P L D 1961 (W (PLP)

ABDUL HAMID, J.‑

Two Civil Appeals (Nos. 242 and .243 of 1960) and two Writ Petitions (Nos. 98 and 101 of 1960) were allowed to be argued together before this Bench, because an important question of law common to .all of them was at the bottom of each. The question to be determined was whether the North‑West Frontier Province Restitution of Mortgaged Lands Act, 1950 (hereinafter called the impugned Act) was a valid law capable of giving rise to valid legal action, or it was an illegal piece of legislation which never possessed any force of law at all.

2. In 1950, the Provincial Legislative Assembly of the old North‑West Frontier Province passed an Act called the "Restitution of Mortgaged Lands Act, 1950". Under the provisions of that Act, all subsisting mortgages created prior to the first of January 1920 can be extinguished without payment of mortgage money and the possession of the mortgaged land can be returned to the mortgagors or to their successors in‑interest on an application made for that purpose to the Revenue Assistant.

3. The attack on the impugned Act was based on the ground that the Act was enacted in the face of clear prohibition contained in subsection (2) of section 299 of the Government of India Act, 1935 (hereinafter referred to as Constitution Act of 1935) and the North‑West Frontier Province Legislature of 1950 which enacted it was not competent at all to enact it.

4. Section 299 (1) and (2) of the Constitution Act of 1935 runs as follows :

"299. (1) No person shall be deprived of his property save by authority of law. (2) Neither the Federal nor a Provincial Legislature shall have power to make any law authorising the compulsory acquisi tion for public purposes of any land, or any commercial or industrial undertaking, or any interest, in or in any company owning any commercial or industrial undertaking, unless the law provides for giving compensation for the property acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, it is to be determined."

5. We shall first deal with the two Civil appeals and there after with the two Writ Petitions and dispose of all the four matters by this judgment. Civil Appeals Nos. 242 and 243 of 1960.

6. These are two further appeals against the judgment of the Additional District Judge, Mardan, dated the 5th of May 1960 by which he affirmed the decision of the Sub‑Judge Second Class, Mardan, dated the 9th of March 1960. By that decision the Sub Judge had granted to Pir Shahzada and others a decree for the possession of the suit land on the ground that they were the mortgagors of it and were entitled under the provisions of the impugned Act to recover its possession from the defendant mort gagees without payment of the mortgage money to them. The defendants are now in this Court on further appeal against the decisions of the two Courts below.

7. The facts of the two appeals are almost identical and they briefly are that on the 22nd of June 1893, the predecessor‑in interest of Pir Shahzada and other plaintiffs placed, by. two registered mortgage deeds, two pieces of land, one measuring 38 kanals 16 marlas comprised in khasra No. 1247, and the other measuring 28 kanals 16 marlas comprised in khasra Nos. 342, 371, 373, 374, 376, 377, 379, 380 and 382, under mortgage with K. B. Muhammad Ibrahim Khan, the predecessor‑in‑interest of Khan Rahmatullah Khan and other defendants. In the revenue records from 1893 up till 1956, when the suits were instituted, the predecessors‑in‑interest of Pir Shahzada were recorded as mort gagors and predecessors of Khan Rahmatullah Khan and other defendants as mortgagees.

8. Pir Shahzada and his co‑mortgagors instituted proceedings in the Court of the Collector for the extinguishment of the mortgages of 1893 and for the restoration of the possession of the land to them free of payment of mortgage money, and an order in their favour was passed on the 31st of August 1957. They took formal possession of this land as well.

9. But in spite of the decisions of the Revenue Officers in favour of the mortgagors, Khan Rahmatullah Khan and other mortgagees remained in possession of the mortgaged land and denied the plaintiffs' title to recover it. A suit for the possession Khan mortgaged land was, therefore, instituted by Pir Shahzada of the mortgage and others on the ground that they were owner‑mortgagors of this Pi, land and the mortgage in favour of Khan Rahmatullah Khan and Abdul other defendants, who are the descendants of the original Humid, mortgagee, had been extinguished by the impugned Act. They demanded the land back from the defendants without the payment of the mortgage money.

10. The relevant provisions of the impugned Act which extinguish mortgages created prior to the first of January 1920 are as follows:‑-- Section 2.‑Notwithstanding anything contained in any con tract or decree or order of any Court or any enactment for the time being in force, this Act shall apply to all subsisting mort gages on land, which were effected prior to 1st January 1920." "Section 4.‑A mortgagor to whose land the provisions of this Act apply, may, at any time, present a petition to the Collector praying for restitution of possession of the land mortgaged. The petition shall be duly verified in the manner prescribed for such petitions." . "Section 7.‑If the Collector finds that the mortgage is one to which this Act applies, he shall notwithstanding anything contained in any contract or decree or order of any Court or any enactment for the time being in force order in writing (a) that the mortgage shall be extinguished without payment of mortgage money ; (b) in case of an express contract for improvements, the mortgagee shall be entitled to compensation for improvements made by him ; and (c) where the mortgagee is still in possession, that the mortgagor be put into possession of the mortgage land as against the mortgagee and that the title deed, if any, be restored to the mortgagor."

11. Both the trial and the appellate Judges held the plaintiffs entitled to the possession of the mortgaged land without payment of mortgage money. The mortgage in their favour, according to the view of the two Courts below, had been extinguished by the provisions of the impugned Act.

12. Before us the question of law for decision is whether the mortgages, in favour of Khan Rahmatullah Khan and other appel lants were extinguished by the provisions of the impugned Act, or these were still alive because the impugned Act was‑illegal legis lation and was devoid of legal force.

13. That Act has been challenged on the ground that it was enacted in defiance of the prohibition contained in subsection (2) of section 299 of the Constitution Act of 1935, and was ultra vices of that section. 1t has been argued that when the impugned Act was enacted the country was under the domain of the Constitution Act of 1935. Both the Federal and Provincial Legislatures created by that Constitution were forbidden in subsection (3) of section 299 of the Constitution to enact confiscatory and expropriatory legis lation, without making provision for adequate compensation for the expropriated landlords. The impugned Act expropriated owners of land without compensation and was, therefore, an illegal document and had no force of law from the date of its birth. It should not have found its way into the Statute Book and should not be considered to have had any place there. The Statute Book, according to that contention, is empty of it.

14. In a Division Bench judgment of this Court as West Pakistan v. Muhammad Farid Khan (P L D 1960 Pesh. 111), the North‑west Frontier Province Abolition of Jagirs Act, 1950, which was also a con fiscatory and expropriatory legislation was under challenge and it was held in that case that it was not law at all because it was enacted against clear prohibition contained in subsection (2) of section 299 of the Constitution Act of 1935. It was urged, on the arguments advanced in support of the illegality of that measure, that the impugned Act was also an illegal measure because it suffered from the same defects.

15. We would have embarked upon the discussion of the question whether the impugned Act was a legislation in violation of section 299 (2) of the Constitution Act of 1935 and for that reason. was lacking in legal force, if our attention had not been drawn to enactment called the Pakistan Laws Validation Act of 1956, which effected amendments in section 299 of the Constitution Act of 1935, curtailed the force of subsection (2) of that section and conferred protection upon certain expropriatory measures enacted after the establishment of the Federation. That section was first amended in 1951 by the Government of India (Second Amendment) Act, 195 1, which added a new subsection "(4‑A)" to the main section and under specified conditions brought certain confiscatory and expropriatory legislations under protection, and saved them from the effect of subsection (2) of section

299. That subsection runs as follows : ‑ "(4‑A) Nothing in subsection (2) shall be construed to invalidate‑ (a) any provision in any law of the kind referred to in that subsection, which purports to fix the amount of compensation or to specify the principles on which, and the manner in which compensation is to be determined and given, on the ground that it contravenes the provisions of that subsection or that the compensation provided for is inadequate ; Provided that such law has received the assent of the Gov ernor‑General, or, the case of a Provincial Law, has been re served for the purpose of obtaining such assent, within a period of three years next after establishment of the Federation."

16. As the language of the amendment would show, it covered only cases in which compensation provided for expropri ation was inadequate, and the legislation was made law within a period of three years from the establishment of Federation, which took place on the 14th of August 1947.

17. In 1956, this subsection was further amended by the "Pakistan Validation of Laws Act, 1956", and by section 3 of that Act clause (a) of subsection "(4‑A)" was recast as follows:‑ "(a) any provision in any law of the kind referred to in that subsection which purports to fix the amount of compensation or to specify the principle on which and the manner in which compensation is to be determined and given on the ground that it contravenes the provisions of that subsection or that com pensation is not provided for or is inadequate. Provided that such law has been made or passed within a period of five years next after the establishment of the Federation."

18. This amendment was published in the Gazette of Pakistan dated 29th February 1956 and came into force from that date. In respect of this amendment, it was stated in section 3 of the Pakistan Validation of Laws Act, 1956, that the amendment "shall be deemed always to have been substituted." The Legislature by this insertion conferred retrospective effect on the amendment. By virtue of this amendment, any legislation enatced against pro hibition or in contravention of section 299 (2) of the Constitution Act of 1 435, within five years from the establishment of Federa tion fell under protection and became immune from challenge on the ground that it expropriated people of their property without payment of compensation. The protection afforded by sub‑section (2) of section 299 of the Constitution Act of 1935 was withdrawn by this amendment.

19. After the Pakistan Validation of Laws Act, 1956, section 299 (2) of the Constitution Act of 1935 is to be read along with subsection "(4‑A)" of that section. The new subsection created, in essence, an exception to subsection (2) of section 299, .4 and if this exception is read along with subsection (2), a legislation enacted between the .4th of August 1947, and the 14th of August 1952, ceases to be challengeable on the ground that no compen sation has been provided for expropriation. The Pakistan Validation of Laws Act of 1956 came under discussion in Punjab Province v. Malik Khizar Hayat Khan Tiwana (PLD 1956 FC 200). It was accepted as a correct piece of legislation, its retrospective effect was recognised, and un compensating confiscatory legislation enacted between 1947 and 1952 was declared to be valid despite its conflict with section 299(2) of the Constitution Act of 1935.

20. The attack on the impugned Act is solely on the ground) that by its provisions a. large number of people have been expropriated without compensation. But as subsection "(4‑A)" of section 299 of the Constitution Act of 1935 provides a shield against the attack, the impugned Act is immune from the attack and is intra vires.

21. It is regretted that when arguments were addressed in the case P L D 1900 Pesh. 111, no reference was made to the Pakistan Validation of Laws Act, 1956. If that Act had been brought to the notice of that Bench the decision on that aspect of the case would have been different.

22. Objection have also been raised to the entertainment of these appeals on the ground that after the abrogation of the Con stitution laws which were void for reason of their conflict with the Constitution, and had been thrown out of force regained their force by the abrogation of the Constitution. In support of this view reliance was placed on The State v. Dosso (P L D 1958 S C (Pak.) 533), Province of East Pakistan v. Muhammad Mehdi Ali (P L D 1959 S C (Pak.) 387) and Tribunal v, Hashim (P L D 1960 S C (Pak.) 260). On the strenght of these authorities it was contended that the appeals and writ petitions in which the vires of the impugned Act has been challenged, on the ground of its conflict with constitutional provisions, should abate.

23. This argument cannot hold good in this case because in our view, the impugned Act is not within the ambit of these authorities. In these authorities, the attack was on laws which were void on account of their conflict with the Fundamental Rights enshrined in the Constitution of 1956. Certain laws which were valid when they were enacted and were lawful in operation, were rendered void under Article 4 of the Constitution of 1956, because after the 23rd of March 1956 they fell into conflict with Fundamental Rights provided in the Constitution. As with the abrogation of the Constitution of 1956, Fundamental Rights dis appeared, and went out of the field, laws in conflict, with the Fundamental Rights regained their force again. The conflict which had thrown them out of operation was removed and after the removal of the conflict, they resumed operation in their respective fields.

24. The impugned Act was not in conflict with any of the provisions of the Constitution of 1951 . . It was under attack of the ground of incompetency in the Legislature of 1950 which enacted it. It was assailed on the ground that it was not law from the hour of its birth because the Legislature ... which enacted it had no power to make a law of this tenor. There was complete prohibition against such legislation in section 299 (2) of the Constitution Act of 1935. The impugned Act would have been within the compass of these authorities if the challenge to it had emanated from its conflict with the Fundamental Rights of the Constitution of 1956. But the challenge has foundation in section 2, 9 (2) of the Constitution Act of 1935. In the impugned Act had not been under the shield of subsection "(4‑A)" of section 299 of the Constitution Act of 1935 we would have determined its validity in the light of provisions of subsection (2) of that section.

25. Their Lordships of the Supreme Court in P L D 1959 S C (Pak.) 387 made a distinction between laws which are void on account of incompetency in the Legislature enacting them, and laws enacted within the field of competency but rendered void on account of their falling into conflict with the Fundamental Rights contained in the Constitution of 1956, between laws void ab initio and laws rendered void subsequently. They stated on page 413 that laws which were valid at the time of their enactment but came into conflict with the Fundamental Rights of the Constitution of 1956, 1961 regained their full operation after the abrogation of that Constitution and remain unaffected by any constitutional limitation, except lack of power. They said. "The position may be, and is indeed, different where the Legislature suffers from an inherent lack of power to enact a law. Such law is void ab initio and must be deemed never to have been enacted, and if it exists on the statute book, it has no legal sanction and is essentially of the nature of an unauthorised writing on the statute book. Even if the defect of lack of jurisdiction is removed by a subsequent con ferment of the requisite legislative power, the law enacted when no such power existed will continue to be void and will create no rights or obligations unless it be re‑enacted. There is thus a fundamental difference between a law that is made by an incom petent Legislature and law made by a competent Legislature but which is in conflict with a fundamental right, the former being void on general principles, the latter being void only to the extent of the repugnancy, in the sense shat it cannot be applied to a particular case. The former remains void unless re‑enacted by a competant Legislature, the latter requires no re‑enactment and as pointed out in the Australian cases cited above, becomes fully operative when the inconsistency or repugnancy is removed by an amendment of the Constitution or the Central law. It cannot, therefore, be said that the laws which were in conflict with the fundamental rights were not "in force" immediately before the proclamation of the 7th October. They were void so long as they were in conflict with the fundamental rights, but the constitution having now been abrogated the inconsistency or the repugnancy has disappeared as it would have disappeared by an amendment of the Constitution, and they regain their full operation, unaffected by any constitutional limitation or restriction except lack of power."

26. This clearly means that laws which could not be enacted for want of legal competency in the Legislature has not legal force at any time. They were void ab initio, did not possess any legal force at any time, and the question of their regaining force does not arise at all. What had no legal force at any time, lost no force by the conflict, and can regain no force by the removal of the conflict.

27. We are of the opinion that the impugned Act, even if it may be deemed to have ' contravened the provisions of section 299 (2) of the Constitution Act of 1935, as originally enacted, is a valid law because it fell, after the enactment of the Pakistan Laws Validation Act of 1956 under the protection of subsection "(4‑A)" of that section. For the reasons stated above, it is valid piece of a legislation. These two appeals which were founded on the ground that the impugued Act was ultra vires and was not capable of entinguishing mortgages in dispute fail, and are hereby dismissed with costs. Writ Petition No. 98 of 1960.

28. On the 15th July 1952, Faqir Muhammad and his cor respondents presented an application against Baz Mian petitioner, under section 4 of the impugned Act, to the Collector for restitution of a piece of 248 kanals and 9 marlas of land comprised in khasra Nos. 1354, 1 365, 1360; 1916, 1361 to 1363, 1364, and 1691 situated in village Charsadda, District Peshawar, on the ground that they were owner‑mortgagors of it and Baz Mian was the mortgagee and the mortgage had been entinguished by virtue of the provisions of the impugned Act.

29. This application was opposed by Baz Mian on the ground that the land had been sold to his father and that there was no subsisting mortgage. By his order dated the 16th of May 1953, Mr. Sher Zaman Khan, Additional Revenue E. A. C, exercising the powers of Collector under the impugned Act, found that the land was under mortgage with Baz Mian as it had been mortgaged to his predecessor in 1896. He was held to be a mortgagee in respect of it and the mortgage was held to have been extinguished by the provisions of the impugned Act. He declared the mortgage extinguished and awarded possession of the mortgage land to the owners without payment of the mortgage money.

30. Against that order, Baz Mian preferred an appeal to the Revenue Commissioner Mr. Dent, the then Revenue Commis sioner also found that the land was under mortgage with Baz Mian and he was liable to surrender possession to the mortgagors without receiving any mortgage money from them. But he con sidered the mortgagee entitled to Rs. 48,473 as compensation for the improvements effected in the land by him and by his pre decessors. He directed that the mortgagors be put into possession of the land after the payment of the said amount to Baz Mian. He further directed that on payment of the aforesaid amount, the mortgage shall be deemed to have extinguished.

31. The mortgagors presented a review petition and Mr. Zuberi, the sucessor of Mr. Dent refused to review the order of his predecessor. He only extended the time for payment of the compensation.

32. Baz Mian thereafter instituted a Civil suit against the mortgagors for a declaration that he was the owner in possession in respect of this land and that the orders of the Revenue E A. C. and the Revenue Commissioner were null and void and ineffective ' against his rights. He also prayed for a perpetual injunction restraining the defendants from interfering with his possession. The suit was contested by the defendants. Mr. Muhammad Khurshid, Sub‑Judge First Class, Peshawar, by his order dated the 14th of January 1957 dismissed the suit. The plaintiff, according to his finding, failed to show that he was the owner of the land. He was held to be a mortgagee. He also held that the orders of the Collector and the Revenue Commissioner were legal and enforceable under the impugned Act. Feeling aggrieved by his order of the Sub‑Judge, First Class, Baz Mian petitioner came up to High Court in appeal (Civil Appeal No. 36/13 of 1957). A Division Bench of this Court, by its order dated the 3rd of February 1958, dismissed the appeal. There too Baz Mian was held to be the mortgagee and not the owner of the land and the mortgage was found to have fallen under the axe of the impugned Act.

33. On the 18th May 1960, Baz Mian filed the present writ petition and made the following prayer, in paragraph 4 thereof :‑ "That the said order of Revenue Officers whereby the peti tioner is deprived of his mortgagee rights in the land without payment of mortgage amount are void and inoperative because the N.‑W. F. P. Restitution of Mortgaged Lands Act itself, under which they have exercised their jurisdiction, is void ab initio, inoperative and ultra vires for the following reasons :‑ (a) That the Provincial Legislature of defunct N:‑W. F. P. hid no power to pass such a statute of expropriating nature. It is against the provisions of section 2,9 (2) of the Government of India Act, 1935. (b) That the enactment was not for public purpose. (c) That it does not provide for the payment of compensation for the property acquired."

34. Baz Mian omitted to disclose in the petition that his civil suit had been dismissed and that the judgment and the decree of the trial Court had been affirmed on appeal by the High Court. He concealed relevant facts from the view of this court. In our opinion he has not come to this Court, for relief under the writ jurisdiction, with clean hands. Writ jurisdiction a discretionary jurisdiction and the High Court would refuse to exercise discretion in favour of a party who has come to Court with hands unclean. This petition is liable to dismissal on this ground.

35. On merits as well, there is no force in this petition. While discussing Civil Appeals Nos. 242 and 243 of 1960 we have held that the impugned Act is a piece of valid legislation and any action taken by the Revenue Officers under that Act is valid action he Revenue Officers who declared the mortgage extinguished, under the provisions of the impugned Act, were correct in their decisions. Baz Mian's writ petition is founded on the ground that the impugned Act was not law at all and could not give rise to extinguishments of his mortgage. As the impugned Act has been found to be valid law, the petitioner has lost the ground on which the petition was based. It is liable to dismissal on that ground as well.

36. There is yet another ground on which this petition cannot entertained. The petitioner has in fact challenged the order the Division Bench of this Court passed in appeal on the 3rd February 1958 (Civil Appeal No 36/13 of 1957) by which the tree of the trial .fudge based on the provisions of the impugned was maintained. He is in fact seeking a writ against an order this Court. It is settled law that High Court can issue no writ itself.

37. For these reasons, we dismiss this writ petition with costs. Writ Petition No. 101 of 1960

38. The facts of this case briefly are that an area of 7 kanals 17 marlas situated in village Pir Saddo was mortgaged the owners, who were the predecessors of Muqaddar Shah and her respondent, in favour of the predecessors‑in‑interest of Rahim Shah and other petitioners. The mortgage was created by a registered deed of 13th July 1893, for a period of one hundred years and the mortgage money was stated to be Rs. 2,300.

39. Muqaddar Shah and other owners of the property, who in the revenue records were shown as mortgagors, applied to the Collector under the provisions of the impugned Act for the extinguishments of the mortgage and for the possession of the mortgaged land without payment of the mortgage money, on the ground that the mortgage had been extinguished by the impugned Act, and the Collector, acting on the provisions of the impugned Act, by his order dated the 9th of May 1957, extinguished the mortgage and directed possession of the mortgaged land to be awarded to the owners free of payment of the mortgage money. The, mortgagees preferred an appeal against that order to the Additional Commissioner, who by his appellate judgment, dated the 22nd of August 1957, confirmed the order of the Collector.

40. The mortgagees, i.e. Rahim Shah and others, challenged the order of the Collector and the Commissioner by means of a Writ Petition (No. 527 of 1957) which was presented to this Court on the 18th of September 1957. That petition was withdrawn on. the 3rd of December 1958. Withdrawal was permitted by a Division Bench of this Court in the following language : "Learned counsel for the petitioners wishes to withdraw the petition in View of the authority of the Supreme Court in Sabz Ali's case P L D 1958 S C (Pak.)

533. He is allowed to do, so. He may bring another petition on the same facts if he considers this he can do in view of the observations made by their Lordships in the above mentioned authority. Respondents do not press for the costs. Dismissed." 4

1. On the 24th May 1960; after a lapse of one year and five months, Rahim Shah and other petitioners presented this Writ Petition (No. 101 of 1960), and in this petition the orders of the Collector dated the 9th of May 1957, and of the Additional Com missioner dated the 22nd of August 1957, have again been chal lenged and have again been sought to be quashed on the ground that the impugned Act, from which the decisions of the Revenue Officers flowed, was ultra vires. There is also a prayer for mandamus and prohibition.

42. This second writ petition, which has been preferred after a lapse of a year and five months, proceeds on the ground that the proceedings under the provisions of the impugned Act, under which the mortgage sanding in their favour was extinguished, was not law at all by reason of its conflict with section 299 (2) of the Constitution Act of 1935, and every action taken thereunder is illegal.

43. The only difference which one can find between the writ petition of 1957 (No. 527 of‑1957) which was withdrawn on the 3rd of December 1958, and the writ petition now 'presented (No 101 of 1960) is that in the previous petition the orders were challenged on the ground of conflict between the impugned Act and the provision of the Constitution of 1956, while in this petition the challenge has been founded on the conflict arising from provisions of section 299 (2) of the Constitution Act of 1935.

44. We have held above, while discussing Civil appeals Nos, 242 and 243 of 1960, that the impugned Act is intra vires and suffers from no legal defect. This writ petition which is founded on that plea only is also dismissed with costs. ABDUL AZIZ KHAN, J.‑

I fully agree with the proposed Judg ment of my learned brother Abdul Hamid, J.

2. The case was argued before us for two days but strangely enough no reference was made from the Bar to the Validation of Laws Act, 1956 and The Punjab Province v. Malik Khizar Hayat Khan Tiwana (P L D 1956 F C 200). It is regrettable that this all important measure and the ruling based upon it was not within the knowledge of the counsel representing the. State. As pointed out by my learned brother Abdul Hamid. J., if the learned counsel for the State had been aware of this very important piece of legislation and had drawn the attention of the learned Judges who decided the case arising out of the North‑West Frontier Province Abolition of Jagirs Act (VII of 1952), [West Pakistan v. Nawab Muhammad Farid Khan (P L D 1960 Pesh.III)], the result would almost certainly have been different. S. A. MAHMUD, J.‑

I agree that the Restitution of Mortgaged Lands Act, 1950, does not contravene subsection (2) of section 299 of the Government of India Act., 1935, and that the Civil appeals and the writ petitions be dismissed with costs. A.H. Order accordingly.