1993 PLP 162 (MLD)

F. Costs of the suit. The respondents were served and the respondent No.l moved an application under Order VII, rule 11, C.P.C. read with section 151, C.P.C. praying for rejection of the plaint on the grounds that, the suit was barred under the provisions of MLO‑34 as reconstituted by MLO‑89 and Article 15(2) of the Provisional Constitution Order. This application was contested. The learned IIIrd Senior Civil Judge, Karachi by an order, dated 4‑4‑1985 was pleased to reject the plaint in each case. Being aggrieved, the present applicants preferred Civil Appeals bearing Nos., 138 and 139 of 1985. Both the appeals were heard by llnd Additional District Judge, Karachi (East) and were dismissed vide judgment dated 1‑8‑1988. Hence these revision applications. I have heard the learned counsel for the parties and perused the record of the lower Courts. The learned counsel for the applicants has submitted that the Court while dealing with an application under Order VII rule 11, C.P.C. has to confine itself to the averments made in the plaint and the documents annexed to the plaint. He has further submitted that in the instant case the present applicants had amply shown that they were allotted the plots for the purpose of construction of hospitals which is a public purpose and, therefore, it cannot be said that they had deviated from the purpose for which the said plots were reserved. He has further submitted that the deviation, if any, as alleged had to be proved through evidence as the impugned order of the Liquidator of respondent No.l dated 4‑12‑1977, hereinafter referred to as Annexure H is not a speaking order inasmuch as no facts are mentioned there but simply the words used are "for commercial clinic and residential purpose (other than amenity purposes)". The learned counsel has further submitted that the ouster of jurisdiction of the Civil Court is not to be readily accepted unless the facts constitute an act which require passing of such orders; and then the orders so passed would become immune from interference by the Court. He has further submitted that the Civil Court is a Court of ultimate jurisdiction and can exercise the same where the orders passed by the authorities are mala fide and coram non judice. He has placed reliance on case‑law also and has further submitted that in the present case, there is nothing on the record to show that the impugned order Annexure H was passed by the Authority on the basis of any material facts. As against this Mr. Arif Bilal Sherwani, the learned counsel for respondent No.1 has submitted that the provision of Article 15(2) of the Provisional Constitution Order, 1981 has provided protection to the orders passed by Martial Law Authorities or by Authorities deriving powers under any Martial Law Order. He has further submitted that the impugned order Annexure‑H being an order under Martial Law Order No.34 cannot be challenged in the Civil Court as it stands protected under the above referred to Article. Mr. Faizuddin, the learned counsel for respondent No3 in each case has submitted that an allotment creates rights in the allottee and that allotted is not merely a licensee or sub‑licensee but has a right in rem in respect of the plots allotted to him. . I have considered the submissions made by the learned counsel for the parties. In the first instance, as argued by Mr. Faizuddin, Advocate, an allotment of the plot is not a mere licence but it creates a right in rem. In the case of Haji Noor Muhammad v. KDA. PLD 1975 Kar. 373 a Division Bench of this Court had held as under: ‑ "Mr. Nasir Khan also faintly attempted to argue that under the terms of the allotment and the allotment regulations of the KDA. the allottee is a mere licensee until the allottee builds a house and executes regular lease with the KD.A. This contention has no substance in view of the decision of their Lordships of the Supreme Court in the case of Kamaluddin Ansari v. Director, Excise and Taxation, that the allottees of plots in the P.E.C.H. Society were neither licensees nor sub‑licensees, though they had been so labelled in the agreements executed between the Government, the housing societies and the individual owners, for they had real interest in the land allotted to them. The criterion that has been laid down by their Lordships of the Supreme Court in the case of Abdul Bhai v. Muhammad Ahmed Din for distinguishing between a lease and a licence is whether any right in immovable property itself i.e. a right in rem, has passed to the person concerned. In this case clearly a right in rem in respect of the plot has passed to the allottee." As regards the facts of the case, the plaintiff has averred in the plaint that the said plots were allotted to them for the purposes mentioned in the allotment orders. The allotment in favour of Dr. Naseer Shaikh shows that it was an unconditional allotment while allotment in favour of Dr. Mah Jabeen was for the purposes of clinic‑cum‑residential. These allotments were made on 22nd of February and March, 1974 respectively. In order to appreciate the points involved in the case, it would be appropriate to reproduce the provisions of MLO‑34 and MLO 34 as reconstituted by MLO‑89 which read as under: "

34. In pursuance of the proclamation of the fifth day of July, 1977, and in exercise of the powers conferred by Martial Law Order No.3 issued by the Chief Martial Law Administrator, the Martial Law Administrator, Zone "C" is pleased to make the following Martial Law Order: All allotments of the plots which were reserved for roads, hospitals, schools, colleges, libraries, playgrounds, gardens, parks, community centres, mosques, graveyards, or for such other amenity/community purposes but were subsequently un-authorisedly or by political manoeuvres converted into residential or commercial plots and on which no construction has been made are hereby cancelled and the plots so cancelled shall be resumed by the authority in which the plots initially vested and the amounts, if any, paid by the allottees shall be refunded under the normal rules.s

89. In exercise of the powers conferred on me by Martial Law Order No3 issued by the Chief Martial Law Administrator, I, Lieutenant‑General, S.M. Abbasi, Martial Law Administrator Zone "C", hereby reconstitute Martial Law Order No.34 as follows, which shall be deemed to have always been so reconstituted:‑‑ 1.Allotment of amenity plots which have been converted for other purposes, in ' contravention of the law or rules regulating the conversion or for political considerations from Ist January 1972 to 4th July 1977 and on which no construction has been made shall stand cancelled and possession thereof shall be resumed by the authority in which the plots initially vested and the amounts, if any, paid by the allottees shall be refunded to them as admissible under the rules: Provided that nothing herein contained shall apply to the conversion of amenity plot in the Housing Schemes, made before coming into force of the Sindh (Amendment of Laws) Act. 1974 or in accordance with the procedure laid down in the said Act. Explanation.‑‑‑Amenity plots mean the plots reserved for roads, hospitals, schools, colleges, libraries, playgrounds, gardens, park, community centres, mosques, graveyards or for such other public purposes." (Underlining is done by me). Article 15(2) of the Provisional Constitution Order, 1981 provides as under: "

15. Validation of Laws Act etc.... (1),.................................................... (2) All orders made, proceedings taken and acts done by any authority, or by any person, which' were taken or done, or purported to have been made, taken or done, on or after the fifth day of July, 1977, in exercise of the powers derived from any President's Orders, Orders of the Chief Martial Law Administrator, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye laws, or in execution of any orders made or sentences passed by any authority, in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding any judgment of any Court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any Court on any ground whatsoever, provided that nothing in this clause shall apply to transactions past and closed." From the above contents of the MLO‑34 as reconstituted by MLO‑89 it is apparent that only the allotment of those amenities plots is to be cancelled which were converted for other purposes in contravention of the law or rules regulating the conversion or for political consideration. However, there is a proviso added to the above provision which provides that the said provision will not apply to the conversion of amenity plots in the Housing Schemes made before coming into force of Sindh (Amendment of Laws) Act, 1974. In the present case, the allotments are made by the present respondent No.2 who are a Cooperative Housing Society and obviously the plots appeared to be in the Housing Scheme. These allotments are made for the purposes mentioned in allotment orders Annexure B which allotment orders are issued and consequent Lease Deeds registered much before coming into force of Sindh (Amendment of Laws) Act, 1974 which was published in the Gazete of Sindh (Extraordinary) dated 11th December 1974. In these circumstances, it would appear that the allotment of these plots would not be hit by the provisions of MLO‑34 as reconstituted. However, the two Courts have not dilated on this question and I would also, therefore, not give any conclusive finding in this respect and leave the question open to be contested between the parties in view of material that may be placed on record. However, the two Courts below appeared to have considered only the aspect of the jurisdiction. It may be observed that in invoking the ouster of jurisdiction, certain prerequisites are to be taken into consideration. No doubt, Article 15(2) of the Provisional Constitution Order, 1981 as reproduced above provides an immunity to all orders made, proceedings taken and acts done by any Authority which were made, taken or done or purported to have been so taken, made or done in exercise of the powers derived from any President's Order, Orders of Chief Martial Law Administrator, Martial Law Regulations etc. Even in such cases it will be for the Authority concerned to show that the order passed or act done is not mala fide or coram non-judice. In the present case the impugned order Annexure‑H is not passed by Martial Law Authority but by the Liquidator of respondent No.1 acting under MLO‑34 as reconstituted. It is, therefore, incumbent for such Authority to show that the grounds for passing such orders did exist whereas the impugned order simply shows that cancellation is for that this plot was allotted for commercial clinic. In the case of Zafarul Hassan v. The Republic of Pakistan PLD 1960 SC 113 it was observed by their Lordships) as under: "If a statute provides that an order made by an authority acting under it shall not be called in question in any Court, all that is necessary to oust the jurisdiction of the C curt is that the authority should have been constituted as required by the Statute the person proceeded against should be subject to the jurisdiction of the authority, the ground on which action is taken should be within the grounds stated by the statute, and the order made should be such as could have been made under the Statute. These conditions being satisfied, the ouster is complete even though in following the statutory procedure some omission or irregularity might have been committed by the authority." Also in the case of Federation of Pakistan v. Ghulam Mustafa Khar PLD 1989 SC 26 the Hon'ble Supreme Court while dealing with Article 270‑A (2) has observed that validity conferred is to acts done or purported to be done in the exercise of or for the purported exercise of powers derived from such Orders. Regulations enactments, rules, orders, bye‑laws etc and to nothing else. Similarly, in the case of Muhammad Rafiq Meer v. Government of Punjab PLD 1989 Lah. 12 a Division Bench of Lahore High Court has observed that Article 270‑A (2) gives protection to the orders made or purported to have been made in exercise of the powers derived from such legal measures. In this case, it was also observed that the Authority passing the order has to pass a speaking order manifesting application of mind in accordance with law to the issue before him. In the present case the impugned order Annexure‑H does not appear to have mentioned the facts giving rise to the conclusion that the said plots were converted to the use other than for the purposes for which the same were allotted. However, all these points would be subject to evidence that may be brought on record. Mr. Faizuddin, the learned counsel for respondent No3 has raised so many other points such as the power of attorney on the basis of which the "went suit has been filed was not properly authenticated; and that provisions of sections 32 and 33 of the Stamp Act and Article 48 of Schedule thereto would be attracted. These pleas were not taken before the lower Court nor the same are in the application moved by respondents under Order VII, rule 11, C.P.C. The learned counsel for respondent No.3 has then submitted that the respondent No.3 is a bona fide transferee without notice and, therefore, his rights cannot be affected. Even this plea has not been taken in the lower Court. However, this ground too would be subject to evidence. In view of above discussion, I am of the view that the present suit has not been filed challenging the virus of MLO‑34 as reconstituted or protection provided to acts done or orders passed lawfully thereunder but the present suit has been filed challenging the orders passed by the Liquidator of respondent No.1 to be without lawful authority, arbitrary, illegal, void ab initio etc. In the case of Abdul Rauf and others v. Abdul Hamid Khan PLD 1965 SC 671 it has been held that the legislature granting power to take action or pass an order does not contemplate mala fide exercise of power; and that a mala fide order is a fraud on Statute. It has also been held in the same case that a mala fide order means an order, which was passed not for the purposes contemplated by the enactment granting power to pass the order but for some other collateral or ulterior purposes. In this view of the matter, it is concluded that the plaint in the present case cannot be rejected outright but all the above-discussed facts have to be gone into. I would, therefore, accept these revision applications, set aside the orders passed by the two Courts below and remand the case to trial Court with the direction to proceed with the two suits in accordance with law. However, there will be no order as to costs. It will, however, be open for the parties to take any further grounds before the trial Court or seek any interim orders as available in law. Above are the reasons for the short order announced in Court on 27th September 1992. AA./N‑439/K Revision accepted.