P L D 1983 Lahore 113 (PLP)

During the course of proceedings yesterday, Mr. Muhammad Riaz made a categoric statement before me that he appeared before the Mayor of Lahore Municipal Corporation on 19-10-1982 but no proceedings were taken and instead the Secretary Zone IV of the Lahore Municipal Corporation informed him that further notice of appearance shall be sent to him. The Secretary concerned is present in Court alongwith the record. The perusal of record shows that on 19-10-1982, the proceedings were adjourned at the instance of Muhammad Riaz on account of his illness who made this application on behalf of the petitioners. The application has been perused by me with the assistance of the learned counsel for the parties. It may be further pointed out that according to Annexure M of the writ petition filed by the petitioners in this Court, the reply to the impugned showcause notice was also submitted by Muhammad Riaz. It is, therefore, apparent on the face of record that the proceedings before the Lahore Municipal Corporation are being pursued by Muhammad Riaz on behalf of the petitioners. The statement made by Muhammad Riaz in Court yesterday to this extent is ex facie false and inconsistent with the application made by him on 19-10-1982 to the Secretary Zone IV of the Corporation. This is a clear misrepresentation of fact which tantamounts to committing fraud on the Court and therefore, he is liable to be proceeded against . under section 3 of the Contempt of Court Act, 1976. Muhammad Riaz who is present in Court is, therefore, called upon to show cause as to why he should * not be dealt with for committing contempt of this Court in accordance with law.

2. Muhammad Riaz accepts notice. ??????????? (S&) (IRSHAD HASAN KHAN). ??????????????????????? Judge. Mr. Muhammad Riaz contemner alongwith his counsel Mr. A. M. Raffad. Learned counsel for the contemner submits that his client tenders unqualified apology and throws himself at the mercy of the Court and seeks pardon. Let the statement of Muhammad Riaz be recorded. (Sd.) (IRSHAD HASAN KHAN). Judge. Statement of Muhammad Riaz son of Ghulam Muhammad Resident of Karim Park on S. A. : "It is correct that due to inadvertence I have made an inconsistent statement in the Court yesterday. I tender unqualified apology and throw myself at the mercy of the Court. Muhammad Riaz. RO & AC Dated 23-10-1982. (Sd.) (IRSHAD HASAN KHAN), Judge. Presence as before. 25-10-1982. In view of unqualified apology tendered by the contemner, the notice of contempt is discharged. (Sd.) (IRSHAD HASAN KHAN), Zahid??? Judge. 25-10-1982. . Aitzaz Ahsan for Petitioners. Fayyaz Hussain Qadri for Respondent No.

1. Khalil Ramday, A. A.-G. for the State. This writ petition calls in question the show-cause notice dated 24-8-1982 issued by the Mayor, Lahore Municipal Corporation, Lahore, under paragraph 6 of the Martial Law Order No. 821 requiring the petitioners to show-cause within twenty-four hours and also to appear in person in support of their defence why their illegal possession/encroachment made on Plot No. 219, Block No. 2, Karim Park, Lahore, should not be removed.

2. The sole grievance of the petitioners is that the impugned notice is wholly without jurisdiction and ultra vires of the provisions of Martial Law Order No.

821. It ?s contended by Mr. Aitzaz Ahsan that the petitioners have lawful ownership and possession of the .plot, in dispute, as well as the house constructed by them thereon. In support of his contention, reliance is placed on a number of documents including the sale deed to show that they continue as the owners on account of the purchase of the said plot from respondent No.

3. It is stated that the impugned show-cause notice has been issued for some extraneous considerations.

3. The petition came up for preliminary hearing on 24-10-1982 when notice was issued to the Legal Adviser of the Lahore Municipal Corporation, Lahore, for 25-10-1982 on the question of maintainability of the writ petition, in view of the promulgation of the Provisional Constitution Order, 1981. The Legal Adviser along with the Secretary Zone IV of the respondent Corporation are present in Court alongwith record.

4. It is specifically stated in paragraphs Nos. 8 and 9 of the writ petition that notwithstanding the fact that the petitioners submitted their reply (Annexure L) to the impugned show-cause notice (Annexure M), they have not been given any hearing subsequent to the impugned notice. The only time they were summoned to the office of respondent No. 1, the Mayor was busy in protocol duties concerning to a foreign delegation. Now the petitioners are being threatened with eviction and the demolition of their house. The dates on which the notice was received and the reply was submitted by the petitioners were not mentioned in the writ petition. A perusal of the reply (Annexure M) shows that the reply was submitted by the petitioners through Muhammad Riaz, the husband of Mst. Mukhtar Begum, the petitioner, who was present in the Court yesterday as well as today along with the learned counsel for the petitioners. Therefore, with a view to obtain further and better particulars of the proceedings which took place in pursuance of the impugned show-cause notice, I enquired from said Muhammad Riaz the necessary particulars to limit the enquiry in terms of Order VI, rule 5, C. P. C. principles of which are applicable to writ proceed- e dings. This was felt necessary in order to satisfy myself as to whether the Corporation intends to demolish the property, in dispute, without considering the reply of the petitioners and providing them an opportunity of being heard. Mr. Riaz stated before me that the notice was received on 24-8-1982! The reply was submitted on 25-8-1982. This was followed by a notice dated 21-9-1982 for appearance of the petitioners on 25-9-1982 by the Mayor in support of their case. Again on 19-10-1982 another notice was issued to the petitioners for their appearance. A perusal of record shows that said Muhammad Riaz has been throughout pursuing the case of the petitioners before respondent No.

1. The matter was not taken up on 19-10-1982 by respondent No. 1 as a result of written adjournment sought for by Muhammad Riaz due to his illness. The adjournment application was accompanied by a medical certificate. It is, therefore, not possible to accept the plea of the petitioners that they are being threatened with eviction and the demolition of their house without providing them an opportunity to showcause and produce evidence in support of their claim. The order on the adjournment application may be reproduced for ready reference ???????? The perusal of the record further shows that notice bearing No. 910/2 dated 24-10-1982 has been issued to the petitioners through said Muhammad Riaz who has been pursuing this case. Faced with this difficulty, Mr. Aitzaz Ahsan respectfully submitted that the consent of the parties can neither confer jurisdiction nor take away jurisdiction, inasmuch as, action intended to be taken against the petitioners in pursuance of the show-cause notice is not covered by Martial Law Order No. 821 and, therefore, the impugned proceedings are not hit by the Provisional Constitution Order, 1981. In support of his contention that action or proceedings taken without jurisdiction, or mala fide or orders of a judicial or quasi judicial nature which are coram non judice, are non-existent in the eye of law, the learned counsel placed reliance on The State v. Zia-ur-Rehman and others (PLD 1973SC49), Miss Asma Jilani v. The Government of Punjab and another (PLD1972SC139), and Federation of Pakistan v. Saeed Ahmad Khan and others (P L D 1974 S C 151). Learned counsel further contended that the impugned notice is riot hit under Article 15 of the Provisional Constitution Order, 1981 and the writ petition is competent under Article 9 of the Provisional Constitution Order, 1981 notwithstanding the? existence of the right' of an appeal as contemplated under paragraph 8 of Martial Law Order No. 821 against an order passed under paragraph 7 ibid at the instance of an aggrieved person in cases of excess of jurisdiction. In support of his contention reliance was placed on Fazal Din alias Mina and others v. Commissioner, Peshawar Division and another (P L D 1968 Pesh. 30), Ghulam Shabbir Shah v. Income-tax Officer, Lahore and 2 others (1) and The Tariq Transport Company, Lahore v. The Sargodha-Bhera Bus Service, Sargodha and others (2).

5. Mr. Khalil Ramday, learned Ass;stant Advocate-General and Mr. Fayyaz Hussain Qadri, Legal Adviser, Lahore Municipal Corporation, Lahore, who appeared to assist me in this petition, pointed out that the precedents cited by the learned counsel for the petitioners were not relevant and that the petition is bit by Article 15 of the Provisional Constitution Order, 1981. They further submitted that the question as to the allegation of encroachment/illegal possession is essentially a question of fact which cannot be examined in the exercise of Constitutional jurisdiction.

6. I have given my anxious consideration to the submissions made by learned counsel for the petitioners and the learned Advocates who assisted the Court. The perusal of the impugned proceedings of the record shows that Muhammad Riaz appeared before respondent No. 1 and also filed reply in support of the petitioners' contention vide Annexure `L'. The case was adjourned on 19-10-1982 at his specific request. No objection of jurisdiction has been specifically or impliedly taken in the reply to the show-cause notice. The petitioners' representative fully participated in the proceedings by attending the office of respondent No.

1. There is nothing on record to show that it was under protest. This being so, the petitioners cannot be G permitted to turn round and question the jurisdiction of the Mayor of the Lahore Municipal Corporation to hear objection to the impugned show-cause notice in view of the consistent practice of the superior Courts of this country. Reference may be made to Ghulam Mohi-ud-Din v. Chief Settlement Commissioner (Pakistan), Lahore and others (3), in which case a writ against a void order was refused on the ground that it was barred by acquiescence on the part of the petitioner. Reference may also be made to S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore and another (4), where it :was observed "There is also ample authority for the proposition that a writ against a void order may be dismissed if the petitioner is estopped'by his conduct from challenging it or if he is guilty of laches". This petition is, therefore, liable to be dismissed on this short ground alone. (1) P L D 1971 Lah. 34 ??????????? (2) P L D 1958 S C (Pak.) 437 (3) P L D 1964 S C 829 (4) 1978 S C M R 367

7. Mr. Aitzaz Ahsan learned counsel for the petitioners has argued the case with remarkable thoroughness and clarity on other issues referred to above. I would, therefore, like to dispose of all the contentions raised by him.

8. The impugned show-cause notice has been issued under Martial Law Order No. 821 issued by Martial Law Administrator, Zone 'A' which reads thus :- ??????????? "MARTIAL LAW ORDER No. 821 REMOVAL OF ENCROACHMENTS OF THE PUBLIC PROPERTY (1) Whereas it is expedient in the public interest to provide for measures for the removal of encroachments from public Property in the Province of the Punjab; (2) Now, therefore, in exercise of the powers conferred by Martial Law Order No. 3, issued by the Chief Martial Law Administrator, I, Lieutenant-General Ghulam Jilani Khan, Martial Law Administrator lone `A', hereby make and promulgate the following Martial Law Order: (a) This Order may be called the Removal of Encroachments Order, 1981. (b) It extends to the Province of the Punjab. (c) It shall come into force at once. (3) In this Order, unless there is anything repugnant in the subject or context; (a) "encroachment" means trespass upon, or unauthorised use or occupation of or undue interference with public property; (b) "Government" means Government of the Punjab, and (c) "Public Property" means any immovable property vesting in, or under the management or control of (i)the Federal Government; (il) the Government of the Punjab; or (iii) any statutory body or a corporation established by or under any law. (4) This Order shall have effect notwithstanding anything contained in any law, rule, agreement or contract for the time being in force. (5) Government may, by notification, authorise any officer to exercise the powers and to perform the functions tinder this Order in relation to any area. (6) An officer authorised under paragraph 5, hereinafter referred to as authorised officer, if, after making such inquiry as be thinks fit, is satisfied that any person has made on encroachment on any public property within the area of his jurisdiction he may require that person to show cause within such period as may be specified by him in the order as to why he should not be directed to remove the encroachment. (7) Any person who wishes to challenge the notice issued to him under paragraph 6, may appear before the officer issuing the notice and such officer shall, after hearing the person concerned, pass such order as he may consider appropriate. (8) Any person aggrieved by an order passed under paragraph 7 may within seven days of the order, prefer an appeal to Government or to such authority or officer as may be appointed by Government for the purpose and the decision of Government or such authority or officer given in such appeal shall be final. (9) Where an order has been passed under paragraph 7 and has not been cballenged in appeal or where an appeal under paragraph 8 has been dismissed, the autborised officer shall, by an order in writing, require the person responsible for the encroachment to remove such encroachment together with the structure, if any, raised by him on a public property, within such period as may be specified in the order. (10) If any person refuses or fails to vacate the public property or remove the encroachment or the structure raised thereon within the period specified in the order-under paragraph 9, he shall be deemed to have contravened this Order and shall be liable to be ejected by such force as may be considered necessary by the authorised officer and the cost incurred on the removal of the encroachment shall be recovered from him. (11) Any person who contravenes or attempts to contrevene or abets the contravention of this Order shall also be punishable under Martial Law Regulation 14. (12) No suit or legal proceedings shall lie against Government or any authority or officer or other functionary of Government in respect of anything which is in good faith done or intended to be done under the Order. . (13) If any officer authorised to take action under this Order requires police assistance in the exercise of his powers, he may send a requisition to the officer incharge of a Police Station who shall, on such requisition, render the required assistance. (14) Government may, by notification, appoint Committees to oversee the implementation of this Order. Lieutenant-General Martial Law Administrator, Zone `A' (Punjab) (Ghulam Jilani Khan)."

9. Martial Law Order No. 821 is by itself a complete Code for the scrutiny of objections to show-cause notices in respect of removal of encroachments. The Order specifically provides the existence of the provisions for appeal and, therefore, any indulgence to the contrary by the High Court in the exercise of its constitutional jurisdiction would have the effect of casting undeserved reflection on the competency of the original and appellate authority which stands validated by Article 15 (1) of the Provisional Constitution Order, 1981. The High Court, therefore, not only lacks jurisdiction to entertain this petition but it is also wrong on principle to allow the petitioners to circumvent the provisions of Martial Law Order' No.

821. This being so, the impugned notice cannot be challenged in view of the provisions contained in Article 15 of the Provisional Constitution Order, 1981, which completely ousts the jurisdiction of the superior Courts. The question whether or not the petitioners are guilty of encroachment within the ambit of para. 3 of Martial Law Order No. 821, is essentially a question of fact which cannot be enquired into in the exercise of constitutional jurisdiction as the High Court is not the Court of enquiry into the facts. Its validity can only be judged by the authorities mentioned in Martial Law Order No. 821, which in terms of paragraph 4 shall have the effect notwithstanding anything contained in any law, rule, agreement or contract for the time being in force. The impugned notice ex facie purports to be passed in pursuance of Martial Law Order No. 821 prima facie raises a presumption that its provisions have been complied with, in that, all official acts are presumed to have been regularly performed.) My view finds support from the recent judgment of the Supreme Court in Muhammad Haroon v. District Food Controller and others (1). In the precedent case, it was contended that the cancellation of ration depots in pursuance of Martial Law Instruction No. 22 issued by the Martial Law Administrator, Zone 'A' in the exercise of powers derived from any President's order, orders of the Chief Martial Law Administrator, Martial Law Regulations, Martial Law Orders, Enactments, Notifications, Rules, Orders or Bye-laws did not fall within the mischief of Article 15 of the Provisional Constitution Order, 1981. The contention was repelled on the' ground that Martial Law Instruction No. 22 is a complete Code and actions purported to 4have been taken thereunder were presumed to have been taken in consequence of its provisions and thus hit under Article 15 of - the Provisional Constitution Order, 1981. Honourable Mr. Justice Nasim Hasan Shah observed "The question whether a person was issued a show-cause notice before cancelling his authorisation or not is a question of fact; and in so far as action purports to have been taken under the said Martial Law Instruction No. 22 and shall (1)1982SCMR551 be presumed that its provisions have been .complied with. Moreso its validity is to be judged according to the tenor of the order and if it purports to be passed in pursuance of the said Martial Law Instruction it is immune from challenge. However, if the petitioners felt aggrieved by the said order on the ground now urged before us they should have filed an appeal to the authority superior to one, who had passed the said order as provided for under para. 9 of the Instruction, in the course of which the objection being taken before us could have been scrutinised and investigated". Respectfully following the ratio laid down in Muhammad Haroon's case which is on all fours with the petition in hand, I hold that the petition is hit by Article 15 of the Provisional Constitution Order, 1981.

10. None of the cases cited by the learned counsel for the petitioners relates to the jurisdiction of this Court under Article 15 of the Provisional Constitution Order, 1981. These cases are clearly distinguishable and not applicable to the grievance raised in this petition. It is well settled that if an appeal lies against an order passed with jurisdiction, it cannot be defeated on the ground that the order was without jurisdiction. The defect in competency of the Tribunal on any ground whatsoever will provide a good ground for appeal rather than negate it. This view finds support from the judgment of the Division Bench of this Court in Muhammad Aslam Bajwa v. Federation of Pakistan (P L D 1974 Lah. 545). The ratio laid down in the precedent case was 'approved by the Supreme Court in M. Yamin Qureshi v. Islamic Republic of Pakistan and another (P L D 1980 S C 22).

11. Be that as it may, there is no live issue to be agitated in view of the categoric statement made at the Bar by Mr. Fayyaz Hussain Qadri, on behalf of the Mayor, Lahore Municipal Corporation, that no proceedings in pursuance of the impugned show-cause notice shall be taken against the petitioners without providing them an opportunity of bearing as contemplated by Martial Law Order No.

821. The documentary evidence produced by the petitioners in this Court should have been produced before respondent No. 1 instead of rushing to the High Court.- The bald allegations of the petitioners that the Lahore Municipal Corporation intends to demolish the disputed property under the garb of Martial Law Order No. 821 for extraneous considerations cannot be examined in these proceedings, in view of Article 15 of the Provisional Constitution Order, 1981. The petitioners should follow the procedure laid down in the Order itself which is a self contained Code for the redress of the grievance of an aggrieved party. They may file an appeal under para. 8 of the Order, if ultimately a final order is passed against them rather than insisting upon getting their case examined in this Court-despite ouster of jurisdiction under Article 15 of the Provisional Constitution Order, 1981.

12. It may be pointed out that this petition has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, read with Article 9 of the Provisional Constitution Order, 1981. The provisions of Article 199 of the. 1973 Constitution cannot be invoked after the promulgation of Provisional Constitution Order, 1981. Thus visualised, the petition even otherwise is not maintainable in its present form. For the reasons stated above, the petition is hit by the provisions of Article 15 of the Provisional Constitution Order, 1981 and is hereby dismissed to limine. s. Q. ??? Petition dismissed.