P L D 1960 (W (PLP)

SHABIR AHMAD, J.‑

On the 15th of December 1959, a notice bearing the initials of Mr. Nasir‑ud‑Din, Administrator, Municipal Committee, Raiwind, was sent to Sher Muhammad son of Muhammad Rafiq, resident of Mandi Raiwind and though it is not clear on what date it was served, it may, be presumed to have been served on Sher Muhammad within a day or two of its issue. This notice, which was in Urdu, may be translated into English as follows:‑-- "Notice for demolition of unauthorised construction or encroachment under the Martial Law Administrator's order dated the 14th of November 1959 to Sher Muhammad son of Muhammad Rafiq, caste Sheikh, of Jiya Bagga, resident of Mandi Raiwind. "I Sheikh Nasir‑ud‑Din Ahmad, P. C. S., Magistrate section 30, Kasur, and the Administrator of the Municipal Committee, Raiwind, inform you that the construction of your shop situated within the limits of the Municipal Committee, against the interest of the Municipal Committee and of the public and is, therefore, declared to be unauthorised and its demolition is necessary. Consequently You are directed that within 30 days of the issue of this notice you should demolish the construction and vacate the site on which it is built ; otherwise, on the expiry of that period, you will be proceeded against under Martial Law Regulation No. 16 (9) (sic). (Sd.) (Illegible). Administrator, 15th December 1959. Municipal Committee, Raiwind."

2. On the 2nd of March 1960, Sher Muhammad presented this writ petition impleading Sheikh Nasir‑ud‑Din, Administrator, Municipal Committee, Raiwind, as the first respondent and the Rehabilitation Authority, through the Deputy Settlement and Rehabilitation Commissioner, Lahore, and the Custodian of Evacuee Property, West Pakistan, through the Deputy Rehabilita tion Commissioner (Legal), Lahore, as the second and third respondents, respectively. The prayer in the writ petition is that a writ of certiorari be issued quashing the illegal proceedings taken by the respondent No.1 against the petitioner and other shop‑keepers under Martial Law Regulations and Orders, a writ of mandamus be issued against respondent No. 1 ordering him to desist from demolishing the shop and prosecuting the petitioner and other shopkeepers under Martial Law Regulations, and any other appropriate writ, order or direction to secure the ends of justice may be issued. In response to the notice issued in these petitions, respondent No.1 put in appearance through counsel and put in a written statement.

3. In the petition it was averred that the land on which the shop with regard to which respondent No. 1 had issued a notice to the petitioner was one of the shops in the ghalla mandi which stood on Khasra Nos. 2542, 2467, 2402, 2465 and 2466, which belonged to evacuee owners that the shops had been allotted to the petitioner and the other shopkeepers by the Rehabilitation Department, to which rents being paid by the allottees; that some time in 1953‑54 the Notified Area Committee Raiwind issued notices to shopkeepers of the ghalla mandi Raiwind to pay rent to the Committee and not to the Rehabilitation Authorities, otherwise notices of ejectment shall be issued to them ; that the shopkeepers did not comply with this notice of the Committee because the Rehabilitation Authorities asserted that the land underneath the shops belonged to non‑Muslims, who were evacuees and who had built the Mandi on their own land hence the Committee could neither charge rent nor remove the structures; that thereupon the Committee submitted an application to the Deputy Custodian of Evacuee Property under section 18 of the Pakistan Administration of Evacuee Property Ordinance (XV of 1949) for a declaration that the land under Khasra Nos. 4524, 2467, 2402, 2465 and 2729/1 was not evacuee property and no part of it vasted in the Custodian ; that after an exhaustive inquiry the Deputy Custodian dismissed the application of the Municipal Committee on the 29th of Tune 1956 holding that the area in question was evacuee property and the only authority competent to take action was the Custodian of Evacuee Property or the Rehabilitation Authorities ; that this order of the Deputy Custodian was not challenged by an appeal or a revision, but in 1958 the Committee again demanded rent from the petitioner and the other shopkeepers who numbered about 80 and issued notices to the effect that as rents were due from them for tehbazari action under section 81 of the Punjab Municipal Act will be taken for realization of the amount,, whereupon the petitioner and some of the other shopkeepers moved an application before the Deputy Custodian, Evacuee Property for clarification of the matter involved, namely, whatever the Rehabilitation Department or the Committee was entitled to charge rent ; that the application was still pending before the Deputy Custodian, Evacuee Property, who on the 7th of March 1959 issued a temporary injunction restraining the Committee from realising the rent till the disposal of the petition ; that respondent No. 1, who also exercises the powers of a Magistrate, purporting to act under an order issued by the Martial Law Administrator of Zone `B', served on the petitioner the notice dated the 15th of December 1959, which has been reproduced above, threatening prosecution under Chief Martial Law Administrator's Regulation No. 16 in case of failure to comply with the order of respondent No.1, that the Martial Law Order relied upon by the Administrator was not in force on the date when the impugned order was issued by the Adminis trator and that as the order of respondent No. 1 was illegal, ultra vires and wholly without jurisdiction, the writs prayed for should be issued.

4. In his written statement respondent No. 1 pleaded inter alia that action was taken under Martial Law Order No. 48, issued on the 7th of November 1959 by the Martial Law Administrator, Zone `B', which authorized the Administrators of the Municipal Committees to go into the question whether there were encroachments on evacuee or non‑evacuee lands ; that the Martial Law Order No. 48 took away the jurisdiction of the Custodian to deal with such encroachments on evacuee land ; that as action was taken by the Administrator under the Martial Law Order it could not be questioned ; that at any rate the Deputy Custodian or the Custodian has no jurisdiction to go into the matter on an application made by the petitioner or other shop keepers and that the petitioner had never been allowed to build the shop or permitted to use the plot under the shop in ghalla mandi occupied by him and was not authorized to build over that plot. Some other pleas in the written statement were to the effect that the petitioner was not a regular allottee from the Rehabilitation Department and that at any rate after the issue of Martial Law Order No. 48 by the Martial Law Administrator, Zone `B' neither the Rehabilitation Authorities nor the Custodian or any of the Authorities under him could look into the question and that as all powers to decide the question that arose vested in the Administrator by reason of Martial Law Order No. 48 the petitioner was not entitled to get any relief from Court.

5. Martial Law Order No. 48, on which reliance was placed by respondent No. 1, reads as follows:‑-- "Whereas it is expedient to provide for measures to remove and to prevent unauthorized erection or re‑erection of buildings, and movable and immovable encroachments, within the limits of Municipal Authorities in the Martial Law Zone `B' (West Pakistan less Karachi, Malir and Special Areas). "Therefore, I, Lieut.‑General Bakhtiar Rana, S. Q. A., M. C., hereby order as under :‑ (a) In this Order, "Municipal Authority" means a Municipal Corporation, a Municipal Committee of any class, a Notified Area Committee, a Small Town Committee or a Bazar Fund. (b) No person shall, within the limits of any Municipal Authority in Zone `B', erect or re‑erect any building or structure ; or encroach in any manner upon evacuee land, lands vested in Government or any Municipal Authority or any Improvement Trust, or on any graveyard, road, street or drain ; or occupy the same without obtaining prior permis sion in writing from the competent authority. (c) Whosoever has encroached upon or occupied any land, graveyard, road, street or drain, as aforesaid, shall submit to the Administrator of the Municipal body concerned a written declaration to this effect along with the requisite plans giving the nature and extent of such encroachment or occupation within 30 days of this order and thereafter shall abide by any directions given by the competent authority within 30 days of the issue of such directions. (d) Any person who contravene, attempts to contravene or abets the contravention of this Order shall be punished under Chief Martial Law Administrator's Regulation No. 16 (a)." This Order appeared in the Extraordinary issue of the West Pakistan Gazette dated the 19th of December 1959, but bears the date the 7th of November 1959.

6. Before taking up the other questions I will dispose of an objection raised in the petition to the effect that respondent No. 1 had acted under Martial Law Order No. 48 of the Martial Law Administrator Zone `B' before it had become a binding order. I have already mentioned that this Order appeared in the West Pakistan Gazette on the 19th of December 1959 and if it were an Act of the Central or Provincial Legislature or an Ordinance issued by the President or a Provincial Governor, it would probably have been right to say that it did not come into force before the 19th of December 1959, but the rules given in the Central and Provincial General Clauses Acts with regard to A the commencement of the Acts and Ordinances have no applica tion to Martial Law Regulations or Martial Law Orders. This was made clear by the Chief Martial Law Administrator the day that Martial Law was proclaimed in Pakistan and as it was said by the Chief Martial Law Administrator that the Regulations and Orders would be published in the manner considered suitable and, when so published, will become binding, I do not see how the fact that it was for the first time on the 19th of December 1959 that the Martial Law Order in question was published in the official Gazette can be used as an argument for having it held that it was not in force on the 15th of December 1959 when respondent No. 1 issued the impugned notice to the petitioner. It will be noticed that under the Gazette Notification it is mentioned that the Martial Law Order was issued on the 7th of November 1959. It will further be noticed that in the impugned notice issued to the petitioner by respondent No. 1 the date of the Martial Law Order on the basis of which the notice was issued is given as the 14th of November 1949. It is not clear how respondent No. 1 happened to mention the 14th of November 1959 as the date of the Martial Law Order on the basis of which he had issued the impugned notice, but the material on the record makes it clear that the intention of the Administrator was to invoke Martial Law Order No. 48, issued by the Martial Law Administrator of Zone `B' on the 7th of November 1959, and if it is held that the action taken by respondent No. 1 fell within the four corners of Martial Law Order relied upon by him in his written statement, no occasion for holding the notice to be invalid would arise by reason of the fact that the Martial Law Order was not published in the official Gazette till the 19th of December 1959 or of the fact that the date of the Martial Law Order was not correctly mentioned in the notice sent by respondent No.1 to the petitioner.

7. An argument addressed by the learned counsel for respondent No. 1 that because action was being taken under a Martial Law Order no writ could issue may now be taken up This argument can succeed only if the Court comes to the con clusion that the action intended to be taken was authorized 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 authorized the jurisdiction to pass an appropriate order exists because I am clear in my mind that 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 jurisdic tion to decide whether or not it had jurisdiction in the matter. The attitude of respondent No. 1 with regard to the jurisdiction of this Court to issue a writ was, in my view, entirely unjustified because the plea taken was not this that the Court could not question the legality of the Martial Law Regulation or a Martial Law Order but was to the effect that because respondent No. I purported to act under a Martial Law Order the Court could not look into the matter at all. If the question were to arise in a suit for damages against respondent No. 1 whether or not the Martial Law Order on which he purported to act was applicable, the belief of respondent No. 1 that his order fell within the four corners of the Order relied upon by him may perhaps be a circum stance which could be taken into consideration for assessing the damages at a lower figure but no one can doubt 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 that question if it arises in a proceedings which the Court has jurisdiction to take.

8. The crucial question to consider is whether or not in the circumstances of the case the reliance of respondent No. 1 on Martial Law Order No. 48 issued by the Martial Law Administrator of Zone `B' was correct. This question requires careful considera tion because I have noticed that by purporting to act under Martial Law Regulations or Martial Law Orders some officers in Civil employ have tried to do what neither the ordinary law nor Martial Law Regulations or Martial Law Orders authorized them to do and it would appear that reference had been made to a Martial Law Regulation or a Martial Law Order in order to overawe into submission the persons who had been called upon to do something or refrain from doing something and possibly also with the object of attempting to oust the jurisdiction of Civil Courts and Criminal Courts as distinguished from Military. Courts. Now, clause (b) of the Martial Law Order under consideration could not be invoked by respondent No. 1 because that clause is clearly prospective in operation, that is to say, it can apply only if any of the things mentioned therein was done after the Order was promulgated. There is no allegation in the notice, which is an extremely vaguely worded document, that any encroachment was made after the Martial Law Order, on which reliance is placed, had come into force or that any encroachment was made at all. All that the notice says is that the shop is against the interests of the Municipal Committee and the public and though I confess that I have not been able to understand what was intended to be conveyed by these high‑sounding words I am unable to find in the notice any words which might signify that the petitioner had encroached on any kind of property mentioned in clause (6) of the Martial Law Order in question. It was, however, contended by the learned counsel for respondent No. 1 that even if clause (b) of Martial Law Order No. 48 was not applicable to the facts mentioned in the notice, clause (c) of that Order clearly was. The argument was that the petitioner had encroached upon evacuee property and was, therefore, covered by Martial Law Order No.

48. The pleas in the written statement of which a gist has been given in paragraph 4 of this Order would show that respon dent No. 1 was under the impression that because Administrators of the Municipal Bodies were to be given information by persons who admitted having made encroachments on any of the kinds of property mentioned in clause (c) of Martial Law Order No. 48, the Administrators of Municipal Bodies could decide whether there was an encroachment and no person or Tribunal was left with any jurisdiction to determine whether or not any encroach ment had taken place. I have no hesitation in saying that the unlimited and unbridled power claimed for respondent No. 1 by himself and his counsel was not conferred on Administrators of the Municipal Bodies. The language of Martial Law Order under consideration is not open to the construction which the learned counsel for respondent No. 1 would have the Court place on it and nothing has been said by the learned counsel which may convince anyone that though the language of the Martial Law Order under consideration did not make Administrators of Municipal Bodies sacrosanct the intention was to confer that quality on them. It is true that 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 No. 48 he is bound to carry out the instructions given E 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. In this view of the matter the pleas raised by respondent No. 1 that neither the Custodian nor any other authority could challenge his assertion that the petitioner fell within Martial Law Order No. 48, issued by the Martial Law Administrator, Zone B', cannot be seriously considered and must be rejected as effusive utterances of an officer in civil employ who believes‑but luckily wrongly believes‑that the Martial Law Authorities have made him the final judge of the correctness of his own opinion with regard to the rights of persons in property which is practically the same thing as making him a judge in his own cause.

9. The decision of the question whether or not any property is evacuee property continues, even after the issue of Martial Law Order No. 48, relied upon by respondent No. 1, to be within the exclusive jurisdiction of the Custodian of Evacuee Property. Section 34 of the Pakistan Administration of Evacuee Property Ordinance, 1949 (Ordinance XV of 1949) conferred this exclusive jurisdiction on that officer and the Pakistan Administration of Evacuee Property Act, 1957 (Act XII of 1957) did the same by its 41st section. It was pleaded in the petition that the Deputy Custodian of Evacuee Property had dismissed the application of the Notified Area Committee, Raiwind, seeking a declaration that the property in the possession of the petitioner and the other shopkeepers working in the Ghalla Mandi, Raiwind vested in the, Municipal Committee and this was not contradicted by, or on behalf of respondent No.

1. In these circumstances I do not see how respondent No. 1 can ignore the order of the Deputy Custodian, which his predecessors allowed to go unchallenged, and plead in a Court that it is for him and him alone to decide whether or not any property is evacuee property and to claim that jurisdiction under Martial Law Order No. 4 8 issued by the Martial Law Administrator of Zone `B'.

10. In view of what I have said above, I have no hesitation in arriving at the conclusion that the notice issued by respon dent No. 1 was entirely unjustified and would, therefore, quash it in the exercise of the power of this Court to issue a writ of certiorari. It was said in paragraph 9 of the petition that respon dent No. 1 had ordered the prosecution of the petitioner to which the reply in paragraph 9 of the written statement was that respondent No. I was fully competent to deal with the petitioner and other shopkeepers under Martial Law Regulation 16 (1). If by this respondent No. 1 means that he can, as a Magistrate, punish the petitioner and the other shopkeepers who do not agree with his view that the case falls under Martial Law Order No. 48 issued by the Martial Law Administrator of Zone 'B', I will say that he is completely mistaken in this view and if he punishes someone in exercise of the powers he considers himself possessed of he will be doing what he has no jurisdiction to do. A writ of mandamus is consequently issued to respondent No: 1 restraining him from exercising magisterial powers with regard to the matters mentioned in his notice dated the 15th of December 1959. The act of respondent No. 1 being highhanded I direct that the peti tioner shall have his costs from respondent No. 1 and unless the Government directs otherwise the costs will be paid by respon dent No. 1 himself and not from the public revenues. A.H. Writs issued.