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Civil Revision No. 214 of 1959, decided on 22nd February 1960.
959 [Martial Law Regulation No. 64, S. 27‑Scope.
Section 27, Martial Law Regulation No. 64 merely shuts out calling in question of any. provision, rule or order passed under the Regulation before any authority other than an authority appointed under this Regulation. The Commis sion or an officer acting under the authority of the Com mission alone is empowered to determine any matter. Subsec tion (2) of section 27 takes away the jurisdiction of all Courts or authority to issue injunction in relation to any proceedings which the Commission or an officer exercising powers under this Regulation has passed, or with respect to anything which is done or is intended to be done at the instance of the Commission or such officer.
Section 27 merely preserves the supremacy of the named authorities in the section as being not subject to the jurisdiction of any Court or authority other than the Commission or those who derive authority from the Commission.
(b) Jurisdiction‑Court of general jurisdiction‑Jurisdiction can be taken away by express provision of law, or necessary intent‑Jurisdiction of Revenue Courts to effect partition whether ousted by Martial Law Regulation No. 64, Sections 23 & 27.
A Court of general jurisdiction is seized of all jurisdiction except to the extent that it is expressly excluded or is taken away by necessary intent.
There is nothing in Martial Law Regulation No. 64 which provides any machinery for effecting partition or excludes the jurisdiction of the Revenue Courts to discharge their normal functions under the Punjab Land Revenue Act. Those authorities remain unfettered in their respective jurisdictions except to the extent that the right otherwise available under the general law is taken away by reason of the Martial Law Regulation No. 64.
In terms, therefore, the provisions of the Punjab Land Revenue Act which confer right on the Revenue Court to partition a property, however small it is, is pro tanto modified by reason of section 27 of the Ragulation.
(c) West Pakistan Land Reforms Regulation, 1959 [Martial Law Regulation No. 64] S. 29‑Contravention‑ Right to punish, within exclusive jurisdiction of Martial Law Authorities.
The right to punish for any contravention of the Regulation is within the exclusive jurisdiction of the Martial Law authorities.
Feroze Din for Petitioner.
Shaukat Ali for Respondent.
Date of hearing: 22nd February 1960.
This order will dispose of Civil Revisions Nos. 214 and 215 of 1959 as the parties are the same and the point involved is common.
2. The first petition deals with Khata No. 6 of the land in suit and the other with Khata No. 2. The petitioner before me is the plaintiff who had brought a suit for permanent injunction restrain ing his stepmother, the respondent, from proceeding with the partition of the land, on the ground that it violated the provisions of section 23 of the Martial Law Regulation No. 64 of 1959. The precise plea was that as a result of the partition, the holding will cease to be "subsistence holding" which was in no circumstances to be partitioned under the Regulation. Any partition which con flicted with this provision was declared to be void and was made punishable under clause (6) of section 23. The learned Adminis trative Civil Judge who heard the case threw out the case on the preliminary objection that the Court had no jurisdiction to entertain the suit by reason of S. 27 of the Regulation a conclusion which was affirmed by the learned District Judge on appeal. The learned Administrative Civil Judge appeared to think that section 27 of the Martial Law Regulation No. 64 barred the jurisdiction of all Courts to probe into the legality or otherwise of anything done in pursuance or in violation of the provisions of the said Martial Law Regulation. As I read section 27, it merely shuts out calling in question of any provision, rule or order passed under the Regulation before any authority other than an authority appointed under this Regulation. The Commission or an officer acting under the authority of the Commission alone is empowered to determine any matter. Subsection (2) of section 17 takes away the jurisdiction of all Courts or authority to issue injunction in relation to any proceedings which the Commission or an officer exercising powers under this Regulation has passed, or with respect to any thing which is done or is intended to be done at the instance of the Commission or such officer. On bare analysis, therefore, it merely preserves the supremacy of the named authorities in the section as being not subject to the jurisdiction of any Court or authority other than the Commission or those who derive autho rity from the Commission. In the present case, neither the Com mission has passed any order which forms the subject‑matter of challenge nor any officer deriving authority from the Commission, and in this view of the matter in terms the section will not apply. The order of the learned Administrative Civil Judge is more comprehensive and does not suffer with so much infirmity as the order passed by the learned District Judge, which is the subject matter of revision before me. The learned District Judge is content with the observation that the jurisdiction of the Civil Courts is barred to probe into the legality or otherwise of anything done by the Martial Law authorities. There is nothing wrong with the statement of the law so far as it goes, but it has little relevance to the facts of the case before me. There is no allegation, direct or indirect, on the present record that the Martial Law authorities have passed any order or taken any action with respect to this property. In terms, therefore, what, the learned District Judge says does not touch the merits of this case.
3. The established principle is that a Court of general Juris diction is seized of all jurisdiction except to the extent that it is expressly excluded or is taken away by the necessary intent. In the present case, the petitioner is not challenging the powers of the Martial Law authorities under the Regulation. There is an inroad on the civil right and he is seeking redress of the civil right. The right to punish for any contravention of the Regulation is within the exclusive jurisdiction of the Martial Law authorities. There is nothing in the Regulation which provides any machinery for effecting partition or excludes the jurisdiction of the Revenue Courts to discharge their normal functions under the Punjab Land Revenue Act. Those authorities remain unfettered in their respec tive jurisdictions except to the extent that the right otherwise available under the general law is taken away by reason of the Martial Law Regulation. In terms, therefore, the provisions of the Punjab Land Revenue Act which confer right on the Revenue Court to partition a property, however small it is, is pro tanto modified by reason of section'27 of the Regulation. The grievance of the petitioner is that in law the respondent could not claim partition and should be restrained from doing so. The learned trial Judge has not gone into the merits, and am not, therefore, in a position to say what the factual position is. The Courts below have simply denied themselves jurisdiction which properly reposes in them. I am constrained, therefore, to allow these petitions, upset the orders of the learned District Judge and of the learned Administrative Civil Judge, and hold that they have jurisdiction to determine the right of the parties in the light of laws of the land. There will be no order as to costs.
The case will go back to the learned trial Judge for decision on the merits. Parties are directed to appear before him on 26‑3‑1960.
K. M. A. Retrial ordered.
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