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Regular Second Appeal No. 58 of 1976, decided on 16th June, 1979.

-- S. 9--Maintainability of suit-Legal right existing infringement thereof alleged and a cause of action disclosed--Ordinary civil Courts, held, bound to entertain suit unless its entertainment: barred by law.-[Cause of action].

Jiwana v. Mst. Sahbi P L D 1954 Lah. 253 ref.

-- Retrosp4rtive operation- A statute taking away or affecting a right of action-Presumed not to apply to pending action unless express words in-statute affect such rights-Courts always lean very strongly against applying a new statute to pending actions when language of statute not compelling to do so.

Barkat Ali v. Administrator, Thai Development, Bhakkar P L D 1978 Lah. 867 fol.

.--- S. 74-A [as added by Thal Development (Punjab Amendment) Act (XLVI of 1975)]-Scope-Application] to pending actions--Statute with retrospective effect coming into existence at time when cause of action had accrued to appellants and suit had since been instituted-Statute having no indication of its application to Pending actions, held, cannot be construed to apply to them.--[inter pretation of statutes].

----S. 74-A [as added by Thai Development (Punjab Amendment) Act (XLVI of 1975)]--Maintainability of suit-Question arising for determination of civil Court whether act of Collector in cancelling allotment illegal and thus not "under the Act"-Notwithstanding retrospeetivity of Act XLVI of 1975 appeal accepted and case remanded to trial Court for disposal in accordance with law.

Mian Qurban Sadiq Ikram for Appellants.

Sh. Riazul Haq for Respondent.

Date of bearing : 16th June 1979.

This appeal is directed against the judgment and decree dated 25th November, 1975 whereby the learned District Judge, Mianwali, maintained the judgment of the trial Court dismissing the suit as barred by the Thai Development (Punjab Amendment) Ordinance, 1575.

2. It is stated that the land in dispute was allotted to the plaintiff appellants on 4th November, 1953 under the Tube-well Scheme by the Thai Development Authority and its possession was delivered to them. It was sometimes later that the Authority cancelled the allotment where upon a cause accrued to the appellants to file the present suit for permanent injunction restraining the respondent from interfering with their possession. It was contended by the appellants in their suit that the respondent according to the terms and conditions of the Scheme, was required to perform a trial-boring for the installation of the tubewell for which a sum of Rs. 1,350 including Rs. 100 for such trial-boring was deposited. Since no default was committed by the appellants, it was stated that their allotment could not be cancelled.

3. The respondent denied in the written statement that fee for trial-boring was ever deposited by the appellants. The cancellation of allotment was, therefore, alleged to be justified. It was, however, maintained that pursuant to the amended law the civil Court bad no jurisdiction to try the suit. On the pleadings of the parties the following issues were framed :----

(i) Whether this Court has no jurisdiction to try the suit in view of the Ordinance XIX of 1975.

(ii) whether the plaintiffs have no locus stands ;

(iii) whether the order of resumption is illegal and void for reasons stated in the plaint,

(iv) Relief,

4. The parties were required to lead evidence on 21st October, 1975 but before it was produced the trial Court dismissed the suit on the ground that jurisdiction of civil Courts was taken away by the newly promulgated Ordinance XIX of 1915. The appellants went in appeal but with no success. Hence this second appeal.

5. Ordinance XIX of 1975 came into force on 6th June, 1975, the date when it was published in the Official Gazette. It was replaced by the Thal Development (Punjab Amendment) Act (XLVI of 1975) by which the following section 74-A was added to the Thal Development Act, 1949 (Punjab Act XV of 1949) ;----

"74-A. Bar of jurisdiction of civil Courts.-A civil Court shall have no jurisdiction in any matter which the Collector is empowered by this Act to dispose of and shall not take cog nizance of the matter in which the Provincial Government, Board of Revenue, Collector or any other Revenue Officer exercises any power vested in him by or under this Act."

6. It is apparent that when a legal right and an infringement thereon are alleged, a cause of action is disclosed, and unless there is a bar to the entertainment of a suit, the ordinary civil Courts are bound to entertain the claim. With reference to the Colonization of Government Lands (Punjab) Act (V of 1912) it is laid down in Jiwana v. Mst. Sahbi (P L D 1954 Lah. 253) that the civil Courts would ordinarily have jurisdiction to decide whether or not the act purporting to have been done in the exercise of powers conferred by Act V of 1912 could be validly done under the Act, and on the language of section 36 of the Act it cannot be held that that jurisdiction had been taken away from the civil Courts by that section. Nor does section 36 of the Act V of' 1912 divest the civil Courts of jurisdiction to adjudicate what legal effect the order of a Revenue Officer validly passed under the Act will have on the rights of the parties before it. In the circumstances there is no doubt left that the above provision shall not apply if once it is proved on record that the order of cancellation of allotment was without jurisdiction. Having this principle in view the trial Court was not empowered to dispose of the suit without recording evidence on the issues already framed.

7. It cannot be ignored that a statute taking away or impairing vested rights acquired under existing laws cannot have a retrospective effect. I have held in Barkat Ali v. Administrator, Thal Development, Bhakkar (P L, D 1978 Lah. 867) that a statute which takes away or affects right of action is a presumed not to apply to pending actions unless there are express words in the statute affecting such rights. Courts have always leaned very strongly against applying a new statute to pending actions, when the language of the statute does not compel to do so. The bar of juris diction was first created on 6th June, 1975 when the Ordinance XIX of 1975 came into force. The Ordinance was converted into Act No. XLVI of 1975 which was enforced on 19th July, 1975, but both the statutes were deemed to have taken effect on and from 29th July, 1949.' The Ordinance came in existence at a time when the cause of action had accrued to the appellants and the suit had since been instituted on 31^st May, 1975. The Statute, having no indication of its application to pending actions, cannot be construed to apply to them. In view of 'h J of the suit notwithstanding the retrospectivity of the Statute there was definitely a question in this case for determination by the Civil Court whether the act of the Collector in cancelling allotment was illegal and was thus not "under the Act".

8. For the reasons aforementioned the appeal is accepted with costs, the judgments and the decrees under appeal are set aside and the case is remanded to tae trial Court for disposal in accordance with law.

M.Y.M Appeal accepted.

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