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Civil Appeal No. 241 of 1969, decided on 4th October 1971.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 18th January 1967, in Writ Petition No. 64 of 19b7).

Constitution of Pakistan (1962),

Arts. 98 & 225 and West Pakistan Border Area Regulation, 1959 [Martial Law Regulation (M. L. A. Zone B) No. 9], para. 15‑West Pakistan Border Area Regulation, 1959 continued as Central Act under Art. 225, Constitu tion of Pakistan (1962)‑Could not override constitutional provisions of Art. 98‑Order passed by Border Allotment Committee after enforcement of Constitution‑Amenable to review by High Court on petition under Art. 98.

Mohammad Khan v. Border Allotment Committee P L D 1965 S C 623 and Mehr Din and 7 others v. Border Area Committee, Bahawalnagar and another P L D 1970 S C 311 ref.

Azimuddin, Advocate Supreme Court instructed by Abdul Karim Sheikh, Advocate‑on‑Record for Appellants.

Abdul Mannan, Advocate instructed by Salim Ahmad Malik, Advocate‑on‑Record (absent) for Respondent No. 1.

Respondent No. 2: Ex parte(Vide Court's order dated 5‑5-1971).

Date of hearing : 4th October 1971.

MUHAMMAD YAQUB ALI, J.‑

The appellants and one Shakoor were allotted land measuring 121 kanals and 18 marlas on 12‑2‑1957 in village Waran, Tehsil Qasur, District Lahore, within the border belt. On 17th December 1966, the Border Allotment Committee cancelled the allotment on the finding : (i) that Shakoor had left the village and thereby contravened the condition of allotment in his favour ; and (ii) that the appellants had failed to deposit the price of the land in the Treasury by the prescribed date.

As no further appeal or revision lay from the order of the Border Allotment Committee, the appellants filed Writ Petition No. 64 of 1967 in the High Court contending inter alia that the order was passed without notice and without hearing them in viola tion of Para. TO of Schedule III to Martial Law Regulation 9‑13 and that the allotment having been confirmed on 11‑5‑1960 by the Border Allotment Committee which was the Martial Law authority, the present Border Allotment Committee could not interfere with the order of confirmation. It was further claimed that Shakoor had not left the village and that the appellants had made no default in payment of the price of the land by the prescribed date. Lastly it was urged that the Border Allotment Committee could not cancel the confirmed allotment of the appellants for non‑payment of the sale price as it was not a condition of the allotment.

A Division Bench of the High Court dismissed the writ petition in limine as in its opinion, under section 15: of Martial Law Regulation 9, there was a bar to the jurisdiction, of High Court to interfere with an order passed by the Border Allotment Committee. Reliance was placed on the decision of this Court in Mohammad Khan v. Border Allotment Committee (P L D 1965 S C 623).

Leave to appeal was granted to consider the correctness of the view that section 15 of. Martial Law Regulation 9 which was under Article 225 of the Constitution continued as a Central Act could override the provisions of Article 98. Since the appeal was admitted to hearing it has been held in Mehr Din and 7 others v. Border Area Committee, Bahawalnagar and another (P L D 1970 S C 311) that an" order passed by the Border Allotment Committee after the enforcement of Constitution of 1962 was subject to review by a High Court under Article 98. The principal ground on which leave to appeal was granted, thus stands concluded.

No one appeared for the Border Allotment Committee and Misri Khan son of Rahim Ali to whom the land, in dispute, was allotted by the Border Allotment Committee. This, however, does not enable us to dispose of the appeal on merits. As seen questions of fact as well as of law were raised in the writ petitions which the High Court has not decided in the view that it has no jurisdiction to call in question the order of the Border Allotment Committee.

In the circumstances, the appeal is allowed and the case is remanded to the High Court for disposal in accordance with law. As five years have already passed since the Border Allotment Committee cancelled the allotment of the appellants it is requested by their learned counsel that a direction be given to the High Court to hear the writ petition at an early date. We are unable to accede to the request, but do hope that the High Court will give due regard to the delay which has already occurred in the disposal of the writ petition.

The appeal is allowed, but as no one has appeared to contest it, there will be no order as to costs.

Appeal accepted,

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