1983 PLP 2363 (CLC)

Haji Ghias Muhammad and Raja Abdul Razzaq for Petitioner. M. A. Rehman, M. A. Zafar, S. Munir Hussain and Iftikhar Ahmad Dar for Respondents. Dates of hearing : 9th and 12th February, 1983. Okara Flour and General Mills Ltd. Amritsar located at Okara was declared an enemy property subsequent to the war between Pakistan and India of 1965. This property has been under the management of different authorities from time to time and according to present arrangements the Mills stand transferred to ' the National Police Foundation through a registered sale‑deed executed between Additional Custodian of Enemy Property and the National Police Foundation on 12th May, 1981. The petitioner, who claims to be a shareholder in the company, challenges the orders of the sale to the National Police Foundation and further disposal of the assets of the company by the National Police Foundation.

2. This matter came to High Court twice before. Writ Petition No. 455/69 moved by S. A. Rafi a shareholder and Deputy General Manager, and the company was dismissed by a Division Bench of the High Court on 4th July, 1972. These orders were challenged in the Supreme Court in Civil Petition for Special Leave to Appeal No. 334 of 1972, but it was dismissed on 29th August, 1972. Subsequently Mehr Din, the present petitioner and two others brought writ petition No. 1436 of 1972 to the High Court. It was dismissed by a learned Single Judge of the High Court on 24th October, 1973 on the ground that it was barred by res judicata. These orders were challenged in a Letters Patent Appeal No.1 122/73 which was, however, dismissed as withdrawn on 19th December, 1980. This is now a third writ petition in the High Court on the same subject, brought this time by Mehr Din alone. It is argued on his behalf that earlier decisions do not bar the present writ petition, as the parties are not the same and that there is a fresh cause of action. 3.. As stated above, the Mills were taken over by the Government as enemy property in 1965 and the petitioner does not question the take, over. His contention is that after the repeal of the emergency legislation, and revocation of the proclamation of emergency the promulgation Ordi nance I of 1969 and Ordinance XXXIV of 1977 which give continuance to the emergency provisions relating to enemy property, is unconstitutional. It is argued that a law justifying a particular emergency without reference to. the emergency is a colourable legislation.

4. There is no denying the fact that action in respect of the Okara Flour and General Mills was taken under rules 181 and 182 of the Defence of Pakistan Rules, 1965 which were promulgated in pursuance of a procla mation of emergency but the right to deal with enemy property does not flow from 'or is in any way dependent on a proclamation of emergency. This depends entirely on the relations between two countries and whether they are in a state of war. Under the constitution, certain extraordinary powers can be assumed by the Government in an emergency covering a vast field of activity and this may include enemy property, but it is wrong to assume that an emergency has to be proclaimed before matters relating to enemy property can be legislated upon. Defence of Pakistan Rules, relating. to enemy property, were only incidental to the emergency. There fore the subsequent legislation continuing these provisions is not unconsti tutional.

5. The learned counsel for the petitioner has also argued that the Government could not order the transfer of the property to the National Police Foundation, as the property vested in the Custodian of Enemy Property. There is no force in this argument. Firstly, the property has been conveyed by the Custodian and not the Government and secondly, the Custodian was holding the property only on behalf of the Government.

6. The question of maintainability of the writ petition was seriously raised by the respondents and there is no question about the bar to these proceedings under section 83 of the C. P. C. This has already been so held by the Supreme Court in C. 'P. S. L. A. No. 334/72, moved on behalf of the Company and S. A. Rafi, a shareholder of the Company. The present petitioner who also claims to be a shareholder in the Company, is not free of the bar, for the reason that what cannot be achieved directly) cannot be achieved indirectly.

7. The present petition is also barred in view of the provisions of Order XXIII, rule 1 of the C. P. C. No permission was sought or granted to bring a fresh petition when L. P. A. No. 122/73 was dismissed as withdrawn. In fact it was specifically mentioned that no advantage will be taken of the order of 9th December, 1980 permitting the withdrawal. The petitioner, however, seeks to justify the present action on grounds of a fresh cause of action, which according to him, has arisen, on account of the change in mode of transfer, from auction, to an outright sale. I am afraid, this is not a justification enough to permit a fresh action, as the change in mode of transfer cannot be a fresh cause, when the petitioner questions the very authority of the respondents to deal with the property in question, which gave him cause to bring a writ petition in 1972 along with two others and in 1969 to the Company and to S. A. Rafi, a share holdcr of the Company.

8. In view of the above considerations, there is no merit in this writ petition. It is dismissed with costs. K.M.A. Writ petition dismissed.