SARDAR MUHAMMAD IQBAL, J.-This Letters Patent Appeal is directed against the order dated the 10th of February 1970 of the learned Single Judge whereby he dismissed the Writ Petition of the appellants praying that the confiscation of the land in by the Summary Military Court under paragraph 13 of Martial Law Regulation No. 49 after convicting one Mst. Nisar Fatima from whom the appellants purchased the property, be declared to be without lawful authority, and of no legal effect; and that the Chief Settlement Commissioner and the Chairman of the Border Allotment Committee be directed to refrain from interfering with the ownership and the possession of the land in dispute of the appellants.
2. The facts of the case are that Mst. Nisar Fatima was allotted about 80 kanals of evacuee land in the year 1957 near the Grand Trunk Road between the Bata Shoe Company and the Glass Factory, Lahore. She sold the land to the appellants, who are 19 in number, by five registered sale deeds executed at different times in the years 1958 and 1959 and received a sum of Rs. 50,000.00 as consideration.
3. Mst. Nisar Fatima was found to have obtained allotment without any entitlement and fraudulently. She was tried by the Martial Law authorities and after having been found guilty was sentenced on the 15th of May 1961 to six months' imprisonment and it was further directed that the property confiscated. On a review petition filed by her, the con--viction was maintained but the unexpired portion of the sentence was remitted.
4. On behalf of the appellants, a representation was made to -the Chief Martial Law Administrator on the 15th of November 1-961 stating that they were the purchasers of the land in good faith from Mst. Nisar fatima and being poor people and having spent the earnings of the life, they should be given due protection. The Martial Law authorities did not recall the order of confis--cation and took no action themselves. They only directed the appellants by their letter dated the 10th of February 1962 to approach the civil authorities for further action. They moved another application, on the 14th of April 1962 to the Martial Law authorities and were informed on the 18th of April 1962 Annexure `F') in the following words:- "Since it was acquired on bogus claim, the property in question stands confiscated on behalf of State. It should revert to the Evacuee pool of the Rehabilitation Depart--ment. You may therefore contact that Department for further action if any."
The appellants had also made a representation to the Rehabilitation Department on which it was ordered on the 19th of April 1962 "that the status quo should be maintained and the possession of the area under the buildings should not be resumed till further orders as they have offered to purchase this land from the Government." The Additional Deputy Commissioner, further directed the Tehsildar, Lahore, in the same order that he should "furnish the market price of the land as well as the average price for the last five years." The Deputy Commissioner, Lahore, by his Memorandum dated the 21st of May 1962, addressed to the Chief Settlement Commissioner, informed the latter that the possession of the entire area confiscated by the order of the Military Court convicting Mst. Nisar Fatima had been taken possession of except that under the buildings.
The property so confiscated was 141 kanals of land allotted to the convict in Manawan out of which she had transferred 80 kanals to the appellants. The possession of area under buildings was not taken over in pursuance of the stay order dated the 19th of April 1962 mentioned above. He further reported that the market price of the land transferred to the appellants as assessed by the Tehsildar "comes to Rs. 600.00 per kanal. All the petitioners are displaced persons. They certainly deserve equitable treatment because they had already paid the full price of land in their possession. Their request for the grant of land on nominal price deserves sympathetic consideration. It Is therefore, requested that sanction of the Chief Settlement and Rehabilitation Commissioner, West Pakistan, to the sale of the land in question in favour of the present occupants at a nominal price may kindly be obtained and communicated to this office. The remaining land being situated in the border belt will be disposed of under Martial Law Regulation No. 9." The Border Allotment Committee by its own order dated the 24th of May 1962 cancelled the allotment of Mst.
Nisar Fatima and resumed the land, and in July 1964 allotted 12 kanals 5 marlas of land which was not under any construction to some persons as a result whereof Muhammad Taqi and M. J. Ansari, appellants, could not purchase the plots from the Settlement authorities. The order passed by the Border Allotment Committee was not challenged before the 8th of June 1962 when the Constitution of the Islamic Republic of Pakistan, 1962 was enforced and the Martial Law came to an end.
However, on the 14th of September 1964, the appellants filed the Writ Petition challenging the confiscation of the property and also the act of the Border Allotment Com--mittee in allotting 12 kanals and 5 marlas of land to other persons. The main ground of challenge was that the Summary Military Court could under Martial Law Regulation No. 13 after conviction of a person confiscate all his property, but since Mst. Nisar Fatima in the instant case had already sold the land allotted to her to the appellants, it was not her property and, therefore, could not be confiscated and that if any order of confiscation was passed it could be only for the sale proceeds. They challenged the allotment of 12 kanals and 5 marlas on the ground that the Border Allotment Committee could not, in view of the stay order granted in their favour pass any such order and also that the land was beyond the belt of 5 miles from the border and was not within its jurisdiction. Report was called in the writ petition which was submitted by the Border Allotment Committee on the 21st of October 1964 wherein it was stated in the very first paragraph. "The Border Committee also cancelled the khata of Mst. Nisar Fatima on 24-5-62 in view of the fact that the land was obtained fraudulently on a bogus claim." It was further stated that the land was situate within the border belt and could be allotted in accordance with the provisions contained in paragraph 55-A of the Rehabilitation Settlement Scheme and Martial Law Regulation No. 9 issued by the Martial Law Administrator, Zone `B'. The Border Allotment Committee claimed exclusive jurisdiction to deal with the land and relied on paragraph 15 (a) of the aforesaid Martial Law Regulation No. 9 wherein it was provided as follows:- "No provisions of this Regulation, or order made or direction issued thereunder, shall be called in question in any Court, including the High Court and the Supreme Court, or before any authority, except as provided in this Regulation, and no such Court or authority shall have jurisdiction in respect of any matter arising out of the operation of this Regulation."
It was further provided in clause (b) of paragraph 15 of the said Regulation. "No such Court or authority shall be competent to grant any injunction or other order in relation to any pro--ceeding before a committee or before any officer exercising any power or discharging any function under this Regulation or under any order made or direction issued thereunder. Relying on this paragraph, it was alleged that the land was within the exclusive jurisdiction of the Border Allotment Committee and the Additional Deputy Commissioner (Consolidation) had no jurisdiction to pass the order dated the 19th of April 1962 whereby he directed that "status quo should be maintained and the possession of the area under the buildings should not be resumed till further orders". (We may, however, re-state that the possession of the land under the buildings was not taken over at any time). It was reiterated in paragraph 5 of the report that the Border Allotment Committee had, by cancelling the allotment of Mst. Nisar Fatima, resumed the land on the 24th of May 1962 and that the Committee was competent under paragraph 10 of Martial Law Regulation No. 9 to pass such an order and that the decision of the Committee in that behalf was final. It was further stated in the said paragraph of the Report: "The petitioner stepped into the shoes of Mst. Nisar Fatima and no valid title was passed in their favour as admittedly the land was obtained on a bogus claim. Mst.
Nisar Fatima has so far not challenged this action in any Court. The petitioners therefore have no locus standi to retain the land merely on the ground that they had purchased it from Mst. Nisar Fatima." Reliance in the Report was placed on paragraph 14 of the Rehabilitation Settlement Scheme wherein it is provided "that if the allottee-aliener is subsequently found to have obtained allotment of land by fraud or by misrepresentation the alienation will be deemed to be void and that such alienation will only be entered in the cultivation column of the revenue record the implication being that the land will continue to be evacuee property even after alienation". The appellants submitted a counter-affidavit to the Report on the 11th of December 1964 and in reply to paragraph 5 all that was stated was that it was "not relevant as the preliminaries to assume the jurisdiction under the Regulation were not satisfied." The appellants, although were apprised of the fact that the Border Allotment Committee had also cancelled the allotment of Mst. Nisar Fatima in exercise of the powers under paragraph 10 of Martial Law Regulation No. 9 did not challenge that order at any stage nor did they apply to the Court for the amendment of the writ petition.
5. Subsequent to the filing of the writ petition, the Chief Settlement Commissioner in the exercise of the powers conferred on him by section 12(b) of the Displaced Persons (Land Settle--ment) Act, 1958, accorded sanction by his order dated the 12th of October 1964 contained in his letter of even date bearing No. 4072/AQN/LHR/36, to the sale of evacuee land comprised in Khasra Nos. 479 to 487, 477, 478, 475, 4341 and 3042 measur--ing 74 kanals 3 marlas situated in village Manawan, Tehsil and District Lahore, to the residents of Mustafabad Colony, Manawan, on payment of Ps.
44,490.00, on the condition inter alia that "the property in question is not transferable to any person under the provisions of the Displaced Persons (Land Settle--ment) Act, 1958." The learned Chief Settlement Commissioner, in modification of the aforesaid order, passed another order on the 31st of October 1964, to the effect that instead of Khasra Nos. 479 to 487, 477, 478, 475, 4341 and 3042 measuring 74 kanals 3 marlas only khasra Nos. 479, 480, 481, 482 min, 486, 487, 477, 478, 475, 4341 and 3042 measuring 61 kanals 18 marlas be sold in consideration of Rs. 37,140.00. The appellants moved an application on the 6th of February 1965 under rule 17 of Order VI read with section 151 of the Code of Civil Procedure requesting that the writ petition "be read subject to the statement of facts given in this petition". The appellants had in the said application, objected to the price which was to be charged from them in pursuance of the order of the Chief Settlement Commissioner and also took exception to the subsequent order of the Chief Settlement Commissioner whereby 12 kanals of land were excluded. The appellants did not even in this amended petition challenge the order dated the 24th of May 1962, and it appears from the tenor of the order of the learned Single Judge, that the learned counsel did not challenge the order passed by the Border Allotment Committee on the 24th of May 1962, at the time of arguments but confined himself to challenge the order of the Summary Military Court whereby the property of Mst. Nisar Fatima was confiscated, that the price fixed by the Chief Settlement Commissioner was unreasonable, and that the exclusion of 12 kanals 5 marlas by the Chief Settlement Commissioner from the area to be sold was without lawful authority. Learned counsel for the appellants has ever before us confined himself to these contentions and did not either in the grounds of appeal or before us at the time of arguments challenge the order dated the 24th of May 1962.
6. It is manifest from the statement of facts set out Immedi--ately above that the land in dispute which was allotted to. Mst. Nisar Fatima under whom the appellants claim, was confiscated on her conviction by the Summary Military Court by an order dated the 15th of May 1961 and that subsequently the Border Allotment Committee also in the exercise of the powers under paragraph 10 of Martial Law Regulation No. 9 cancelled the allotment of Mst. Nisar Fatima by their order dated the 24th of May 1962 and resumed the land. There are, therefore, two orders which militate against the appellants, even if they had been able to make a successful challenge to the order of confisca- -tion passed by the Summary Military Court (we should not, however, be understood to state that we subscribe to this view) then too the order of the Border Allotment Committee whereby the allotment of Mst. Nisar Fatima was cancelled and the land was resumed stands in their way. The learned counsel has not challenged that order, and that being so the order of cancella--tion becomes final and the appellants, since they claim under Mst. Nisar Fatima, cannot lay any valid claim to the land in dispute. Their right to the land depended on the title of Mst. Nisar Fatima and once the allotment in her favour was cancelled the very basis of the right in favour of the appellants came to an end.
7. Learned counsel for the appellants, however, submitted that the order dated the 24th of May 1962 of the Border Allot--ment Committee having been made without hearing the appellants and without notice to them was a nullity in the eyes of law and should, therefore, be treated as non- existent. In other words, the contention is that if the Border Allotment Committee had passed an order under Martial Law Regulation No. 9, although it was before the Constitution of 1962 was enforced, it could be challenged notwithstanding that the Regulation itself had barred the jurisdiction of all the Courts of the country in this behalf. We are unable to accept this contention for the reason that the order was passed at a time when Martial Law was in force and that being so it is immune from challenge. It was held in Muhammad Khan v. Border Allotment Committee (PLD 1965 SC 623) that if an order had been passed by a Martial Law Authority during the period of Martial Law it was a past and closed transaction and was, therefore, immue from challenge even after the coming into force of the Constitution of the Islamic Republic of Pakistan, 1952. It was further observed: "The Border Area Regulation, is a Regulation which has been preserved by clause
(4) of Article 225 of the Constitution and it now enjoys the status of an Act of the Central Legislature. Now an Act of the Central Legislature can take away the jurisdiction of the High Court and even of the Supreme Court by reason of the provisions of Article 130 of the Constitution which clearly provides that no Court shall have any jurisdiction that is not conferred upon it by the Constitution or by or under the law. Thus since the Border Area Regulation now has the effect of an Act of the Central Legislature, it is a valid piece of legislation by a competent Legislature and if it has taken away the jurisdiction of the High Court and the Supreme Court to call in question any order made or direction issued under the said Regulation, that protection must prevail and an order passed on the 24th May 1962 will not be open to challenge even now. The Regulation has taken away the jurisdiction of the High Court and the Supreme Court not only to call in question the validity of any order made or direction issued thereunder but also of any provision of the said Regulation. The view taken by their Lordships of the Supreme Court was that any order passed by a Martial Law Authority during the Martial Law period was immune from challenge. This view was armed in Mehr Din v. Border Area Committee (PLD 1970 SC 311). Earlier in Jhamandas v. Chief Land Commissioner (P L V 1966 SC 229.) it was held by relying on paragraph 7 of President's Order No. 26 of 1962 that an order passed by a Martial Law Authority under a Martial Law Regulation before the Constitution came into force was immune from challenge in Courts. It was observed that "the Land Reforms Regulation has validity as an existing Law of the Centre by the effect of the present Constitution. The Centre is invested with legislative power in relation to the jurisdiction of the Supreme Court and consequently this Court is bound to observe the limit thus placed upon its powers of judicial review and relief, in respect of every thing done within the scope of the Land Reforms Regulation, by duly constituted authorities. Such an objection can clearly also be construed by reference to the provision in the President's Order No. 26 of 1962 in paragraph 7, which provides protection against challenge in Court for all things done or proceedings taken in connection with the administration of Martial Law by any Martial authority or by any person on behalf of a Martial Law authority during the Martial Law period. The land reforms carried out under the Land Reforms Regula--tion were undoubtedly a part of the administration of Martial Law, and in that view, the Land Commission, which was carrying out the reforms under the Regulation was to be deemed the Martial Law Authority, at the highest level within the complex of the Land Reforms Regulation so that the Chief Land Commis--sioner would fall within the description of a person acting on behalf of a Martial Law authority, and his order of the 31st May 1960, being made during the Martial Law period, would be immune to any form of treatment by the Courts. The terms in which this bar of jurisdiction is couched are even more stringent than those of the Land Reforms Regulation, in paragraphs 3 and 27. It has to be accepted that the aforesaid order of the 31st May 1960, is provided with defences against every judicial remedy in a highly effective manner." It was further observed: "It well be--comes the judiciary, and it would be in violation of the oath of office of the Judges, that the Courts should strain to enter territo--ry forbidden to them by law, and what follows is said in total realisation of that fundamental obligation". It had also been held in Azizur Rahman Chaudhary v. M. Nasiruddin (PLD 1965 SC 236) "that by reason of the provisions of Martial Law Regulations Nos. 88 and 93 read with Article 250 of the present Constitution those acts are now immune from challenge, even though the above-mention--ed Regulations now stand repealed".
The view taken was that by virtue of Martial Law Regulations 88 and 93 protection ex--tends to any order made or anything done or expressed or purport--ed to be done in pursuance of any Martial Law Order.
Since the allotment of Mst. Nisar Fatima was cancelled under Martial Law Regulation No. 9 before the Constitution of 1962 came into force, the order of cancellation, as held in Muhammad Khan v.
Border Allotment Committee, cannot be challenged and that being so the appellants who are the transferees from Mst. Nisar Fatima cannot claim any right or title in the said land.
8. In the view of the matter we have taken it was not necessary to examine whether or not the order of confiscation of the property in dispute while convicting Mst. Nisar Fatima was valid. We are, however, in respectful agreement with the learned Judge In Chambers who while repelling the contention of the appellants has held that the order of conviction and confiscation was not at any stage challenged by Mst. Nisar Fatima or the appellants till such time as they filed the writ petition.
The Summary Military Court convicted Mst. Nisar Fatima on the 15th of May 1961. The appellants, according to their own statement, approached the Martial Law Authorities in the year 1962 and had been making different representations till they file: the writ petition, but they did not in any of those petitions challenge the order of confiscation. They had only been claiming that since they had purchased the land in good faith they should be permitted to retain the land. At any rate, the order of confiscation had been passed before the Constitution came into force and in view of the dictum of the Supreme Court the order cannot be challenged. We nay further observe that the appellants claim the property by virtue of the sale made in their favour by Mst. Nisar Fatima, if she was found to have no title in the property she the appellants. Learned counsel for the appellants had made a grievance of the fact that the appellants had not been heard. We asked him if he had any proof that Mst. Nisar Fatima had abandoned any property in India and that the land had been allotted to her in Pakistan in lieu of a valid claim, but he failed to draw our attention to any material on the record to substantiate her claim. He also admitted that he did not have any proof with him. If Mst.
Nisar Fatima had been a genuine claimant, there could be no reason why the appellants should have failed to have obtained a proof thereof from her since 1961 when she was con--victed and the property was confiscated. If the appellants had been in possession of any such material, then one could give effect to the plea, but in the absence of any such material it is not understandable as to what benefit the appellants could derive if an opportunity of being heard had been afforded to them. If Mst. Nisar Fatima did not have any claim, obviously the allot--ment in her favour would be a nullity and it could create no right or interest in her. In the absence of a right in her, she could not by sale create or transfer any valid right or title in the transferees.
9. Learned counsel next contended that once the Chief Settlement Commissioner had by his order dated the 12th October 1964 decided to sell land measuring 74 kanals 3 marlas to the appellants, he could not by a subsequent order dated the 31st of October 1964 omit 12 kanals 5 marlds and that his order is with--out lawful authority. The land had been cancelled by the Border Allotment Committee on the 24th of May 1.962. The land is within the border belt and it was, therefore, within the exclusive jurisdiction of the Border Allotment Committee to allot it under Martial Law Regulation No. 9 (now known as the West Pakistan Border Area Regulation of 1959). The land, after it was resumed, could be allotted by the Border Allotment Committee and the said Committee in having allotted 12 kanuls 5 marlas out of the land has not in any way acted without lawful authority.
Learned counsel, however, relied on the order dated the 19th of April 1962 of the Additional Deputy Commissioner (Consolidation) whereby he had ordered that status quo should be maintained, and contended that the order of allotment by the Committee since it was made after that date was a nullity. The contention is not tenable, for the simple reason that the Additional Deputy Commissioner, or for the matter of that any other Rehabi--litation Authority, had no jurisdiction to pass any order under Martial Law Regulation No. 9 in respect of an area within the border belt. The stay order granted by the Additional Deputy Commissioner being in respect of land within the border belt was, therefore, without jurisdiction and it could not affect; the competence of the Border Allotment Committee to make the order of allotment. The order of the Committee allotting 12 kanals 5 marlas is unexceptionable. The Chief Settlement Commissioner in the circumstances, when the land had already been allotted could not by his order dated the 12th of October 1964 accord sanction of its sale in favour of any of the appellants. The stay order, moreover, was subject to the condition that the property in question was not transferable to any person under the provi-- sions of the Displaced Persons (Land Settlement) Act, 1958, and once it was brought to the notice of the Chief Settlement Commis--sioner that a portion of the property had already been transferred it was competent for him to amend the earlier order to the extent of the land already allotted.
10. It was lastly agued by the learned counsel that the appellants had already paid the price to Mst.
Nisar Fatima and that the price fixed by the Chief Settlement Commissioner of the land is arbitrary and that he should have charged a nominal price. The Chief Settlement Commissioner has ordered the sale of the land in dispute to the appellants in the exercise of the powers conferred on him by section 12(b) of the Displaced Persons (Land Settlement) Act, 1958, which does not lay down any limitation on his power as to the fixation of the price, and we do not feel inclined to place any such limitation on his power in the exercise of our writ jurisdiction. Since the order. Passed by him does not violate any provision of law, it is not exceptionable.
11. We find no merit in this appeal which is dismissed limine.