' This second appeal is directed against the judgment and decree dated 5-7-1975 whereby the learned District Judge, Mianwali set aside the decree for perpetual injunction and, dismissed the suit of the appellant.
2. The land in dispute is stated to have been transferred to the appellant under the Tube-well Scheme. Various terms and conditions were settled between the Collector on the one hand and the appellant on the other, which are said to have been embodied in the contract agreed to by both the parties. These terms and conditions regulate how and when the instalments towards the Sale-price of the land were to be paid and what obligations were incurred by the Authority after making the allotment and delivering possession to the appellant. By a suit for perpetual injunction, the appellant has disputed the legality of resumption of the land and has required the respondent to refrain from interfering with his possession and cultivation of the land in dispute.
3. The trial Court decreed the suit on 11-11-1974, but in appeal the learned District Judge took notice of the newly-promulgated Thal Development (Punjab Amendment) Ordinance (XIX of 1975) and held that the retrospective operation of the Ordinance has the effect of barring the jurisdiction of the civil Court to entertain and decide the instant case. The decree of the trial Court was set aside and the plaintiff-appellant's suit was dismissed. Hence this appeal.
4. The said Ordinance, which was subsequently substituted by the Thal Development (Punjab Amendment) Act (XLVI of 1975), was mainly aimed at amending the parent Act namely the Thal Development Act (Punjab Act XV of 1949) so as to include a provision taking away the jurisdiction of the civil Court in matters which the Collector or any other competent authority mentioned therein was empowered to dispose of. By section 2 of the ordinance a new section 74-A was incorporated in the main Act which reads as under :- "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 cognizance 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."
' This provision was extended to a specified area and a retrospective effect was given to it from 29th July, 1949 when the main Act had come into force. Section 1 of the Ordinance reads :- "1. Short title, extent and commencement.-(1)
(2) It shall come into force at once but shall be deemed to have taken effect on or from 29th July, 1949.
(3) It extends to the Districts of Mianwali and Muzaffargarh and the Khushab Sub-Division of Sargodha District : Provided that the Provincial Government may by notification extend all or any of the provisions of this Act in any other part of the Province of the Punjab."
' It may be noticed here that the amendment was enforced by virtue of the Ordinance for the first time on 6th June, 1975 when the cause of action accrued to the appellant had already been decreed by the trial Court on 11-11-1974, and an appeal against the decree was pending before the learned District Judge. A question would arise whether the amending Ordinance, although enforced retrospectively, would affect the right which had vested in the plaintiff-appellant, and had since been exercised. It also requires serious consideration whether the Ordinance would have a bearing on the pending action so as to annul the decree which had since been passed. The principles governing retrospective operations of statutes are well settled. When a statute takes away or impairs vested rights acquired under existing laws, or creates a new obligation or imposes a new duty or attaches a new liability in respect of transactions or considerations already past, the presumption is that it is not to have retrospective effect. Hence in so far as affecting vested rights, a statute will be construed as prospective only and not as operating retroactively unless that intention is made manifest either by express words or by a clear, distinct, and unmistakable implication. Similarly a statute which takes away or affects a right of action is 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 a pending action, when the language of the statute does not compel to do so. It is laid down in United Provinces v. Mst. Atiqa Begum and others (1) that undoubtedly, an Act may in its operation be retrospective, and yet the extent of its retrospective character need not extend so far as to affect pending suits. Courts have undoubtedly leaned very strongly against applying a new Act to a pending action, when the language of the statute does not compel them to do so. It is a well-recognized rule that statutes should, as far as possible, be so interpreted as not to affect vested rights adversely, particularly when they are being litigated. When a statute deprives a person of his right to sue or affects the power or jurisdiction of a Court in enforcing the law as it stands, its retrospective character must be clearly expressed. Ambiguities in it should not be removed by Courts, nor gaps filled up in order to widen its applicability. It is a well-established principle that (1) AIR 1941 FC 16such statutes must be construed strictly, and not given a liberal interpretation. It is further observed that where it is intended to make a new law applicable even to pending actions, it is common to find the Legislature using language expressly referring to pending actions.
5. The Thal. Development (Punjab Amendment) Ordinance, 1975 gives to the newly-added section 74-A of the Act a retrospective effect but it does not specifically provide that it would apply to the existing rights, pending actions or decided cases. A statute is not to be construed to have a greater retrospective operation than its language renders necessary. Thus a statute subsequent to a judgment vesting rights in a party can have no retrospective operation to divest such rights unless such intention of the Legislature is clearly expressed. I am, therefore, of the firm view that the retroactivity as provided in the Ordinance does not apply to pending actions, much less the decided matters. It is held in Central Exchange Bank Ltd. v. Ch, Dilawar All Khan and others (1) that a statute cannot be construed to have greater retrospective operation than its language permits. In that case, section 73 of the Banking Companies Ordinance (LVII of 1962) was made retrospective hi application in a qualified sense only so as to provide a period of limitation to a Banking Company which was being wound up or in respect of which a petition for winding up had been presented before the commencement of the Ordinance. The new provision for computation of the period of limitation introduced in that section was to be, applicable to the cases in which the period of limitation prescribed under the earlier law had not run out on the date of the Ordinance. It was held that in the light of the discussion in the preceding paragraph of the judgment, the provision of section 73 of the Ordinance cannot be invoked so as to resuscitate and revitalise a cause of action which had met its natural death by lapse of time and was barred under the law of limitation prevailing before the introduction of the Ordinance in June, 1962. Referring to Maxwell on Interpretation of Statutes (page 214 of 10th Edn.) it was further held that a statute is not to be construed to have a greater retrospective operation than its language renders necessary. Even in construing a section which is to a certain extent retrospective, the maxim ought to be borne in mind as applicable whenever the line is reached at which the words of the section cease to be plain. For it is to be observed that the retrospective effect of a statute may be partial in operation. It was, therefore, laid down that section 73 does not either expressly or by necessary intendment take away the effect of any order, decree or judgment already passed by a Court of law before the promulgation of the Ordinance.
6. Following the view, it is evident that the rights are to be governed by the law in force when the action was commenced and change of the law during the pendency of the suit, unless purely procedural, do not affect its course or tenor. In the instant case, section 1(2) of the Ordinance did not take away the vested rights or impair the pending actions in express terms or by necessary implication. Therefore the learned first appellate Court was not bound to give effect to the provision by applying it to pending suits or decrees already passed.
7. In addition to what has been discussed above, it is to be seen if the newly-added section 74-A of the Act has the effect of taking away the jurisdiction of the civil Court in all matters of a civil nature including the right to property. There is no doubt that jurisdiction vesting in civil Courts by virtue of section 9, C. P. C. Can always be restricted or modified by the (1) PLD 1965 Lah. 628 Legislature either by express legislation or by necessary intendment, but a; law which takes away the right to have recourse in civil Court is to be strictly D construed. Their Lordships of the Supreme Court have held in Abdul Raufi and others v. Abdul Hamid Khan and others (1) that the question as to whether the act of an executive or Administrative Officer or a quasi-judicial or judicial tribunal is without jurisdiction, illegal and not binding on the party, being a matter of a civil nature is always to be decided by the civil Courts except to the extent to which such jurisdiction may have been taken away. It is further held that no order is an order passed "under the Act" if it was not passed in exercise of powers granted by the Act and was, therefore, without jurisdiction. Even a mala fide act is by its nature an act without jurisdiction. A mala fide order contemplates a mala fide exercise of power so as to say that it is a fraud on the statute. A mala fide order means one which is passed not for purposes contemplated by the enactment granting the power to pass the order, but for some collateral or ulterior purposes. In view of what has been authoritatively laid down above, the civil Court would ordinarily have jurisdiction to decide all matters of a civil nature in respect of a right to property or to an office.
8. In the instant case, the plaintiff-appellant filed a suit alleging that be had paid under the contract a portion of the sale-price and according to the terms and conditions applicable to the parties the respondent was under an obligation to level the land allotted to the appellant within a specified period and then make a demand of the outstanding price by instalments. It was contended that it was against law to cancel the allotment without notice to the appellant for want of payment of the sale-price and the unilaterally imposed penal interest which was not then due.
The appellant termed the action of the authority as illegal, without lawful authority and not binding on the appellant. The main dispute thus raised by the appellant in his suit was that the respondent had not acted "under the Act." In Jiwana v. Mst. Sahbi (2) the provisions of section 36 of the Colonization of Government Lands (Punjab) Act (V of 1912) have been discussed with reference to the jurisdiction of the civil Courts, and it has been held that 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 divest the civil Court of jurisdiction to adjudicate what legal effect the order of a Revenue Officer validly passed under Act V of 1912 will have on the rights of the parties before it.
9. Section 36 of Act V of 1912 and the instant section 74-A being in pari materia, there was definitely a question in this case for determination by the civil Court whether the act of the Collector in cancelling the allotment was without notice, and was thus taken not. "under the Act" ; and whether the civil Court was not divested of its jurisdiction to decide it The learned District Judge, while deciding this question, therefore, acted illegally in holding that jurisdiction of the civil Court was taken away in the matter of deciding the dispute raised in the suit. This finding cannot thus be sustained.
10. For the foregoing reasons the appeal is accepted, the judgment and decree of the learned District Judge are set aside and the case is remanded (1) PL D 1965 SC 671 (2) PLD 1954 Lah. 253 to hilt for disposal of the appeal on merits in accordance with law. The respondent shall bear the costs of this case.