken. This will include the pie and post Constitution periods. We consider it not only impracticable but also unnecessary to do so; because the decision can rightly be given on the determination of questions of law raised by Mr. Brohi and considered by us in this judgment. (iii) Even if the relief claimed by the Trust in their writ petition is to be refused on the basis of their conduct, they cannot be deprived of a right to plead the same questions, as a matter of defence, in the writ petitions filed by the owners. The same will be the result, if the position is reversed, qua, the petitions of the owners. There is no doubt about the proposition that under Article 98, the High Court may refuse relief to a petitioner on the basis of his conduct; but we cannot refuse to consider the defence of a respondent in a writ petition on the basis of his respondent's conduct. In other words, a petition under Article 98 can only succeed on the basis of its own force, with reference to the grounds mentioned in sub -Article (2) of Article 98 and not on the basis of any adverse comment or finding on the conduct of the respondent. (iv) In view of our findings on the questions involved in this case, particularly the promulgation and effect of Ordinance X of 1968, the writ petition of the Trust has become infructuous. It, in fact, was stated so by the learned counsel for the Trust himself at one stage. And due to the same reason, i.e., the law being against the owners' pleas, their writ petitions cannot succeed, even if we were to hold against the Trust on the question of conduct. In view of the above reasons, there is no justification for us to exercise direction under Article 98 of the Constitution, so as to refuse relief to any of the parties, on the basis of the conduct attributable to one or more of them.

21. Before concluding this judgment however, we would like to state that the principle that "Justice should be done but it is also essential that it should appear to have been done", has ordinarily been considered to be applicable to Judicial Authorities only and not to the Executive Authorities: If this common but mistaken belief about the actions of the Executive, vis a‑vis, the requirement of justice, is extended to its logical conclusions, it may give rise to an absolutely wrong claim that the Executive Authorities are not bound to act in a manner, so as to give also an appearance that they are acting justly, properly and equitably. Nobody in the Executive, how highsoever he may be, can claim that he is entitled to act unjustly, while performing his executive duties ordained by the law or the Constitution. We have no doubt that the above‑mentioned principle also applies to the Executive Authorities with full force, particularly under the present Constitution and in our society which, it clearly appears from the preamble of the Constitution, is Islamic. They are bound, to act according to the dictates of justice in every act that they are supposed to perform under the law and the Constitution. And while so doing, they should further see that their acts also appear to be in accord with the demands of justice. These remarks have been necessitated by a realisation that in this case there have been and is an allegation of mala fides in respect of the promul gation of various legislative measures (actions by the Trust apart), whether in the form of Martial Law Order or in the form of the Provincial Ordinance. The power to legislate and enact laws is directly derivable from the Constitution. If the Constitution is the repository of the will of the people and the trust of the society, then the High Executive functionaries while promulgating the laws (when so empowered) or doing similar other acts, should not give even an impression or cause for complaint that the Constitution (the will of the people and trust of the society) is being flouted. This impression will necessarily be created in the mind of the public, when the acts do not appear to be done justly and according to the need of the situation. This principle also applies to the legislation by Ordinance. In this case, we have no data to decide the question that the legislation in question was brought about with a mala fide intention. But it can be argued that, keeping all the circum stances of the case in view, an impression can be granted that even if justification was available for bringing about the changes in law, they were brought about in an objectionable manner and at stages in point of time (particularly every time when the High Court was to decide the issue), that these actions of the Executive do not give the appearance of having been taken according to the real needs of the situation and demands of justice and fair play. In the light of what we have stated above in respect of the principle to be followed by the Executive, it is the duty of the Executive not to act in such a manner as to give rise to an impression mentioned above. We are fortified, in our view and remarks on this very vital and important matter of functions and duties of the Executive, by the observations made by Mr. Justice B. Z. Kaikaus (as he then was) in The Montgomery Flour and General Mills Limited's case (P L D 1957 Lah. 914). This ruling was cited, with approval, by their Lordships of the Supreme Court in Ikram Bus Service case (P L D 1963 S C 564), where it was held that even administrative bodies are under legal obligation to deal with all matters fairly, justly and equitably. It can be easily deduced from these observations that the dictates of justice demand that the Executive is not only to act fairly, justly and equitably; but also is bound to conduct itself in such a manner as to appear that it is, in fact, acting fairly, justly and equitably.

22. In view of our decision on the question of law involved in this case, on consideration of the merits involved in these writ petitions and with the above remarks, we dismiss Writ Petitions of the owners, i.e., Nos. 1119 and 1162 of 1968. The Writ Petition No. 1463 of 1968 filed by the Trust has, in the above circumstances, become infructuous and the same is disposed of accordingly as having become infructuous. There shall be no order as to costs. K. B. A. Petitions dismissed.