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Constitutional Petition No. D-605 of 1982, decided on 23rd November, 1983.

---Art. 15(5)--Martial Law Order [Zone C], No. 19--Constitutional jurisdiction--Orders passed by Martial Law Authorities--Plot allotted in name of petitioner cancelled by order of Martial Law Administrator under Martial Law Order 19--Jurisdiction of High Court to interfere with order of Martial Law Authorities, held, barred under Art. 15(5), Provisional Constitution Order, 1981.

Ahmad Khan Barakzai for Petitioner.

S. Sabir Hussain Qazilbash for Respondents.

Sayeed A. Shaikh, A.-G. on Court's Notice.

Dates of hearing: 21st, 22nd and 23rd November, 1983.

-We propose to dispose of all the above petitions by this single order, as the facts and the points of law are identical.

The brief facts are that some plots were allotted by the Karachi Development Authority to the petitioners in each one of these cases. In several cases, payments have been made by the petitioners in regard to the plots. It is admitted case that allotment orders have also been issued in favour of the petitioners. It is not challenged that the possession has not been given to the petitioners.

It seems that the Martial Law Authorities were of the view that the allotments in these cases were irregular, or, wrong, or, even fictitious. A Commission was, therefore, set up by the Martial Law Administrator under Martial Law Order 19 of Zone 'C': This Commission is stated to have entered into the question of such allotments and had made some recommendations. Such recommendations were then placed before the Martial Law Administrator, Zone 'C'. An order was passed in the following terms:-

"In pursuance of recommendations of the Enquiry Commission for an enquiry of irregularities in K.D.A. under Martial Law Order 19, the following plots, whose allotments have been proved fictitious, are hereby cancelled."

Numbers of 93 plots are mentioned thereunder with their full description, including the names of allottees. It seems these plots have been cancelled on several and different dates, and such dates are also mentioned in the order. Such order is signed by Lt. Gen. S.M. Abbasi. A photostat copy of the same has been placed on the record of case bearing C.P. No. D-441/1982. We may, however, add that at item No. 64 of the said list, the number of plots shown is thirty.

When some of these matters came up before this Court, either for grant of stay order, or, for regular hearing, or, even for Katcha Peshi, Mr. S. Sabir Hussain Qazilbash for the Karachi Development Authority, and, in some cases, Mr. Sayeed A. Shaikh, the Advocate General, appeared before us, and stated that this Court had no jurisdiction, because the plots have been cancelled by an order of the Martial Law Administrator. We gave an opportunity to the learned counsel to produce the said order, and initially a cyclostyle copy was placed before us, which did not bear the signature of the Martial Law Administrator, or, any other Martial Law Authority. The Advocate-General has today placed before us a letter from the Martial Law Headquarters, Zone 'C' dated 1-3-1983, with which a photo copy of an order signed by the Martial Law Administrator, Zone 'C' is enclosed. The text of the order of Martial Law Administrator has been reproduced above.

The learned Advocates have attempted to persuade us to take the view that the order of Martial Law Administrator was not a valid order; nor was it protected under clause (5) of Article 15 of the Provisional Constitution Order. The main contentions are that the order, per se, does not proceed under a Martial Law Order. It has also been urged that the order has not been validly made in exercise of powers. In fact, such arguments have been raised before this Court, and other superior Courts of this country, including the Supreme Court, but those have already been repelled.

For the purposes of this petition, the first question, that we have to determine, is one of our jurisdiction. Paragraphs (a) and (d) of clause (5) of Article 15 of the Provisional Constitution Order read as follows:-

"(5) Notwithstanding any judgment of any Court, including any judgment in respect of the powers of Courts relating to judicial review, any Court, including the Supreme Court and a High Court, shall not:--

(a) make an order relating to the validity or effect of any Order or Martial Law Regulation made by the Chief Martial Law Administrator or any Martial Law Administrator or of any thing done, or action taken, or intended to be done or taken, thereunder:

---- ------ -------- -------- ------- ------

(d) issue any process against the Chief Martial Law Administrator or a Martial Law Administrator or any person acting under the authority of either."

(Paragraphs (b) and (c) are not relevant, and the same have not been reproduced).

Paragraph (a) is of very broad import and prohibits this Court from making an order, relating to the validity, or, effect even of "anything done, or, action taken, or, even intended to be done, or, taken thereunder." The words would clearly imply that all action taken, or, even intended to be taken under a Martial Law Order made by a Martial Law Administrator cannot be the subject of an order by this Court. Again, under paragraph (d), this Court cannot even issue process against Martial Law Administrator in respect of any acts done by him in such capacity. The protection would appear to be total in relation to the instant cases.

In some cases, particularly in C.P. No. D-452/1982, an argument has been raised that the Karachi Development Authority had given protection to these allotment orders by a resolution. A copy of such resolution has been placed on the record of C . P. No. D-452/1982. This resolution is of no avail to the petitioner in that case, because it was passed on 11-9-1979 viz. a date earlier than the order of the Martial Law Administrator. What is more that this resolution was passed by the Karachi Development Authority, and, by promulgation of Martial Law Order 19, such act of allotment of the said Authority was sought to be scrutinised, and it was as a result of such scrutiny that the order of the Martial Law Administrator was passed. In these circumstances, this resolution of the Karachi Development Authority is of no avail to any one of the petitioners in these cases.

We are of the view that our jurisdiction is barred by clause (5) of Article 15 of the Provisional Constitution Order, and, for such reason, we dismiss all these petitions. We leave the parties to bear their own costs.

M.Y.H./Z-18/K Petitions dismissed.

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