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Writ Petition No. 835 of 1963, decided on 3rd November 1966.

(a) Scrutiny of Claims (Evacuee Property) Regulation [C. M. L. A.'s] No. 89 [as amended by Martial Law Regulation No. 91]----

para. 5 Explanation‑Entitlement can be reduced to "nil" only when claimant has withdrawn his claim or has failed to submit written statement‑Statement as required under para. 3 of original Regulation viz., Martial Law Regulation No. 84, duly filed and claimant in statement referring to verification order and extent to which her claim verified‑Mere fact that in M. R. ‑ I against column of actual area and nature of right she mentioned "actual area not known"‑Not tantamount to withdrawal of claim by her‑Order passed by Officer on Special Duty reducing entitlement to "nil"‑Held: in utter disregard of provisions of law -Order held to be without lawful authority and of no legal effect -Order pissed without afording opportunity of being heard -Against principle of natural justice and nullity in eye of law -Scrutiny of Claims (Evacuee Property) Regulation [C. M. L. A.'s) No. 84, para. 3.

para. 15‑Bar not operative if order passed not in accordance with provisions of Regulation‑Regulation, sub‑constitutional legislation after promulgation of Constitution of Pakistan (1962), and jurisdiction of High Court under Art. 98 not barred‑Constitution of Pakistan (1962), Arts. 98 & 225.

The provision of para. 15 of the Martial Law Regulation No. 89 has not taken away the jurisdiction vested in the High Court under Article 98 of the Constitution. It contemplates an order in accordance with the provision of M. L. R. 89. Any order which is not in accordance with the above provisions of the Martial Law Regulation has no protection under the above mentioned paragraph. On this question there might have been some doubt before the Constitution of 1962 came into force. After its enforcement, under Article 225 of the Constitution all Martial Law Regulations, except those specified in clause (3) of Article 225 stand 'repealed with effect from the commencing day. M. L. R. 89 being a Regulation for the secrutiny of Claims (evacuee property) dated 23rd August 1961, wa3 saved under this clause and from the commencing day shall be deemed to have become an Act of the Central Legislature and to take effect with necessary adaptations. The only result of this is that M. L. R. 89 has only been saved and its effect is no more than an Act of the Legislature. It is, therefore, a sub‑constitutional legislation and cannot be said to have taken away the jurisdiction of this Court under Article 98 of the Constitution. The jurisdiction of this Court will be barred only in those cases where the impugned order was passed in accordance with law.

Nawab Haji Khair Muhammad Khan v. The State P L D 1966 S C 604 ref.

Abul Khair for Petitioner.

Wasim Rizvi for Respondents.

Dates of hearing: 10th October and 1st November 1966.

This petition under Article 98 of the Constitution is directed against the order of the Tehsildar, Central Record Office, West Pakistan, Lahore, contained in M. R. V. dated 27th September 1961 by which the total entitlement in produce index units in respect of the claim of the Petitioner was determined as nil.

2. The Petitioner is an old widow claimant from Bihar, a non‑agreed area. She had‑ KHUD KASHT Zamindari rights in agricultural land measuring about 630 acres situated in village Bhikpur, police station Sisvan, Saran, Bihar and was forced to abandon it and took refuge in Pakistan. Her claim was verified by the Claims Officer, Ward IV, Karachi by order dated 7th November 1959 under Schedule V to the extent of 157.52 acres. In pursuance of the above verification Q. P. R. V. was issued to her on 15th January 1960 for 3497 produce index units. On the basis of the above document she was allotted 95.26 acres of agricultural land in district Sanghar described in para. 5 of the Petition,

3. On the promulgation of Martial Law Regulation No. 84 the petitioner submitted the required written statement to Respondent No. 2. Immediately thereafter Martial Law Regulation No. 84 was reconstituted by Martial Law Regula tions 89 and 91. On 27th September 1961, the Officer on Special Duty, Central Record Office, Lahore, Respondent No. 3 revised the entitlement of the Petitioner to nil and issued M. R. V. bearing No. 38/001517 dated 27th September 1961. But its despatch was delayed for about three months. The Petitioner's contention is that they above M. R. V. was issued in utter disregard of the provisions of M. L. R. No. 89, as under para. 5 of the said Martial Law Order the entitlement of every claimant is to be determined afresh on the scales mentioned therein and it was not open to the officer on Special Duty to reduce the entitlement of a claimant on any other basis except the one mentioned in it. The Petitioner made several representations, particularly a representation in the shape of an application to the Officer on Special Duty on 20th January 1962, objecting to the impugned M. R. V. The Officer on Special Duty by order dated 8th September 1962, rejected this on the following ground:

"Your application dated 27‑8‑62 has been considered. You have not made entry of the area in your M. R. V. and therefore NIL certificate has been correctly issued and that no further scope has now been left. The Petitioner is hereby informed accordingly."

The Petitioner has challenged this order along with the M. R. V. issued to her.

4. In support of the petitioner Mr. Abul Khair, the learned counsel for the petitioner, has contended that the impugned order offend against the principles of natural justice and is in contravention of para. 5 of M. L. R. No. 89. He has further contended that since the impugned orders are not in conformity with the above directions it has no validity, in the eye of law. In reply Respondents Nos.2 and 3 have submitted that the impugned M. R. V. was issued, to the Petitioner on 3rd March 1962 sifter affording an opportunity of hearing to her which she did not avail of. They have further submitted that M. L. R. No. 84 was enforced on 28th October 1960 which required claimants to file written statement in M. R. I. and this form was to replace the original claim. It is not denied that the Petitioner submitted her written statement in M. R. I. in which she mentioned "actual area not known" against the column of actual area anti nature of right of claimant. It was for this reason that Respondent No. 3 issued nil entitlement certificate to the: Petitioner on 27th September 1961. They have not denied that this was despatched on 3rd March 1962. The plea of the respondents is that in view of Martial Law Regulation No. 89 this Court has no jurisdiction to question the legality of the entitlement certificate issued to the Petitioner under the said Regulation.

5. There are two points for consideration in this matter. In the first place, the question is whether the entitlement certificate issued by Respondent No. 3 was in accordance with law; and secondly, whether this Court has jurisdiction to consider the legality or validity of ‑the entitlement certificate and the subsequent order passed by Respondent No. 3. In order to appreciate the first point it is necessary to mention that before the Martial Law Regulations were introduced the claims of persons who had left agricultural lands in non‑agreed area were to be verified under the Registration of Claims Act in accordance with the rules framed in the year 1955. It is not disputed that the Petitioner's claim for the agricultural land abandoned by her in village Bhikpur, Saran, Bihar (Bharat) was verified on 7th November 1959 by Claims Officer Ward IV, Karachi. On the basis of this order the Petitioner was issued Q. P. R. V. for 3497 produce index units equivalent to 157.52 acres of land. On the basis of this certificate she was allotted 95.26 acres of agricultural land in District Sanghar. It is also not disputed that after the promulgation of M. L. R. No. 84 the Petitioner in pursuance of para. 3 of the said Regulation submitted the required written statement to Respondent No. 2. In this written statement she has clearly .stated that her claim was verified to the extent of 157.52 acres by order dated 7th November 1959. She has further mentioned that "actual area is not known". It is unnecessary to mention that the M. L. R. No. 84 was reconstituted by M. L. R. No. 89. Under para. 5 of the said Regulation the entitlement of every claimant had to be determined afresh on the scales mentioned in it. Under para. 6 it was incumbent on the Respondent No. 2 to issue entitlement certificate to every claimant showing his or her title to allotment of land in lieu of his clam as determined according to the scale specified in para. 5. But under subsection 2 of para. 6 it was provided as under:‑‑

"6(2) Except as otherwise expressly provided in this Regulation no entitlement certificate shall be issued‑.

(i) unless an application in Form QPR‑I or Form UR‑I, as the case may be, had been made on or before the 31st May 1960, or where an order of verification has been passed after the 16th May 1960, but before commencement of this Regulation, within fifteen days of such order; and

(ii) unless a statement under para. 3 of the original Regulation had been duly filed by the claimant.

It will thus be noticed that unless an application in Form QPR‑I or Form UR‑1 had been made on or before the 31st May 1960, or where an order of verification has been passed after 16th May 1960, but before commencement of Regulation No. 89, within 15 days of such order and unless a statement under para. 3 of the original Regulation had been duly filed by the claimant, no entitlement certificate could be issued. The case of the Department is that though the Petitioner had submitted a statement under para. 3 of the original Regulation, but as she did not mention the actual area of the land left by her in India her entitlement was reduced to nil.

6. Mr. Abul Khair, the learned counsel for the Petitioner, has contended that the Department had no such jurisdiction and had acted illegally. Mr. Wasim Rizvi, the learned counsel for the Department has referred to the following para. which was added in para. 5 of Regulation No. 89 by Regulation No. 91:

"But where a claim has been withdrawn or where the claimant has not submitted the written statement under paragraph 3 of the original Regulation, such entitlement shall be nil, or where the claim has been reduced under the said paragraph, it shall mean entitlement as determinable under the said schemes on the basis of such reduced claim, but nothing herein shall be construed as increasing the entitlement of any claimant who had increased his claim under the said paragraph."

The learned counsel for the Department has contended that since the Petitioner has not given the area of the land left by her in India it was taken to be a withdrawal of her claim and, therefore, on the basis of the above para. nil entitlement was issued. The written statement filed by the Petitioner was placed on the record by the Department. I have gone through it. A perusal of this document leaves no doubt in my mind that the petitions cannot be accused of withdrawing her claim by mentioning in her petition the words "actual area not known". In the statement she had clearly referred to the verification order and the nature of the lands left by her in India and the extent to which her claim was verified by a competent authority. In Form MR‑I against item No. 4 the petitioner bad mentioned as, under:

"Actual area not known. Claim preferred and verified on the basis of Register which was filed in original in the claim Court.

(1) Village Bhikpur Survey Tauzi No. 56. Pargana Ander, District Saran (Bihar).

(2) Village Mohabbatpur, Survey Tauzi No. 1069 Dist. Patna (Bihar)."

This clearly shows that she failed to disclose the actual area left by her in India because the registered deed on the basis of which her claim was preferred was filed with the Claims Officer. In such circumstances Respondent No. 3 bad fallen into an error by issuing a nil entitlement to the Petitioner. By doing so he bad acted illegally and in utter disregard of the provision of M. L. R. No. 89 as amended by M. L. R. No. 91. Under the provisions of these Regulations it was the duty of the respondents to issue entitlement of the Petitioner on the basis of her verified claim and Q. P. R. V. issued to her according to the relevant law applicable at the material time. I would, therefore hold that the M. R. V. issued to the Petitioner being not in accordance with law is without lawful authority and cannot be sustained by this Court.

7. Moreover, it is abundently clear from the record t ha the Petitioner at no time was given any opportunity to defend her claim before the competent authority. Inspite of the various representations made by her she was not afforded any opportunity of personal hearing or for the purpose of explaining her case.

It is not disputed that in connection with the objections filed by her dated 26th January 1962 (Annexure K) she was given no opportunity of personal hearing by the officer‑in‑charge. Her representation was rejected by order dated 8th September 1962 (in Annexure L), the contents of which have been produced in the earlier part of the judgment, I would, therefore, hold that the impugned orders offend against the principle of natural justice and are a nullity in the eye of law.

8. The next point for consideration is whether this Court has got no jurisdiction to question the validity of the order passed by the Officer on Special Duty in view of para. 15 of M. L. R. No. 89 which is in the following terms:

"15(1) No provision of this regulation or any order made or any Scheme prepared thereunder shall be called in question in any Court including the High Court and the Supreme Court and no such Court or any other authority shall have jurisdiction in respect of any matter for the determination of which provision has been made by or under this Regulation.

(2) No such Court or authority as aforesaid shall be competent to grant any injunction or order of any other kind whatever in relation to any proceeding under this regulation or any order or Scheme made thereunder or in relation to anything done or intended to be done by any officer exercising any power or discharging any function under this regulation."

In my opinion this provision of law has not taken away the jurisdiction vested in this Court under Article 98 of the Constitution. It contemplates an order in accordance with the provision of M. L. R. No. 89. Any order which is not in accordance with the above provisions of the Martial Law Regulation has no protection under the above‑mentions Paragraph. On this question there might have been some doubt before the Constitution of 1962 came into force. After its enforcement under Article 225 of the Constitution all Martial Law Regulations, except those specified in clause (3) stand repealed with effect from the commencing day. M. L. R. No. 89 being a Regulation for the scrutiny of Claims (evacuee property) dated 23rd August 1961 was saved under this clause and from the commencing day shall be deemed to have become an Act of the Central Legislature have to take effect with necessary adaptations. The only result of this is that M. L. R. No. 89 has only been saved and its effect is no more than an Act of the Legislature. It is, therefore, a sub‑constitutional legislation and cannot be said to have taken away the jurisdiction of this Court under Article 98 of the Constitution. The jurisdiction of this Court will be barred only in those cases where the impugned order was passed in accordance with law. It has already been demonstrated that the impugned order was passed .in utter disregard of the provisions of M. L. R. No. 89. Recently a similar question was considered by their Lordships of the Supreme Court of Pakistan in Nawab Haji Khair Muhammad Khan v. Tire State (PLD1966SC604). In that case also it was urged on behalf of the Department that under para. 27 of the West Pakistan. Land Reforms Rules, 1959 the jurisdiction of the High Court and Supreme Court was taken away in respect of the order passed under the Regulation. This contention was repelled by the Supreme Court on the following observations:

"The words are not any order purporting to be made', but any order made and therefore the requirement is that any order in respect of which immunity may be claimed under para. 27 must be an order made in accordance with the Regulation in its relevant provisions. Before the 7th June 1962, there were in force certain Martial Law Regulations which had effect to save actions e g., the land commission authorities, which merely purported to be made under the Regulation, even though not in compliance with its relevant provisions, but these Regulations ceased to have force on the promulgation of the present Constitution and the bar of jurisdiction under para.27 was limited thereafter to orders which were in substance and form made in compliance with the Regulation. Therefore, the High Court bad jurisdiction under Article 98 of the Constitution to declare that the Order of Mr. I. U. Khan was made without lawful authority and was therefore of no effect."

In the light of the above discussion it will be noticed that in this case the Petitioner has not only challenged M. R. V. which was issued before the coming into force of the Constitution but also an order which was passed on 8th September 1962, that is, an order which was passed much after the Constitution of 1962 came into force. In such cases if the High Court finds that the authorities concerned had acted not in accordance with law, the High Court's jurisdiction, under Article 98 of the Constitution to declare them as without lawful authority and of no legal effect, has not been taken away. I would, therefore, repel this contention.

9. After hearing the learned counsel for the parties I am satisfied that the impugned orders were not passed in accordance with the provisions of M. L. R. No. 89; and therefore, they were made without lawful authority and have no legal effect. I would, therefore, quash the impugned orders and direct the respondents to issue a proper entitlement to the Petitioner under para. 5 of M. L. R. No. 89 on the basis of Q P. R. V. and the verification order obtained by her in 1959 from the competent authority mentioned in her statement (M. R. I.) submitted on 20‑2‑61 to the authority concerned.

9. In the result, subject to the above remarks the petition is allowed with costs.

K. B. A.

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