P L D 1968 Supreme Court 185 (PLP)

S. A. RAHMAN, J.‑

These are 17 appeals arising out of orders passed by the High Court of East Pakistan, on petitions presented under Article 58 of the Constitution. Some of the appeals are based on a certificate of fitness [ranted by the High Court, and in other cases, special leave to appeal was granted by this Court. The questions involved in these appeals are common and they are, therefore, being disposed of together by this judgment. The historical background of these cases may first be briefly summarised. On the 2nd April 1956 the Provincial Government issued two Notifications in respect of each district of the Province, one under subsection (1) and the other under sub section (2) of section 3 of the East Bengal State Acquisition and Tenancy Act, 1950 (hereinafter referred to as `the Act'). By the first Notification the rent receiving interests of all rent receivers were purported to have been acquired, except for those which bad already been acquired by Govern ment under the provisions of the Act, and by the second Notification, all khas lands of these rent receivers, except those retainable by them under subsection (2), Clauses (a) and (b) of section 20 of the Act, was made the subject of acquisition. These Notifications were challenged by petitions lodged under Article 170 of the 1956‑Constitution, in the High Court. The validity of the impugned Notifications was upheld by the High Court, but it was found that the claim of the Government in regard to acquisition of the khas lands appertaining to wakf and debutter estates, could not be sustained, in view of certain effects in the Notifications themselves. The rules obtained in some of the writ petitions were consequently made absolute, in so far as the question of acquisition of khas lands of rent receivers, In respect of wakf and debutrer properties, was concerned. With regard to other reliefs the petitions were all dismissed. On the basis of a certificate granted by the Special Bench of the High Court, which heard the Petitions, appeals on behalf of the petitioners were brought before this Court. The Provincial Government apparently did not appeal from the order of the High Court, declaring the Notifications in respect of khas lands of wakf and debutter estates to be invalid. This Court upheld the decision of the High Court in respect of all secular properties, but with regard to wakf and debutter estates, the finding was given that they could not be acquired under the provisions of the Act, as such acquisition would be in violation of the Fundamental Right granted by the 18th Article of the late Constitution. As there had been no investigation of the question whether the properties involved were really wakf or debutter properties, the petitions involving them, were remanded to the High Court, for determination of the question as to whether the estates in question pertained to religious institutions, and were consequently protected by Article 18 of the late Constitution. The High Court was left to grant such relief as may be called for in each case after holding the enquiry. The judgment of this Court is reported as Jibendra Kishore Achharyya Chowdhury and others v. The Province of East Pakistan (P L D 1957 S C (Pak.) 9). Before and after the decision of this Court, a large number of applications founded on Article 18 of the Constitution, had been filed in the High Court by mutawallis and shebaits, including some of the present appellants, challenging acquisition of wakf and debutter properties. After the remand, a Division Bench of the High Court heard the petitions in accordance with the direction of this Court. It was found by the High Court that all the properties in question were valid wakf or debutter properties and in view of the law declared by this Court, the Provincial Government was directed to withdraw or rescind the Notifications issued, in respect of the rent receiving interests of the petitioners, under subsections (1) and (2) of section 3 of the impugned Act. A certificate for appeal to this Court was granted by Ispahani, J. of the High Court, to whom the case had been referred, on a difference of opinion between the Judges of the Division Bench. Appeals were therefore, brought before this Court on behalf of the Provincial Government. Some doubt was thrown as to the validity of the certificate thus granted by the High Court, and to get over the difficulty, this Court thought it fit to grant special leave to appeal. During the pendency of the appeals in this Court, on the 7th October 1958, the President of Pakistan promulgated the Proclamation by which the Constitution of 1956 was abrogated and the country was placed under Martial Law. Three abrogated later, the Laws (Continuance in Force) Order, 1958 (hereinafter referred to as `the Order'), was issued, which became the constitutional instrument that henceforth governed the country. It was held by this Court, according to the majority view, that the applications for writs had abated because of the provisions of Clause 7 of Article 2 of the Order. The appeals were therefore, dismissed. The decision is reported as Province of Fast Pakistan and another v. Muhammad Mehdi Ali Khan Panni and others (P L D 1959 S C (PaK.) 387). There was a consequential order passed by the High Court on the 25th of August 1959, recalling the writs that had been issued in these cases. The judgment of this Court had been rendered on the 9th July 1959. Before that date, however, the Provincial Government had issued two Notifications, covering the whole Province, except for the Chittagong Hill Tracts, on the 9th of May 1959, the first one under subsection (1) of section 3, and the second under subsection (2) of section 3 of the Act. These Notifications were issued in terms identical to those of the Notifications of the 2nd April 1956, with the addition of clauses exempting lands which stood already acquired, and those which were held under any wakf, debutter or other Religious Trusts. With effect from the 24th of ivia5‑ 1960 Ordinance IX of 1960 was promulgated by the Governor of the Province. This added section 10‑A to the Act, which provided that where the rent receiving interests held under any wakf, debutter or other Religious Trusts, had been acquired under subsection (1) of section 3 of the Act, but the Provincial Government had not exercised the right of possession over such interest till the date of commencement of the Ordinance, by starting collection of rent, etc., from the tenants holding the lands, or by any other means, the mutawallis, shebaits, or Trustees, as the case may be, holding such interest on the date of acquisition, shall continue and be deemed to have continued to manage such interest, as agents of the Provincial Government, till the last day of the agricultural year, next following the date of the publication of the Notification under subsection (2) of section 43 of the Act. It seems that in the meantime preparation of records of rights under Chapter IV and thereafter, of compensation assessment rolls under Chapter V, was undertaken by the Government, and this activity culminated in the issue of Notifications under subsection (2) of section 43 of the Act, declaring that the compensation assessment rolls had been finally published. The consequences of this publication are mentioned in section 44 of the Act. It lays down that all interests of proprietors in their respective estates, other than interests already acquired under Chapter II, with effect from the first day of the agricultural year next following the date of publication of such Notification in the official Gazette, shall be deemed to have been acquired by the Provincial Government and would vest absolutely in that Government, free from all incumbrances. These Notifications were published throughout the Province. It maybe mentioned that section 3 is part of Chapter II of the Act. The present Constitution was brought into force with effect from the 8th of June 1962. By an amendment of the Constitution, Fundamental Rights were incorporated in this instrument, on the 10th of January 1964. Right No. 10 of these Rights, reproduces the provisions of Article 18 of the late Constitution. It was after this that the petitions giving rise to the present appeals were filed in the High Court, by mutawallis of wakfs or shebaits of debutter properties, challenging the claim of the Government that these properties had vested in it, and that they were entitled to assume their possession. It may be clarified that under subsections (1) and (2) of section 20 of the Act, on the completion of all acquisition proceedings under the Act, a rent receiver, a cultivating raiyat, a cultivating under‑raiyat, or a non‑agricultural tenant, occupying the lands in question, would be entitled to retain only certain classes of khas lands, as a tenant under the Government, subject to a maximum limit. The rest of the lands could be acquired by Government, by a Notification. In the Act there was originally an explanation appended to subsection (2) of section 20 which declared that for the purposes of clause (a) of subsection (2), lands covered by buildings would not include hats and bazars. The Provincial Government asserted on the basis of this explanation that hats and bazars were not retainable lands and would vest in the Provincial Government, on formalities of acquisition being complied with. This stand of the Government was called in question in the case of Yousaf Ali Chowdhury and others v. The Province of East Pakistan (P L D 1958 Dacca 138) before the High Court. The contention of the Government was upheld by the High Court. On appeal to this Court, however, it was decided that bazars, with structures, are non‑retainable lands within the meaning of section 20, subsection (2) of the Act, but hats without structures were retainable. In another case coming up before the High Court, Muhammad Tajammal Hossain and others v. The Province of East Pakistan (P L D 1959 Dacca 346) the High Court had taken the view that a several fishery, that to the right of fishing in a navigable river, was not acquirable under the Act. The decision of the High Court was upheld by this Court by judgment dated the 29th January 1960 in Civil Appeal No. 37‑D of 1959. To avoid the effect of these judgments Ordinance No. XII of 1960 was promulgated on the 17th of June 1960, by the Governor. This omitted the explanation referred to above and inserted subsection (2‑a) after subsection (2) of section 20, declaring that clauses (a) and (b) of subsection (2) did not include, and shall be deemed never to have included, any land or building in a hat or bazar, or any fishery other than a tank constructed solely by process of excavation or any land consisting of forest, or any land actually in use for a ferry. The Notifications issued on the 2nd of April 1956 by the Provincial Government were to be effective from the 14th of April 1956, as specified therein, The case for the Provincial Government in the High Court was that all the acquirable interests of mutawallis and shehaits, who were rent receivers within the meaning of the Act, vested in the Provincial Government with effect from the 14th of April 1956, under these Notifications. In the alternative, it was pleaded that if any such interest was not acquired under those Notifications, that interest and any other acquirable interest of non‑rent receiving mutawallis and shebaits, vested in the Government, on and from the dates on which Notifications under section 43(2) of the Act were finally published this, it was contended, took place long before the 10th of January 1964, when Fundamental Rights were introduced into the present Consti tution. These rights were, therefore, not available to defeat the claim of the Provincial Government to possession of the acquired interests. The attack on behalf of the appellants in the High Court on the Notifications of the 2nd April 1956, was two‑fold. In the first place it was maintained that the decision of this Court in the case of Jibendra Kishore had declared the said Notifications, in so far as they affected wakf and debutter properties, to be invalid. It was further represented that the majority decision of this Court in Muhammad Mehdi Ali Khan Panni's case that the Notifications in question could not be challenged on and from the 7th October 1958, when the 1956 Constttution was abrogated, was not binding on the High Court. Secondly it was suggested that the Notifications of the 2nd April 1956, were superseded by Notifications of the 9th May 1959, in so far as tile latter Notifications exempted the acquirable interests of wakfs, and debutter estates and other charitable trusts, from their scope. The petitions were heard by a Bench of three learned Judges in the High Court. Two of them, namely, A. Sattar and S: Ali, JJ. concurred in dismissing the petitions, but Abdulla, J. dissented in respect of certain legal findings, and recorded an order making the rule absolute in some of the petitions, though not in others. The rules issued by the High Court were, however, discharged in accordance with the majority view. The learned Judges representing the majority view in the High Court, at the outset, made it clear that the claim of the Government that khas lands of the retainable type, appertaining to wakf and debutter estates, stood acquired by Notifications of the 2nd April 1956, could not be sustained, in the face of the decision of the High Court in Jibendra Kishore's case, which was not challenged by an appeal on behalf of the Provincial Government. They further found that the Notifications of the 9th May 1959, did not expressly refer to the earlier Notifications of the 2nd April 1956, and as the subsequent Notifications excepted such rent‑receiving interests as already stood acquired, from their scope. It could not be said that the exemption in favour of wakfs debutters or religious trusts, referred to in these Notifications, could operate to de‑vest properties appertaining to these Religious Trusts, which had been previously acquired. It was observed that the second exception in favour of wakf and debutter interests in the subsequent Notifications, was confined to wakf and debutter interests not acquired till then and that there was no question of supersession of the Notifications of the 2nd April 1956. Support was gained for this view from the fact that the Provincial Government contested the decision of the High Court in Muhammad Mehdi Ali Khan Panni's case, in the Supreme Court, even after the Notifications of the 9th May 1959, had been issued, in respect of wakf properties. A similar mew had apparently been taken by a Division Bench of the High Court in the case of Haji Altafuddin Kazi v. The Province of East Pakistan (P L D 1963 Dacca 472). It was noted by the majority Judges in the High Court that there was a difference of opinion in this Court in Mohammad Mehdi Ali Khan Panni's case. After analysing judgments of this Court, the learned Judges came to the conclusion that the majority view in Mohammad Mehdi Ali Khan Panni's case had upheld the validity of the Notifications of the 2nd April 1956, on the ground that Fundamental Right No. 18 of the Old Constitution, was no longer available to provide a challenge to their full effect. It was pointed out that all the Judges of this Court had agreed that, on and from the date of abrogation of the Constitution of 1956, the Act itself had recovered its full force and rigour and the only difference between the Judges of this Court centred on the point whether the Notifications that had been issued under the Act, at a time when Fundamental Right No. 18 of the Old Constitution was available, could also be said to have revived with the abolition of the Old Constitution. This appears to me to be a correct appreciation of the effect of this Court's judgment. The majority opinion in Mohammad Mehdi Ali Khan Panni's case had not only proceeded on the view that the Act had been restored to its full effect when its repugnancy to Article 18 disappeared, but also that no successful challenge could be thrown to the impugned Notifications of 1956, on that very ground. The minority view undoubtedly was that in any event the Notifications of 1956 could not be said to be valid, and the Government in order to acquire the properties in question, should have issued fresh Notifications, in con sequence of the law declared previously in Jibendra Kishore's case by this Court. On the authority of this Court's decision in Mohammad Mehdi Ali Khan Panni's case it was found by the learned Judges that the impugned Notifications of 1956 were not open to challenge after the abrogation of the old Constitution. The consequential result followed, according to the High Court that under the Notifications of the 2nd April 1956 the rent‑receiving interests and the non‑retainable khan lands, at least, of the wakf and debutter estates, having rent‑receiving interests, vested in the Provincial Government on and from the 14th April .

956. The further finding was then recorded that even if the claim of acquisition under Chapter II were to fail, for any reason, the acquirable interests of rent‑receiver, mutawallis and shebaits, as well as of non‑receiver mutawallis and shebaits, had vested in the Provincial Government, with effect from the dates of the Notifications issued under section 43. (2) of Chapter V of the Act. This brought section 44 of the Act into play, and the effect of this section was that the properties in question vested in the Government and the occupiers became tenants of the Government thereafter. The contention raised on behalf of the appellants, that Government could not resort to the alternative provisions of section 43 (2) of the Act, after having once undertaken to acquire the properties under Chapter II, was rejected as without force. It was observed that while under Chapter II, acquirable interests of rent‑receivers only, could be acquired, under Chapter V, both the properties of rent‑receivers as well as non‑rent receivers could be taken over. Clearly even for acquisition made under Chapter II, no separate provision for assessment of compensation was made in the Act, except for the machinery provided by Chapter V read with Chapter IV. By Act VI of 1952, however, a new Chapter V‑A was added to the Act, which enabled Government, without proceeding under sections 17 and 31 of Chapter IV, to prepare compensation assessment rolls in respect of properties of any rent‑receiver, acquired under section 3 of Chapter II, on the basis of the returns, papers and documents, furnished or taken possession of, from the rent‑receivers in question, under sections 3‑A and 4 of the Act. The compensation to be assessed under Chapter V was to be based on records of rights to be prepared under Chapter IV, or on tile basis of records of rights last prepared and finally published under Chapter X of the Bengal Tenancy Act, 1885, or Chapter IX of the Sylhet Tenancy Act, 1936. The 1carned Judges noted that it was nobody's case before them that the Government, after issuing the general Notifications of the 2nd April 1956, had pressed into service the provisions of Chapter V‑A for the purpose of assessment of compensation. All relevant proceedings with that object were apparently taken under Chapters IV and V. The learned Judges, therefore, expressed the opinion that any lacuna left in the acquisition, made under Chapter II, was made up by the final preparation of compensation assessment rolls under Chapter V, and that all the properties involved in the petitions before the High Court stood duly acquired. On this view it was pointed out that even if wakf and debutter properties could be said to have been generally excluded from acquisition by the Notifications of the 9th May 1959, there would be no escape from the position that these properties too had vested in the Government, on and from the dates of the Notifications, under section 43 of the Act. It was added, however, that if no such Notification was published in any case, or the formalities that were to be gone through prior to the issue of such a Notification, were not observed, up to the 9th of January 1964, the Provincial Government would find itself in difficulty, as after that date Fundamental Right No. 10 of the present Constitution, would come to the aid of the holders of the property and would prevent any further expropriation of the wakf and debutter properties. It appears to have been pleaded on behalf of the appellants in the High Court that all the requisite formalities leading up to the final publication of compensation assessment rolls under Chapter V, had not been strictly observed by the Government. The learned Judges declined to undertake an investigation on the vague and indefinite allegations made in this respect, on behalf of the appellants. The Government had claimed that they I observed all the procedural requirements lending up to the final publication of the Notifications under section 43 of the Act. The acquisitions under Chapter V having taken place before the Fundamental Rights were incorporated in the 1962 Constitution, were immune to attack according to the majority view of the High Court. The argument also seems to have been advanced in the High Court on behalf of the appellants that the two procedures, one envisaged by Chapter II, and the other by Chapter V of the Act, for acquisition of properties, were different, and therefore, resort to one or the other, according to the arbitrary will of the Government, would amount to discrimination such as was not permissible under the law. To this the answer was given by the learned Judges that there was hardly any difference between the two procedures or the incidents of acquisition under the two Chapters. The acquisition under Chapter was a little more expeditious than that provided for in Chapter V, inasmuch as the properties would vest in the Government with the issue of Notifications under Chapter II, whereas the vesting was postponed to the preparation of compensation assessment rolls, in proceedings under Chapter V. In either case, however, com pensation assessment rolls had to be prepared, and the learned Judges found that the two procedures were not ex facie discriminatory, and therefore, did not offend Fundamental Right No. 15 of the Constitution. It was then sought to be maintained in the High Court, on behalf of the appellants, that the transactions of acquisition were not past and closed transactions, in so far as Government had failed to take possession of the properties in question in pursuance of the Notifications in question. On this point the majority opinion was that on and from the date mentioned in a Notification under subsection (1) of section 3, the Provincial Government became entitled to collect rents from the tenants of the rent‑receivers in question, and the Government thus replaced the old landlord, from the date the Notification became effective. In respect of acquisition made under Chapter V, the same result would follow, with this difference that the relevant date would be the first day of the next agricultural year following the publication of a notification under section 43(2) of the Act. The property having vested in the Government, they were entitled to its possession also. The transaction of acquisition became complete with the issue of the Notifications under Chapter II, or under Chapter V, as the case may be, and the right to possess the property also vested in the Government. It was, therefore, found that the transactions in question were past and closed, and could not be re‑opened for the purpose of applying the Fundamental Rights introduced in the 1962 Constitution, subsequently. Certain acts which remained to be done like payment of compensation, etc., were only consequential in nature following the vesting of the property in the Government, which was not affected by the omission to take steps for that purpose. The jural relation of landlord and tenant, established by section 10‑A of the Act, would also come too an end from the first day of the agricultural year, following the publication of Notification and subsection (2) of section 43 of the Act, and would not materially affect the situation. Another line of argument in the High Court, on behalf of the appellants, was that as the impugned Notifications did not specify in detail the interests sought to be acquired, they were bad in law. This contention was repelled on the authority of the decision of this Court in the case of Tofazzal Hussain and another v. The Province of East Pakistan (PLD1963SC251). It was ruled in that case by this Court that if a Notification mentions that "all interests" are being acquired, it would not be necessary to specify such interests in detail. Notice may now be taken of the findings recorded by Abdullah, J. in his dissenting judgment. The learned Judge held that the Notifications of 1959 had excepted, from their scope, the properties relating to wakf, debutter and other religious trusts, generally, and that to that extent, the effect of previous Notifications, if any, was lost. In the learned Judge's view, the Notifications of the 9th May 1959, must he deemed to be a re‑issuance of the Notifications of the 2nd of April 1956, without the inclusion of the properties held by this Court to be exempted from acquisition. The yearned Judge drew some support for this view from the act that on the 9th May 1959, the decision of the Supreme Court in Mohammad Mehdi Ali Khan Panni's case had not yet been delivered, and the law declared in Jibendra Kishore's case still held the field. He was also of the view that the majority decision of this Court in Mohammad Mehdi Ali khan Panni's case had not declared as valid, all Notifications of the 2nd Aril 1956, but that the decision was, if at all, confined to the appeals then pending in this Court. He bought that there was no general declaration of law involved in that decision. With respect, this appears to me to be an entirely misconceived observation. In this context, however, the learned Judge was quite firm in rejecting the suggestion shat the decision of the Supreme Court in that case was not binding on the High Court. He also repelled the contention that the Government could not resort to the provisions of Chapter V, if they had once started action under Chapter II. He, however, went on to distinguish between what he called the acquisition of property and vesting of property in the Government. He considered that acquisition could not be paid to be complete, till the further steps of assuming possession of the properties in question, and of assessment of compensation under Chapter II, read with Chapter V‑A, and the Rules framed thereunder, had been taken. With regard to the vesting in the Government, of the properties involved, under section 43(2) of the Act, the learned Judge expressed the opinion that it was a mere vesting on paper, in so far as the Government had yet to show that the right given to the proprietor under Chapter IV, of retaining khas lands of his choice, had been complied with. He also thought that for the acquisition to be complete, it was necessary that as required by section 45 of the Act, the Revenue Ofhc4r should issue a proclamation, setting out the consequences of the preparation of the final assessment rolls, as detailed in section 44 of the Act, and directing all persons in the area concerned, to attorn to the Provincial Government. In respect of khan lands of religious institutions, the learned Judge thought that no steps whatsoever, had been taken for their acquisition, and they were now protected from acquisition, by operation of Fundamental Right No. 10 of the 1962.‑Constitution. This was the position, according to the learned Judge, in cases where actually physical possession of the estate had not been taken, and the religious institutions were intact. He then proceeded to deal with individual petitions and held that in some of these, the rule should be made absolute, but in others he agreed that the rule should be discharged. The main argument on behalf of the appellants was presented in this Court by Mr. Hamidul Haq Chowdhury, who represented the appellants in Civil Appeals Nos. 27‑D, 28‑D, 34‑D, 35‑D and 36‑D of 1965. Other appeals were argued by Mr. Kamaluddin Hossain, Mr. Bhattacherjee, Mr. Mozammel Huq, Mr. S. Mohsen Ali, Mr. B. N. Chowdhury, Mr. A. H. Mirza and Mr. A. Sobhan, who adopted the arguments of Mr. Hamidul Haq Chowdhury, and supplemented them by their own submissions, of a general character, or relating to the special features of their cases. The case for the Government was argued by Mr. Asrarul Hossain, Advocate General, East Pakistan. In Civil appeal No. 96‑D of 1966 it appears that the counsel engaged by the Attoney in the case, was Mr. S. C. Bose who had left for Calcutta, a long time ago. No counsel was engaged in his stead during all this time, by Mr. Behatar Ali Attorney, who prayed that he might himself be heard on behalf of his client. Under the rules of this Court he was not entitled to this privilege, not being a ,t senior Attorney, and his prayer was, therefore, not acceded to. The position in this appeal therefore, is that it goes unrepre sented by counsel and must be dismissed for non‑prosecution. Similarly, in Civil Appeal . 13‑D of 1967 the security for costs was not deposited on behalf of the appellants, despite several reminders and no concise statement was also put in. The Attorney failed to appear at the hearing, but Mr. Latifur a Rahman, Advocate presented himself before us. He had, however, no explanation to offer why the requisite steps for completing the case for hearing had not been taken. In this appeal, therefore, the leave granted must be rescinded and the petition dismissed. The first point raised by Mr. Hamidul Haq Chowdhury, was that the decision of this Court to Muhammad Mehdi Ali Khan Panni's case merely amounted to a declara tion that the remedy by way of a writ was barred and that the right of the appellants to retain the property in dispute, remained intact. This position is untenable. The decision in that case proceeded on the principle laid dowel in State v. Dosso (P L D 1958 S C (Pak.) 333). It was held therein that with the disappearance of the late Constitution and its replacement by a new legal order which excluded that Constitution, all proceedings is cases in which the validity of a law had been called in question on the basis of Fundamental Rights, em bodied in the late Constitution had abated, under Clause 7 of Article 2 of the Order. It was laid down clearly in that case. that the Fundamental Rights had not survived the successful Martial Law Revolution. On that point there was no difference of opinion among the Judges of this Court. The minority view in that case only expressed a doubt as to whether the concluding words of clause 7 of Article 2 of the Order, had the effect of bringing to an abrupt end, the proceedings in the petitions before the High Court, commenced by the affected parties at a time when the late Constitution was in force. My Lord the Chief Justice considered in that case that the writs should not be recalled unless the judgment of the High Court was itself open to question, on the point of the relevant law's repugnancy to Article 5 of the late Constitution. After examining the position in this regard, he reached the conclusion that the High Court's order could not be sustained. The view that Fundamental Rights had not survived the abrogation of the Constitution, was re‑affirmed by all the Judges in Mohammad ATshdi Ali Khan Panni's case also. However, my Lord the Chief Justice, in his minority judgment, reiterated the doubt which he had expressed in Dosso's case, as to the effect of Clause 7 of Article 2 of the Order, in the circumstances of the case. He further observed that the Fundamental Rights embodied in the late Constitution, had been deprived of their compulsive force in law, and therefore, their enforcement through Courts was no longer possible. Yet, as the Order, in terms, provided that notwithstanding the abrogation of the late Constitution, but "subject to any Order of the President or Regulation made by the Chief Administrator of Martial Law, the Republic, to be known henceforward as Pakistan, shall be governed as nearly as may be in accordance with the late Constitution", the possibility was envisaged by my Lord that the Fundamental Rights in question had not become entirely devoid of validity, but perhaps could be placed on the footing of directive principles of policy. On the basis of this reasoning, my Lord held that the proceedings for the writs, out of which the appeal in Mohammad Mehdi Ali Khan Panni's case had arisen, did not abate by the operation of Article 2(7) of Vie Order. This being the position of the law, as expounded in the two judgments cited above, it is impossible to uphold the contention ordered by Mr. Hamidul Haq Chowdhury, that the right of the appellants remained intact despite the abrogation of the late Constitution. If Article 18 of the Constitution was no longer enforceable through Courts, it could not be said that the alleged right based on it, continued to submit. The fact that the Order vested power in the High Courts and the Supreme Court , to issue specified writs, does not lead to the inference that these writs could have reference to Fundamental Rights. It was held in the above case that these writs could henceforth operate only on laws other than the Constitution, which the Order had continued in force. The second point taken by the learned counsel in support of the appellants' case was that at least the Notifications issued in 1956, which were declared to be ineffective by this Court, so far as wakf and debutter properties were concerned in Jibendra Kishore's case, did not regain their full effect, even with the abolition of the late Constitution. But this contention runs contrary to what was laid down in Mohammad Mehdi All Khan Panni's case, per the majority view. As has been observed above, there was no difference of opinion among the Judges of this Court on the question that the law under which the impugned Notifications were issued, had revived in its full force, after the abrogation of the late Constitution. The difference of opinion centred round the question whether the Notifications issued under that law, at a time when the law itself was subject to the restraining curbs imposed by the Constitution, could be said to be still effective. The suggestion that the decision of the majority in that case proceeded on the basis of abatement of the appeals under Clause 7 of Article 2 of the Order, alone, without any adjudication on the question whether the Notifi cations of 1956 were open to challenge or not, appears to me to be obviously incorrect. If that had been the case, as the learned Advocate‑General rightly argued, the appeals should have been dismissed, and not allowed as they were. The Judgment of the learned Chief Justice in that case, makes it clear that no successful challenge could be thrown to the Notifications in question because of the changed situation, and with that judgment two of the other Judges, including myself, agreed. The learned Advocate‑General, Mr. Asrarul Hussain also contended that the correct position appears to have been present to the minds of the learned Advocates of the appellants, including Mr. Hamidul Haq Chowdhury, in the High Court. For they were, in the face of the decision in the above cited case, driven to what has been described as a "desparate argument" by one of the learned Judges of the High Court, to the effect that the decision of this Court in Mohammad Medhi Ali Khan Panni's case was not binding on the High Court. The contention was rightly repelled by the High Court as untenable, for mere has been a continuity in the structure, functioning and re‑;cognition of this Court by all authorities, both during the pre‑Martial Law and post Martial Law periods, up to date and the law declared by this Court has continued to be binding on all Courts in this country. The decision of this Court in the case cited amounted to law declared, and was not a mere adjudication confined to the facts of that case. The petition in this respect appears to have been misconceived by Abdulla, J, in the High Court. Unless therefore, the vial taken by the majority in Mohammad Mehdi All Khan Panni's case is reviewed, the finding of the High Court that the h!otifications of 1956 had become unassailable must being armed. With regard to the effect of the Notifications on the final publication of compensation assessment rolls under chapter V of the Act, Mr. Hamidul Haq Chowdhury's stand was that if the property in question was not acquirable under Chapter II, it was not acquirable even under Chapter V. The first part of this proposition has been found to be inconsistent with the majority judgment of this Court in Mohammad Medhi Ali Khan Panni's case. But assuming for the sake of argument, that the assumption made by learned counsel about the invalidity of the acquisition under Chapter II had some force, it by no means follows that the Government was precluded from acquiring the same property try proper proceedings under Chapter V. The argument could only succeed if the erroneous theory were adopted that Article 1& of the late Constitution had pro tanto cut down the provisions of the Act in so far as they affected wakf and debutter properties. That theory, it was pointed out by the learned Advocate‑General, was exploded by the un animous opinion of all the Judges of this Court both in Dosso's case and in Mohammad Medhi All Khan Panni's case. The legal provisions of the Act were only under a temporary eclipse so long as the late Constitution was in force, and as soon as that dominant law disappeared from the field, the Act became operative according to its tenor. Chapter V provides an alternative mode of acquisition and the proceed ings thereunder having been finalised subsequently by publication of the final compensation assessment rolls, before the Constitution of 1962 was promulgated, the acquisitions made, cannot be attacked as invalid. These acquisitions, as was clarified by the majority judgment in the High Court, made up any deficiency in respect of the vesting of the properties in dispute in the Provincial Government under Chapter II of the Act. The question, therefore, whether the 1959 Notifications superseded those of 1956, or whether khas properties relating to debutters and wakfs did not stand acquired under Chapter II, would merely assume an academic aspect. Mr. Hamidul Haq Chowdhury urged this Court to review the decision in Dosso's case as well as in Mohammad Mehdi Ali Khan Panni's case that Fundamental Rights had dis appeared with the promulgation of Martial Law and the Order. He called in aid the provisions of Islamic Law with regard to wakfs, in this context, and put forward the pro position that God's Law, which has been recongised even by the present Constitution, must be accorded an over‑riding position. Consequently, he suggested, wakf properties could not be taken over by the Government, as the action would be repugnant to the provisions of Islamic Law. Such a plea is however, not justiciable in Courts under the present constitution. The responsibility has been laid on the Legislature to see that no law repugnant to the Islamic Law, is brought on the statute book. The grievance, if any, therefore should be ventilated in a different forum and not in this Court. The other factors pressed into service by learned counsel in this context appertain more to the realm of political philosophy than law and would hardly furnish an adequate basis for reconsideration of the two previous decisions of this Court. Lastly Mr. Hamidul Haq Chowdhury tried to maintain that the transactions of acquisition in these cases could no b. said to be past and closed, prior to the promulgation of the present Constitution, and consequently they came within the mischief of the Fundamental Rights incorporated in this Constitution. In this connection it was represented that Government had not assumed physical possession of the properties said to have been acquired so far that compensation assessed had also not yet been paid and that certain other consequential steps required to be taken under the F Act had not been completed. This argument cannot be acceded to as correct. The vesting of the properties in ques tion in Government, either under Notifications issued under Chapter 11, or under Chapter V, on the relevant dates, was complete and final, and all consequential actions required to be taken by the Act but not completed, could not divest the Government of its rights. It was conceded by learned counsel that the vesting was not contingent, on these con sequential steps being taken. The opinion expressed by Abdullah, J. in this connection is not sustainable in law. A suggestion was made by Mr. Bhattacharjee that by holding that the impugned Notifications of 1956 were effective, after the abrogation of the late Constitution, we were virtually giving retrospective effect to that abrogation. This suggestion proceeds on a fallacy. It was never declared by this Court that these Notifications were good when they were G first issued. All that was held is that the Notifications acquired immunity from challenge, with the restoration of the Act to its full operation, because of the abrogation of the late Constitution. This does not import any idea of retrospective effect being given to the abrogation. Mr. Bhuttacharjee then invited our attention to Article 4 of the Order, which provided that all laws other than the late Constitution would continue to remain in force. On the basis of this provision, the learned counsel tried to maintain that the law declared by the Supreme Court in Jibendra Kishore's case was also preserved, and therefore, the declara tion in respect of the impugned Notifications of 196 being ineffective, could not be touched. The same argument was in effect advanced by Mr. Hamidul Haq Chowdhury, though in a somewhat different form. The question has been expressly dealt with in the majority judgment in Muhammad Mehdi Ali Khan Panni's case. Although this Court had declared the law in Jibendra Kishore's case, that law had never been applied by this Court to the 1956 Notifications and they were not therefore, struck down. The High Court for the first time declared them to be invalid, after the cases were remanded to it for fresh decision. But that was not a final decision and became sub judice when appeals were filed in this Court. The declaration made by this Court in Jibendra Kishore' case, as was clarified by the learned Chief Justice in Mohammad Mehdi Ali Khan Panni's case, remained effective so long as the late Constitution was in operation, and it ceased to have efficacy after its abrogation. The argument, raised, therefore, is devoid of force. Mr. Bhattacharjee then pressed the argument that action under Chapter V‑A of the Act was possible only if the Notifications of 1956 were valid and not otherwise. But as has been remarked by learned Judges of the High Court, it was nobody's case before them that Government had taken any steps under Chapter V‑A of the Act. Even now learned counsel was unable to point to any circumstance which could lend support to such a suggestion. The Notifications on which reliance was placed on behalf of Government, were expressly stated to have been issued under section 43 of Chapter V of the Act. foundation, therefore, exists for the argument raised on the basis of Chapter V‑A. The final point urged by Mr. Bhattacharjec was that proper compensation assessment roils had not been prepared in these cases by Government, even under Chapter V of the Act. This is a vague and indefinite ground, and no attempt was made at any stage of these cases to make out precisely the reasons for holding that the publication of compensation assessment rolls was open to any legal exception. If, however, there be any such defect in the proceedings which culminated in the publication of those rolls, it would still be open to the appellants to agitate the matter in the proper forum. This exhaust: the arguments of a general nature, advanced on behalf of the appellants. It now remains to notice any special feature; of particular cases. In Civil Appeal No. 29‑D of 1965 in which the appellant is represented by Mr, kamaluddin Hossain, the High Court has observed that the very existence of debutter was disputed in this case, It further appears that a regular suit filed by the appellant to establish the nature of the property, is also pending in the Civil Court. That by itself would be a Sufficient ground for denying any relief in writ jurisdiction to, the appellant in this case. Mr. Mozammal Haq in Civil Appeal No. 30‑D of 1965 urged that the property involved in this case was merely agricultural Khas land, and as such lands were held, to have been not acquired by the earlier Notifications of 1956, according to the judgment of the High Court in Jibendra Kishore's case, Government could not now claim them. That judgment was allowed to become final for want of appeal by the Government. The argument was further fortified by the contention that the 1959 Notifications had excluded all wakf properties from their scope. These contentions, how ever, lose all force when it is remembered that in the alternative, the Government's case rests on action finalised for acquisition, under Chapter V of the Act. This appeal has arisen In respect of Petition No. 155 of 1964 of the High Court. The case is dealt with by the majority Judges at page 89, and by Abdullah J. at pages 149 and 150 of the paper‑boot. The majority Judges' comment was that besides challenging the right of the Provincial Government to acquire wakf property, the only complaint put forward was that no annuity had been fixed in accor dance with the provisions of the Act. Reference was further made to the Government's assertion in their affidavit, that the estate had only rent‑receiving interests and bazars. The learned Judges observed that such interests vested in the Government, under the Notifications of 2nd April 1956, and that grievances about compensation and other matters could be agitated in proper proceedings, if they were maintainable. Abdulla, J. however, held that the wakf had not been denied and all the pro perties were khan lands. The affidavit‑In‑opposition, accord ing to him, did not controvert this position. Government had left 4 acres of khas lands with the mutawalli and no annuity had been assessed for the property taken over, under section 37(3) of the Act, as it was considered that the income from 4 acres of khas land was sufficient to meet the charitable purposes of the wakf. In Abdullah, J.'s opinion, as the property was still in the possession of the mulawalll, the rule should have been made absolute. It seems to me that the matter has not received adequate attention In the High Court. The affidavit of the Government in opposition made out that the property in dispute consist ed partly of khas lands and partly of rent‑receiving interests. Even the nature of the wakf was disputed, at it was said that it was partly Wakf‑alai‑Aulad and partly Wakf‑Lillah. The appellant's assertion on the contrary was that no part of the property was Wakf‑alai‑Aulad, and that there were no rent‑receiving interests at all. The dispute, according to the learned counsel for the appellant is confined to khas lands, beside the bazar which he concedes, was not retainable by the mutawalli. He, however, avers that the khas lands were well within the retainable limit in this, case and that compen sation assessment roll had been prpared by Government only for a part of the property in question. It appears to me that disputed questions of fact and law, requiring investiga tion, arise for consideration in this case which would therefore, not be a suitable subject for adjudication under Article 98,8 of the Constitution. The appellant must, therefore, be relegated to the remedy open to him by a regular civil suit, if so advised. In Civil Appeal No. 56‑D of 1965 Mr. B. N. Chowdhury asserted that a jute godown, which formed part of the property said to have been acquired, was not acquirable at 411, In the petition under Article 98, the plots on which the jute godown was said to be local‑u, were specified by numbers. The counter‑affidavit on behalf of Government, raised the contention that the godown was located partly on some other secular property, belonging to certain other per sons. The case, therefore, involves a dispute over facts. In the majority judgment at pages 96 and 97 of the paper‑book, notice is taken of this dispute and it is observed that no relief could be granted in the present proceedings, in con sequence. Abdulla, J. who was inclined to make the rule absolute in this case, does not refer to this factual dispute. I consider that the view that prevailed with the majority of the Judges in the High Court, is sound in the circumstances of the case and the appellant must be left to his remedy by way of regular suit, if necessary. Mr. Ahmad Sobhan in respect of Civil Appeal No. 36‑D of 1966 maintained that the compensation assessment rolls prepared in this case, in 1956, were invalid, as at that time, the provisions for compensation regarding hats and bazars of a wakf estate did not exist. According to the learned counsel it was only by Ordinance XII of 1960 that pro vision was made in this behalf. The High Court have rightly held, however, that the general provisions of section 39 of the Act, in respect of assessment of compensation, existed at the relevant time. The amendment introduced by Ordi nance XII of 1960 only provided for grant of annuities in lieu of income of properties which were exclusively applied to religious or charitable purposes, without reservation of pecuniary benefit for any individual. This new provision was a more beneficial one, and if the appellant has not been granted an annuity in accordance with that provision, he may agitate the matter before the relevant executive authorities. In the remaining cases no special point was urged and they, therefore, do not call for any further comment. In the result, I have reached the conclusion that the view taken in the majority judgment of the High Court was correct and the appeals fail. I would dismiss them, but in view of the' circumstances, I would leave the parties to bear their own costs in this Court. CORNELIUS, C. J.‑I agree with the judgment proposed to be delivered by my learned brother S. A. Rahman, J., with his treat ment of the arguments addressed in this important case, and with the conclusions which he has reached thereon. As the case recalls previous decisions by this Court, to which I was a party, In respect of the important constitutional issues involved, it is desirable that I should add something of my own. The appeal has been argued with force and diligence on behalf of the appellants and that is wholly appropriate, for apart from the fact that valuable interests are involved, there is also the consideration that those interests are concerned with matters of religious obligation, such as has received direct recognition and protection under the Constitution of 1956, and since January 1964, Under the present Constitution of 19132 as well The properties in dispute which the Provincial Government of East Pakistan claims to have acquired in exercise of powers derived from the East Bengal State Acquisition and Tenancy Act of 1950, all pertain to religious institutions, that is to say, either to Muslim wakfs or .to Hindu debutters. In my judgment in the case of Province of East Pakistan v. Mehdi All Khan (P L D 1959 S C (Pak.) 387), dealing with the question whether a wakf was a Muslim religious institution, I expressed the following opinion "Taking then the first ground, it seems to me that to urge that the property which is the subject‑matter of a wakf is not a religious institution betrays failure of understanding of the expression `religious institution.' Such an institution, in relevant respects, does not mean the creator of the trust, or the beneficiaries, or the operator of the trust, or the property which is the subject‑matter of the trust, or the gaining of income thereout, or the distribution of that income, or the principles governing such distribution, but all these persons and things and actions put together constitute the wakf as an organisation owing its existence to religious tenets which find their expression through this controlled and continuous activity." That in my opinion can be said with confidence also of debulters. These are ancient institutions of religious origin, involving dedication of the property included in the endowment to the Almighty. In the case of waif‑alai‑aulad, the ultimate dedica tion is of a similar nature, although the immediate beneficiaries are usually the creator of the wakf and his direct descendents. By L Article 18 of the Constitution of 1956, it was laid down as a Fundamental Right that :‑ "every religious denomination and every sect thereof has the right to establish, maintain and manage its religious institu tions," but this was expressly made "subject to law, public order and morality". In the first case before the Supreme Court where the acquisition in question was challenged, namely, Jibendra Kishore v. Province of East Pakistan (P L D 1957 S C (Pak.) 9), it was held unanimously that the provisions of the Act in question had the effect of striking these religious institutions at their very root, and they must therefore yield to the direction of the Constitution that all citizens should have the right to establish and maintain their religious institutions. The argument that the drastic interference with these institutions which was sought to be effected by the Act in question was authorised by the Constitution itself, through the use in Article 18 of the expression "subject to law" was unhesitatingly rejected, and the view was expressed that the intention by the use of this expression was to render such institutions subject to regulation by lace as to their operation, but no law could be made that would in its operation have the effect of extinguishing the substance of the institution in whole or as to any significant part. The interference made possible by the Act were manifold, but of these only one need be mentioned, namely, that the dedication of the land to the Almighty could be extinguished. The first notification of acquisition were issued in the year 1956, and at the time when judgment in the Jibendra Kishore's cases was pronounced by this Court, the Constitution of 1956 was in full force. If in the present case, the validity of those notifications in the eye of the Constitution of 1956 were raised, the conclusion of this Court would necessarily be the same. The writs out of which the present appeals arise were instituted at a time when the present Constitution of 1962 had been amended by the addition of a chapter incorporating Fundamental Rights of which Right No. 10 described as "Freedom to profess religion and to manage religious institutions" is expressed in precisely the same terms as Article 18 of the 1956 Constitution. The resistance to the writs was based on the contention that the procedures laid down in the Act had been carried to their completion on a date prior to the re‑introduction of the Fundamental Rights including Right No. 10 into the present Constitution. The argument ins based on two foundations. It is said firstly that the notifications under section 3, which were issued in 1956 took effect according to the terms of that section on the dates specified. In each of the relevant notifications the date of the issue of the notification is clear, as well as the date from which the East Pakistan Government purported to acquire the interests in question. The operative portion of section 3 reads as follows, viz :‑ "It shall be lawful for the Provincial Government to acquire, by notification in the official Gazette, with effect from such date as may be specified in the notification . . . . . all interests . . . . ." And subsection (4) of the same section provides that on and from the dates specified in the notification under subsection (1) all such interests "shall vest absolutely in the Provincial Government free from all encumbrances." In order to overcome the effect of the judgment of the Supreme Court in Jibendra Kishore's case, reliance was placed upon the later judgment in Mehdi Ali Khan's case, where it was held following the earlier judgment of the Supreme Court in the case of State v. Dosso (P L D 1958 S C (Pak.) 533) that by the effect of Article 2(7) of the Laws (Continuance in Force) Order of 1958, the writs in question, being based on the ground that the Provincial Government's action was avoided by the effect of Article 18 of the 1956‑Constitution, abated and the result of such abatement was that the writs were liable to be dismissed. That was the view of the majority of the Judges, who decided the case of Mehdi Ali Khan as well as the case of Dosso. In each of these cases, I was in the position of a dissentient, as I held the view that whatever may be the effect of the relevant provision in the Laws (Continuance in Force) Order. 1958, with respect to writs based on Fundamental Rights instituted. after the coming into effect of the said Order, there was nothing in that provision which could justify the conclusion that a writ commenced at a period prior to the 7th October 1958, and founded on a Fundamental Right in the Constitution of 1956 would necessarily be extinguished. I expressed this opinion in my judgment in the case of Mehdi Ali Khan in the following words "This conclusion confirms me in the belief I expressed in the Dosso's care, that it cannot have been the intention or purpose of Article 2(7) of the Order to extinguish every pending proceeding which may have been commenced before the Proclamation to obtain relief against a statute or any executive action on the basis of a Fundamental Right." In so saying, I was placing reliance on the general principle that a litigation once commenced must, in the absence of a law to the contrary, be continued on the basis of the law as it existed at such commencement, and that it carries with it all the incidents applicable to such litigation at the time of its commencement until its conclusion. That question does not arise in the present cases, for the reason that the writs out of which the present appeals arise were commenced and continued in a purio6 which has throughout been covered by instruments deriving their force from the new source of law, namely, the Constitution of 1962, which succeeded the period of soma 3J years during which the source of all law3 in Pakistan was the Revolution of the 7th October 1958, by which Martial Law was imposed on the country. The force of the present writs therefore falls to be examined in relation to a single law, namely, the Act of 1950, viewed against the overriding provisions of the Constitution of 1962, which was reinforced with Fundamental Rights in January 1964. The decision of the Court given in the case of Down and confirmed subsequently in the case of Mehdi Ali Khan with respect to the operation of the Fundamental Rights in the period of Martial Law, was unanimous. In my judgment in the latter case, I described it in the following words :‑‑‑ "The unanimous opinion of the Judges who heard the Dosso's case was that as a consequence of the promulgation of the Laws (Continuance in Force) Order of the 10th 0otober 1958, the binding effect in respect of executive action as well as legislation, of the Fundamental Rights, enumerated in Part II of the Constitution of 1956 had been withdrawn. This effect was derived with absolute clarity from the provision in the first subsection of Article 2 of the Order that Pakistan was to be governed `as nearly as may be in accordance with the late Constitution,' notwithstanding that that Constitution had been abrogated, but this would be subject to `any Order of the President or Regulation made by the Chief Administrator of Martial Law'." Learned counsel for the appellants have sought a review of the conclusion to this affect reached in these two cases. Their arguments have been set out in full in the judgment of my learned brother S. A. Rahman, J., and I do not propose to repeat them here. Some basis for the argument could no doubt be found in the consideration that although it was within the powers of the President or of the Chief Administrator of Martial Law (these two functions were combined in the same dignitary with effect from the 27th October 1958) to direct that at a particular respect, Pakistan should be governed otherwise to than in accordance with the provisions of the 1956‑Constitution which included a full statement of the Fundamental Rights, yet, such Order or Regulation was ever made rendering the expression of the Fundamental Rights ineffective in relation to the validity of any law or any executive action under any law. Suit, whether or not there is force in this contention or in any other contention raised in support of the same request, that is for view of the opinions expressed in the aforementioned cases, c seems to me clear that it is not possible for this Court today, pertain as it is under law derived from a new source, that is Constitution of 1962, to pronounce in a different sense upon &e state of law in the counter during the period ending the 7th June 1962. when it was governed under Martial Law. The anouncement of the Supreme Court that writs for enforcement ,:; the Fundamental Rights under the 1956‑Constitution were not competent by reason of the Laws (Continuance in Force) Order, was an interpretation of that Order, which had effect as a part of Order. To put it differently, that legal pronouncement became a part of Martial Law and had the effect that thought the period that Martial Law was in operation, a period of over years during which at enottziaus number of executive actions .sere performed on the basis of laws of laws of origin prior to p tie Martial Law as well as of laws made during the period of Martial Lave, all in the belief sustained by the view of the Supreme Court that such actions were immune to challenge on 1,!;;, basis of Fundamental Rights in the Constitution of 1956. To hold to the contrary today, if that were possible, would have the effect of disturbing a great many things done during the period of Martial Law, affecting individuals and institutions and in certain cases the whole of a Province, which things were valid in the period they were done, and have formed the basis of further actions by the authorities as well as by the citizens concerned. The period of Martial Law was governed by its own source of law, namely, the Revolution of the 7th October 1958, and the actions that were done and brought to completion in that period, in compliance with laws derived from the said source are all covered by the Martial Law of which the decision in the case of Dosso, as confirmed in the case of Mehdi Ali Khan, was an essential part. The principle of start decisis can have no more direct application than to the judicial interpretation of a major instrument by which the governance of an entire country was controlled during a limited period, and within the terminal points of that period. On general grounds, therefore, it is not open to this Court to review its decision in the case of Dosso. With respect to the particular actions of the executive Government here in question, the actions of the relevant authorities during the Martial Law period have been placed under constitutional protection by the provisions in Article 250 read with Article 225 (2) in the Constitution of 1962. By the latter Article, the Laws (Continuance in Force) Order, 1958, was repealed, but it was made clear that the repeal would not affect any existing law made under that Order. The case here does not involve consideration of any law made under the said Order. However, Article 250 lays down in clear terms that where a law is replaced by the virtue of this constitution the repeal shall not effect "the previous operation of the law or anything duly done or suffered that under law." The denial to citizens of Pakistan of the of benefit of the Fundamental Rights of the 1956‑Constitution in the period of Martial Law was based upon the interpretation given to the Laws (Continuance in Force) Order, 1958, by the decision of this Court in the Dosso's case. In my opinion, Article 25 of the present Constitution effectively excludes the possibility of relief in respect of anything duly done by any authority or suffered by a citizen to consequence, during the Martial Law period. The validity of the notifications of acquisition issued in 195 was successfully challenged in respects relevant to these appeals in the Jibendra Kishore's case, where the law was laid down that these acquisitions by notifications could not affect dedicated property, which was being managed by religious institutions. When subsequently, in AIehdi Ali Khan's case, this Court held the writ petitions in those cases to be incompetent, it did not recall its opinion that the acquisitions were invalid in relevant respects against the Fundamental Right expressed in terms of Article 18 aforesaid. On this basis, the argument was raised that the acquisition sought to be effected by these notifications was prejudiced from the commencement to the relevant extent and therefore the further proceedings on the basis of those Notifi cations that were carried out under the Act of 1950 and brought to a conclusion in the period prior to January 1964 by publication of a Compensation Assessment Roll under section 43 of the said Act, were incompetent. The point has been dealt with at length in the judgment of my learned brother S. A. Rahman, J. with whose views I agree. It seems to me, that, on the view that with effect from the 7th October 1958, the expression in Article 18 aforesaid was ineffective to produce any prejudicial effect upon, on the notifications of acquisition, and in the face of the fact that those notifications still remained in existence, in the form in which they were originally issued, that the further action of the autho rities under the Act of 1950 in respect of properties of wakfs and debutters could validly have been carried out without let or hindrance derived from any constitutional provision. The effect of the judgment of this Court in the Jibendra Kishore's case cannot be supposed to be one of amendment of those notifications. But even if it be thought that the total effectiveness of those, notifications was placed to doubt in consequence of the last mentioned judgment, the alternative argument presented on behalf of the State must prevail, namely, as provided by section 32, the opening section of Chapter V of the Act, which relates to "assessment of compensation and acquisition of interests of rent‑receivers and of certain other interest," the provisions of that Chapter are applicable both to interests which had been acquired under Chapter II (i.e., by notification under section 3) as well as to interests acquired in the mode laid down in Chapter V. The proceedings which are set out in this Chapter are stated to have been duly carried out to the point of preparation of compensation Assessment‑Rolls and their publication under section 43, By section 44, it is provided that one of the consequences of final publication of a Compensation Assessment Roll is that all the interests of the proprietors concerned (e.g., the wakfs and dehutters in the present cases) "shall, with effect from the first day of the agricultural year next following the date of publication of such notification in the official Gazette, be deemed to have been acquired by the Provincial Government and vest absolutely in the Provincial Government free from all encumbrances, but subject to the rights of such proprietors, tenure‑holders and other rent receivers specified in clause (2)." Clause (2) entitles such proprietors, tenure‑holders and rent receivers, to retain possession as tenants under the Provincial Government of all lands of which they are entitled to retain possession under the provisions of Chapter IV. It is clear that the retention of such lands is a matter of consequential nature and has no effect, upon the vesting of the property in the Provincial Government as the superior proprietor. Section 44. in clause (1) confines such vesting to interests other than those which have already been acquired under Chapter II. The effect of this provision in relation to the argument that the notifications under section 3 were ab initio ineffective would be, that if that assumption be made, yet in consequence of the proceedings taken and concluded under Chapter V of the Act of 1950 in respect of the properties mentioned in the notifications under section .3, those properties vest absolutely in the Provincial Government as from the terminal date mentioned . above, which date also is said to have expired before the Fundamental Rights were restored under the present, Constitution. A. H. Appeals dismissed.