Find a Lawyer

Civil Petition for Special Leave to Appeal No. 247 of 1967, decided on 4th October 1967.

(On appeal from the order of the High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 15th June 1967, in Writ Petition No. 220 of 1967).

‑Person acquiescing in curtailment affected by Regulation‑Could not be allowed to resile and challenge action subsequently in writ petition Constitution of Pakistan (1962), Art. 98.

Dr. Nasim, Hassan Shah, Senior Advocate Supreme Court (A. S. Salam, Advocate Supreme Court with him) instructed by Siddiq & Co., Attorneys for Petitioner.

Nemo for Respondents.

Date of hearing : 4th October 1967.

‑The petitioner in this case is a dis placed person from Muradabad (U. P.), India. The petitioner on migration to Pakistan was allotted certain lands in the districts of Mardan and Bannu under sections 15 and 16 of the Displaced Persons (Land Settlement) Act, 1958. These lands were subsequently confirmed in his favour and entered in the R. L. 11 Register. But after the promulgation of the Martial Law Regulation No. 89 on the 23rd of August 1961, his entitlement certificates, QPR‑V Forms and allotment orders were all cancelled and his entitlement was scaled down in accordance with the pro visions of the aforementioned Martial Law Regulation. He was directed to surrender the excess lands held by him between the 31st of October 1961 and the 31st of December 1961, but posses sion was not taken immediately, as Sharif crops and sugar‑cane crops were still standing on the land.

On the 28th of December 1961, however, the West Pakistan Government in whom the excess lands vested by virtue of the provisions of the Martial Law Regulation No. 89, offered the same for sale to various categories of persons, including the previous allotted, who was given a preferential right. The peti tioner accepted this offer on the 28th of February 1962, and made payments by installments from that date till the 13th of August 1966. Thereafter he made no further payments. The Deputy Rehabilitation Commissioner, Mardan, then on the 18th of May 1967, demanded the next installment of Rs. 2,556'41 ps. The petitioner challenged the validity of this demand by a writ petition in the High Court upon, inter alias, the ground that after the coming into force of the Constitution of the Islamic Republic of Pakistan on the 8th of June 1962, the Martial Law Regu lation No. 89 itself became violative of the principles of the Constitution, in so far as it purported to treat the petitioner unequally contrary to the provisions of Article 2 and Fundamental Right No. 15.

The High Court, however, dismissed the petition in limine on the grounds firstly that it suffered from laches and secondly that the petitioner could not be allowed to resile from his acquiescence in the curtailment affected by the Martial Law Regulation No. 89.

The petitioner now seeks special leave to appeal and the learned counsel appearing on his behalf has strenuously urged that he could not be deprived of a constitutional right on the mere ground of laches.

The Fundamental Right No. 15 is one of the rights, which has been suspended since the proclamation of the emergency on petitioner.

His arguments founded upon the wording of Article 2 of the Constitution are also unacceptable, since on the date that his entitlement was finally determined the Martial Law Regula tion No. 89 was a valid law and the petitioner was treated in accordance with law.

That Regulation was at the time, namely, August 1961, a supra‑constitutional legislation which could not be challenged in any Court nor could the actions taken under that legislation be subjected to any challenge. The contention, however, is that since after the coming into force of the Constitution the Regula tion itself was validated only as an Act of the Central Legislature it became assailable since that date if the action taken there under had not become a past and closed transaction. The difficulty, however, with which the petitioner is now confronted is that as from the 28th of September 1961, when the new entitlement certificates were issued under the above‑mentioned Regulation the entitlement of the petitioner became finally curtailed and the transaction became a past and closed transaction which could not subsequently be challenged. The entitlement certificates are, therefore, even now immune from such challenge.

In any event, the High Court was also right in treating the petition as being barred on the ground of laches. Clearly the petitioner had stood by and taken no action to enforce his alleged rights even after the Constitution came into force on the 8th June 1.962. The mere fact that he was away prosecuting his studies in England at that time cannot be treated as a sufficient excuse for such inaction on his part, as he could well have instructed his counsel or attorney even from there to take appro priate steps on his behalf.

The contention of the learned counsel that since further installments have still to be paid the transaction is not a past and closed transaction is clearly erroneous, for, the entitlement was finally curtailed in 1961 and in February 1962, his attorney acquiesced in the curtailment of the entitlement and accepted the offer of the Government to purchase the excess land upon an agreed price. The installments that are now being paid are in respect of this purchase which is itself also a closed transaction. The purchase was completed when the offer was accepted.

In any view of the matter, therefore, the petitioner's writ petition in the High Court was bound to fail and we see no ground, as such, for granting special leave to appeal in this matter.

This petition is, accordingly, dismissed.

Leave refused.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.