' AJMAL MIAN, J.-By this common judgment we intend to dispose of the above three writ petitions.
The brief facts leading to the filing of the above petitions are as follows :-
(i) Constitutional Petition No, D-1609 of 1978 ' The petitioner is a practicing Advocate. During the period between 6-6-1975 to 8-9-1977 he was Legal Adviser to the Hyderabad Municipal Corporation. He applied for allotment of a plot of land in the Hyderabad Municipal Employees Housing Society. Eventually the Government of Sind on the recommendation of the Municipal Corporation under section 42(4) of the Sind Peoples Local Government Ordinance, 1972 by an order dated 28-6-1977 sanctioned sale of a plot of land measuring 333.30 square yards i,e, 3000 square feet on payment of concessional rate of Re.
0.37 per square foot. The petitioner after making the requisite payment and after getting a sale- deed executed and registered and after getting the plan approved constructed his house at the cost of Rs, 2,00,000 (Rupees two lacs) within less than 18 months period provided in the sale-deed and since then has been residing with his family therein. The petitioner was served with a cyclostyle order dated 25-11-1978, signed by the Administrator, Hyderabad Municipal Corporation (respondent No, I), under M. L.
0. 60 (hereinafter referred to as the M. L.
0.) issued by Martial Law Administrator lone 'C' cancelling the above sale and called upon him to surrender the plot with the structure within seven days from .The receipt of the order. The petitioner being aggrieved by the above order has filed the above petition on 5-12-1978.
(ii) Constitutional Petition No, D-1716 of 1978 ' Respondent No, 3 purchased plot of land bearing Survey No, A/2971 measuring 1,198.8 square yards equal to 21,366 square feet from Hyderabad Municipal Committee for a sum of Rs, 26,280.18 under a registered sale-deed, dated 20th September, 1974. Out of the above plot of land respondent No, 3 sold to one Abdul Raman a portion measuring 10,790 square feet under a sale-deed, dated 15-8- 1977 after bifurcation of the plot. Aforesaid Abdul Rehman sub-divided the above said portion of the plot and sold a portion of the land measuring 7,787 square feet to the present petitioners for a lump sum of Rs, 72,000 under a registered sale-deed, dated 15-6-1978 and the remaining 3,002 square feet to Mrs. Joyce Edgar. The petitioners had put up boundary wall and were in the process of raising the construction when they were served with a cyclostyle order dated 23-12-1978 under the M. L.
0. Signed by the Administrator Hyderabad Municipal Corporation addressed to respondent No, 3 cancelling the sale and calling upon them to surrender the above plot and the structure thereon.
The petitioners being aggrieved by the above order have filed the present petition.
(iii) Constitutional Petition No, D-1717 of 1978 ' The petitioner under a registered sale-deed, dated 7-11-1978 purchased the aforesaid portion of plot of land measuring 3,002 square feet from aforesaid Mrs. Joyce Edgar who had purchased the same from aforesaid Abdul Rehman, for a lump sum of Rs, 75,000. The petitioner when was about to raise construction, was served with a cyclostyle order dated 23-12-1978 under the M. L.
0. Signed by the Administrator of Hyderabad Municipal Corporation. The petitioner being aggrieved by the above order has filed the present petition.
' Neither the Administrator, Hyderabad Municipal Corporation (respondent No, 1) nor the Commissioner of Hyderabad Division and Controlling Authority (respondent No, 2) have filed any counter-affidavit. On the other hand the petitioner in the above Constitutional Petition No, D-1609 of 1978 has filed certified copies of the respondent No, l's statements filed by him in the suits in the Court of joint Civil Judge, and Civil Judge, Hyderabad and also certified copies of the orders of the Controlling Authority passed in appeals to show that according to the above statements and the orders, the sale transactions are not covered by the M. L.
0.
2. (a) In support of the above petitions Mr. G. M. Abbasi learned counsel for the petitioners has urged that according to respondents' own statements filed in the suits before the Court of Joint Civil Judge and the Civil Judge and also as per orders of the Controlling Authority the sale transactions are not covered by the M. L.
0.
(b) Mr. Muhammad Ibrahim Memon, learned Additional Advocate-General who has appeared for the Commissioner Hyderabad Division, the Controlling Authority has not supported the impugned orders and has submitted that the sale transactions are not covered by the M. L.
0.
(c) Mr. Syed Zaki Muhammad learned counsel for respondent No, 1, Administrator Hyderabad Municipal Corporation has not been able to support the above impugned orders on account of the above statements filed by respondent No, I in the suits and the orders passed by the Controlling Authority but has submitted that since after filing of the above petitions, appeal has been provided before the Controlling Authority, the petitioners should file appeals.
3. Before taking up the above contention, it may be pertinent to point out that in aforesaid Petition No, D-1609 of 1978 the petitioner has filed certified copies of the Municipal Corporation Hyderabad's Advocate's statement, dated 29-1-1981 in Mst. Zaibun Nisa and others v. Municipal Corporation, Hyderabad, Suit No, 495 of 1978 and Faqir Abdul Ghafoor v. Municipal Corporation, Hyderabad Suit No, 498 of 1978 a certified copy of judgment dated 22-12-1980 passed in Mst. Hamida Begum v.
Municipal Corporation, Hyderabad Suit No, 4)9 of 1978, by HI Extra Joint Judge, Hyderabad holding that the sale transaction was not covered by the M. L.
0. And certified copies of the orders dated 30-3-1980, 6-7-1980, 17-11-1980 and 9-3-1981 passed by the Commissioner, Hyderabad Division as the Controlling Authority in Abdur Rehman v. The Administrator, Hyderabad Municipal Corporation Appeals Nos. 756-HVC (M. L.
0. 60)178, Aslam Akhar v. The Administrator, Hyderabad Municipal Corporation Appeal No, 687-HVC (M. L. O. 60)/78, Mrs. Zakia Brohi v. The Administrator, Hyderabad Municipal Corporation Appeal No, 2740 HVC (M. L.
0. 60)/80, and Messrs Ismailia Co-operative Housing Society, Hyderabad v. The Administrator, Hyderabad Municipal Corporation, Hyderabad Appeal No, 2989-HVC (M. L.
0. 60)/81, respectively.
' It will suffice to reproduce one of the statements filed by the Advocate for the Hyderabad Municipal Corporation and the operative portion of one of the orders of the Controlling Authority, which read as follows :- "Statement Suit No, 495 of 1978.
"The Commissioner Hyderabad Division, Hyderabad in number of cases relating to the sale of the Municipal properties to various persons, has set aside the notices issued to them under M. L.
0.
60. The civil Court has also taken the same view in a suit filed by one Mst. Hamida against Municipal Corporation, Hyderabad challenging the notice M. L.
0. 60 and her suit is decreed as her property was sale.
' The above position is also discussed with Municipal Authorities. The subject-matter of the suit is also sale of municipal property plot to the plaintiff made by the defendant, therefore, the same do not fall within the purview of M. L. O.
60. Hence the defendants withdraw the impugned notice under M. L. O 60 bearing No, M-2333, dated 25-11-1978 issued by the defendant to the plaintiff. Thus, the same has no force.
(Sd.)
Hyderabad, Advocate for the Defendant," dated 29-1-1981 "Operative portion of the Controlling Authority "I have carefully considered the arguments of the learned counsel for the appellant and the Legal Adviser, H. M. C. Hyderabad. I have also gone through the relevant file and the documents produced by the learned counsel for the appellant. I am convinced that the plot, in question was actually sold out to the appellant after obtaining the necessary approval of the then Commissioner and Controlling Authority of Municipal Corporation Hyderabad. I have also minutely gone through the relevant provisions of M. L.
0. 60 and I am inclined to agree with the learned counsel for the appellant as well as with the Legal Adviser, H. M. C. Hyderabad that M. L.
0. 60 relates to review of, only leases in respect of land granted during the period between the 1st January, 1972 and the 4th July, 1977. Since in the instant case, the plot was not leased out but sold to the appellant, it does not fall under the purview of M. L.
0.
60. Thus, the cancellation of the plot in this case is illegal and void. I therefore, while, upholding the appeal, set aside the impugned order and restore the plot under dispute to the appellant.
(Sd.)
(Abdullah J. Memon), ' Commissioner Hyderabad Division Announced. Hyderabad, dated 6-71980."
4. From the above-quoted statement, it is evident that the stand taken by the Administrator Municipal Corporation Hyderabad in the suit before the learned Joint Civil Judge, Hyderabad is that a sale transaction is not covered by the M. L.
0. It is also evident from the above-quoted portion of the order of the Controlling Authority that the sale transaction is not covered by the M. L.
0.
' It is not disputed before us that the subject-matters of the present petitions were sale transactions and not lease transactions. In view of the above factual position, Mr, M. I. Memon, learned Additional Advocate-General appearing for the Commissioner. Hyderabad, the Controlling Authority, has rightly not supported the impugned orders and has stated that the same were not covered by the M. L. O. As observed hereinabove, even the learned counsel for respondent No, 1, Mr. Syed Zaki Muhammad is unable to support the impugned orders on merits but has submitted that the petitioners should have filed the appeals before respondent No, 2.
' The only question in issue before us is, as to whether we should compel the petitioners to file appeals after the expiry of more than six years from the dates of filing of the above petitions. In this regard, it may be pointed out that no right of appeal was provided at the time when the above petitions were filed but para. 5 was added to in the M L.
0. On 26-4-1979 by M. L.
0. 87 and, therefore, it cannot be urged that the petitioners had alternate remedy at the time of filing of the above petitions. Since it is an A admitted position that the impugned orders are beyond the scope of the M. L.
0., in our view it will not be just and proper to decline the relief to the petitioners on that ground. It may be observed that in the case of Muhammad Saleem v. Provincial Election Authority, Karachi and others (Constitutional Petition No, D-870 of 1983) decided by a D. B. Of this Court on 15-11-1984, the right of appeal was provided, during the pendency of the said petition and a similar objection was raised but the Court declined to entertain the aforesaid objection and observed as-follows :- "For more than one reason, we are not inclined to sustain the above objection as to the maintainability of the above petition. Firstly, the petition was filed at the time when there was no right of an election petition available to' the petitioner, and, therefore, the petitioner had no alternate adequate remedy and, hence, the petition was competently filed. It may be pointed out that in the above-cited Supreme Court case of Sadruddin Ansari PL D 1967 SC 569, the right of an election petition was available to the petitioner under rule 7 of the relevant rules but its scope was limited and during the pendency of the petition scope of the above rule 7 was extended by substituting above rule 7, which amendment was considered by the Supreme Court as procedural so as to make it applicable to the pending case. But the instant case is on a higher pedestal as a right to file an election petition, which is a substantive law and not procedural, has been conferred during the pendency of the petition as hereinabove pointed out. Secondly, no disputed question of fact is involved. The controversy centres around the construction of the rejected ballot paper.
Thirdly, there seems to be unanimity of view among the superior Courts on the point in issue."
Even otherwise, it has been the consistent view of the superior Courts that in case of an order without jurisdiction, a party can press into service writ jurisdiction of the High Court without invoking the right of appeal or any other remedy provided for. In this regard reference may be made to the following cases :
(i) Anjuman-e-Ahmadia Sargodha v. Deputy Commissioner Sargodha PLD 1966 SC 639, and
(ii) Murree Brewery Company Limited v. Pakistan through Secretary to the Government of Pakistan, Works Division PLD 1972 SC 279.
' The above contention of Mr. Syed Zaki Muhammad is therefore not sustainable.
5. Though no objection was raised before us on the ground that the" petitions were hit by the P. C.
O., bat we have examined this aspect. In our view, a distinction is to be drawn between an order passed by personnel of the Martial Law Authority and an order passed by a delegatee of the Martial Law Authority i,e, a civil functionary, which is otherwise amenable to writ jurisdiction. 'In the latter case if the impugned order before the High Court is admittedly beyond the scope of the relevant M. L.
0. Or M. L. R., a civil functionary will be amenable to writ jurisdiction. In this regard reference may also be made to the case of Sheikh Muhammad Ashraf v. Assistant Registrar, Cooperative Societies and others (1) in which a learned Single Judge of the Lahore High Court has adverted to the question of immunity from attack of an order passed under M. L.
0. 241 issued by Martial Law Administrator Zone 'A' and observed as follows :- "7.-It is also to be noticed that when a borrower denies his liability, determination of such liability, in terms of section 6 of the Co-
(1) 1983 CLC 918 ' operative Societies and Co-operative Batik (Repayment of Loans) Ordinance, 1966, is the foundation of commencement of proceedings, under M. L.
0. 241, against him. It is not disputed that no such determination was made. On behalf of the respondent, however, reliance is placed on the acknowledgment of his liability by the petitioner (Annexure R/12) before the Assistant Registrar on 31-3-1972. The background of this acknowledgment, however, is that when the petitioner received the intimation, that his house was attached, he gave in writing to the Assistant Registrar that he would pay Rs, 7,000 on 10-4-1972 and the rest of the amount within a further period of fifteen days and in case he failed to adhere to this commitment, his house may be put to auction. Evidently, this written statement was made by the petitioner, long after the commencement of the coercive messures under M. L.
0. 241. When such measures were started against the petitioner there was no determination of his liability within the meaning of section 6 of the Ordinance. The condition precedent for invocation of the provision of M. L.
0. 241 was thus not satisfied. This subsequent acknowledgment, therefore, would not validate these proceedings. Furthermore, the record is suggestive of the interference, that the petitioner was under burden and out of his keenness to have his house from being disposed of through auction, he made the said statement. It thus loses much of its sanctity. It is true that action taken under M. L.
0. 241 is immune from attack before the Courts but such immunity is available only if the functionaries under M. L.
0. Do not exceed their jurisdiction and act within the ambit of their statutory powers. It is a case in which the Assistant Registrar acted beyond such powers. Upon the facts of this case, the jurisdiction of this Court cannot be shut out."
6. In the instant case the impugned cyclostyled orders have been signed by a civil functionary i. e.
The Administrator of' a corporate body, apparently without addressing himself to the question that a sale transaction is not covered by the M. L.
0. It has also been conceded by respondent No, 1 in the aforesaid legal proceedings that the orders under the M. L.
0. In respect of the sale transactions are beyond the scope of the M. L.
0. Additionally before us the learned Additional Advocate-General Sind appearing for the Controlling Authority has conceded that the impugned orders are beyond the scope of the M. L. O.
And the learned counsel for respondent No, I is unable to support the impugned orders on merits as,' observed hereinabove. In view of the above factual position, we are inclined to hold that the learned counsel for the respondents has rightly' not pressed into service the bar provided for in the P. C.
0.
7. We, therefore, allow the above petitions and declare the impugned orders being without lawful authority and of no legal effect. The respondents are restrained from enforcing or acting upon the same.