1986 PLP 2987 (MLD)

ABDUL QADEER CHAUDHRY, J.‑‑This petition has been filed on the following facts. The petitioner is an owner of a plot of land bearing No.G‑7 situated on the main Clifton Road, in Block No.9, Scheme No.5, Clifton, Karachi admeasuring 6921.66 square yards. Originally there were two plots bearing Nos.G‑7 and G‑8 which were amalgamated into one plot. A lease of 99 years has been executed in favour of the petitioner. Annexures P‑1 and P‑2 are copies of the registered lease deed, dated 5‑3‑1980 and amalgamation order, dated 8‑9‑1979. The respondent No.1 is vested with the power to regulate planning, quality of construction and building control. The petitioner decided to demolish the two existing structures on his plot No. G‑7 and raised multi‑storeyed building thereon. The petitioner applied to the respondent No.1 for permission for commercialisation of the said plot and submitted necessary documents. Petitioner's application for commercialisation was approved and the petitioner was required to deposit a sum of Rs.27,68,664 by way of commercialisation charges and Rs.1,38,434 as Town Planning Fee. On 27‑3‑1984 the petitioner accordingly deposited the two amounts. Thereafter, the respondent No.2 issued no‑objection to the petitioner's request for commercialisation of the said plot through his letter, dated 21‑4‑1984 with the following conditions: (1) The prevailing rules of G.C. Category of Scheme No.5 shall be applicable. (2) Required car‑parking will have to be provided within the plot. (3) Compulsory open space Arcade should be left as marked on the plan. (4) Building plan should got be approved from Karachi Building Control Authority. (5) No opening of any kind shall be allowed towards plot No.G/6. On 28‑5‑1984 the respondent No.2 issued a letter Annexure P/8 which reads as follows: "As per instructions of the competent Authority the letter of commercialisation issued for the abovementioned plot vide this office Letter No.CF/PC‑7/MPEC/559, dated 21‑4‑1984 is hereby suspended." The petitioner requested the respondent to withdraw this letter. Finally respondent No.1 granted permission to the petitioner on 21‑11‑1984 to demolish the building situated on the said plot No. G‑

7. According to the petitioner he completed the demolition of the two buildings on the said plot and approached the respondents for withdrawal of the purported suspension but having failed to get the grievance redressed from the respondents the petitioner has filed this Constitutional Petition.

2. The respondents 1 and 2 in their counter‑affidavit have admitted that on the main road of Clifton some plots have been commercialised. It has been stated that in the present case neither building plans have been submitted by the petitioner nor any building plans have so far been approved. The respondent No.3 admitted that Deputy Controller of Buildings (Planning and Control Karachi Building Control Authority allowed commercialisation of the plot in question but later the same was suspended: This respondent has adopted the counter‑affidavit filed on behalf of respondents 1 and 2.

3. We have heard the learned counsel for the parties. A preliminary objection has been taken that this petition is not maintainable as it violates Article 279‑A, of the Constitution read with Article 15 of the Provisional Constitution Order, 1981. In order to appreciate this contention it is first necessary to refer to the order, dated 26‑5‑1984 stated to have been issued by the Martial law Administrator/ Governor of Sind (Annexure X‑5). It has been contended that as the order has been passed by the Martial Law Administrator, therefore, this order is immune from the scrutiny of the Court. Article 270‑A, of the Constitution reads as under:‑‑ "270‑A.‑‑(1) The Proclamation of the fifth day of July, 1977. all President's Orders, Martial Law Regulations, Martial Law Orders and all other laws made between the‑fifth day of July, 1977, and the date on which this Article comes into force, are hereby declared, notwithstanding any judgment of any Court, to have been validly made by competent authority and, notwithstanding anything contained in the Constitution, shall not be called in question in any Court on any ground whatsoever. (2) All orders made, proceedings taken and acts done by any authority, or by any person, which were made, taken or done, between the fifth day of July, 1977, and the date on which this Article comes into force, in exercise of the powers derived from any proclamation, President's Orders, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye‑laws, or in execution of or in compliance with any order made or sentence passed by any 'authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding any judgment of any Court, be deemed to be and. always to have been validly made, taken or done and shall not be called in question in any Court on any ground whatsoever. (3) All President's Orders, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye‑laws in force immediately before the date on which this Article comes into force shall continue in force until altered, repealed or amended by competent authority. (4) No suit, prosecution or other legal proceedings shall lie in any Court against any authority or any person, for or on account of or in respect of any order made, proceedings taken or act done whether in the exercise or purported exercise of the powers referred to in clause (2) or in execution of or in compliance with orders made or sentences passed in exercise or purported exercise of such powers. (5) For the purposes of clauses (1), (2) and (4) all orders made, proceedings taken, acts done or purporting to be made by any authority or person shall be deemed to have been made, taken or done in good faith and for the purpose intended to be served thereby. (6) The President's Orders referred to in clause (1) shall not be altered, repealed or amended without the previous sanction of the President. Explanation.‑‑In this Article, "President's Orders" includes "President and Chief Martial Law Administrator's Order", and "Chief Martial Law Administrator's Orders." Article 15 of the P.C.O. is as follows: "

15. Validation of Laws, acts, etc.‑‑(1) The Proclamation of the fifth day, o July, 1 7, a ill President's Order, Orders of the Chief Martial Law Administrator, including Orders amending the Constitution ' made by the President or the Chief Martial Law Administrator, Martial Law Regulations, Martial Law Orders and all other laws made on or after the fifth day of July, 1977, are hereby declared, notwithstanding any judgment of any Court, to have been validly made by the competent authority and shall not be called in question in any Court on any ground, whatsoever and shall continue in force until altered, repealed, reconstituted or amended by the competent authority. (2) All orders made, proceedings taken and acts done by any authority, or by any person which were made, taken or done, or purported to have been made, taken or done, on or after the fifth day of July, 1977, in exercise of the powers derived from any President's Orders, Orders of the Chief Martial Law Administrator, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules orders or bye‑laws, or in execution of any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid, shall notwithstanding any judgment of any Court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any Court on any ground whatsoever: Provided that nothing in this clause, shall apply to transactions past and closed. (3) Where a Military Court is established in pursuance of a Martial Law Order made by the Chief Martial Law Administrator, no other Court, including the Supreme Court and a High Court, shall grant an injunction, make any order or entertain any proceedings in respect of any matter of which cognizance has been taken by, or which has been transferred to the Military Court, and all proceedings in respect of any such matter which may be pending before such other Court shall abate. (4) No suit or other legal proceedings shall lie in any Court against any authority or any person for or on account of or in respect of any order made, proceedings taken or act done whether in the exercise or purported exercise of the powers referred to in clause (2) or in execution of or in compliance with orders made or sentences passed in exercise or purported exercise of such powers. (5) Notwithstanding any judgment of any Court, including any judgment in respect of the powers of Courts relating to judicial review, any Court, including the Supreme Court and a High Court, shall not.‑‑ (a) make an order relating to the validity or effect of any order or Martial Law Regulation made by the Chief Martial Law Administrator or any Martial Law Order made by the Chief Martial Administrator, or a Martial Law Administrator or of anything done, or action taken, or intended to be done or taken, thereunder; (b) make an order relating to the validity or‑ effect of any judgment or sentence passed by a Military Court or Tribunal; (c) grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of a Military Court or Tribunal extends and of which cognizance has been taken by a Military Court or Tribunal; or (d) issue any process against the Chief Martial Law Administrator or a Martial Law Administrator or any person acting under the authority of either. (6) Every such order, injunction or process as is referred to in clause (5) made, granted. or issued at any time before or after the commencing day shall, notwithstanding any judgment of any Court, be null and void and of no effect whatsoever and any proceedings for the making, granting or issue of such order, injunction or process which may be pending before any Court, including the Supreme Court 'and a High Court, shall abate; and it is hereby declared that any such order, injunction or process shall not be binding on .any Martial Law Authority, or civil authority acting under the directions of a Martial Law Authority." Sub‑Article (1) of Article 15 of the P.C.O. relates to the making of law and so also Article 270‑A, of the Constitution bars the jurisdiction of the Court regarding the Proclamation of the fifth day of July, 1977 all President's Orders, Martial Law Regulations, Martial Law Orders and all other laws made between the fifth day of July, 1977. In the instant case it‑ has not be shown or contended that the order, dated 26‑5‑1984 (X‑5) is in the nature of some Martial Law Order. No Martial Law Order or Regulation has been brought to our notice under which such order has been passed. It is contended that this order would be covered by Article 15(2) of the P.C.O. and Article 270‑A, of the Constitution. We are afraid we cannot accept this contention as the order on the basis of which the official respondents have suspended the grant is not covered by any of the order mentioned either in Article 270‑A, or 15(2) of the P.C.O. It cannot be immuned from judicial scrutiny. Before taking an objection about the ouster of jurisdiction it has to be shown that the order which is the basis of such ouster must have been passed by the authority under some order or regulation. Unless any Regulation, Martial Law Order or Presidential Order empowers a Martial Law Authority to exercise the authority he cannot pass such an order, and every order is not saved under the umbrella of Martial Law. The Courts have the jurisdiction to examine such order on the touch stone of judicial review. Mr. Ali Ahmad Fazeel has made stress on the word 'Order' mentioned in sub‑Article (2) of Articles 270‑A and 15(2) of the P.C.O. and contended that it includes every order but the word 'order' is not to be read in isolation. It does not mean every order passed by a r Martial Law Administrator. The word 'order' cannot be divorced from Presidential Order, Martial Law Regulation or Martial Law Order. If such order has not been passed under any of the aforesaid laws then the ouster of the jurisdiction of the Court as contained in the aforesaid provisions will not apply. The respondents have failed to show that there exist any Martial Law Order which empowers the Martial Law Administrator to issue such direction. Before issuing a direction similar to X‑5, dated 26‑5‑1984 he should have some authority derived from some Martial Law Order and if the law does not empower to make such a direction then the immunity cannot be claimed. Mr. Fazeel has referred to the case of Province of the Punjab v. Syed Muhammad Akram Shah. This authority does not apply as in the reported case order of reversion was passed in pursuance of recommendation of Review Board constituted under Martial Law Instruction No.

21. The next case cited by him is Muhammad Afzal Khan v. Karachi Development Authority P L D 1984 Kar. 114 in which one of us Syed Haider Ali Pirzada, J. was a party wherein it has been observed that reliefs claimed if hit by Article 9(6) of the P.C.O. cannot be granted. In the same judgment it has been observed that the Courts still have the jurisdiction to be satisfied whether the impugned order or action purported to have been passed/taken under a M.L.O. or M.L.R. was passed/taken by the authority /person prima facie clothed with the power, which he purported to exercise e.g. an officer neither connected with the administration of the Martial Law nor authorised to act under the relevant Martial Law Order/ Regulation or by the Martial Law Authorities in terms of the relevant M.L.O./M.L.R., cannot claim immunity from scrutiny of his order by the Court on the ground that he purported to have passed the order under a M.L.O. or M.L.R. He next cited 1982 S C M R

375. This authority is also inapt as the vires of the Ordinance was challenged and it was observed that the validity of this Ordinance was not open to question after the promulgation of the P.C.O.,1981. He has also referred to Civil Petition for Special Leave to Appeal No.K‑78 of. 1981 in which leave was granted to consider whether the order of cancellation of the allotment was saved by Article 15 of the P. C . O . 1981. In this case the notice was issued under M.L.O .34. The case has not yet been disposed of, apart from the fact that the facts are distinguishable. On the other hand learned counsel for the petitioners has referred to the case of Sher Muhammad v. Shaikh Nasir‑ud‑Din P L D 1960 (W.P.) Lah. 583 wherein it has been observed that:‑‑ "Where, in a writ petition, the plea taken by the respondent (Administrator of a Municipality) was not that the High Court could not question the legality of the Martial Law Regulation or Martial Law Order but was to the effect that because respondent purported to act under a Martial Law Order the Court could not look into the matter at all. Held, that a person's assertion, and even his honest belief, that what he was doing fell within the four corners of a Martial Law Regulation or a Martial Law Order cannot deprive any Court of the jurisdiction to decide the question if it arises in a proceeding which the Court has the jurisdiction to take. The argument that the High Court cannot issue any writ because action was being taken under a Martial Law Order can succeed only if the Court comes to the conclusion that the action intended to be taken was authorised by a Martial Law Regulation or a Martial Law Order. If on the other hand, the Court comes to the conclusion that it was not so authorised the jurisdiction of the Court to pass an appropriate order exists because by merely asserting that action was being taken under a Martial Law Regulation or a Martial Law Order no one can deprive any Court of its jurisdiction to decide whether or not it had jurisdiction in the matter. If a person has admitted in a communication sent to the Administrator of a Municipal Body that he had encroached on any kind of the property mentioned in clause (c) of Martial Law Order (Zone 'B') No.48 he is bound to carry out the instructions given by the Administrator of the Municipal Body concerned but this is not the same thing as giving the Administrator of the Municipal Bodies the exclusive jurisdiction to decide whether or not there had been an encroachment. The decision of the question whether or not any property is evacuee property continues, even after the issue of Martial Law Order No.48 to be within the exclusive jurisdiction of the Custodian of Evacuee Property." This authority applies with full force to the facts of the present case. The next legal objection taken by the respondent is that an alternate remedy is available to the petitioner and they can approach under section 16 of the Sind Building Control Ordinance by way of Appeal. The question of the competency of the writ was left undecided and the case was not decided on merits and it was left open to the petitioner to avail of the remedy of appeal under section 16 of the Sind Building Control Ordinance, 1979. Additionally this case 1982 C L C 1076 does not apply to the facts ~of the present case as in this case the petitioner was granted approval for construction of ground floor plus three upper floors but in the present case the petitioner is aggrieved against the order of suspension passed by the respondents after giving the sanction. In the case of Syed All Abbas and others v. Vishan Singh and others, reported in P L D 1967 S C 294 it has been observed that there had been in the relevant aspect, an excess of jurisdiction and the affected party could not be penalised for not throwing themselves again on the mercy of the authorities who were responsible for such excess. The proper and indeed the only authority which possessed power to correct the legal wrong thus done was the High Court acting in its jurisdiction under Article 98 of the Constitution 1962. In the present case a vested right has accrued to the petitioner. The petitioner had been granted no objection certificate after the payment of commercialisation fee and town planning fee. There is no allegation that the petitioner has violated any of the terms and conditions of the grant. It is an admitted position that the structure has been demolished after seeking permission. The order granting sanction has been accorded under the Building (Planning and Control) Karachi Building Control Authority and it has been admitted by the learned counsel for the respondent that the Board of Governors has not revised any policy that permission once granted can be revoked. A vested right has been accrued in favour of the petitioner. It has been held in P L D 1969 SC 223 (Mian Fazal Din v. Lahore Improvement Trust) as under: "The right considered sufficient for maintaining a proceeding in writ jurisdiction is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise. A Corporation entrusted with the task of formulating town improvement schemes had appropriated a particular site for the use of the public as a market place and this induced one M to purchase a piece of land just opposite to the proposed market place in the hope of opening a shop there. Subsequently however, the scheme was altered and M was deprived of the facility he had hoped for. The Supreme Court held that the deprivation of such a facility conferred a sufficiently valuable right' to enable him to maintain a writ petition." In P L D 1960 S C 310 (Pakistan and the Chief Controller of Imports and Exports v. S. Hussain Ali Shah A Fazlani) it has been observed that the licence granted was no mere act of discretion or unilateral act on the part of the Government. It was granted in fulfilment of an undertaking, which imposed certain prior conditions upon the applicant, which conditions he had fulfilled and thereby there had accrued in his favour something in the nature of a legal right to an import licence of equivalent value. The Government had performed no bare uncontrolled act of discretion under their powers. The petitioner in affidavit in rejoinder has stated that the matter relating to the commercialisation of plots in Clifton area was considered by K . D. A . and a policy decision was taken in consultation with the Governor/ Government of Sind to the effect that the Clifton area be commercialised in view of the needs and demands of the time. This contention has not been denied and Sarah wife of Muhammad Ashraf a Director of the petitioner‑Company has filed an Additional affidavit that in January 1986 respondents 1 to 3 have granted permission for commercialisation of Plot No. G 19/3, Block 9, Clifton Karachi near the plot of the petitioner. X‑1 is the order dated 25‑1‑1986 issued by the Karachi Building Control Authority. On 27‑3‑1984 the Director General K . D . A . has issued the following report: "The following is the report on the case:‑ (i) In the light of the summary approved by the Governor, Sind and directives received from the Government of Sind, the Governing Body, K . D . A . as a policy decision has declared the Main Clifton Road (Khyaban‑e‑Iqbal) as commercial. The conversion of the plots is done on the prescribed rates of Rs. 400 per sq. yd. and building plans are accordingly approved as per prevailing building regulations in this area. (ii) The building plans of multi‑storeyed projects are approved in accordance with the K.D.A. Regulations. (iii) There is already 10 feet compulsory open space around the existing multi‑storeyed building. In case there is any suggestion from the neighbours, this office will try to get an agreement reached between the parties." All these facts would show that the petitioner has a vested right and it cannot be taken away unless the official respondents have requisite authority to take away that right. The upshot of the above discussion is that the petition is accepted. The petition was allowed by a short order dated 25‑2‑1986 in the following terms: "For the reasons to be recorded separately we accept the petition and declare the letter dated 28‑5‑1984 (Annexure P/8) for suspension of commercialization of plot No. G‑7 Block 9 Scheme 5 Clifton, Karachi issued by respondent No.2, unlawful and of no legal effect and consequently restore the no‑objection certificate dated 21‑4‑1984, with no order as to costs." The above are the reasons in support of the short order. S. Q. Petition allowed.