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(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 6th April 1964, in Writ Petition No. 907 of 1962).

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 6th April 1964, in Writ Petition No. 907 of 1962).

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 15th July 1964, in Writ Petition No. 747 of 1962).

(On appeal from judgment and order of the High Court of West Pakistan, Lahore, dated the 16th November 1965, in Writ Petition No. 1372 of 1965).

Civil Appeals Nos. 71, 72, 76 of 1966 and 192 of 1969, decided on 3rd May 1971.

West Pakistan Border Area Regulation, 1959 [M. L. R. (Zone B) No. 9]

paras. 10(a) & 15 and Constitution of Pakistan (1962), Art. 98‑Order of Border Area Committee (cancelling allotment) made before 8‑6‑1962 i.e. prior to commencement of Constitution of Pakistan, (1962)‑‑Not open to challenge in any Court‑Order made on or after 8‑6‑1962 however not immune from attack‑Order (cancelling allotment) made on 12‑8‑64‑High Court, held, not justified in not entertaining writ petition on ground that its jurisdiction was barred‑Case remanded to High Court for disposal on merits.

Muhammad Khan v. Border Allotment Committee P L D 1965 S C 623 distinguished.

Mehr Din v. Border Area Committee P L D 1970 S C 311 ref.

Civil Appeal No. 71 of 1966

Ch. Muhammad Anwar Buttar, Advocate Supreme Court instructed by M. Aslam Chattha, Advocate‑on‑Record for Appellants.

Respondent No. 1 : Ex parte.

Abdul Mannan, Advocate Supreme Court instructed by Salim Ahmad Malik, Advocate‑on‑Record for Respondents Nos. 2 and 3.

Ch. Muhammad Anwar Buttar, Advocate Supreme Court instructed by M. Aslam Chattha, Advocate‑on‑Record for Appellants.

Respondent No. .l : Ex parse.

Abdul Mannan, Advocate Supreme Court instructed by Salim Ahmad Malik, Advocate‑on‑Record for Respondents Nos. 2 and 3.

Azimuddin, Advocate Supreme Court instructed by Sh Abdul Karim, Advocate‑on‑Record for Appellant.

Abdul Mannan, Advocate Supreme Court instructed by Masood Akhtar, Advocate‑on‑Record for Respondent No. 1.

Respondents Nos. 2 to 5 : Ex pane.

M. Anwar Buttar, Advocate Supreme Court with Muhammad Ilyas Khan, Advocate Supreme Court instructed by M. Z. Khalil, Advocate‑on‑Record for Appellant.

Abdul Mannan, Advocate Supreme Court instructed by Masood Akhtar, Advocate‑on‑Record for Respondent.

Dates of hearing : 30th April and 3rd May 1971.

These appeals, other than Civil Appeal No. 76 of 1966, are by our special leave. Civil Appeal No. 76 of 1966 is, however, a certificated appeal. All these appeals involve a common question of law and this judgment will dispose of all of them.

In all these cases, different lands were allotted to the appellants within the "Border Area", that is, the area lying within a distance of 5 miles from the border between West Pakistan and India. These allotments were subsequently cancelled by the Border Area Committee on one ground or the other. The appellants filed different writ petitions in the erstwhile High Court of West Pakistan, Lahore, challenging the validity of the orders cancelling their respective allotments. The High Court dismissed all the writ petitions on the ground that the Court's jurisdiction to call in question the validity of the orders of the Border Area Committee was ousted by the West Pakistan Border Area Regulation, 1959. In the judgment of the writ petition giving rise to Civil Appeal No. 192 of 1969, reliance was placed on the decision of this Court in Muhammad Khan v. Border Allotment Committee (PLD 1965SC623) in support ‑of the view as regards ouster of the Court's jurisdiction. The common question that arises in these appeals is whether the legality of the orders of cancellation of the allotments made on different dates by the Border Area Committee, is immune from attack.

A similar question came up before this Court in the cases of Muhammad Khan v. Border Allotment Committee and Mehr Din v. Border Area Committee (PLD 1970SC311). This question was decided by this Court having regard to the provisions of the West Pakistan Border Area Regulation, 1959 (Regulation No. 9 of 1959), the Laws (Continuance in Force) Order, 1958, Martial Law Regulations Nos. 88 and 93, Martial Law (Pending Proceedings and Protection) Order, 1962 (President's Order No. 26 of 1962) and the Constitution of 1962. In the first of the cited cases, this Court held that no order made by the Border Area Committee under the West Pakistan Border Area Regulation, 1959, before the commencement of the 1962‑Constitution on 8‑6‑1962, is liable to be called‑in question in any Court including the High Court and the Supreme Court. In the second case, it was held that the ouster of Courts' jurisdiction under the Martial Law Regulation, 1959 ceased to be operative from 8‑6‑1962. In other words, according to the decision in the second case, an order made by the Border Area Committee under the West Pakistan Border Area Regulation, 1959 on or after 8‑6‑1962 is not immune from attack. The present appeals fall to be decided according to the decisions of this Court as stated above.

In Civil Appeal No. 71 of 1966, the allotment of land to the appellant, Dilmir, within the Border Area was confirmed on 1‑5‑1961, but the allotment was cancelled by the Border Area Committee on 30‑3‑1962. After the cancellation of the allotment, the same land was allotted to the respondents. As the order of cancellation of the appellant's allotment was prior to 8‑6‑1962, the High Court rightly held that the said order is not open to challenge. Civil Appeal No. 71 of 1966 is therefore, liable to be dismissed.

In Civil Appeal No. 72 of 1966, the allotment in favour of the appellant, Sardar Khan, was made on 28‑6‑50, and the allotment was confirmed on 12‑6‑1956. This allotment was, however, cancelled by the Border Area Committee on 11‑4‑1962 and, thereafter, the same land was allotted to the respondent No. 1. As the order of cancellation was prior to 8‑6‑1962, the same can no more be called in question. So, Civil Appeal No. 72 of 1966 is also liable to be dismissed.

Civil Appeal No. 76 of 1966 relates to the lands of two Khatas, namely, Khatas Nos. 347 and 348 in village Khara, Tehsil Qasur, District Lahore. Khata No. 347 contains both milkiyat rights and mortgage rights, whereas Khata No. 348 relates to mortgage rights alone. The appellant, Ashiq Hussain, claimed that he was allotted lands against his mortgage rights in the two Khatas, but the allotment was cancelled by the Border Area Committee on 3‑6‑1961.

Ch. Azimuddin, learned counsel for the appellant submits that although the appellant's allotment was cancelled before 8‑6‑1962, the decisions of this Court in the cases reported in P L D 1965 S C 623 and P L D 1970 S C 311 do not cover this case. The learned counsel contends that the said decisions are, at any rate, liable to be reviewed. We do not find any substance in this contention. When the said two decisions of this Court are read together, it becomes perfectly clear that no order of the Border Area Committee made under Regulation No. 9 of 1959 before 8‑6‑1962 is open to challenge in any Court and that an order of such Committee made on or after 8‑6‑1962 is not immune from attack. The order of cancellation in Civil Appeal No 76 of 1966 being prior to 8‑6‑1962 is not, therefore, liable to be called in question. The cited decisions being the Full Court decisions of this Court do not call for review by us.

The learned counsel then contends that the lands in question do not fall within the border area. This point was not raised in the writ petition filed in the High Court. This point was raised for the first time in paragraph 10 of the appellant's memorandum of appeal filed on 7‑8‑1963, vide pages 21‑24 of the printed paper‑book. In paragraph 5 of the writ petition, however, there is an admission by the appellant that the land in dispute lies within the border belt. So, there is no substance in the second contention either. This appeal is also liable to be dismissed.

In Civil Appeal No. 192 of 1969, the allotment in favour of the appellants was confirmed on 28‑5‑1957, but it was cancelled on 12‑8‑1964. As the order of cancellation was subsequent to 8‑6‑1962, the learned counsel of both the parties concede that the High Court has jurisdiction to consider the validity of the order of cancellation. Accordingly, they agree that the case should be remanded to the High Court for deciding the writ petition on merits.

It appears from the High Court's order in the connected writ petition that the learned Judges relied on the decision of this Court in the case reported in P L D 1965 S C 623 in support of their view that they have no jurisdiction to interfere with the order of cancellation made by the Border Area Committee. It seems that the learned Judges did not properly appreciate this Court's decision in the said case wherein it was held that an order made by the Border Area Committee under Regulation No. 9 of 1959 before 8‑6‑1962 was not liable to be called in question. This effective date appeared to have escaped the attention of the learned Judges in taking the view with regard to ouster of their jurisdiction. However, the point decided in P L D 1965 S C 623 was made all the more clear in the subsequent decision of this Court in the case reported in P L D 1970 S C 311. When the order of cancellation was made in this case on 12‑8‑1964, the High Court, according to this Court's decision in the latter case, has jurisdiction to look into the validity of that order. Hence, this appeal should be allowed and the case remanded to the High Court for deciding it on merits.

In the result, we dismiss Civil Appeals Nos. 71, 72 and 76 of 1966. We, however, allow Civil Appeal No. 192 of 1969, set aside the judgment and order of the High Court and remand the case to that Court for deciding it on merits. Having regard to the point of law involved in these appeals, we leave the parties to bear their own costs.

Order accordingly.

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