' MUFTAKHIRUDDIN, J.- This petition is directed against the order dated 17th June, 1981, passed by the Member Board of Revenue II Baluchistan Quetta (Annexure 1' to the petition), whereby the shop bearing No, 240 situated on Tehsil Road, Loralai which was originally transferred to one Wali Muhammad son of Ibrahim (predecessor-in-interest of the petitioners) has been ordered to be transferred to Sultan Muhammad son of Khairud Din (respondent No, 2 herein).
2. The material facts relevant for the present petition are that the Shop No, 240 was in possession of one Wali Muhammad son of Ibrahim. The shop belonged to an evacuee and was Katcha but it was at a place which was first declared as rural area for the purposes of transfer of evacuee properties.
The Deputy Commissioner, Loralai who at the relevant time was vested with the powers of Deputy Custodian and Rehabilitation Commissioner, by means of order dated 27-6-1965 transferred the shop and a Katcha house belonging to the same evacuee owner, Mst. Vidia Kati to said Wali Muhammad. The necessary entries about the change in ownership of this shop were accordingly made in the record of rights and in the registers of the Town Committee. Wali Muhammad first rented this shop to one Mula Fateh Muhammad and thereafter to respondent Sultan Muhammad on or about 27-5-1970. However, the said Wali Muhammad sold this shop to one Mst. Goshai in March, 1974, and this transfer was also entered in the record of Municipal Committee Loralai. Mst.
Goshai died and the shop was entered in the relevant record in the name of Haji Muhammad Khan from whom Haji Naimat Khan the predecessor-in-interest of the present petitioners purchased this shop on 17-4-1979 and this transaction too was entered in his name in the Municipal Committee's record (Annexure 'D' to the petition). Late Haji Niamat Khan served a registered notice on Sultan Muhammad informing him about the change of ownership and demanded vacant possession of the shop but the respondent did not comply with the notice and Haji Naimat Khan was constrained to file a suit for his eviction in the Court of Civil Judge, Loralai on or about 3-6-1979 which was decreed on 28-2-1980. Sultan Muhammad had denied the relationship of landlord and tenant and an issue to that effect was framed. This issue was decided against him and in Revision No, 7 of 1980 filed in the High Court, the finding of Civil Judge was maintained though the revision was allowed on the ground that no issue of non-payment of rent was framed by the Civil Judge and for that reason the finding that rent was not being paid by Sultan Muhammad could not be the basis of his eviction. One of us (Mr. Justice Abdul Qadeer Choudhry) who decided this revision has expressed in these words:- ' The definition is wide enough and it also includes every person from time to time deriving title under a landlord. The petitioner has admitted that he was tenant of Wali Muhammad and thereafter he became the tenant of Mst. Goshai. Muhammadan being the legal heir of Mst. Goshai, after her death became the landlord of the petitioner. The present respondent derives his title from Muhammadan, therefore, he became the landlord. The petitioner has become the tenant of the respondent Haji Naimat Khan. In these circumstances the finding of the learned Civil Judge on Issues Nos. 1 to 3 is correct and not open to any exception."
' After the judgment of the High Court late Haji Naimat Khan filed another suit for eviction in the Court of Civil Judge, Loralai on 10-3-1981, but he has died on or about 4-7-1981 and the present petitioners are his heirs and legal representatives.
3. Town of Loralai where the property is situated is a tribal area. A question about the applicability of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and Scheme VII made thereunder arose in some constitutional petitions filed in the High Court of West Pakistan wherein it was held that neither the Act nor the Scheme were enforced in the tribal areas. After the decision of the High Court the legislative authority in order to overcome the difficulties which had crept in on account of the declaration or the High Court and consequent cancellation of the transfers of properties in tribal area, with prior approval of the President of Pakistan on 25-2-1979 promulgated a Regulation No, 1 of 1979. Section 2 whereof reads as under :-
2. Validation of transfers.-A11 properties transferred in the Tribal areas of the Province of Baluchistan during the years 1963 to 1973 under Scheme No, VII and Revised Scheme No, VII prepared under subsection (3) of section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958), shall be deemed to have been validly transferred as if the said Act and Scheme were in force in those Areas at the time when the properties were so transferred."
4. Respondent Sultan Muhammad made an application on 26-11-1979 before the Member, Board of Revenue, Baluchistan (Respondent No, 1 herein) (Annexure 'F') and contended therein that the shop in question was available for transfer. The respondent No, 1 called for a report from the Tehsildar and Deputy Commissioner, Loralai and was informed by these officers that the shop had already been transferred to Wali Muhammad and its latest owner was hate Haji Naimat Khan (Annexures `G' and 'H'). No notice in spite thereof was issued to late Haji Naimat Khan by the official respondent who by means of his order dated 17-6-1981 ordered the transfer of the shop to Sultan Muhammad and it was ordered that the P. T.
0. No, 139, dated 27-6-1965 issued in the name of Wali Muhammad be amended/modified and a P.
T. O. Be issued to Sultan Muhammad. Against this order, the present petition has been filed in this Court.
5. Mr. Azizullah Memon the learned counsel for the petitioners has raised the following contentions before us:-
(a) That by virtue of the Regulation No, 1 of 1979 the transfer of shop in question having been made to Wali Muhammad during the period of 1963 to 1973 stood validated and the property was not available for transfer. Since the Member, Board of Revenue was only authorised under Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974, to dispose of only pending cases and the matter of transfer of the shop in question was not pending before him, the impugned order is void ab initio and without jurisdiction.
(b) That after the promulgation of Ordinance I of 1979 on 25-2-1979 all transfers previously made between 1963 all transfers stood validated and M.B.R. Had no power under law to challenge this Regulation and sit upon judgment on those transfers.
(c) The respondent Sultan Muhammad having been inducted by Wali Muhammad in 1970 was a tenant of Wali Muhammad and thereafter of Haji Naimat Khan the predecessor-in-interest of the petitioners, was estopped under law to challenge the title of the landlords.
(d) That the respondent No, 2 in his application made before the Member, Board of Revenue on 26- 11-1979 concealed the facts that he has been inducted by Wali Muhammad and has been declared as tenant of Haji Naimat Khan who has been litigating with him in Courts and in spite of these facts having been brought to the notice of Member, Board of Revenue through the reports submitted to him had come to know of the ownership of Haji Naimat Khan, no notice was issued either to him or to his successor-in-interest. Thus the entire proceedings taken by Member, Board of Revenue violated the principles of natural justice.
6. Mr. Moquim Ansari, the learned counsel for Sultan Muhammad, respondent in reply to these contentions raised by learned counsel for the petitioners took the stand:-
(a) That the Scheme VII framed on 7-8-1961, under section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, provided no delegation of powers for the disposal of the property as such the transfer made in favour of Wali Muhammad through whom the petitioners derive their title was void ab initio.
(b) That the transferee Wali Muhammad was not entitled to more than one building and as such the cancellation of the shop from the transfer order made in favour of Wali Muhammad was justified in law.
(c) That the respondent Sultan Muhammad had made an application in the High Court that the matter was pending before Member, Board of Revenue and so no complaint can be made that petitioner was not served or heard. But the learned counsel insists that these facts were not necessary to be stated in the application made by Sultan Muhammad to the Member, Board of Revenue.
7. We feel that this petition can be decided on the determination of the contentions raised in grounds (a), (b) and (c) as mentioned in para. 5 above. The Supreme Court of Pakistan in Amina's case (1) where the promulgation of West Pakistan Urban Rent Restriction Ordinance, 1959, by the Governor in pursuance of the promulgation of emergency made on 7th October, 1958, which was given effect from an earlier date was under challenge. And their Lordships were considering the argument that a legislative body cannot frame laws from a date earlier than the formation of that body, and that a law which has remained in force upto the passing of a repealing or amending Act cannot be repealed or amended with retrospective effect was considered and it was held that it is an established rule that subject to any constitutional bar there is no legal limit to the' making and unmaking to laws by a Legislature. Similarly it is within the domain of the Legislature to appoint a date for the commencement of the c laws made by it including a date preceding the making of the laws. In short the authority to legislate includes the authority to legislate with retrospective effect and this doctrine stems from the sovereignty of a, Legislature.
The contention of Mr. Muquim Ansari that the transfer made in favour of Wali Muhammad in the year 1965 was void ab initio and the Regulation I of 1979 could not validate the same was in fact the same which was raised before the Supreme Court in the case of Dossa Ltd. (2) and was dealt with in these words :- "The last contention, namely that the Ordinance of 1971 could not validate something which was void ab initio in terms of the Act, of 1949, loses sight of the fact that it is open to the Legislature to confer retrospective operation on the laws made by it. A reference to the provisions of this Ordinance leaves no doubt that the lawmaker expressly made its operation retrospective with the avowed object to conferring validity on a demand which was not valid under the original Act of 1949."
' This Court in C. P. No, 94 of 1978 (Maula Bakhsh and others v. Chairman, Federal Land Commission) had the occasion to consider the curative legislation passed in the shape of Ordinance XXIX of 1978 (Land Reforms Regulation (Validation of Orders) Ordinance which had taken notice of omission, infirmity or lacuna and proceeded to validate, if and in so far as decisions given suffered from such infirmity and had held that the scrutiny by the Chairman, Federal Land Commission, though then void under the law stood validated and the petitioners challenging the orders passed by Chairman were dismissed. Those petitioners took the matter to the Supreme Court but the leave was refused Mst. Aisha Begum and others v. Chairman F. L. C. (3). Shafirur Rahman, J. Who rendered the judgment on.1-,qialf of the Bench observed at page 1076:-
5. It is true that the Members, Federal Land Commission, and even its Chairman, were held not competent individually, on the words of the authorization to act singly. The conferment of the power under para. 29 of the Regulation was taken to be on the group
(1) PLD 1967 SC 289 (2) 1973 SCMR2
(3) 1982 $ C 1\4 R 1974 as such and not on the individuals making that group. It is not necessary at this stage to go into the correctness of the view because, taking notice of the decision and assuming the alleged infirmity a curative statute (Ordinance XXIX of 1978) was enforced. It takes note of the omission, the infirmity or the lacuna and proceeds to validate if, and in so far as the decision given suffered from that particular infirmity and no other. The learned counsel for the petitioners argued that the infirmity was of the Legislature to legislate retrospectively and such retrospectively could extend to curing of past errors, omissions and neglect is decision which were coram non judice could not be brought back to life. We are not aware of any such limitation on the powers of the Legislature, in enacting curative or validating statutes. Such statutes, on the other hand, have the sole object of curing past errors, omissions and neglect and it is intended to give legal effect to a past act ineffective because of non-compliance with legal requirements."
Respectfully following the law enunciated by the Supreme Court we have no hesitation in holding that the avowed object of the curative act now under consideration (Regulation I of 1979) was to rectify the illegality that had crept in and had been taken note of in the decisions of the High Court which have been relied upon by Mr. Muquim Ansari, and there being no impediment or fitters on the legislative person to achieve such curative effect. The Legislature has the power to nullify the effect of the judgments of the Court. For the above reasons it is our considered opinion that by the promulgation of curative legislation in the shape of Regulation I of 1979, all the transfers made in the tribal area during the year 1963 to 1973 stood validated and the transfer become past and closed on 25-2-1979 (the date of enforcement of the Regulation I of 1979). And the learned Member, Board of Revenue being not a Court of general jurisdiction but a creation of a law meant to deal with the pending cases or the properties undisposed of could not challenge the vires of this Regulation or its effect on the transfers made between 1963 to 1973. The property having been transferred to Wali Muhammad was not available for transfer. The learned Member, Board of Revenue therefore had no jurisdiction to entertain the application made on 26-11-1979 by the respondent No, 1 (Sultan Muhammad). The contentions of Mr. Muquim Ansari are therefore repelled.
8. A very significant aspect of this matter is that the respondent Sultan Muhammad according to his own admission as demonstrated by the High Court in Civil Revision No, 7 of 1980 (Annexure 'E') a reference whereof we have made in this judgment was inducted by Wali Muhammad and has been held to be a tenant is estopped to challenge the title of Wali Muhammad or the subsequent transfers. This proposition of law has been enunciated by the Supreme Court in Kaleemullah's case (1), in these words- "once a person has accepted another as his landlord and entered possession of the premises as such, he cannot be allowed to challenge the title of his landlord".
' This Court also has taken the same view in Qamber Ali v. Khiraj Begum (2). We accordingly hold that the transfer in favour of Wali Muhammad
(1) 1976 SCMR 77 (2) PLD 1983 Quetta 17 son of Ibrahim having been validated by the curative legislation through Regulation No, 1 of 1979 was not open to challenge and the property transferred to Wali Muhammad cannot be held to be available for transfer to any one and Sultan Muhammad having been inducted by Wali.
Muhammad in the shop was estopped to challenge his title.
' For the above reasons there is no option but to declare the order of the Member, Board of Revenue (Annexure 1') as illegal, without jurisdiction and of no legal effect. Consequently we set aside the impugned order and accept the petition. Since the respondent No, 2 dragged the petitioners in litigation knowing that he cannot claim any title in the property the petitioners are entitled to cost which we fix at Rs, 1,000, which the petitioners will be entitled to realise as a decree of this Court.