' Facts necessary for the disposal of this petition, briefly stated, are that on 1-4-1968, Muhammad Hussain, respondent No, 1, brought three petitions under section 10 of the West Pakistan Redemption and Restitution of Mortgaged Lands Act XIX of 1964, for restitution of mortgaged lands.
Collector Sialkot, by three separate orders passed on the same date viz. 27-12-1968 accepted these petitions and ordered in terms of section 12 of the aforesaid Act that the mortgages in question be extinguished without payment of any mortgage money and possession be delivered to the mortgagor, respondent No, 1 herein.
' Petitioners, who were the mortgagees of the lands in dispute felt aggrieved with the aforementioned orders of .The learned Collector but instead of challenging those orders in regular appeal or revision, they brought them under challenge directly in this Court through the present constitutional petition as they had attacked the vires of the West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964, (hereinafter called the impugned Act), where under the impugned order were passed by the Collector.
2. Before proceeding further in the matter, it may pertinently be observed that there is no dispute on facts. Learned counsel for the petitioners accepted the finding of facts recorded by the Collector that the mortgage in each case was a subsisting usufructuary mortgage not less than 20 years old, and was, therefore, covered by the provisions of section 10 of the Act. Learned counsel, however, attacked the vires of the impugned Act on the following two grounds :-
(i) that the impugned Act was violative of Fundamental Right No, 14 guaranteed by the Constitution of 1962 and was, therefore, void by virtue of Article 6 of that Constitution ; and
(ii) that the impugned Act being inconsistent with the Contract Act and Transfer of Property Act, which are Central Laws was invalid by virtue of Article 134 of the aforesaid Constitution.
3. With reference to his first ground of attack learned counsel for the petitioners submitted in the first instance that the mortgagee rights constituted immovable property. For this proposition, he placed reliance on Sh. Muiz-ud-Din v. Uttam Chand (1). It was then contended that the impugned Act insofar as it purported to extinguish the mortgagee rights and provided for delivering possession of the mortgaged lands to the mortgagors without making any provision for compensation therefor was repugnant to and inconsistent with the guarantee contained in Fundamental Right No, 14 provided in the Constitution of 1962. Fundamental Right No, 14 is in the following terms :- "14. Protection of property rights.-(l) No person shall be deprived of his property save in accordance with law.
(2) No property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides for compensation therefor and either fixes the amount of compensation or specifies the principles on which and the manner in which compensation is to be determined and given.
(3) Nothing in this paragraph shall affect the validity of.-
(a) any law permitting the compulsory acquisition or taking possession of any property for preventing danger to life, property or public health; or
(b) any law relating to the acquisition, administration, or disposal of any property which is or is deemed to be evacuee property under any law; or
(c) any law providing for the taking over by the State for a limited period of the management of any property for the benefit of its owner; or
(d) any law in force immediately before the coming into force of the Constitution (First Amendment) Act, 1963.
' Explanation.-ln sub-paragraphs (2) and (3), 'property' shall mean
(1) P L, D 1949 Lah. 50 immovable property, or any commercial or industrial undertaking, or any interest in any such undertaking."
' According to the learned counsel, provisions in the impugned Act for the extinguishment of the mortgagee rights and delivering possession of the mortgaged lands to the mortgagors amounted to compulsory acquisition of the property and taking forcible possession thereof within the meaning of Fundamental Right No,
14. Further, submission of the learned counsel was that extinguishment of mortgagee rights and delivering possession of the morgaged lands to the mortgagors was not a public purpose and the impugned ACE made no provision for any compensation for the mortgagees, Therefore, it was argued by the learned counsel thatthe impugned Act clearly infringed the Fundamental Right No, 14 and, as such, it was void in view of the mandate constained in Article 6 of the Constitution, relevant portion of which reads as follows :- "The State shall not make any law which takes away or arbidges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention be void."
On these premises, learned counsel for the petitioner further argued that the impugned Act on account of its inconsistency with the Fundamental Right No, 14 was void ab initio with the result that no rights or liabilities could be created thereunder. This precise submission, it was pointed out by the learned counsel for the respondent, came to be examined in a Division Bench judgment of this Court reported as Abdul Ghani v. The Govt. Of West Pakistan (1). In the precedent case, validity of this very law viz. The West Pakistan Redemption and Restitution of Mortgaged Lands (Act XIX of 1964) was challenged mainly on the ground of it being violative of Fundamental Rights Nos. 13, 14, and 15. Perusal of the Division Bench judgment afore-referred shows that similar arguments as have been raised by the learned counsel for the petitioners in the present case were raised in that case. Their Lordships, however, repelled these arguments and held that Fundamental Rights violation whereof was made the basis of attacking the validity of the Act stood suspended by virtue of Orders issued by the President of Pakistan on 6th September, 1965 and 16th of September, 1965, during the proclamation of Emergency under Article 30 of the Constitution and that being so, writ petitions filed after the 6th September were misconceived. Reasoning adopted by the learned Judges of the Division Bench was that "if the Presidential Order precludes citizen from moving the Court for the enforcement of the specified Fundamental Rights, it would not be open to the citizen to urge that the act is void for the reason that it offends against the said Fundamental Rights. It is in order to prevent the citizen from making such a claim that the Presidential Order has been issued, and so, during the period of its operation, the challenge to the validity of the Act cannot be entertained". After examining the relevant case law on the subject, learned Judges of the Division Bench summed up the discussion with the following observations : - "The above authorities and passages are golden rules of legal jurisprudence and they are quite apt in their context and quite correct on the subject they dealt with. The point arising in the present case, however, is somewhat different. We are concerned with the interpretation of the various sub- Articles of Article 30 of the
(1) PLD 1968 Lah. 1244 Constitution and we have to determine as to whether during the subsistence of the proclamation of Emergency in the country and the Order of the President a question as to the validity of the West Pakistan Redemption and Restitution of Mortgaged Land Act, 1964, can be gone into on the ground of its being in violation of Fundamental Rights. Had the attack been on grounds different from Fundamental Rights we would have legitimately gone into it. But the unfortunate aspect for the petitioners is, that they based their arguments on Fundamental Rights which have been suspended at the moment. To say that Fundamental Rights are not being sought to be enforced when validity of a law is being challenged on grounds of Fundamental Rights, is to say with respect to the learned counsel for the petitioners, to argue in a circle."
4. In the afore-discussed view of matter, I find that the present petition when filed could not have been entertained. This writ petition was filed on 26-3-1969 when the Constitution of 1962 stood abrogated a day earlier i,e, 25-3-1969 as a result of imposition of Martial Law and consequently Fundamental Rights specified in the Constitution were no A more available. This petition, in so far as it attacked the validity of the impugned Act on the ground of it being violative of Fundamental Right No, 14 of the abrogated Constitution was, therefore, misconceived. Result, therefore, is that no relief can be granted to the petitioner on this ground.
5. As regards the second ground of attack based on the inconsistency of the impugned Act with the Central Laws, it may be of advantage to reproduce Article 134 of the Constitution of 1962.
"When a Provincial Law is inconsistent with a Central Law, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid."
Precise submission of the learned counsel for the petitioners was that the impugned Act which is Provincial Law is inconsistent with the Central Laws viz. Transfer of Property Act and Contract Act, and that being so, the impugned Act is invalid. Somewhat similar argument based on section 107 of the Government of India Act, 1935 (subsection (1) of which almost corresponded to Arlicle 134 of 1962 Constitution) was raised in "Megh Raj and others v. Allah Rakhia and others" which incidently was also a case wherein validity of the predecessor enactment of the impugned Act viz. Punjab Restitution of Mortgaged Lands Act, 1938, was challenged. The argument was repelled by a Full Bench of this Court in a decision reported as AIR 1941 Lah. 177 which decision was upheld on appeal by the Federal Court vide AIR 1942 FC 27 and by Privy Council in its decision A 1 R 1947 P C 72 while examining the plea of inconsistency of the impugned legislation with the Contract Act and Transfer of Property Act Federal Court held in AIR 1942 FC 27 that "Section 37, Contract Act, which lays down that parties to a Contract must either perform or offer to perform their respective promises, qualifies this statement by the words "unless such performance is dispensed with or executed under the provisions of... ... ... Any other law." When the statement of the general rule itself is so qualified, it is difficult to see how a law which excuses performance of any particular kind of contract can be said to be inconsistent with the section, which must be
(1) PLD 1968 Lah. 1244 taken as a whole. The impugned law will only be one of the special cases contemplated or saved by the main or paramount Act."
' As regards Transfer of Property Act, Federal Court observed at page 31 of the report "no argument was urged before us with reference to the Transfer of Property Act, for the obvious reason that th:.
Plea of repugnancy under section 107 (1) Constitution Act could be raised only on the strength of Statute Law or Statutory Rules and the Transfer of Property Act is not as such in force in most of the Punjab".
6. Learned counsel for the respondent in reply to the second ground of attack made by the learned counsel for the petitioners raised yet another argument. He submitted that the Contract Act and the Transfer of Property Act were not the Central Laws within the meaning of Article 134 of the Constitution of 1962. Central Laws and Provincial Laws have been defined in Article 242 of the Constitution. Central Laws, according to Article 242 means "a law made by or under the authority of the Central Legislature and includes an Ordinance issued by the President." The term "Central Legislature" according to the learned counsel, refers to the legislature created by and functioning under the Constitution of 1962. Argument of the learned counsel based on the view expressed by Mr. Justice 13. Z. Kaikaus (as his Lordship then was) in Saiyyid Ahul A'la Maudoodi and others v. The Government of West Pakistan and others (1) was that the Contract Act and the Transfer of Property Act not having been passed by the Central Legislature created under the Constitution of 1962 were not Central Laws within the meaning of Article 134 but were existing laws which came into force by virtue of Article 225 of the Constitution. Distribution of powers between the Centre and the Provinces was evidently prospective and law made by the Central Legislature before the commencement of the Constitution of 1962 was not Central Law within the meaning of Article 134 and it could be altered or amended by the Provincial Legislature if it was competent to legislate upon it under the said Constitution which competence has not been challenged by the learned counsel for the petitioners, In this view of the matter, contention of the learned counsel for the respondent that the impugned Act did not fall within the mischief of Article 134 of the Constitution appears to have considerable force.
7. Thus, looked at from whatever angle, the impugned Act is not hit by the provisions of Article 134 of the Constitution of 1962.
' Upshot of the above discussion is that none of the contentions raised by the learned counsel for the petitioners has any force. This petition, therefore, fails and the same is dismissed but with no orders as to costs in the circumstances of this case.
(1) PLD 1964 SC 673