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Constitutional Petition No. 111'.', of 1975, decided on 18th October, 1983.
‑‑‑S. 2‑‑Provisions of Act are retrospective and will have to be enforced as such notwithstanding that it may affect some vested rights.
‑‑‑ Retrospectivity of statute‑‑Court will lean towards placing construction to a provision of an enactment prospectively and not retrospectively, particularly, when it involves taking away of vested rights but at the same time if intention of Legislature is to make an Act applicable retrospectively notwithstanding that it may affect vested rights Court will construe such an enactment retrospectively in spite of the fact that it may adversely affect vested rights.
Haji Muhammad Ali v. Yar Muhammad and others 1982 C L C 190 and Golden Industries Limited v. Province of Sind and 2 others P L D 1983 Kar. 76 rel
‑‑‑S. 2‑‑Allotment of land‑‑Allotment of land made in favour of respondent by Sukkur Barrage Authorities by cancelling allotment of land in favour of non‑muslims migrating to India‑‑Allotment in favour of respondent was prior to allotment of land made by Settlement Authorities in favour of predecessors‑in‑interest of petitioners in satisfaction of their claim‑‑Provisions of the Act which was applicable retrospectively, making order passed in favour of respondent valid and respondent as such acquiring vested right prior to petitioners‑‑Order passed in favour of respondent held, was in consonance with law and cancellation of allotment by Barrage Authority of non‑muslims was quite legal.
Fazaldin and 14 others v. The Custodian Evacuee Property, Lahore and 21 others P L D 1971 S C 779 rel
‑‑‑S. 2‑‑Allotment‑‑Exchange of land‑‑Question of entitlement to have land in exchange not considered by Colonization Officer while allowing exchange‑‑Case remanded to Colonization Officer to consider question of entitlement and then decide matter.
M. Akhtar Mahmood for Petitioners.
Imam Ali Kazi for Respondents.
Date of hearing: 18th October, 1983.
.‑‑ This petition is directed against the order, dated 30‑7‑1975 passed by respondent No. 1 in Revision No. SROR‑1085 of 1973‑74.
The brief facts leading to the filing of the above petition are that the Settlement Department allotted 6‑37 Acres out of unassessed survey No. 262, situated in Deh Ghuki, to one Hakeem Anis Ahmad (predecessor‑in‑interest of petitioners 1 to 7) on 30‑10‑1963. It may also be mentioned that out of the above survey numbers, 5 Acres was also allotted to Mst. Naeema Begum daughter of Molvi Hasrat Mohani on 22‑3‑1963 by the Settlement Department against her claim for evacuee agricultural land. However, it may be observed that the land allotted to Mst. gaeema Begum is not in issue in the present petition and, therefore. It is not necessary to deal with the 'above allotment. This has been mentioned as it has been averred in the petition.
It seems that respondent No. 2 Abdul Rahim was granted 6‑08 Acres of agricultural land bearing survey No. 193 in Deh Dhechrapur, Taluka Hyderabad, in 1961 by the Barrage authorities but this land was found unsuitable and, therefore, at his request 7‑37 Acres was allotted by the Barrage authorities to him out of the above unassessed survey No. 262 on 16‑7‑1963 in lieu of the above unsuitable allotted land. The late Hakeem Anis Ahmed and Mst. Naeema Begum filed an application before the Colonization Officer, Sukkur Barrage, Hyderabad against the above grant who by his order, dated 19‑11‑1970 held that since the land in question was treated as an evacuee and was allotted to Hakeem Anis Ahmed and Mst. Naeema Begum by the Settlement Department, the allotment in favour of Abdul Rahim by the Barrage authorities was irregular. Abdul Rahim being aggrieved by the above order filed an appeal through his father Abdul Karim before the Revenue Commissioner, which was dismissed by the order, dated 30‑6‑1973. After that Abdul Rahim filed a revision which was allowed by the impugned order, dated 30‑7‑1975 and it was held that the allotment in favour of Abdul Rahim was valid in view of the Validation Act, 1974. The petitioners being aggrieved by the above order have filed the present petition.
2.(a) In support of the above petition Mr. Akhtar Mahmood, learned counsel for the petitioners has vehemently urged that Sukkur Barrage (Validation of Orders) Act, 1974 (hereinafter referred to as the Act) could not have affected vested rights of the petitioners, which they had acquired by virtue of the allotment of the land in question in satisfaction of Anis Ahmed's claim.
(b) On the other hand Mr. Imam Ali Kazi has contended that since the Validation Act was made applicable retrospectively, the impugned order is in accordance with law.
3. It may be advantageous to reproduce hereinbelow section 2 of the Act, which reads as follows:‑‑
"2. Validation.‑‑Notwithstanding anything contained in the Pakistan Rehabilitation Act, 1956 (XLII of 1956), the Pakistan (Administration of Evacuee Property Act, 1957) (XII of 1957), and the Displaced Persons (Land Settlement) Act, 1958 (XLVII of 1958), or any decree or order of any Court or other authority, any order passed by the Sukkur Barrage Authorities cancelling the grant of land made to a non‑Muslim who migrated to India or granting such land to any other person shall be deemed to have validly made and shall have, and shall be deemed always to have had, effect accordingly."
It may be noticed that the abovequoted section provides that notwithstanding anything contained in the Pakistan Rehabilitation Act, 1956, the Pakistan (Administration of Evacuee Property) Act, 1957 and the Displaced Persons (Land Settlement) Act, 1958 or any decree or order of any Court or other authority, any order passed by the Sukkur Barrage Authorities cancelling the grant of land made to a non‑Muslim who migrated to India or granting such land to any other person shall be deemed to have validly made and shall be deemed always to have had, effect accordingly. In other words, the above provision was expressly made retrospective in effect without any ambiguity. In the instant case the cancellation of the allotment in favour of Hindu by the Barrage authorities and the allotment of land in favour of Abdul Rahin was prior in time to the allotment of land by the Settlement Departmen in favour of Hakeem Anis Ahmad., It may be pointed out that the allotment in favour of Hindu was cancelled by the Barrage authorities in August, 1948, whereas allotment in favour of Abdul Rahim was made on 16‑7‑1963, which is evidently prior in time to the date of allotment in favour of Hakeem Anis Ahmed made by the Settlement Department on 30‑10‑1963. It may also be mentioned that if this validation act would not have been enacted the cancellation and the allotment made by the Barrage authorities would have been illegal as under section 8 of the Pakistan (Administration of Evacuee Property) Act, 1957 a lesson was debarred from forfeiting lease of a non‑Muslim migrating to India inter alia on the ground of default of terms of the lease etc. any hence the interest of Hindu evacuee would have been vested in the Custodian and the Settlement Department would have been competent to allot the same under the Settlement Scheme. In this connection reference may be made to the case of Fazaldin and 14 others v. The Custodian Evacuee Property, Lahore and 21 others reported in P L D 1971 SC 779, in which it was held that the land granted on instalments basis to Hindu by the Sukkur Barrage Authorities became evacuee properties on migration of Hindus and vested in the Custodian. It was further held that declaration by the Rehabilitation authorities that the land belonged to Sukkur Barrage Authorities and they could deal with the same, was illegal as only the Custodian was competent to determine the nature of the property, but the above Act has expressly provided otherwise.
4. Mr. Akhtar Mahmood has referred to Craies on Statute Law, Sixth Edition, inter alia at page 388 and Halsbury's Laws of England Third Edition, Vol. 36 inter alia para. 627. He has also cited English cases referred to in the above two well‑known books. It will suffice to quote relevant passages from the above two books, which read a follows: ‑‑
"Craies on Statute Law, Sixth Edition, pages 388, 389. The Acts of Parliament (Commencement) Act, 1793, in no way prevents Parliament from making an Act retrospective if the intention to do so is apparent. "It is obviously competent for the Legislature in its wisdom, to make the provisions of an Act of Parliament retrospective." "No one denies", said Dr. Lushington in the Ironsides, "the competency of the Legislature to pass retrospective statutes if they think fit, and many times they have done so' Philosophical writers have, it is true, denied that any Legislature ought to have such a power, and it is indisputable that to exercise it under ordinary circumstances must work great injustice. But "before giving such a construction to an Act of Parliament one would require that it should either appear very clearly in the terms of the Act or arise by necessary and distinct interpretation." And perhaps no rule of construction is more firmly established that this‑‑that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either ‑interpretation, it ought to be construed as prospective only."
"627. Halsbury's Laws of England,3rd Edition, Volume 36, para. 627, page 413. Statutes affecting vested private rights. Unless it is clearly and unambiguously intended to do so, a statute should not be construed so as to interfere with or prejudice established private rights under contracts or the title to property, or so as to deprive a man of his property without his having an opportunity of being heard. In particular, an intention to take away property without giving a legal right to compensation for the loss of it is not to be imputed to the Legislature, unless that intention is expressed in unequivocal terms. This rule applies a fortiori to the construction of a statute delegating legislative powers.
Similarly, if a right of entry on to private premises is to be conferred by statute, it must be expressed in plain terms."
There cannot be any cavil to the legal proposition propounded in the abovequoted passages that the Court will lean towards placing construction to a provision of an enactment prospectively and not retrospectively, particularly, when it involves taking away of the vested rights but at the same time it is also a well‑settled principle of law that if the intention of the Legislature to make an Act applicable retrospectively notwithstanding that it may affect vested rights, the Court will construe such an enactment retrospectively in spite of the fact that it may adversely affect vested rights. In our view, abovequoted section 2 of the Act is very express and clear as to its retrospectivity. There is no ambiguity nor two constructions are possible, namely, prospective and retrospective. Since the intention of the Legislature is clear, we are bound to enforce the above provision retrospectively notwithstanding that it may affect some vested rights. It may again be pointed out that the allotment in favour of Hakim Anis Ahmed was subsequent in time to the allotment made by the Barrage authorities in favour of Abdul Rahim and, therefore, the above Validation Act made the above order valid from its inception and hence Abdul Rahim had acquired vested right prior to Hakeem Anis Ahmad. In this view, of the matter it is a debatable point, whether the petitioners could urge that their vested rights have been taken away by the Validation Act. We do not wish to go into the above question in more detail as it is not necessary.
5. Mr. Imam Ali Kazi has referred to the case of Haji Muhammad Ali v. Yar Muhammad and others reported in 1982 C L C 190 and the case of Golden Industries Ltd. v. Province of Sind and 2 others reported in P L D 1983 Kar. 76. In the first case a learned Single Judge of this Court inter alia held that in view of the abovequoted section 2 of the Act cancellation of allotment in favour of non‑Muslim migrating to India and there after transferring land to some other person, cannot be assailed in a writ petition before the High Court. However, Mr. Akhtar Mahmood, learned counsel for the petitioners has pointed out that the learned Single Judge in para. 11 of the judgment has erred in observing that on the cancellation of grant in favour of Hindu grantee by order of Barrage Authorities, dated 2‑8‑1948, the land was again Nakabuli Government land. The above observation does not affect the conclusion arrived at by the learned Single Judge. It is true that in the absence of section 2 of the Act, the action of the Barrage authorities to cancel the grant in favour of non‑Muslin migrating to India would not have been sustainable nor the grant after cancellation. In the second case a Division Bench of this Court has inter alia held that the Legislature is competent to legislate retrospectively and, therefore, section 8‑A of the West Pakistan Urban Immovable Property Tax Act, 1958 was validly Pnacted retrospectively and its retrospectivity cannot be impugned through a writ petition.
6. We are, therefore, of the view that the conclusion arrived at by respondent No. 1 in the impugned order seems to be in consonance with law. However, we have noticed that Revenue Commissioner in his order, dated 30‑6‑1973 referred to hereinabove in para. 1 had held that "The Tapedar has also stated that the appellant, Abdul Rahim, has no other land in this Deh, as such the initial action of granting land to him in exchange in this Deh was incorrect. The Colonization officer or the Additional Member, Board of Revenue, Sind, has not dealt with the above aspect. Though we are inclined to hold that the cancellation of allotment by the Barrage Authorities of non‑Muslim after partition of India was legal and, therefore, they could allot the land to any one but since the entitlement to have the land in question in exchange was not considered by the Colonization Officer, we remand the case to him with the direction to decide whether Abdul Rahim was entitled to the exchange of the land in question or was he not entitled on the assumption that the allotment of the land in favour of non‑Muslim evacuee was rightly cancelled. These are the reasons in pursuance of short order of even date.
M. Y . H . /5031/ K Case remanded
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