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Writ Petition No. 142 of 1983, decided on 2nd February, 1983.

‑‑ No. 821‑Provisional Constitution Order (1 of 1981), ‑Art. 15 Order for removal of encroachment passed after issuance of show cause notice‑Order upheld by Deputy Martial Law Administra tor‑High Court, held, has no jurisdiction to entertain petition or adjudicate upon such order‑[P L D 1982 S C 367 ; 1983 C L C 349; 1982CLC1161;PLD1980Lah.583;PLD1960SC113;PLD 1968 S C 78 ; P L D 1966 S C 1 ; P L D 1963 S C 373 ; 1982 S C M R 749 and P L D 1961 Kar. 384 held not applicable].

PLD1982SC 367; 1983 CLC 349; 1982 CLC 1161; PLD 1980 Lah. 583 ; P L D 1960 S C 113 ; P L D 1968 S C 78 ; P L D 1966 S C 1; P L D 1963 S C 373 ; 1982 S C M R 749 and P L D 1961 Kar. 384 held not applicable.

1970 S C M R 386 ; P L D 1952 Dacca 256 ; P L D 1971 S C 170 P L D 1965 Kar. 195 ; P L D 1952 Pesh. 50 ; P L D 1970 S C 173 ; P L D 1964 S C 829 ; P L D 1975 Lah. 44 ; P L D 1976 Lah. 758 ; P L D 1980 S C 211 ; P L D 1963 Kar. 981 and P L D 1979 Note 80 at p. 56 ref.

Asif Saeed Khan Khosa for Petitioner.

‑This is a petition under Article 9 of the Provisional Constitution Order, 1981 whereby Muhammad Anwar Khan petitioner herein wants this Court to declare the order dated 26th January, 1983 of Deputy Martial Law Administrator, respondent No. 1, to be without lawful authority and of no legal effect.

2. The facts leading up to this writ petition in brief are that the disputed land i.e. 114th (the Southern Part) of the land of Chowk in Block No. 47, Dera Ghazi Khan City, is a State property. It was leased out to the petitioner by Municipal Committee, Dera Ghazi Khan through agreement, copy Annexure 'A' dated 24th May, 1944 which.reads as follows :

The Municipal Committee, Dera Ghazi Khan had been accepting lease money till 0th June, 1980 through receipts. Although thereafter, the Municipal Committee refused to receive the rent yet it did not disturb the possession of the petitioner. It so happened that on 26th August, 1982 the Chairman Municipal Committee, Dera Ghazi Khan, respondent No. 2, issued show‑cause notice under paras. 6 and 12 of Martial Law Order No. 821 of 1981 to the petitioner as to why he should not be directed to remove the illicit encroachment made by him. The petitioner contested the show‑cause notice inter alia challenging the authority of respondent No. 2 to invoke M. L. O. 821 in the matter as according to him M.L.O. No. 821 relates only to the removal of encroachment or illegal occupa tion and not to lawful possession. The respondent No. 2, however, on 11th November, 1982 directed the petitioner to remove the construction and hand over the possession of the disputed land to him. The operative part of the order is ;

It would not be out of place to mention here that this order is appeal able under paragraph 8 of Martial Law Order 821 before Deputy Martial Law Administrator. The petitioner instead of filing appeal under the relevant law moved Writ Petition No. :325 of 1982, which was disposed of on 15th November, 1982. A part of that order is as under :‑‑

"The learned counsel submits that there is imminent danger of the property being demolished by the respondent even before the dis posal of the appeal. This apprehension appears to be without any justification because the provisions of Article 9 of M.L.O. No. 821 are very much clear which reads as follows :

"Where an order has been passed under paragraph No. 8 and has not been challenged in appeal or where an appeal under para graph No. 8 has been dismissed, the authorised officer shall by an order in writing, require the person responsible for the en croachment to remove such encroachment together with structure, if any, raised by him on public property, within such period as may be specified in the order."

The petitioner filed appeal before the Deputy Martial Law Adminis trator on the same day. On 20th November, 1982 when the appeal against the order dated 11th November, 1982 was still undecided, respon dent No. 2 served a notice upon the petitioner to comply with the order dated 11th November, 1982 by demolishing the construction and deliver ing the possession to him, which was again challenged in W. P. No. 1349/ 82. Since the allegations were that respondent No. 2 was bent upon demolishing the property during the pendency of appeal in contravention of paragraphs Nos. 8 and 9 of M.L.O. 821, he was summoned in Court. On his assurance to the effect that he would not demolish the property before the disposal of appeal before the Deputy Martial Law Adminis trator, the petitioner did not press his petition. The Deputy Martial Law Administrator has now rejected the appeal vide intimation/order dated 26th January, 1983 which is as under :

HQ DMLA Sector‑3 C/O

HQ 1 Armoured Division,

Multan Cantonment.

Telephone : 71206

589/ML/RE.

26th January, 1983.

To

Muhammad Anwar Khan s/o Ghulam Hussain,

Block No. 47, D.G. Khan.

Info : Commissioner,

D. G. Khan,

Chairman, Municipal Committee,

D. G. Khan.

Subject : Removal of Encroachment under MLO‑821.

1. Your application dated 15th November, 1982 has been considered by the DMLA and rejected in the public interest.

(Sd.)

(Khalil‑ur‑Rehman)

for DMLA.

2. The learned counsel has raised the following points to contend that the impugned order of DMLA is without lawful authority and of no legal effect :

(i) That this Court has jurisdiction to strike down the impugned order which appears to have been passed under M. L. O. 821 because the protection given by Article 15 of the P.C.O. 1981 is not available to this order inasmuch as the impugned order, whereby, the appeal against the order dated 11th November, 1982 of respondent No. 2 directing the removal of encroachment has been dismissed, is outside the scope of M.L.O. 821 and beyond the jurisdiction for the reasons that the petitioner's occupation and construction raised by him is not unlawful in any manner. He has relied upon P L D 1982 S C 367, 1983 C L C 394, 1982 C L C 1161, P L D 1980 Lah. 583, P L D 1960 S C 113, P L D 1968 S C 78, P L D 1966 S.C. 1, P L D 1963 S C 373 ; P L D 1961 Kar. 384, 1982 S C R M 749, 1970 S C M R 386, P L D 1952 Dacca 256, P L D 1971 SC 170, P L D 1965 Kar. 195 and P L D 1952 Pesh. 50.

(ii) The DMLA, respondent No. 1 has disposed of the appeal with out hearing the petitioner and as such the impugned order which is violative of the principle of nature justice is without lawful authority.

(iii) That the impugned order being not a speaking order is illegal and without jurisdiction. He has relied on P L D 1970 S C 173, P L D 1964 S C 829, P L D 1975 Lah. 44 and P L D 1976 Lah. 758.

(iv) That since the disputed land i.e., 1/4th (Southern part) of the land of Chowk in Block No. 47, Dera Ghazi Khan City was leased out on 24th May, 1944 through agreement, copy Annex. A' the Municipal Committee having accepted annual rent till 30th June, 198 , the respondent could not invoke M. L. O. 821 which relates to the removal of encroachment inasmuch as under section 116 of the Transfer of Property Act by virtue of holding over and remaining in possession for 2 years without any protest, his lease automatically stood renewed and under the law there was no encroachment or trespass to attract M.L.O. 821.

(v) That the petitioner has built works of permanent nature upon the land in dispute and under section 60 of the Easement Act, it is not open to the respondent to resume the land or demolish the structure.

(vi) That although it was decided in Martial Law Administrators Conference held on 16th August, 1982 that in case of removal of encroachment alternative accommodation would be provided, yet the respondents are ejecting him without providing him alterna tive accommodation which is in violation of the instructions issued in this behalf. The learned counsel has relied on P L D 1980 S C 211, P L D 1963 Kar. 981 and P L D 1979 Note 80 at p. 56.

3. We have considered the arguments and have gone through the material available on the record of this writ petition. To our mind the first and the foremost question which engages our attention is the question of our own jurisdiction to entertain this writ petition. It would be con venient to reproduce Articles 15 (2) and 15 (4) of the Provisional Constitu tion Order, 1981

15. Validation of Laws, Acts, etc ..................

(1) ... .....................................................

(2) "All orders made, proceedings taken and acts done by any authority, or by any person, which were made, taken or done, or purported to have been made, taken or done, on or after the fifth day of July, 1977 in exercise of the powers derived from any President's Orders, Orders of the Chief Martial Law Adminis trator, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye‑laws, or in execution of any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid shall, not withstanding any judgment of any Court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any Court on any ground whatsoever, provided that nothing in this clause shall apply to transactions past and closed.

(3)

(4) No suit or other legal proceedings shall lie in any Court against any authority or any person for or on account of or in respect of any order made, proceedings taken or act done whether in the purported exercise of the powers referred to in clause (2) or in execution of or in compliance with orders made or sentences passed in exercise or purported exercise of such powers."

The plain reading of the Article indicates that this Court has no juris diction to call in question the validity of the order passed under the Martial Law Order or an order which purports to have been passed there under. In the case in hand, the matter is very much simple and short inasmuch as, the petitioner has requested this Court to declare the Order of Deputy Martial Law Administrator, to be without lawful authority. The impugned order has admittedly been made by Deputy Martial Law Administrator, as Martial Law Authority under Paragraph No. 8 of MLO 821. This Court has; therefore, no jurisdiction to call in question this order. The case law cited at bar by the learned counsel with regard to the jurisdiction of this Court does not relate to Article 15 of the Provisional Constitution Order, 1981. As for the case Raja Ghulam Muhammad and 93 others v. Member Board of Revenue Lahore and 2 others (1982 S C M R 749) we find that the same is also not applicable to this case inasmuch as the matter in that case was at the stage of para. No. 6 of the M.L.O‑821 and that no order had been passed by any Martial Law Authority. The learned Supreme Court disposed of the petition after incorporating the contentions in support of the leave petition and underlining need of show‑cause notice under para. No. 6 of M.L.O‑821. In the instant case, however, after the issuance of show‑cause notice, an order for removal of the encroachment has been passed by respondent No. 2 which has been upheld by the Deputy Martial Law Administrator through the impugned order. We are, therefore, convinced that High Court has no jurisdiction to entertain the petition or to adjudicate the impugned order. Since we have held that High Court has no jurisdiction to entertain this petition and declare the im pugned order as illegal and without lawful authority, it would not be proper to discuss or determine the points raised by the learned counsel because that too, may tantamount to assuming jurisdiction to question the impugned order.

4. Before parting with the judgment, we would like to mention that the case‑law cited by the learned counsel has been incorporated in this judgment as insisted upon by him.

For what has been stated above, this petition is dismissed for lack of jurisdiction at limine stage.

M. A. K. Petition dismissed.

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