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Writ Petition No. 1441 of 1965, decided on 7th May 1968.

Art. 30 (1), (10) [as recast by Constitution (Fifth Amendment) Act (XVII of 1965;) real with President's Order No. F‑24(1)/65‑Pab. date, 6‑9‑1963 and 16‑9‑1965 ‑ President's order suspending right to trove Courts, during Proclamation of Emergency, for enforcement of Fundamental Rights specified therein and all proceedings ire Courts for enforcement of such rights‑Includes suspension of proceedings involving determination of such Fundamental Rights Distinction between concepts of "enforcement of rights" and "determination of rights" immaterial for purpose of writ petition challenging validity of law on grounds of violation of Fundamental rights‑‑‑When very right to move Courts stands suspended all stages arising after moving of Courts automatically gets suspended‑To say that Fundamental Rights are not being sought to be enforced is hen validity of a law is being challenged on grounds of violation of Fundamental Rights is to argue ire a circle‑Petitions, challenging validity of law on grounds of Fundamental Rights specified in Presi dent's order suspending right to move Court, after promulgation of President's order shall hive to be dismissed as misconceived and premature‑Petitions filed before promulgation of President's Order shall have to be kept pending till Proclamation of Emergency continues.

Y. E. R. M. .N. C. T. Nagappa Chetyar v. V. A. R. A. R. R. M. Anunachalam Chettyar Firm A I R 1934 Rang. 250 ; Banarsi Das and another v. Ram Chandar and another A I R 1933 Lah. 210: Muni Lal and others v. Kishore Chand Kanshi Ram A I R 1927 Lah. 373; Saiyyid Abul A'la Maudoodi and others v. The Government of West Pakistan and another P L D 1964 S C 673; Wiiloughby on Constitution of the United States, Vol. I, 2nd. Edn., pp. 9‑11; Norton v. Shelby Co. 118 U S 425; Shephard v. Wheeling 30 W Va. 479 and The State of South Australia and another v. The Commonwealth and another (1941‑42) 65 C L R 37 3 ref.

Makhan Singh Tarsikka v. The State of Punjab A I R 1964 S C 381; Mohan Chowdhury v. Chief Commissioner Union Territory of Tripura A I R 1964 S C 173; K. T. K. Thangmani and others v. The Chief Secretary, Government of Madras and another A I R 1965 Mad. 225; Swadeshi Cotton Mills Co. Ltd. v. Sales .Tax Officer and another A I R 1965 All. 86; A. R. Niazi, Advocate and others v. Pakistan and others P L D 1968 S C 119 and Chow dhury Tanbir Ahmad Siddiky v. The Province of East Pakistan and others P L D 1968 S C 185 rel.

Sher Ali and 3 others v. The Deputy Commissioner, Mianwali and others P L D 1967 Lah. 1 and Malik Muhammad Usman v. The State and another PL D 1965 Lah. 229 distinguished.

Art. 30 (1), (9) & (10) [as recast by Constitution (Fifth Amendment) Act (XVII of 1965)]‑President's power to suspend right to move Courts under sub‑Art. (10) during Proclamation of Emergency under sub‑Art. (I)‑ Contention that President could issue order suspending right to move Courts for enforcement of such rights only which are mentioned in sub‑Art. (9)‑Held: Sub‑Art. (10) not subject to sub‑Art. (9) President, during Proclamation of Emergency, empowered under sub‑Art. (10) to declare suspension of right to move Courts for enforcement of any Fundamental Right‑Order can be made about "such of Fundamental Rights as maybe specified in order" leaving it to good judgment and choice of President as to about which specified rights he would declare remedies of enforce ment as barred.

Art. 132‑‑Provincial Legis lature‑Power of Legislation‑"Pith and substance of Law determines competency of Legislature upon particular subject Land being Provincial subject, West Pakistan Redemption and Restitution of M3rtgaged Lands Act, 1964, dealing with "land" well within competence competence of Provincial Legislature‑Validity of Act cannot be attacked in round about manner by contending that bar of resort to civil Courts Supreme head the effect of barring Juris diction of High Court and supreme Court and treat this was beyond competence of Provincial Legislature West Pakistan Redemption and Restitution of Mortgaged Lands Act(XIX of 1964), S.17.

Megh Ral and others v. Allah Rakha and others A I R 1941 Lab. 177; Megh Raj and others v. Allah Rakha and others A I R 1942 F C 27 and Megh Raj and another v. Allah Rakha and others AIR1947P C72 off.

Art. 98‑‑Writ jurisdiction Questions of fact especially involving leading of evidence and investi gation of diverse matter‑Not to be gone into in exercise of writ jurisdiction under Art. 98.

Rafiq Ahmad Bangash for Petitioner.

S. M. Bashir, A. A.‑G. for Respondents Nos. 1 and 2.

Ataullah Qureshi for Respondents Nos. 3 to 7.

Dates of hearing: 26th, 27th, 28th March and 1st, 2nd April 1968.

This judgment though bring written in Writ Petition No. 1141/1965 is to be read in various other writ petitions as well, which were heard along with the aforesaid writ petition and do all of which validity of the West Pakistan Redemption and Restitution of Mortgaged Lands Act XIX of 1964, has been challenged on the ground of its being in violation of certain fundamental rights hereinafter mentioned. Petitioners its each of these ceases ate mortgagees of lands described respectively in their writ petitions. The Collectors of the districts. In which the said lands are situated, have in some cases assumed jurisdiction to determine the applications of the respondents mortgagors for restitution of the mortgaged lands and in some cases have actually passed orders of restitution‑a process whereby land, which has been in possession of a mortgagee (as a usufructuary mortgagee) can be directed to be delivered back to the mortgagor had remained in possession thereof for twenty years or if the period of mortgage has expired. Provision for this purpose exists in sections 10, 11, 12 and 13 of the West Pakistan Redemption and Restitution of Mortgaged Lands Act XIX of 1964, which should be read with section 3, all of which are reproduced as below.‑

"S. 3. Petition for redemption.‑After the principal money becomes due and before a suit for a redemption is barred, a mortgagor of land not exceeding fifty acres in area or of land the principal money secured by which does not exceed five thousand rupees, may apply to the Collector for an order directing that the mortgage be redeemed and that be be put in possession.

Explanation I.‑The area of any share in the common land of the village or of a sub‑division appertaining thereto and mortgaged with the land; shall not be taken into consideration while determining the area of the land mortgaged.

Explanation II.‑This section shall not apply to usufructuary mortgage effected for a specific number of years and intended to terminate without the re‑payment of any part of its consideration.'

"S. 10. Petition for restitution.‑The mortgagor of any subsisting usufructuary mortgage not less than twenty years old, or of any usufructuary mortgage the period whereof has expired, may present a petition to the Collector for the restitution of possession of the mortgaged land.

Explanation.‑A mortgage shall be deemed to subsist for the purpose of this Chapter notwithstanding a decree or order for its redemption having been passed; provided that redemption has not taken place before the presentation of a petition under this section.

S. 11. Petition when to be dismissed. Where the Collector is satisfied that a petition is not in respect of a subsisting usufructuary mortgage not less than twenty years old, or a usufructuary mortgage the period whereof has expired, he shall dismiss the petition, recording his reasons for such order.

S. 12. Power of Collector to declare and enforce orders in favour of mortgagor.‑If the Collector finds that the application is in respect of mortgaged land the possession whereof has remained with the mortgagee for a period of not less than twenty years, or is in respect of mortgaged land the term of the mortgage whereof has expired, he shall notwithstanding anything contained in any other enactment for the time being in force or any contract or decree or order of any Court,‑

(a) order that the mortgage shall be extinguished without payment of the mortgage money or any part thereof;

(b) in case of an express contract to the effect that the mortgagee shall be entitled to compensation for improvements made by him in the mortgaged land determine the amount of such compensation;

(c) where the mortgagee is in possession, direct that the mortgagor be put into possession of the mortgaged land as against the mortgagee and that the title deeds, if any, of such land in the possession of the mortgagee be restored to the mortgagor."

S. 13. Effect of order of restitution when compensation is payable.‑If the Collector finds that any sum is due to the mortgagee by way of compensation under clause (b) of section 12, he shall require the mortgagor to deposit the amount in such manner as may be prescribed; and on deposit of the amount he shall declare the rights of the mortgagee extinguished and require the mortgagee to deliver possession of the land to the mortgagor together with all documents of title relating to the land Provided that if a petitioner fails to deposit the amount within six months, his petition may be dismissed."

2 A perusal of the above sections, so far as relevant for the purposes of our case, will show that restitution was permissible in two types of mortgages: ‑

(i) those types of usufructuary mortgages which were effected for a specified number of years and were intended to terminate without the re‑payment of any part of its consideration‑(in other words which were self‑redeeming within a particular time)‑of which the said specified time had expired and which were referred to in section 10 with the phrase‑(or of any usufructuary mortgage, the period whereof has expired) I and

(ii) any subsisting usufructuary mortgage which was not less than 20 years old.

In the above types of usufructuary mortgages, the law autho rises the Collector to get the land delivered back to the mortgagor free of charge and the order of the Collector is to have the effect of extinguishment of the mortgage. Against the order of the Collector, there is a provision for appeal under section 14 to the Commissioner and a further revision to the Board of Revenue. In section 17, it is laid down that no Civil Court shall have jurisdiction to entertain any claim or enforce any right under a mortgage declared extinguished under Chapter III (which deals with restitution of mortgages and appeals and revisions) or to question the validity of any proceeding under the said Chapter.

3. Learned counsel for all the writ petitioners:

(a) with reference to V. E. R. M. N. C. T. Nagappa Chetyar v. A. R. A. R. R. M. Anunachalam Chettyar Firm A I R 1934 Rang. 250 at p. 255, Banarsi Das and another v. Ram Chandar and another A I R 1933 Lah. 210, Muni Lal and others v. Kishore Chand Kanshi Ram A I R 1927 Lah. 373 and Sh. Moizud Din v. Uttam Chand P L D 1949 Lah. 50 argued that the mortgagee rights in land constituted, "immovable property" within the meaning of this phrase as occurring in Fundamental Right No. 14 (2) of the Constitution.

(b) With this premises they attempted to argue ‑that when the West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964, purported to extinguish the mortgagee rights of the petitioners and directed delivery of possession of the mortgaged land to the mortgagors, it, in fact, "compulsorily acquired" the petitioners' property for, and, "directed forcible taking of its possession" and delivery to, the mortgagors: They wanted to argue that under Fundamental Right No. 14, no property could be compulsorily acquired or taken possession of save for a public purpose and save by the authority of law which provides for compensation therefor. It was sought to be asserted that the acquisition of mortgagee rights or taking possession of the mortgaged land, for the mortgagors, was not a public purpose and assuming, without conceding that this was so, as the impugned Act did mot provide for any compensation to the mortgagees, therefore, it conflicted with Fundamental Right No. 14 and was a bad law right from its inception with the result that it never came into existence and was a still‑born law; because under Article 6 of the Constitution, it is ordained that the State shall not make any law which takes away or abridges the rights conferred by Chapter I, Part II of the Constitution.

(c) That Fundamental Right No. 14(1) deals with deprivation of properties of all kinds whether movable or immovable and though Fundamental Right No. 14 (2) deals with compulsory acquisition and taking possession of immovable property, still the deprivation, it was sought to be argued, contemplated fn Fundamental Right No. 14 (1), is no other than compulsory acquisition or taking possession of as envisaged in Fundamental Right No. 14 (2). On this basis, it was attempted to be argued that even, therefore, when the West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964, deprived the mortgagees of their mortgagee rights or of the land mortgaged to them, it could not be held to be valid law unless it was shown to be for a public purpose or it provided for a compensation to the mortgagees.

(d) That under Fundamental Right No. 15, all citizens are equal before law and are entitled to equal protection of law. It was sought to be argued that examining the West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964, in the light of this Fundamental Right, it purported to create unreasonable discrimination between usufructuary mortgagees of land and usufructuary mortgagees of urban immovable property, inasmuch as, the usufructuary mortgages of land were extinguished in the manner indicated in the impugned Act, whereas there was no such provision or law for the usufructuary mortgages of urban immovable properties. Similarly, it was argued that it created discrimination in extinguishing the rights of usufructuary mortgagees alone and of no other type of mortgagees over land.

(e) That Fundamental Right No. 13 laid down that, "subject to any reasonable restrictions imposed by law, in the public interest; every citizen shall have the right to acquire, hold and dispose of property." It was sought to be argued that extinguishment of usufructuary mortgages of land in the manner contained in the West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964, was tantamount to place unreasonable restrictions on the power of the existing usufructuary mortgagees to hold the land mortgaged to them.

4. As will be clear from the points tabulated above, they referred to the various Fundamental Rights mentioned therein. We would have readily given our decisions on these points had there been not a hurdle in the way of the petitioners in this respect which we will presently mention.

5. On the 6th of September 1965 (when India attacked Pakistan), the President, in exercise of his powers under sub. Article (1) of Article 30 of the Constitution, issued a Proclamation of Emergency. On the same day, he issued an "Order", in exercise of his powers under sub‑Article (9) of Article 30 (as it then existed), whereby he suspended the right of a person to move a High Court for the enforcement of Fundamental Rights specified in the said "Order", and also suspended any proceedings pending for the enforcement of the aforesaid specified Rights. Article 30 of the Constitution was, however, re‑cast in certain respects by The Constitution (Fifth Amendment) Act XVII of 1965, which was published in the Gazette of Pakistan, Extra ordinary, dated the 1st of December 1965. Article 30 as it existed, originally, and as it was re‑cast and amended later on, is given in the form of a table below for facility of reference:‑

6. A comparative study of this Article will show that (i) originally it consisted merely of nine sub‑Articles, but after Amendment it consisted of ten sub‑Articles; (ii) the subject matter which was contained in original sub‑Article (9) was now placed in the newly‑added sub‑Article (10); (iii) the new sub -Article (9) dealt with an altogether new topic inasmuch as it ipso facto extended the power of the State to pass any law or of the Executive to take any action, in derogation of Fundamental Rights Nos. 5, 6, 7, 8, 9 and 13, conferred by Chapter I of Part II of the Constitution. Formerly, there did not exist any such provision and the operation of the Fundamental Rights could not be suspended; (iv) under the new sub‑Article (10), now the power of the President to suspend the right of a person to move for the enforcement of such Fundamental Rights, as may be specified in his order, was confined not merely to High Court but extended to and covered (all or) any Court; (v) similarly, under the new sub‑Article (10), the power was given not only to suspend the right of a person to move a Court, but a power was conferred on the President to suspend any proceedings in any Court which involved the determination of any question as to the infringement of any of the rights so specified; (vi) old sub‑Article (9) authorised suspension of pending proceedings but its corresponding new sub‑Article (10) omitted the word "pending", so as to enlarge its scope; and (vii) towards the end was added a Saving which stated that any Order made under clause (9) of Article 30 of the Constitution before the com mencement of the Constitution (Fifth Amendment) Act, XVII of 1965, shall be deemed to have been made for the whole of Pakistan under clause (10) of that Article as amended by that Act and reference in any such Order to "High Court" shall be construed as reference to "Court". To appreciate the effect of this Saving, it is necessary to refer to the Order of the President which he issued on the 61h of September 1965, under Old sub‑Article (9), which reads as follows:‑

Gazette of Pakistan, Extraordinary, 6th September 1965.

No. F.24(1)/65‑Pub.‑The following Order made by the President on the 6th September 1965, is hereby published for general information:‑

Whereas the President has issued on the 6th September 1965, a Proclamation of Emergency under clause (1) of Article 30 of the Constitution;

And whereas clause (9) of the said Article 30 provides that, while a Proclamation of Emergency is in force, the President may, by Order, declare that the right to move a High Court for the enforcement of such of the fundamental rights conferred by Chapter I of Part II of the Constitution as may be specified in the Order, and all proceedings pending in Courts for the enforcement of the rights so specified, shall remain suspended for the period during which the Proclamation is in force;

And whereas the aforesaid Proclamation of Emergency is in force;

Now, therefore, in exercise of the powers conferred by the said clause (9) of Article 30, the President is pleased to declare that the right to move a t High Court for the enforcement of the fundamental rights provided for in Paragraphs 2, 3, 5, 6, 7, 8, 9, 13, 14 and 17 of the fundamental rights in Chapter I of Part 11 of the Constitution and all proceedings pending in Courts for the enforcement of the said rights shall remain suspended for the period during which the said Proclamation is in force."

A further Order of the President was issued with regard to Fundamental Right No. 15, on the 16th of September 1965; which reads as follows:‑--

"Whereas the President has issued on the 6th September 1965, a Proclamation of Emergency under clause (1) of Article 30 of the Constitution;

And whereas clause (9) of the said Article 30 provides that, while a Proclamation of Emergency is in force, the President may, by order, declare that the right to move a High Court for the enforcement of such of the fundamental rights conferred by Chapter I of Part It of the Constitution as may be specified in the Order, and all proceedings pending in Courts for the enforcement of rights so specified, shall remain suspended for the period during which the Proclamation is in force;

and whereas the aforesaid Proclamation of Emergency is in force;

Now, therefore, in exercise of the powers conferred by the said clause (9) of Article 30, the President is pleased to declare that the right to move a High Court for the enforcement of the fundamental right provided for in paragraph 15 of the fundamental rights in Chapter I of Part II of the Constitution, and all proceedings pending in Courts for the enforcement of the said right, shall remain suspended for the period during which the said Proclamation is in force."

7. If these Orders of the President are read in the light of the Saving clause and the amended sub‑Articles mentioned above, the result is:‑‑

(a) that though in the original Order only the right to move a High Court was barred, now the bar is to move any Court;

(b) that though the original Order did not so specifi cally state, but it was now to be deemed to extend to the whole of Pakistan;

(c) that though the original Order suspended pending proceedings, but as now the word "pending" stood omitted from the new sub‑Article (10), therefore, it was to stand omitted from the Order also with the result that it would affect any proceedings pending or prospective; and

(d) that though the original Order directed that the right to move "High Court for the enforcement of the specified fundamental rights and all proceedings pending in Courts for the enforcement of the said rights shall remain suspended", but now it was to be considered also to have directed that any proceeding in any Court which involved (even) the determination of any question as to the infringement of any of the rights so specified shall also remain suspended.

8. Read in the above way, the obvious effect of the Orders of the President is that those of the petitioners who filed writ petitions after the 6th of September 1965, could not have filed them; because their very right to move in that behalf had ,4 been suspended. All such petitions shall have, therefore, to be dismissed as misconceived and premature, and so far as those writ petitions which were filed prior to the 6th of September 1965, are concerned, they shall have to be kept pending.

9. When confronted with this situation, the first point argued by the learned counsel for the petitioners was that there was a difference between the suspension of:‑

(a) the right to move a Court for the enforcement of any of the specified Fundamental Rights, or suspension of any proceeding in any Court which was for their enforcement; (on the one hand),

and

(b) the suspension of any proceeding in any Court which involved the determination of any question a9 to the infringe ment of any of the rights so specified;‑(on the other hand);

and they submitted that in the Orders of the President, dated 6‑9‑1965 and 16‑9‑1965 only restriction mentioned at point (a) here in before had been imposed and not the one contained at point (b). In this way, it was argued that the jurisdiction of this Court to determine the question as to the infringement of any of the rights specified in the orders of the President was not suspended or barred. We are unable to agree. Firstly, because we do not accept that there is a difference between the concepts mentioned at (a) and (b) hereinbefore when a case is to be examined from the point of view of the writ petitioners; because, is our opinion, the suspension of a right to move for the enforcement of fundamental rights would involve the suspension of the very proceedings which may have b‑.en or which may be initiated for its enforce ment; or for determination of a question as to infringement of the fundamental rights. The point as to whether the West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964, conflicts or conflicted with any Fundamental Right, essentially involves the determination of a question about the infringement of a fundamental right, so far as the petitioners are concerned, especially, when it is they who have moved this Court for the enforcement of these rights. In this way, in the very right to move is suspended, all the stages which are to arise after the motion of the Court automatically get suspended. Such an argument was raised in a case reported in Makhan Singh Tarsikka v. The State of Punjab (A I R 1964 S C (Ind,) 381). In that case, the President of India had, acting under corresponding Article 359 of the Indian Constitution suspended tile right to mote a High Court for the enforcement of certain specified fundamental rights. It was argued that this did not include the suspension of the: proceedings involving the determination of any question as to the infringement of any of the specified fundamental rights. This argument was repelled. On page 395, in Paragraph 19, it was held that:‑--

"19. The next question to consider is, what is the nature of the proceedings which are barred by the Presidential Order issued under Article 359 (1) They are proceedings taken by citizens for the enforcement of such of the rights conferred by Part III as may be mentioned in the order. If a citizen moves any Court to obtain a relief on the ground that his fundamental rights specified in the Order have been contravened, that pro ceeding is barred. In determining the question as to whether a particular proceeding falls within the mischief of the Presidential Order or not, what has to be examined is not so much the form which the proceeding has taken, or the words in which the relief is claimed as tile substance of tile matter, and consider whether before granting the relief claimed by the citizen, it would be necessary for the Court to enquire into the question whether any of his specified fundamental rights have been contravened. If any relief cannot be granted to the citizen without determining the question of tire alleged infringement of the said specified fundamental rights that is a proceeding which falls under Article 359 (1) and would, therefore, be hit by the Presidential Order issued under the sail Article. The sweep of Article 359 (1) and the Presidential Order issued under it is thus wide enough to Include all claims made by citizens in any Court of competent jurisdiction when it is shown that the said claims cannot be effectively adjudicated upon without examining the question as to whether the citizen is in substance, seeking to enforce any of the said specified fundamental rights . . . . .'.

Then at another place, at page 398, in paras. 30‑31, it was held as follows:--

"In our opinion, therefore, once it is shown that the pro ceedings under section 491 (1) (b), Cr. P. C. cannot make a substantial progress unless the validity of the impugned law is examined on the ground of the contravention of the specified fundamental rights, it must follow that the bar created by the Presidential Order operates against them a; much as it operates against proceedings taken under Article 226 (1) or Article 32(1). Thus, the true legal position, in substance, is that the clause 'the right to move any Court' used in Article 359 (1) and the Presidential Order takes in all legal actions intended to be filed, or filed, in which the specified rights are sought to be enforced and it covers all relevant categories of jurisdictions of competent Courts under which the said actions would otherwise normally have been entertained and tried.

(31) At this stage, we may conveniently refer to the recent decision of this Court in Mohen Chowdhury v. Chief Commissioner Union Territory of Tripura Habeas Corpus Petition No. 15 of 1963, decided on 29th April 1963 A I R 1964 S C 173 wherein this Court rejected the detenu's petition on the ground that it was barred by the Presidential Order and it refused to entertain the argument that the Ordinance and the Act and the rules framed there under were void for the reason that they contravened Articles 14, 21 and 22, with the observation that the challenge made by the petitioner in that behalf really amounted to arguing in the circle'. If the Presidential Order precludes citizen from moving the Court for the enforcement of the specified fundamental rights, it would not be open to the citizen to urge that the Act is void for the reason that it offends against the said fundamental rights. It is in order to prevent the citizen from making such a claim that the Presidential Order has been issued, and so, during the period of its operation, the challenge to the validity of the Act cannot be entertained. Incidentally, it may be observed that a petition for a writ of habeas corpus made by Mohan Chowdhury which was rejected by this Court on the ground that it was barred under the Presidential Order would, on the view for which the appellants contend, be competent if it is presented before the appropriate High Court under section 491 (1) (b) of the Code; and that incidentally illustrates how exaggerated importance to the form of the petition would lead to extremely anomalous and irrational con sequences. Therefore, our conclusion is that the proceedings taken on behalf of the appellants before the respective High Courts challenging their detention on the ground that the impugned Act and the Rules are void because, they contravene Articles 14, 21 and 22, are incompetent for the reason that the fundamental rights which are alleged to have been contravened are specified in the Presidential Order, and all citizens are precluded from moving any Court for the enforcement of the said specified rights."

In para. 45 at page 403, the subject was again tackled in the following manner:‑

"(45)‑Mr. Parulekar who argued his own case before us with remarkable ability, contended that a detenu cannot be prevented from disputing the validity of the Ordinance, the Act and the Rules under the Presidential Order if he did not ask for any consequential relief. His argument was that the prayer made in his petition under section 491 (1) (b) consists of two parts; the first prayer is to declare that the impugned Act and the Order are invalid, and the second prayer is that his detention should be held to be illegal and his release should accordingly be ordered. The first prayer, says Mr. Parulekar, cannot fall within the mischief of the order because he is not enforcing any of his rights when he asks merely for a declaration that the law is invalid, and he suggested that even if we take the view that he is precluded from challenging the validity of his detention by virtue of the said order, we should not preclude him from challenging the validity of the law merely with a view to obtain a declaration in that behalf. In our opinion, this argument cannot be accepted. What section 359 (1) purports to do is to empower the President to make an Order by which the right of the detenu to move the Court to challenge the validity of his detention on the ground that any of 'his fundamental rights specified in the Order have peen contravened, is suspended, and so, it would be unreasonable to suggest that what the detenu (sic) cannot do in order to secure his release, he should be allowed to do merely for the purpose of obtaining an academic declaration. A proceeding taken under section 491 (1) (b) like a petition filed under Article 226 (1) or Article 32 (1) is intended to obtain relief, and the relief in such cases means the order for the release of the detenu. If the detenu is prohibited from asking for an order of release on the ground that the challenge to the validity of his order of detention cannot be made during the pendency of the Presidential Order, we do not see how it would be open to the same detenu to claim a mere declaration either under section 491, Cr. P. C., or Article 226 (1) or Article 32 (1) of the Constitution. We do not think that it was open to the High Court to consider the validity of the impugned Act without relation to the prayer made by the detenu to his petition. The proceedings commenced by the detenu by means of his petition under section 491 (1) (b) constitute one proceeding and if the sole relief which the detenu seeks to obtain cannot be claimed by him by virtue of the Presidential Order, it would be unreasonable to hold that he can claim a different relief, viz., a mere declaration; such a relief is clearly outside the purview of the proceedings under section 491 (1) (b) and Articles 226 (1) and 32 (1)."

To the same effect is a decision of the same Court in Mohan Chowdhury v. Chief Commissioner Union Territory of Tripura (A I R 1964 S C (Ind.) 173) Habeas Corpus Petition No. 15 of 1963, decided on 29‑4‑1963, The other decisions from the Indian jurisdiction on the subject are contained in K. T. K. Thangamani and others v. The Chief Secretary, Government of Madras and another (A I R 1965 Mad. 225) and Swadeshi Cotton Mills Co. Limited v. Sales Tax Officer and another (A I R 1965 All. 86). The passages reproduced above are complete answers to the submission which is being made by the learned counsel for the petitioners.

10. Secondly, the argument advanced by the learned counsel for the petitioners was that if matter mentioned at point (b) above was already covered in point mentioned at (a); why was the same specifically and subsequently mentioned in the newly re‑cast sub‑Article (10). The answer can be two‑fold. It was probably to shut out the type of argument which was advanced in the case of Makhin Singh Tarasikka which, it may be pointed out, was decided by the Indian Supreme Court on the 2nd of September 1963, and our Legislature to safeguard against such an argument added the words under examination just as a matter of abundante cautela on the 1st of December 1965 through the Constitution (Fifth Amendment) Act, XVII of 1965. Again, the possibility is that the earlier sentence which dealt with the suspension of the right to move a Court for the enforcement of the fundamental rights, may have been applicable merely to petitioners, plaintiffs, or suitors, who initiate t an action in that behalf. The sentence, subsequently, added was intended to cover even cases where it was not a petitioner‑plaintiff or a suitor who wanted to enforce any of his fundamental right, but it was the defendant or the respondent who in defence to a lis brought against him by a petitioner‑plaintiff or a suitor under any particular law, might have taken up tine defence that the law on which the petitioner‑plaintiff or suitor relied was not a valid law inasmuch as it infringed any specified fundamental right. That would be a case of a proceeding which if it could not be called a proceeding for the enforcement of a fundamental right so far as a plaintiff or a petitioner or a suitor was concerned, it could definitely be termed as a proceeding, which involved the determination of a question as to the infringement of any of the fundamental rights (on the basis of plea which was being raised by a defendant or a respondent). The intention of the additional clause, under examination, was, therefore, to suspend the very right of a petitioner to move a Court for the enforcement of a fundamental right and also to suspend any proceedings in which a defendant may have raised a plea involving determination of any question as to the infringement of a Fundamental right. In the instant case, however, since these are the petitioners who have come up to this Court for the enforcement of their fundamental rights, their cases are well‑hit by the Order issued by the President, the old sub‑Article (9) and new sub Article (10) of Article 30 of the Constitution read with the saving clause. The view which we have taken has also the support of our Supreme Court in a recently published judgment in A. R. Niazi, Advocate and others v. Pakistan and others (P L D 1968 S C 119).

This case was decided by the Supreme Court on the 9th of January 1968. In that case, while it was pending in the High Court, an attempt was made to argue that the relevant enactment mentioned therein was against Fundamental Rights Nos, 8, 14 and 15 inasmuch as it dealt with Evacuee Trust Properties in a manner different from other Evacuee Properties and that it deprived the petitioners therein of the right of equality before law or of art equal treatment under law inasmuch as it did not consider them eligible for the transfer of Evacuee Trust Properties. This contention was held as untenable by the High Court. The petitioners re‑agitated the same point in the Supreme Court. The Supreme Court held as follows:‑

"Mr. Abdul Majid appears to have raised an argument in the High Court, based on Fundamental Rights Nos. 8, 14 and 15 granted by the Constitution as invalidating the impugned legislation. In the first place, during the emergency that Is still current, these fundamental rights cannot be pressed into service."

Anyhow, examining the matter, prima facie, the Supreme Court further held that there was no substance in the contention being raised and further observed:--

"It does not, therefore, appear necessary to postpone final orders on these appeals to await the end of the emergency, for the points to be canvassed, a s the petition is not debatable."

To the similar effect is another judgment of the Supreme Court reported in Chowdhury Tanbir Ahmad Siddiky v. The Province of East Pakistan and others (PLD1968SC185) decided on the 26th of February 1968. In the said case rights were sought to be asserted on the basis of Fundamental Right No. 18 of the late Constitution of 1956. It is common knowledge that the said Constitution was abrogated but the petitioners therein argued that with the promulgation of Constitution of 1962, which contained Fundamental Right No. 10 (corresponding to Fundamental Right No. 18 of the Old Constitution), the rights of the petitioners had revived and they could challenge the impugned legislation on that count. This contention was repelled and S. A. Rahman, J., at page 201 observed:‑-

"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 subsist. The fact that the Order vested power in the High Courts and the Supreme Court and to issue specified writs, does not lead to the inference that these writs could have reference to Fundamental Rights."

With respect the same analogy can be applied to the present case also and the enforcement of the relevant fundamental rights herein having become barred the petitions cannot be entertained.

11. As against all this, the learned counsel for the petitioners referred to a Division Bench Ruling of this Court reported in Sher All and 3 others v. The Deputy Commissioner, Mianwali and others (P L D 1967 Lah. 1) for the purpose of showing that relief could be granted where the impugned law was void. The authority cited has no relevancy to the facts and circumstances of the present case inasmuch as it was held that the petitioners therein did not purport to enforce any Fundamental Right whereas in our case we have recorded an express finding that the writ petitions do aim at enforcing Fundamental Rights. Again, in the said case relief was granted also on the basis of Fundamental Right No. 1, which had neither been suspended nor the enforcement of which had been barred by any Presidential Order. Another distinctive feature of the said case is that it proceeded on an earlier Full Bench decision of this Court reported in Malik Muhammad Unman v. The State and another (P L D 1965 Lah. 229,) wherein relevant sections of Frontier Crimes Regulation No. III of 1901, under which the petitioners therein had been convicted, had been held to be ultra vires. The Division Bench simply took notice of that law and held that in view thereof the convictions of the petitioners therein were illegal.

12. The other point raised by the learned counsel for the petitioners was that they were not moving the High Court for the enforcement of any of their fundamental right and nor were the present proceedings of that character. They argued that under Article 2 of the Constitution to enjoy the protection of the law and to be treated in accordance with law and only in accordance with law is the inalienable right of every citizen and in particular no action detrimental to the life; liberty; body; reputation or property of any person shall be taken except in accordance with law. 1t was submitted that in Article 6 (2) of the Constitution it was laid down that State shall not make any law which takes away or abridges the rights conferred by Part II, Chapter I of the Constitution (generally called the Fundamental Rights). They continued the argument and said that what the petitioners were saying was that the Collector under the Act was dealing with them or their properties not in accordance with law because the West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964, under which the proceedings were initiated or orders were passed or were intended to be passed, was a still‑born law, which never came into existence and that the said official respondents be restrained from acting under that Act. When asked to how the West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964, was a still‑born law they replied that since it infringed Fundamental Rights, it was hit by Article 6 (2) of the Constitution, as it was beyond the scope of competency of the Provincial Legislature to have passed it at the relevant time. In this connection, they cited authorities of high value and respect. As for example, reference was made to the following passage occurring in the Judgment of Hamood‑ur -Rahman, J., in Saiyyed Abul A'la Maudoodl and others v. The Government of West Pakistan and another (P L D 1964 S C 673) where at page 784, he observed:‑

"In my view, therefore, there can be no room for doubt that the present Constitution has clearly given to the High Courts the right to pronounce upon the constitutionality of a legislation affecting a fundamental right guaranteed by the Constitution and not only the right of examining the consti tutionality of executive action. In the case of a law made after the declaration of fundamental rights the Constitution has placed a complete bar on the power of the Legislature to make any law which takes away or abridges any right conferred by the Constitution itself. Such law, if made in contravention of clause (2) of Article 6, is to be void ab initio, but in the case of an existing law, clause (1) of the said Article, it appears, makes a distinction. it avoids it only to the extent of inconsistency."

Reference was also made to Willoughby on the Constitution of the United States, Vol. 1, Second Edn., pp. 9‑11, where the following principles have been laid down:‑-

"6. Courts do not "nullify" Laws.‑The doctrine that an unconstitutional law is void is often stated as a. deduction from the premises that constitutional law is a superior kind of law to which statute law of inferior rank is obliged to yield. Speaking in all strictness, however, this is not the case, for the unconstitutional statute is not law at all, whatever its form or however solemnly enacted and promulgated."

There are not and cannot be degrees of legal validity. Any given rule of conduct or definition of a right either is or is not law. When, therefore, we describe any particular measure as an unconstitutional law and, therefore, void, we are, in fact, strictly speaking, guilty of a contradiction of terms, for if it is unconstitutional it is not a law at all; or, if it is a law, it cannot be unconstitutional. Thus, when any particular so‑called law is declared unconstitutional by a competent Court of last resort, the measure in question is not 'annulled', but simply declared never to have been law at all, never to have been, in fact, anything more than a futile attempt at legislation on the part of the Legislature enacting it. This is a very important point, for did the decision of tie Court operate as a nullification the effect would be simply to hold that the law should cease to be valid from and after the time such decision was rendered, whereas, in fact, that effect is to declare that the law, never having had ‑any legal ‑ force, no legal rights or liabilities can be found upon it. In Norton v. Shelby Co. 118 U S 425 Mr. Justice Field says:

An unconstitutional act is not a law, it confers no rights, it imposes no duties, it affords no protection, it creates no office; it is in legal contemplation, as inoperative as though it had never beets passed.

The doctrine that the judicial declaration of the unconstitutionality of a statute has not the effect of a veto or nullification or abrogation of the statute so as, in effect, to strike it from the statute books, is excellently stated by the Court of West Virginia in Shephard v. Wheeling 30 W Va. 479. The Court says:‑--

'(The Court) does not annul or repeal the statute if it finds it in conflict with the Constitution. It simply refuses to recognize it, and determines the rights of the parties just as if such statute had no application. The Court may give its reasons for ignoring or disregarding the statute, but the decision affects the parties only, and there is no judgment against the statute. The opinion or reasons of the Court may operate as a precedent for the determination of other similar cases, but it does not strike the statute from the statute book; it does not repeal . . . . the statute. The parties to that suit are concluded by the judgment, but no one else is bound. A new litigant may bring a new suit, based on the very same statute, and the former decision cannot be pleaded as an estoppel but can be relied on only as a precedent. This constitutes the reason and basis of the fundamental rule that a Court will never pass upon the constitutionality of a statute unless it is absolutely necessary to do so in order to decide the case before it.' "

Learned counsel for the petitioners then referred to The State of South Australia and another v. The Commonwealth and another ((1941‑42) 65 C L R 373) at page 408 where, Latham, C. J., held as follows:‑

"Common expressions, such as: 'The Courts have declared a statute invalid, sometimes lead to misunderstanding. A pretended law made in excess' of power is not and never has been a law at all. Anybody in the country is entitled to disregard it. Naturally, he will feel safer if he has a decision of a Court in his favour‑but such a decision is not an element which produces invalidity in any law until a Court pronounces against it‑and thereafter invalid. If it is beyond power it is invalid ab initio."

The above authorities and passages are golden rules of legal jurisprudence and they are quite apt in their context and quite correct on the subject they dealt with. The point arising in the present case, however, is somewhat different. Here we are concerned with the interpretation of the various sub‑Articles of Article 30 of the Constitution and we have to determine as to whether during the subsistence of the Proclamation of Emergency in the Country and the Order of the President‑a question as to the validity of the West Pakistan Redemption and Restitution of Mortgaged Land Act, 1964, can be gone into on the ground of its being in violation of Fundamental Rights. Had the attack been on grounds different from Fundamental Rights we would have legitimately gone into it. But the unfortunate aspect for the petitioners is, that based their arguments on Fundamental Rights which is exactly which is suspended at the moment. To say that Fundamental Rights are not being sought to be enforced when validity of a raw is being challenged on grounds of Fundamental Rights, is to say with respect to the learned counsel for the petitioners, to argue in a circle.

13. Another point argued by the learned counsel for the petitioners was that under sub‑Article (9) of Article 30 of the Constitution, when an Emergency is declared, then the State automatically gets power to enact laws and to take executive actions in derogation of Fundamental Rights Nos. 5, 6, 7, 8, 9 and 13. From this, it was asserted that so far as Fundamental Rights other than those mentioned hereinbefore are concerned, the State is not given power to make any law or take any action in derogation thereof. Continuing the argument further, it was submitted that the President being included in the word "State," he was not competent while issuing an "Order" under sub. Article (10) to suspend the right to move any Court for enforce ment of Fundamental Rights, other than those which were mentioned in sub‑Article k9); because issuance of such an Order was tantamount to make a law‑ (Presidential Order being s law) ‑even with regard to such Fundamental Rights which were preserved by sub‑Article (9). The argument, though attractive, cannot be accepted; because (i) sub‑Article (10) is not subject to sub‑Article (9). There are no words of the kind "subject to sub‑Article (9)" in sub‑Article (10), and, we, therefore, cannot read them into the same; (ii) sub‑Article (9) deals with making of laws and taking of executive actions other than issuance of an Order under sub‑Article (10), which is independently dealt with in the said sub‑Article (iii) again sub Article (9) deals with subject of making laws or taking of executive while sub‑Article (10) deals with suspension of a right to move any Court for enforcement of Fundamental Rights‑a subject quite different in nature. In other words Sub‑Article (9) deals with rights while sub‑Article (10) deals with remedier and procedure; and (iv) in sub‑Article (10), it is clearly indicated that Presidential Order can be made about "such of the Fundamental Rights-- as may be specified in the Order", thus leaving it to the good judgment and choice of the President to see as to about which specified rights he would declare the remedies for their enforce ment as barred.

14. Mr. Muhammad Anwar Buttar, who appeared in Writ Petition No. 1968 of 1967 also argued shat in the West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964, the remedy of resorting to Civil Court was barred, which impliedly had the effect of barring the jurisdiction of the High Court and the Supreme Court from the future decisions of the Civil Courts in such matters. It was submitted that in this way, the impugned legislation was not within the competence of the Provincial Legislature which is not competent to encroach upon the High Court or the Supreme Court's jurisdiction. To say with respect to the learned counsel, we have not been able to appreciate this point. For seeing the competency of a Legislature upon a particular subject, it is to a pith and substance of the law which should be kept to view. Examined from that point of view, the impugned law deals with "land", which is well‑within the competence of the Provincial Legislature and the same, therefore, cannot be attacked in such a round about manner. A somewhat similar argument was repelled as far back as reported in a Full Bench Decision of Lahore High Court in Megh Raj and others v. Allah Rakha and others (A I R 1941 Lah. 177) which was maintained in appeal in Megh Raj and others v. Allah Rakha and others (AIR 1942 F C 27) and by the Privy Council in Magh Raj and another v. Allah Rakha and others (AIR 1947 PC 72) which were cases challenging the validity of the predecessor enactment of the one now under challenge, viz., Punjab Redemption and Restitution of Mortgaged Lands Act of 1938.

15. Coming to the merits of the cases, it was argued:

(a) that the mortgages involved in some cases were not usufructuary mortgages in the strict sense of this term;

(b) that even if they were Usufructuary mortgages, they were not mortgages of the kind which were to exhaust themselves from the rents and profits of the mortgaged land within that period and that the fixation of a period simply meant that the right to redeem was postponed for some time;

(c) that the Collector had not given opportunity to some of the petitioners in some cases, where it was alleged that orders were passed by him ex parte; and

(d) that the Collector had failed to go into the matter of compensation for improvements in some cases.

16. It will be appreciated that these are disputed questions of fact which, ordinarily, are not gone into in the exercise of jurisdiction under Article 98 of the Constitution, especially when they involve leading of evidence and investigation of diverse matters. In cases which are still pending before the Collectors, the petitioners can raise these points before them. In cases, where Collector have passed, orders, the petitioners can raise them in the course of appeals and revisions before the Commissioner and the Board of Revenue, respectively, which, in our opinion, in the context of things, are quite efficacious; speedy and adequate remedies. We have no intention to convert ourselves into trial Courts or for this purpose to take over the functions of the authorities which are fully competent to attend to all these matters if properly and competently canvassed before them.

17. The upshot of the above discussion is that Writ Petition No. 1441 of 1965 being of a date prior to the Proclamation of Emergency will remain pending and should be put up immediately otter the revocation of the said Proclamation. Petitions which are filed after the suspension of the fundamental rights must f he dismissed on the ground that the right to move for the enforcement of the fundamental rights is suspended. Suitable orders in the light of our judgment have been passed in each case separately. In view of the complicated question of law' arising in this case, there will be no order as to cysts. The stay Orders issued in such cases, which have been dismissed, shall stand vacated.

A.E. Petition kept pending.

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