ANWARUL HAQ, C. J.--The question referred to the Full Bench relates to the interpretation of clauses
(7) and (8) of Article 14 of President's Order No, 1 of 1970. It has arisen in the following circumstances.
2. By an order, dated the 30th of May 1961, the Additional Settlement Commissioner, Peshawar, transferred, by private negotiations, to the petitioner, A. Hamid, a shop and Balakhana situate in Kissa Khawani Bazar, Peshawar City, for a price of Rs, 24,195.00. The petitioner is a retired officer of the Pakistan Western Railway, and holds a verified claim in the amount of Rs, 37,046.00. The petitioner paid the full transfer price on the 10th of June 1961. The respondent Muhammad Ashraf Kakakhel and one Naseer Ahmad Khan, who is not a party to the present proceedings, filed appeals against the order of transfer, but both the appeals were rejected by the learned Settlement Commissioner by his order dated the 17th of November 1961. Accordingly, a Permanent Transfer Deed was issued in favour of the petitioner on the 7th of September 1962.
3. It appears that the respondent Muhammad Ashraf Kakakhel kept on agitating against the transfer of the property to A. Hamid, with the result that the matter was sought to be re-opened by the Chief Settlement Commissioner by means of a notice dated the 13th of August 1969, calling upon the petitioner to appear before him at Lahore on the 29th of September 1969. The place of hearing was changed to Peshawar by a revised notice, dated the 25th of September 1969. The date was also changed to 1st October 1969. The petitioner made an application to the Chief Settlement Commissioner on the 26th of September 1969, requesting that the matter be heard at Lahore. He was informed that even this application would be taken up at Peshawar on the 1st of October 1969.
On that date the case was adjourned to the 13th of October 1969, and again to the 18th of October 1969. On the 14th of October 1969, a detailed notice was issued to the petitioner calling upon him to show cause why the order of transfer made in his favour by the Additional Settlement Commissioner and the appellate order of the Settlement Commissioner be not ignored as being a nullity in the eye of law, and the property be disposed of by public auction.
4. On the 17th of October 1969, the petitioner, A. Hamid, invoked the extraordinary jurisdiction of this Court under Article 98 of the Constitution by means of filing Writ Petition No, 1034-R/1969, at Lahore.
The petition was admitted to a full hearing by one of us (Mushtaq Hussain, J.), on the 17th of October 1969, and an interim order staying the proceedings before the Chief Settlement Commissioner was also granted. The petition was pending when the High Court of West Pakistan was dissolved and three new High Courts were created at Lahore, Peshawar and Karachi by President's Order No, 1 of 1970 with effect from the 1st of July 1970.
5. As the petitioner had not impleaded the respondent Muhammad Ashraf Kakakhel in the original petition, this gentleman made an application (C. M. No, 3 of 1970) on the 16th of November 1969, for being impleaded as a party. This application was provisionally allowed by an order made on the 30th of January 1970, which order was later confirmed on the 4th of May 1971.
6. The application now under consideration, namely, C. M. No, 5 of 1971, was submitted by the respondent Muhammad Ashraf Kakakhel on the 16th of February 1971, contending that after the dissolution of the High Court of West Pakistan and the establishment of three new High Courts the petition instituted by A. Hamid could not be entertained at Lahore, as the property in dispute was situated at Peshawar, and even the proceedings initiated by the Chief Settlement Commissioner on the basis of the impugned notice were to be held at that place, if they had not been stayed by the High Court. He requested that accordingly the records of the case be now transmitted to the Peshawar High Court for disposal.
7. This application is opposed on behalf of the petitioner A. Hamid on the ground that even though the property is situate at Peshawar, the Chief Settlement Commissioner, whose order is impugned in this case, is located at Lahore, from where he exercises jurisdiction over all the provinces of West Pakistan. It is submitted that the matter, therefore, lies within the jurisdiction of the Lahore High Court under clauses 7(a) and (b) of Article 14 of President's Order No, 1 of 1970. It is contended that by the original notice issued on the 29th of September 1969, the petitioner had been directed to appear before the Chief Settlement Commissioner at Lahore, and that it was only subsequently that the place of hearing was changed to Peshawar.
8. At one stage of the argument it was submitted by Mr. Khalil-ur-Rehman Khan, the learned counsel for the respondent-applicant, that in view of the order made by the Chief Justice of the High Court of West Pakistan, in exercise of the power vested in him under section 4 of the High Court of West Pakistan (Establishment), 1955 regarding the allocation of territorial jurisdiction to the various Benches of the High Court, the present writ petition could not have been instituted, entertained and admitted at Lahore, and it could not, therefore, be deemed to be a case pending at Lahore on the appointed day, namely, the 1st of July 1970. However, in view of the decisions in Muhammad -Nagin v. Haji Nawab Khan and others , Shamsuddin v. Capt. Gauhar Ayyub and another and Muhammad Buta and others v. Board of Revenue, West Pakistan and others , the learned counsel did not pursue this line of reasoning, and conceded that the Judges at Lahore had jurisdiction to deal with the matter, and accordingly it has to be treated as a case pending in the High Court of West Pakistan on the 1st of July 1970.
9. The contentions put forward by the learned counsel for both sides as to the High Court which has jurisdiction to hear and dispose of the main cause clearly raise an important question regarding the interpretation of clauses (7) and (8) of Article 14 of the Province of West Pakistan (Dissolution)
Order, 1970 (President's Order No, 1 of 1970). It was for this reason that the matter was referred to the Full Bench, for any decision in this behalf would affect the jurisdiction of, and allocation of pending1 2 3 cases among, the three newly-created High Courts at Lahore, Peshawar and Karachi. Ordinarily we would have proceeded to resolve the controversy by interpret-ing and applying the relevant clauses, but for the provisions contained in Article 21 of the President's Order which enjoins that-- "any question or doubt as to the interpretation of any provision of this order or of any order made thereunder by the President or a Governor, including an order made under Article 20, shall be resolved by a decision of the President, and such decision shall be final and not liable to be questioned in any Court."
10.A strong leaning undoubtedly exists, as Maxwell has said, against construing a statute so as to oust or restrict the jurisdiction of the superior Courts, but if the language is clear and explicit the Court must give effect to it, "for in that case the words of the statute speak the intention of the Legislature". Now, in the present case, the intention of the law-giver has been made abundantly clear in Article 21 of the order, and, therefore, it is not open to us to decide the question ourselves.
It is certainly not a happy situation that the High Court should not be able to determine the elementary question of its own jurisdiction by interpreting the relevant clauses of Article 14 of the Order, but the remedy in this behalf lies with the President who can exclude Article 14 from the purview of Article 21 of the Order.
11.However, as things stand at present, the remedy for the applicant Muhammad Ashraf Kakakhel lies in petitioning the President in terms of Article 21 of the Order. His application (C. M. No, 5 of 1971) is accordingly dismissed as being not maintainable before us. In the meantime, the main case shall remain pending in this Court. PLD 1962 Lah. 722 PLD 1965 SC 496 PLD 1968 Lah. 921