1. AJMAL MIAN, ACTG. C. J.-By this common judgment, we intend to dispose of the above three Constitutional Petitions, as common questions of law and some common questions of facts are involved. The above petitions are directed against the order dated 11th July, 1985 passed by the Martial Law Administrator, Zone `D' under M. L. O. 16 as reconstituted by M. L. O. 46 (hereinafter referred to as the `M. L. O.'). The brief facts leading to the filing of the above petitions, as appear from the record placed before the Court by the parties, are that respondents Nos. 3 to 6 (hereinafter referred to as the `said respondents') or someone on their behalf presented an undated application on or about 5th August, 1975 before the Member, Board of Revenue, Baluchistan, Quetta with the request that Khasra No. 243, Mauza Baroot, measuring 123-0-34 acres (hereinafter referred to as the `land') be sold to them at the prevailing rate. On the very day, the following order was passed :- "May be allotted on usual terms and conditions"
2. (Sd.)
3. 5-8-1975."
4. After passing of the above order, the above application was entered in the inward register on 6th August, 1975 and was assigned No. 2705. On 7th August, 1975 by Order No. 223-6/74-Rev./10318-21, the sale was sanctioned in favour of the said respondents at the rate of Rs. 10 per produce index Unit. It is the case of the said respondents that they were given possession of the land in pursuance of the above order upon payment of the price. It seems that on 4th January, 1978, the respondent No. 2 issued a show-cause notice to the said respondents stating therein, that the land was acquired by use of some official position or political influence or by means of fraud or misrepresentation or relaxation of laws, rules, conditions, policy, instructions or orders and calling upon them to show-cause as to why the sale of the land should not be cancelled in exercise of powers under section 164 of Land Revenue Act, 1967 read with the Martial Law Order No. 16 issued by the Martial Law Administrator Zone 'D' Baluchistan. The above show-cause notice was replied to by the said respondents on 22nd January, 1978, in which, it was stated that considerable land was reserved for agriculture purpose in order to promote grow more food scheme and that they had obtained the land for the said purpose and were making lot of efforts for improving the land for the said purpose. It was also stated that the land was not acquired by using any official or political influence. It was prayed that the notice be discharged and they be allowed to keep the lead. It may' be pertinent to point out that in the above reply, the address of the said respondents was given "care of Tehsildar, Hub". Lncidently, it may be mentioned that one of the said respondents, namely Sajid Amin was the son of Mr. Aminullah Khan, -who was at that time the Deputy Commissioner, Lasbella District. He was posted by Notification No. 7-10/70-SOI (S&GAD) dated 12th December, 1973 and was transferred by Notification No. 7-10/76-SOI (S&GAD) dated 27th February, 1976 (Annexures R/A and R/B respectively to the counter-affidavit), whereas, two of the said respondents, namely Abdul Karim and Abdul Rehman were sons of Mr. Ahmed Shah Khetran belong--ing to a Sardar family of one of the tribes; whereas, the 4th respondent Muhammad Anwar is reported to be by profession a goldsmith. Be that as it may, it further appears that the above notice was withdrawn by respondent No. 2's letter dated 4th March, 1982. I t may be stated that before the withdrawal of the above notice, the said respondents got a sale-deed dated 16th June, 1981 executed in their favour in respect of the land by the Collector, Lasbella District on behalf of the Provincial Govern-- ment showing the payment of Rs. 1,84,818.76 as the sale consideration.
5. The above sale-deed was registered with the Assistant Commissioner/ Sub-Registrar, Hub Sub- Division, Lasbella on 16th June, 1981.
6. It appears that the Martial Law Administrator, Zone `D' Baluchistan, by a Notification No. 469-8/80- Rev. Dated 12th June, 1984 (Annexure R/C to the counter-affidavit) constituted a Committee consisting of Member (R. J. T.) Board of Revenue, Baluchistan, as the Chairman, the Commis-- sioner, Kalat and Deputy Commissioner, Bela as the members to review all cases on merits where the lands had been allowed to be retained either by withdrawing the notices or by not issuing the notices at all specially in all Tehsils of District Lasbella under the M. L. O. The above Committee submitted its report sometime in 1985 in respect of various irregular allotments/transfers as per statement annexed to Annexure R/K to respon--dent No. 2's application for additional documents.
7. More than 200 cases of irregular allotment/sale were reviewed. It may be pertinent to reproduce the extract of the relevant portion of the Committee's report in respect of the land, which reads as follows :- "Against above background of the case the committee has following observations: -
(i) The land was sold to four applicants without mentioning details of shares,
(ii) the order was passed by the learned M. B. R. (on the same date and) on the same application submitted by the respondents without obtaining views of the district revenue administration,
(iii) this land was resumed in favour of the state when revision of Hub Tehsil took place vide Notification of Board of Revenue in 1979. This notification provided for return of land to its occupants after payment of installments prescribed therein. The installments were accepted for this land also and the same was mutated in favour of respondents. The Committee believes that no installments should have been accepted by the revenue authorities for payment of this land as it was wrong to treat those lands whose grant attracts the provision of M. L 0.-16 at par with the lands granted/purchased under the said notification of 1979. As the allotments were made irregularly, the withdrawal of notices under M. L. 0.-16 should not have been based on the provision of said notification. One of the respondents is Sajid Amin who was son of the Deputy Commissioner, Lasbella.
(fv) the land was not granted under any land grant policy/scheme ;
(v) the address of respondent is shown as care of D. C. Quetta.
(vi) there was a total ban on the allotment of land reiterated vide Board of Revenue's Memo. No. 39/8/70-Rev. 4872-73 dated 20th May, 1977 and therefore, this allotment is in total violation of the Government orders, and
(vii) the learned M. B. R. Was not competent to lease/sell the said state land under the Rules.
8. Keeping in view all the points raised above this committee is of the opinion that the land measuring 123-0-34 acres of Khasra No. 243 Mauza Beroot of Hub Tehsil has not only--been , granted through political /official influence but usual norms of law have not been observed either.
9. It may therefore, be resumed in favour of the State, all the installments paid if any by the respondents may be refunded to them.
10. The above report/recommendations of the Committee are submitted for the consideration/orders of Governor/M. L. A. Zone `D'.
11. (Sd.)
12. (Dr. Muhammad Arshad Malik), Member (Rjt), Board of Revenue, Government of Baluchistan, Quetta.
13. (Sd.)
14. (Imtiaz Kazi), Deputy Commissioner, Lasbella. (Sd.) (Syed Roshan Zamir), Commissioner, Kalat Division."
15. It seems that upon the receipt of the above report the Martial Law Administrator, Zone 'D', inter alia, passed the resumption order, which was conveyed through the impugned order dated 11th July, 1985 pertaining to 33 irregular allotments/sales mentioned in the schedule to the said order. The land is mentioned at S. No. 24 of the said schedule. It may be pertinent to reproduce the operative portion of the impugned order and endorsement at S. No. 6 at the bottom of the, schedule, which reads as follows :- "No. 469-8/FO-Rev. 10810. In exercise of the powers vested in him under MLO-16/46, the M. t_. A. Is pleased to order the resumption of the land in favour of the State in the following cases wherein the Ex-M. B. R. Had withdrawn the notices: -"
16. "6. The Deputy Commissioner, Quetta/Kalat/Loralai and Bela, with the direction to immediately resume the above lands and enter the same in the name of Provincial Government of Baluchistan in the Record of Rights. Confirmation to this effect may be sent to this office within 15 days of the receipt of this order."
17. Ih pursuance of the above order, the mutation entries were reversed in the Revenue record. It appears that the said respondents filed a Review Petition dated 7th September, 1986 before the Governor under para. 5(2)' of the M. L. O.
2. It may be observed that the facts stated hereinabove are the common facts in the above three petitions. It may be pertinent to state the facts of each of the above three petitions.
(i) Constitutional Petition No. 79/86 The petitioner is a Public Limited Company having its registered office in Karachi. The petitioner by a registered sale-deed. Dated September, 1981, registered on 3rd October, 1981 with the Assistant Commissioner/ Sub-Registrar, Hub Sub-Division, Lasbella purchased a portion of the land measuring 18-1-33 acres for a sum of Rs. 11,07,375. After that, they applied to the Collector, Lasbella for conversion of the aforesaid land from agriculture into Sikni, which was accorded in terms of Order No. (130)5/Rev./4061, dated 5th December, 1981 without charging any conversion charges or fee. After that, they obtained a No-Objection Certificate, dated 3rd November, 1983 from the Industries Department, Government of Baluchistan for establishing an industry outside the Hub Industrial Estate. It is the case of the petitioner that they constructed and established an industrial establishment with an investment to the tune of Rs. 160 millions and that the said industrial establishment is in operation since 4th January, 1983. It is also the case of the petitioner that they had entered into arrangements for providing financial assistance with Messrs Bankers Equity Limited, Karachi firstly in the sum of Rs. 5.5 millions and then in the sum of Rs. 7.7 millions and mortgaged the said property vide registered mortgage deed No. 52, dated 10th August, 1982 and registered deed No. 104 dated 10th June, 1985. It has been also averred that when the petitioner in April, 1986 in order to finalize certain arrangements with Financing Institutions for increased financing applied to the Assistant Commissioner/Sub-Registrar, Hub for issuance of search certificate, which was issued to them on 28th April, 1986, they discovered that the above said certificate inter alia, contained the following endorsement: - "Cancelled and entered in the name of the Provincial Govern--ment under Martial Law Order No. 16 vide Mutation No. 676 dated 23-9-1985 in compliance with the Order No. 10808/Rev. 464-8 dated 11- 14/7/1985."
18. Thereupon, they made efforts to inspect the record and to obtain the copies which attempt proved futile. Thereafter, after obtaining the requisite information as to the reason of the above endorsement, they filed the present petition challenging the impugned order on the various grounds including acquiescence and estoppel.
(ii) Constitutional Petition No. 84/86 The petitioner is a Public Limited Company having its registered office in Karachi. They obtained a No-Objection Certificate dated 24th September, 1980 from the Industries Department, Government of Balu--chistan for establishing an industry outside the Hub Industrial Estate.
19. After that, by a sale-deed dated September, 1981, they purchased a piece of agricultural land measuring 22-0-39 Acres, out of the land, for a sum of Rs. 13,34,625 from the said respondents. The above sale-deed was registered with the Assistant Commissioner/Sub-Registrar, Hub Sub-Division, Lasbella on 3rd October, 1981. The petitioner then applied to the Collector, 10Lasbella for conversion of the aforesaid portion of the land from agriculture into Sikni, which was accorded by Order No. (130)-5/Rev./7592 dated 19th July, 1982. It is the case of the petitioner that after obtaining permission for construction of the factory, they constructed an industrial establishment with an investment to the tune of Rs. 272 millions, which is in operation since 1st September, 1983, wherein approximately 238 persons are engaged at work. It is also the case of the petitioner that in order to finalize certain arrangements with Financing Institutions for increased financing, they applied to the Assistant Commissioner/Sub-Registrar, Hub for issuance of Search certificate in. Respect of the aforesaid portion of the land. Upon receipt of the above certificate on or about 18th June, 1986, they discovered the aforesaid endorsement referred to in para. 2 above. After that, they filed the present petition.
(iii) Constitutional Petition No. 85/86 The petitioner is a Private Limited Company having its registered office in Karachi. They purchased a portion of agricultural land measuring 9-3-08 Acres out of the land for a sum of Rs. 5,88,000 from the said respondents under a sale-deed dated September, 1981 registered with the Assistant Commissioner/Sub-Registrar, Hub on 3rd October, 1981. They applied to the Collector for conversion at' the said portion of the land from agricultural into Sikni, which permission was accorded by Order No. (130)-5/Rev./4062 dated 5th December, 1981 without charging any conversion charges or fee.
20. The petitioner had applied for requisite permis--sion for establishment of an industrial undertaking in the form of a Printing Industry to the Government of Baluchistan, Ministry of Industries, which permission has not yet been accorded. It is the case of the petitioner that they had discovered the aforesaid endorsement referred to in para. 2 above from the petitioner in the above first petition, after receipt of the search certificate. They have also filed the present petition to impugn the above order.
3. The above petitions have been resisted by the official respondents and, inter alia, it has been averred that the impugned order has been passed in accordance with law.
21. 'Before dilating upon the respective contentions of the learned counsel for the parties, it may be observed that there seems to be some confusion as to the Authority who had passed the impugned order. A perusal of the relevant portion of the impugned order indicates that it was passed by the Martial Law Administrator, Zone `D', Baluchistan, but the petitions have been framed on the assumption that as if the same was passed by the Member of the Board of Revenue. Same mistake has crept into one of the comments filed by the official respondents. However, both the learned counsel have argued the case on the assumption that the same was passed by the Martial Law Aministrator, Zone `D' Baluchistan, though it was also urged by the learned counsel _ for the petitioners and of the said respondents that the impugned order was not in accordance with the M L. O., inasmuch as, it was the Committee which examined the case without jurisdiction.
4. Mr. Akhtar Ali Mehmood, learned counsel for the petitioners in the above three petitions has urged as follows :-
(i) That the impugned order dated 11th July, 1985 is void, as it is beyond the purview of the M. L. O.;
(ii) that the Authority who had passed the impugned order had no authority to pass the same and, therefore, it is Coram non judice;
(iii) that even the provisions of the M. L. O. Have not been adhered to, as no opportunity was given to the petitioners or to the said respondents before passing the impugned order;
(iv) that since the Mutation Entry No. 676 dated 23rd September, 1985 was effected on the basis of the above impugned void order, the above mutation entry is of no legal effect;
(v) that no notice was given to the petitioners or to the said respon--dents while recording the above Mutation Entry No. 676 dated 23rd September, 1985;
(vi) that since the respondent No. 2 maintains public record pertaining to quasi judicial proceedings, the petitioners having interest were entitled to inspect the same and to have the copies thereof, which was denied to them illegally; and
(vii) that in any case, the petitioners being bona fide purchasers for valuable consideration, without notice of any defect, are entitled to protection under section 41 of the Transfer of Property Act, as the official respondents Nos. 1 and 2 have acquiesced to the peti--tioners as well as to the said respondent's rights.
22. Mr. Basharatullah, Advocate who was assisted by Mr. Ghulam Sarwar Malik, Advocate appearing for the said respondents has contended as under :-
(i) That the impugned order is not an order under the M. h. O.;
(ii) that the action under the M. L. O. Could be taken when the land would have remained as land and not after the construction was raised and industries were set-up;
(iii) that under the M. L. O. Action could have been taken when the land would have remained with the allottee and not after it was sold to a third person; and
(iv) that the said respondents purchased the land from the Competent Authority under the law at the relevant time without exercising any official or political influence.
23. On the other hand, Mr. Muhammad Aslam Chishti, learned counsel for the official respondents has submitted as follows :-
(i) That the impugned order falls within the compass of the M. L. O. And was passed by the Competent Authority;
(ii) that under the M. L. O., notice was required to be given to the allottee, which was given in the instant case ;
(iii) that if the impugned order is within the compass of the M. L. O., any procedural irregularity would not vitiate it ;
(iv) that there was sufficient material before the Committee and the Martial Law Administrator, Zone 'D' to infer that the land was acquired by the said respondents by exercising official/political influence ;
(v) that there was no requirement to serve any notice upon the petitioners or to the said respondents by the Revenue Authorities in view of section 45 of the West Pakistan Land Revenue Act, as the entry was made in pursuance of the impugned order, which was passed by a competent authority ;
(vi) that the petitioners are not entitled to protection under section 41 of the Transfer of Property Act, and
(vii) that the impugned order was protected by clause (5) of Art. 15 of the Provisional Constitution Order, 1981 as well as by Article 270-A of the Constitution of Islamic Republic of Pakistan, 1973.
5. Before dilating upon the above contentions of the learned counsel for the parties, it may be pertinent to observe that the Martial Law Order No. 16 was issued by the Martial Law Administrator, Zone `D' on 22nd December, 1977. It was re-constituted as Martial Law Order No. 46 on I1 th February, 1979. It may be advantageous to reproduce the same, which read as follows :- "I, Major-General Abdullah Saeed, Martial Law Administrator Zone 'D' Baluchistan, order the following: - In pursuance of the Proclamation of the fifth day of July, 1977 and in exercise of the powers conferred by Martial Law Order No. 3 issued by the Chief Martial Law Administrator, 1, Major-General Abdullah Saeed, Martial Law Administrator Zone `D' make the following Martial Law Order :- Any allotment of State land (or water right) made between the first day of January, 1972 and the 4th day of July, 1977, which is not covered by any regular scheme issued for the purpose under section 10 of the Colonization of Government Lands Act, 1912, or which has been obtained by using official position or political influence or by means of fraud or misrepresentation of facts in violation or relaxation of law, rule, condition, policy, instructions or orders, may notwithstanding anything contained in any law for the time being in force, or any order or decree of a Court, tribunal or authority, be cancelled by the Board of Revenue or any officer authorised by it in this behalf : Provided that no order of cancellation shall be passed without giving the allottee a reasonable opportunity of being heard.
24. Explanation I-The term 'allotment' includes. Any grant, lease, exchange, sale, restoration of resumed lease or any other transaction so declared by the Board of Revenue.
25. Explanation II.-The term 'water' means the water granted for irrigation purposes. On cancellation of allotment, the Collector of the District shall resume the land forthwith. No compensation or claim for improvement, other than compensation in respect of any standing crops, shall be payable by Government to the outgoing allottee.
26. Where the allottee is aggrieved by the decision of the Board of Revenue or the authorised officer, such allottee may submit a petition to the Martial Law Administrator, Zone 'D' for review within seven days of such decision. The Board of Revenue may issue such instruction as it deems necessary for carrying out the purposes of this Martial Law Order and such instructions, shall be deemed to form part of this ardor and shall have effected accordingly_ Martial Law OrderNo.46 I, Lieutenant-General Rahim ud Din Khan Martial Law Administratotr , Zone D (baluchistan), hereby issue the following order:--- Martial Law Order No. 16 as amended by Martial Law Orders No 34 and 40, is reconstituted as under: -
(1) This Martial Law Order shall come into force at once and shall be deemed to have taken effect on the 22nd day of December, 1977.
27. (2)Any allotment of State land or water right made between the first day of January, 1972, and the 4th day of July, 1977, which is not covered by any regular scheme issued for the purpose under section 10 of the Colonization of Government Lands Act, 1912, or has been obtained by using official position or political influence or by means of fraud or misrepresentation of facts in violation or relaxa--tion of law, rule, condition, policy instructions of orders, may, notwithstanding anything contained in any law for the time beingin force, or any order or decree of a Court, Tribunal or Authority, bas . Be cancelled by the Board of Revenue or by officer authorised, by it in this behalf : Provided that no order of cancellation shall be passed without granting the allottee a reasonable opportunity of being heard.
28. ExplanationI---the term allotment includes ant grant lease exchange , sale, restoration of resumed lease or any other transaction declared by the Board or Revenue .
29. ExplanationII---For the purposes of this Martial Law Order, the tirm `Water`means the water supplied or made available for irrigation purposes.
(3) On cancellation of such allotment, the Collector of the District shall resume the land forth with.
(4) No compensation of claim for improvement, other than compensa--tion in respect of any standing crops, shall be payable by Government to the outgoing allottee. ,(5) (1) Where the allotteeaggrievedby the decision of--- "(a) an officer authorised by the Board of Revenue to take action under this Martial Law Order, he may, within thirty days of the date of such decision, file an appeal before the Board ;
(b) the Boardoof Revenue upder this Martial Law Order; he may, within fifteen days of the dale of such decision, file a review applica--tion before the Board.
(2) The Martial Law Administrator may, either on his own motion or on the application of any aggrieved person, call for the record of any proceedings under this Order and revise the decision made there in .
30. (6)The board of revenue may issue such instructions as it deem necessary for carrying out the purposes of Chief Martial law order and such instructions shall be deemed to form part of this Order and shall have effect accordingly."
6. A perusal of the above-quoted Martial Law Order No. 46 indicate that in order to attract the same, the following conditions are to b fulfilled: -
(i) That the allotment should be in respect of State land or water right, which term included any grant, lease, exchange, sale, restora--tion of resumed lease or any other transaction so declared by the Board of Revenue ;
(fi) That the allotment should have been made during the period commencing from 1st January, 1972 to 4th July, 1,977 ;
(iii) That the allotment should not have been covered by any regula scheme issued for the purpose under section 10 of the Colonization of Government Lands Act, 1912 ; or -.
(iv) That the allotment must have been obtained by using official or edt political influence ; or
(v) That the allotment must have been obtained by means of fraud or misrepresentation of facts in violation or relaxation of law, rule, condition, policy, instructions or orders;
(vi) That the allotment could be cancelled notwithstanding anythin contained in any law for the time being in force, of- any order or decree of a Court, tribunal or authority, by the Board of Revenue or any Officer authorised by it in this behalf;
(vii) That no cancellation order could be passed without giving the allottee a reasonable opportunity of being heard;
(viii) That upon cancellation of the allotment, the Collector of the District was entitled to resume land forthwith without payment of any compensation or claim for improvement other than the compensation in respect of any standing crops which was payable by the Government to the outgoing allottee;
(ix) That an aggrieved allottee by the decision of the Board of Revenue or the Authorised Officer, was entitled to submit a petition to the Martial Law Administrator, Zone 'D' for review within 7 days of such decision;
(x) That the Board of Revenue was empowered to issue such instruc--tions as it deemed necessary for carrying out the purposes of the aforesaid Martial Law Order and such instructions were to be deemed to form part of the order and were to have the same effect.
31. It may further be noticed that under the above re-constituted Martial Law Order No. 46, material changes were brought about in para. 5 a part from assigning numbers to the paras., namely
(i) That in case the order of cancellation of the allotment was passed by an Officer authorised by the Board of Revenue, an aggrieved allottee was given the right to file an appeal before the Board within 30 days; or
(ii) That if the order was passed by the Board of Revenue an aggrieved allottee was entitled to file a review application within 15 days before the Board;
(iii) That the Martial Law Administrator was empowered either o his own motion or on the application of any aggrieved person to call for the record of any proceeding under the above re-- constituted Martial Law Order No. 46 and to revise the decision made therein.
32. It may be pointed out that under sub-para. (1) of para. 5 of the reconstituted Martial Law Order No. 46, the right to file an appeal or review has been given to an aggrieved allottee by using the words "where the allottee is aggrieved by the decision", whereas, under sub-para. (2) of above para. 5 of the aforesaid reconstituted Martial Law Order, a revision can be filed by any aggrieved person as the words employed therein are "any aggrieved person" instead of "allottee". To put it precisely, it may be observed that under the above sub-para. (2) the scope of revision is wider, as it could be filed not only by an allottee, but by any aggrieved person, who would include an allottee as well as a third person.
7. One of the points involved in the instant petitions is, whether this Court has jurisdiction to entertain the above petitions, as the impugned order was passed under the M. L. O. On 11th July, 1985 and, therefore, it was contended that the same was protected under Article 15 of the Provisional Constitution Order, 1981 as well as under Article 270-A of the Constitution of Islamic Republic of Pakistan, 1973. The conten--tion of the learned counsel for the petitioners and of the said respondents was that since the impugned order was not covered by the M. L. O., this Court has jurisdiction. We have to, therefore, examine the respective contentions of the learned counsel for the parties on merits.
8. Adverting to the learned counsel for the petitioner's and of the said respondent's contention that the impugned order dated 11th July, 1985 is void, as it is beyond the purview of the M. L. O., it may be observed that in furtherance of the above submission, the learned counsel have attacked the order on a number of grounds, namely,
(i) That since the sale-deed was executed by the Collector, Lasbella on behalf of respondent No. 2 in favour of the said respondents on 16th June, 19,, 1, and as the above sale was independent from the sale order dated 7th August, 1975, the M. L. O. Does not cover the same, as it covered the transactions for the period commencing from 1st January, 1972 to 4th July, 1977, it may be observed that Messrs Akhtar Ali Mehmood and Basharatullah, Advocates have referred to the aforesaid sale- deed dated 16th June, 1981, executed by the Collector Lasbella on behalf of respondent No. 2 and have pointed out that there is no reference to the above sale order dated 7th August, 1975. It was further urged by Mr. Basharatullah, learned counsel for the said respondents that factually the said respondents were in occupation of the land prior to the execution of the aforesaid sale-deed on the basis of Notification No. 8739 dated 6th December, 1979, whereby the Board of Revenue Baluchistan in exercise of powers conferred on it by section 40 of the Baluchistan Land Revenue Act, 1967, was pleased to direct that the record of rights in respect of estates of Tehsil Hub of Lasbella District specified in the Schedule to the Notification be revised. It was further ordered in exercise of powers under section 164 of the Baluchistan Land Revenue Act, 1967, that the mutations wrongly effected in the record of rights in pursuance of Notification, dated 8th August, 1972, in respect of estates mentioned in the Schedule in Hub Tehsil shall stand cancelled and it was also provided that the occupants of such estates shall not be dispossessed until conclusion of the fresh special revision of the record of rights.
33. On the other hand, Mr. Muhammad Aslam Chishti, learned counsel for the official respondents has contended that the execution of the sale---deed dated 16th June, 1981 was in pursuance of the aforesaid sale order, dated 7th August, 1975. It is true that there is no reference in the sale---deed to the aforesaid sale order, dated 7th August, 1975, but in our view, this would not materially alter the position. Admittedly, the land could not have been sold without the order of the Board of Revenue, Baluchistan. The only order, which has been brought by the parties on record ordering of the sale is the aforesaid order dated 7th August, 1975, passed upon the said respondent's application undated in pursuance of order dated 5th August, 1975.
34. We are inclined to hold that the aforesaid Notification dated 6th December. 1979 relied upon by Mr. Basharatullah, learned counsel forthe said respondents is not relevant to the question of allotment or sale. The object of the said notification seems to be correct the errors which crept into the record of rights at the time of settlement of the record of rights. It was further provided in the said notification, as pointed out hereinabove that though the mutation entries would stand cancelled, but the possessions of the occupants were not to be disturbed till the revision of the settlement of the record of rights was complete. It is, therefore, evident that the above notification had not conferred any new rights upon the occupants of the lands which they did not possess of prior to the issuing of the said notification. Admittedly, the foundation of the said respondent's right to obtain sale in their favour in respect of the land is the said order dated 7th August, 1975 issued in pursuance of the order dated 5th August, 1975. If we exclude the above order, the petitioners or the said respondents have not placed on record any other order of a subsequent date of any other competent authority. The above view, which we are inclined to take is also supported by the contents of the sale-deed itself, as at page 2 of the sale-deed, the consideration shown is Rs.
35. 1,84,818.76 paid by the said respondents as pointed out hereinabove in para. 1 in the manner mentioned herein below:- Rs.
(i) Vide Challan No. 2 dated 15-7-198018, 481.88
(fi) Vide Challan No. 3 dated 31-1-198118, 481.88
(iii) Vide Challan No. 6 dated 14-6-1981 1,47,855.04 It is an admitted position that the said respondents were put into possession in pursuance of the aforesaid sale order dated 7th August, 1975. They had paid the first instalment, as indicated in the sale-deed referred to hereinabove, on 15th July, 1980, second instalment on 31st January, 1981 and the third instalment on 14th June, 1981. They could not have paid the above first instalment in July, 1980, if the aforesaid sale order of 7th August, 1975, would not have been holding the field. As a matter of fact, the above sale order dated 7th August, 1975, culminated into the execution of the aforesaid sale-deed on 16th June, 1981 and, therefore, it relates back to the above order of 7th August, 1975.. It may be observed that in the above order dated 7th August, 1975, the price of the land mentioned was Rs. 10 per produce index Unit, but the same was revised by a notification dated 23rd April, 1980 at the rate of Rs. 1,500 per acre. The said respondents never contended that the above revision was not legal, nor they urged the same before us. Since the sale order in favour of the said respondents was passed in August, 1975, it falls within the period specified in the M: L. O., namely, 1st January, 1972 to 4th July, 1977.
36. We are, therefore, of the view that the above contention of the learned counsel for the petitioners as well as of the said respondents is untenable.
37. (l!) It was next contended by the learned counsel for the petitioners and of the said respondents that the show-cause notice dated 4th January, 1978, was dropped by respondent No. 2 by its order dated 4th March, 1982 and, therefore, in terms of the M. L. O., the matter could not have been reviewed or revised.
38. On the other hand, it was submitted by Mr. Muhammad Aslam Chishti learned counsel for the official respondents that in terms of sub-para. (2) of para. 5 of the M. L. O. The Martial Law Administrator was entitled either on his own motion or upon an application of an aggrieved person after calling the record of the proceeding to revise the decision. in furtherance of the above submission, Messrs Akhtar Ali Mehmood and Basharatullah, Advocates have invited our attention to the provisions under the original Martial Law Order No. 16, in which, the right to file review was conferred on an aggrieved allottee. They have also invited our attention to the re-constituted Martial Law Order No. 46, in which, the right of appeal has been provided against an order of an Officer authorised by the Board, to the Board and review before the Board against its own order. It was also submitted by them that the above provisions do not admit the filing of an appeal or review by the official respondents. In our view, the right of appeal and review referred to in the M. L. O. Is different from the right of revision contained in sub-para. (2) of para. 5 of the,M. L. O.
39. The Martial Law Administrator was competent to revise B the decision under the above sub-para.
(2) of para. 5 of the M. L. O. Mr. Akhtar Ali Mehmood, learned counsel for the petitioners has referred to the case of Muzaffar Ali v. Muhammad Shafi (PLD 1981 SC 94), in which the Hon'ble Supreme Court was pleased to hold that the right of review is a substantive right like right of an appeal and, therefore, it is always a creation of the relevant statute on the subject and in the absence of any provision, the same cannot be claimed. Whereas, Mr. Muhammad Aslam Chishti, learned counsel for the official respondents has referred to the case of Lahore Improvement Trust, Lahore through its Chairman v. The Custodian, Evacuee Property, West Pakistan, Lahore and 4 others (PLD 1971 SC 811 ), and relied upon the following observations:- "Another principle attracted in the case is that before an. Order passed by a public authority is struck down it is the duty of the Court, bi: q to explore every possible explanation for its validity and examine dy, the entire field of powers conferred on the authority in pursuance to of which the impugned order has been passed. See The Chairman, erg East Pakistan Railway Board, Chittagong and another v. Abdul Majid Sardar, Ticket Collector PLD 1986 S G 725, It was remarked in this judgment: "Acts performed and orders made by public authorities deserve due regard by Courts and every possible explanation for their validity should be explored and the whole field of powers in pursuance to which the public authorities act or perform their functions examined and only then if it is found that the act done, order made or proceeding undertaken is without lawful authority should the Courts declare them to be of no legal effect."
40. In our view, the case relied upon by the learned counsel for the petitioners is not relevant to the instant case, as it is not the case of the official respondents that the impugned order was passed in purported exercise of the power of review. The observations of the honourable Supreme Court, quoted hereinabove, have direct bearing on the controversy in question. If we were to hold that the impugned order was passed by the Martial Law Administrator, in that event, it would not be open to the petitioners or to the said respondents to urge that he had no power. The requisite power is contained in the aforesaid sub-para. (2) of para. 5~C of the M. L. O.
(iii) It was then contended that factually the impugned order had not been passed by the Martial Law Administrator, but by a Committee, to which, the power could not have been delegated in terms of the M. L. O. It was further contended by Messrs Akhtar Ali Mehmood and Basharat--ullah, Advocates that since the impugned order has not been passed in the manner in which, it should have been passed by the authority specified, the same is without jurisdiction.
41. Whereas, Mr. Muhammad Aslam Chishti, learned counsel for the official respondents has submitted that the impugned order, in fact, has been passed by the Martial Law Administrator though the Committee was entrusted to probe into the matter and t4 put up the recommendations. It has been further submitted by him that since the power of making decision was not delegated to the Committee, the impugned order, in fact and in law, was passed by the Martial Law Administrator.
42. Mr. Akhtar Ali Mehmood, learned counsel for the petitioners has referred to the following judgments:-
(a) Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others reported in PLD 1971 SC 61 in which the Honourable Supreme Court while construing the provisions of section 20 of the Displaced Persons (Compensation and Regulation)Act, 1958, the Scheme framed there under and the Press Note issued in pursuance thereof, inter alia, observed as follows:- "One other principle which has been enunciated in this behalf is that as a general rule, statutes, which enable persons to take legal proceedings under certain specified circumstances, demand that those circumstances must be accurately obeyed, notwithstanding the fact that the provisions thereof are expressed in merely affirmative language. At page 226 of Craies on Statutory Laws, 6th Edition, this rule is stated thus:- "That when a statute confers jurisdiction upon a tribunal of limited authority and statutory origin, the conditions and qualifications annexed to the grant must be strictly applied." .
(b) Mansab Ali v. Amir and others reported in PLD 1971 SC 124. In the above case, the Honourable Supreme Court while considering sections 3 and 18 of the West Pakistan Criminal Law (Amendment) Act (VII of 1963), which provided notice to the accused before making reference to the tribunal and which was not done in the case.
43. In that context their Lordships observed as under:-- "It is an elementary principle that if a mandatory condition for the ~exercise of jurisdiction by a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any order passed in con--tinuation of these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction. The learned Advocate - -General fully supported this view and asked for dismissal of the appeal."
44. Learned counsel for the petitioners to reinforce his above submission has also invited our attention to Order XXVI, rule 9, C. P. C. To contend that even a regular Court which enjoys general power to adjudicate upon, is not authorised to delegate the power, but is permitted to appoint a Commission for limited purpose. He has invited our attention to the following cases in order to demonstrate that whenever power was delegated by the trial Court in excess what was permissible the superior Court struck down the order/judgment:-
(a) Sasanka Sekhar Pal and others v. Dinanath Gorain and others reported in AIR 1952 Pat. 271, in which, a Division Bench of the Patna High Court allowed the appeal against the order of the Subordinate Judge on the ground that he delegated a judicial function to the Commissioner authorising him to calculate the price and the liabilities after determining the rates prevailing of the goods in question.
(b) Muhammad Bakhsh v. N'izam Din reported in PLD 1978 Lah.
31. In the above case, a Division Bench of the Lahore High Court held that it is established law that section 75 as well as Order XXVI, C. P. C. Do not allow the delegation of power by the Court to the Local Commissioner to decide material issues and the report of the Commissioner cannot be considered to be a finding. In support of the above conclusion, as many as 12 reports were referred to in the judgment.
45. Mr. Basharatullah, learned counsel for the said respondents, in addition to the above judgments of the honourable Supreme Court of 1971 has referred to the case of E. A. Evans v. Muhammad Ashraf (PLD 1964 SC 536), wherein the honourable Supreme Court of Pakistan while construing section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, held that a tenant could not lawfully contract out the statutory notice in terms of the above section 30, which was to be served by the transferee of the evacuee property on the occupant.
46. Whereas, Mr. Muhammad Aslam Chishti, learned counsel for the official respondents has referred to a passage from the book "Judicial Review of Administrative Action" by S. A. De Smith, 3rd Edition at pages, ?63 and 264, and a passage from the book "Administrative Law" by J. F. Garner 4th Edition, at page 11.8, which read as follows:- Judicial Review of Administrative Action by S. A. De Smith, page 263/264 "The maxim is applied with the utmost rigour to the proceedings of the ordinary Courts, and in the entire process of adjudication a Judge must act personally, except in so far as he is expressly absolved from this duty by statute. Unless the parties otherwise agree, an arbitrator must also discharge all his functions personally, apart from ministerial acts involving no appreciable exercise of skill and judgment, which he may entrust to another person. Special tribunals and public bodies exercising functions broadly analogous to the judicial are also precluded from delegating their powers of decision in the absence of express authority to that effect. But, as we have already seen, the Courts will sometimes concede that a public body has an implied power to entrust a group of its own members with authority to investigate, to hear evidence and submissions and to make recommendations in a report, provided that (i) it retains the power of decision in its own hands and receives a report full enough to enable it to comply with its duty to "hear" before decid--ing, and (ii) the context does not indicate that it must perform the entire "adjudicatory" process itself. We have also noted that determinations by Ministers stand in a special class; not only may the hearing be conducted by a person authorised in that behalf, but the decision may be made by an authorised official in the Minister's name".
47. "Administrative Law" by J. F. Garner, page 118 "Thus, where a member of the public has a statutory right to appeal to a particular Minister, that Minister is not bound to see the appellant personally, and the Minister is entitled to determine the appeal in such manner as he sees fit, provided he observes the principles of natural justice.
48. Proceedings before an administrative body need not follow in all respects those before a Court of law, and even if the "Judge" questions witnesses in the absence of the `accused', this does not necessarily involve a breach of the principles of natural justice. In the leading case of Local Government Board v. Arlidge 1915 A C 120, Viscount Haldane, L. C., whilst referring to the passage from Board of Education v. Rice 1915 A C 133 above-cited, said ; I concur in this view of the position of an administrative body to which the decision of a question in dispute between parties has been entrusted. The result of its inquiry must, as I have said, be taken in the absence of directions in the statute to the contrary, to be intended to be reached by its ordinary procedure ------------------..To insist that he (the Minister) and other members of the Board should do everything personally, would be to impair his efficiency. Unlike a Judge in a COD A, he is not only at liberty but is compelled to rely on the assistance of his staff."
49. We are inclined to hold that the provisions of Order XXVI, rule 9 G. P. C. Cannot be pressed into service fox the purpose of determining the point in issue. It cannot be denied that there is difference between an executive authority or a tribunal exercising administrative or quasi-judicial duties and that of a regular Court. The technicalities, which have become the hallmark of the regular Courts cannot be made applicable to the administrative or quasi-judicial proceedings to be conducted by executive authority. In the present modern world on account of multifarious functions and duties of a Head of State or of a Province, it cannot be expected that he should individually do the spade work before reviewing or revising a decision in exercise of supervisory revisional jurisdiction conferred on him under the relevant law. As observed hereinabove, that the said respondent's case was not a solitary case, but there were large scale of irregular allotments/sales, running into more than 200 cases, which were to be probed into. In the background of the above facts, the act of constituting of, a high powered Committee for scrutinizing the cases, in which, the show-cause notices issued under the M. L. O. Were withdrawn or were not issued at all, cannot be termed as unreasonable or unwarranted. The Committee had not passed the impugned order, but had submitted its recommendations and report to the Martial Law Administrator, which was accepted by him, as is evident from the above-quoted impugned order, as well as from Letter No. 0301/7/103/SC/Legal, dated 18th June, 1985 (Annexure R/K to the application for filing of additional documents, filed by the official respondents), issued by the Headquarters Martial Law Administrator, Zone `D' Baluchistan, Quetta addressed to the Chief Secretary, Government of Baluchistan Quetta and copies endorsed to the Secretary (Revenue), Board of Revenue Baluchistan, Quetta and the Secretary, S & GAD, Government of Baluchistan, Quetta, signed by Brigadier Muhammad Yamin Khokhar, D. M. L. A. Quetta. It may be advantageous to reproduce the contents thereof, which read as follows :-.
50. Subject : Illegal exercise of power by M. B. R.
51. This HQ letter number 0301/7/103/SC/Legal dated 15th October, 1984 and youf letter number 31-PSj CS/85(D), dated 24th April, 1985 refer.
(1) The Governor/M. L. A. Is pleased to order the following action in the subject case :--
(a) The land pertaining to the cases of Habib Ullah mentioned in Annexure 1 Part A of Committee report (copy attached) wherein the ex-M.B.R. Has passed conditional resumption orders is resumed unconditionally in favour of State. The recommendation of the committee about the transfer of these land to Quetta Municipality may be considered by the Government under Normal Law.
(b) The land is resumed in favour of State in 41 cases mentioned in Annexure `1' Part B (copy attached) of the report, wherein the allotment was irregular.
(c) The land is resumed i--h the cases mentioned at serial Nos. 1 to 6, 8, 9, 11 to 32, 34 to 35 and 59 as mentioned in Annexure `II' of Committee report (copy attached) wherein the MBR withdrew notices. However the case at serial No. 10 be referred to Federal Government for necessary action as recommended by the committee.
(d) The land pertaining to Cases Nos. 36 to 58 of the Committee Report (copy attached) pertaining to Mauza Takhtani is regularized as recommended by the Committee headed by Brigadier Farrukh Hussain Shah (copy attached).
(e) The ban imposed on mutation/sale of land in District Lasbella will continue till the actions on the inquiry report are completed.
(2) Please take necessary action on the above decisions and confirm by 1st July, 1985 for the information of Governor/M. L. A.
52. (Sd.)
53. BRIGADIER for Martial Law Administrator (Muhammad Yamin Khokhar) CONFIDENTIAL."
54. Alongwith the above order, a list of cases running into more than 200 was annexed.
55. We are inclined to hold that the special tribunals, Public bodies or Executive authorities exercising functions similar to the judicial or quasi--judicial cannot delegate their power to decide the matter to any third body or person, but it can entrust to a person or group of persons with the authority to investigate and to submit its recommendations. In the instant R case, the Martial Law Administrator had not delegated the power to decide the question, whether inter alia, the sale in question should be cancelled or not, to the Committee though the latter had made a recommendation to that effect, but the decision was taken, as pointed out hereinabove, by the Martial Law Administrator.
56. In this view of the matter, the above contentions are devoid of any force.
(iv) Mr. Basharatullah, learned counsel for the said respondents also submitted that the Martial Law Administrator has not revised the order of sale and has not cancelled the sale, but purported to resume the land, which is not in consonance with the M. L. O., it may be observed that in further-- ance of his above submission, he has referred to paras. 2, 3 and 6 of the M. L. O. To contend that under para. 2 the allotment is to be cancelled, whereas upon cancellation of the allotment, under para. 3, the Collector of the district is to resume the land. He has further submitted that the power contained in para. 6 authorises the Martial Law Administrator to revise the order of allotment i.e. To cancel the same and not to resume.
57. On the other hand, Mr. Muhammad Aslam Chishti, learned counsel for the official respondents has urged that resumption includes cancellation of the allotment. In this regard, it may be pointed out that the words P "resume" and "resumption" have not been defined in the M. L. O., incontrast to that, the word "allotment" had been explained and, therefore, we have to construe the said words in their literal meaning which they carry. In this regard, reference may be made to the following dictionaries :-
(a) The Concise Oxford Dictionary, 6th Edition, page 959, column 1 "RESUME (-z-) v.
1. Get or take again or back, recover, reoccup (resume one's spirits, sway liberty, seat; resume gift, grant, territory).
2. v. t. & i. Begin again (upon), go on (with) after interruption, begin to speak or work or use again, recommence (the Hous resumed its labours or resumed ; resume the thread of one's discourse: resumed her maiden name)
3. Make resume of, recapitulate, summarize (ME, f. OF resumer, or f. L re (sumere sumpt-take); See Re-8)"
(b) Chambers Twentieth Century Dictionary Revised Edition with New Supplement, page 1152, column 1 "RESUME, ri-zum,-zoom v. t. To take back; to assume again, to take up again, to begin again, v. i. To take possession again: to begin again in continuation-adj. Resumable-ns. Resume (ra-zu-ma,-rez u-ma; Fr. Pa. p.) a summary;"
58. Whereas, the word "resumption" has been defined in the following Judicial Dictionaries as under :-
(a) Black's Law Dictionary, Revised fourth Edition, page 1478, column 2 "RESUMTION. In old English Law. The taking again into the king's bands such lands or tenements as before, upon false suggestion, or other error, he had delivered to the heir, or granted by letter patent to any man. Cowell."
(b) Stroud's Judicial Dictionary, Third Edition, page 2594 "RESUMPTION. `Resumption' is a word used in the statute of 31 Hen. 6, c. 7, and is there taken for the taking again into the King q hands such lands or tenements as upon. False suggestion or other error he had made livery of to an heir, or granted by patent unto any man "(Termes de la Ley)."
(c) Judicial Dictionary, 9th Edition by K. J. Aiyar, page 852 "RESUMPTION. The word connotes taking back what is given--What is resumed is not the property of persons from whom it is taken back by the rightful owner (Raja Rajendra Malojlrao Shitool v. State of M. P., AIR 1953 M B 97 (F. B.)."
59. The above-quoted definitions of the words "resume" and "resumption" indicate that, inter alia, they connote taking back what was given. In this view of the matter, we are inclined to hold that the words "resumption of the land" employed in the impugned order include cancellation of thel allotment, which includes a sale as per definition given in the M.L.O. We may again refer to the passage from the judgment of the Honourable Supreme Court of Pakistan in the case of Lahore Improvement Trust. Lahore through its Chairman v. The Custodian, Evacuee Property, West Pakistan, Lahore and 4 others (PLD 1971 SC 81), quoted hereinabove, namely that "before striking down an order passed by a public authority, the Court is to explore every possible explanation for its validity and examine the entire field of powers conferred on the authority in pursuance of which the impugned order has been passed". As pointed out hereinabove that the Martial Law Administrator had the requisite power under .Sub-para. (2) of para. 5 of the M.L.O. And the mere fact that proper words or terminology had not been used in the impugned order, would not affect the validity or legality of the same, if the intention from the impugned order to cancel the allotment of the land and to resume the same is manifest, which in our view, is evident from the impugned order.
(v) Then it was submitted by the learned counsel for the petitioners and also of the said respondents that there was no material before the Committee or the Martial Law Administrator to conclude that any official or political influence was exercised in obtaining the above allotment of the land or that factually it was so.
60. In this regard, we may recapitulate the circumstances under which the said respondents had obtained the allotment of the land. It is an admitted position that one of the allottees, respondent No. 6's father Aminullah Khan was posted at the relevant time as the Deputy Commissioner/Collector of the Lasbella district, where the land is situated. The other two allottees are sons of Mir Ahmed Shah Khetran belonging to a tribal Sardar family. From the application (which is Annexure R/F at page-143 of the Constitu--tional Petition No. 79 of 1986), it is evident that it does not contain any date, nor even the addresses of the four applicants, as the address given at the bottom after the four names is "residents of Quetta Baluchistan". It is also apparent from the above application that the same was presented by hand on 5th August, 1975 to the Member of the Board of Revenue, Baluchistan, who passed the order quoted hereinabove, i. e. "may be allotted on usual terms and conditions", without referring to the revenue staff for any report. It is also clear from the application that after tire passing of the above order of allotment, an entry in the inward register was made on 6th August, 1975 against No. 2705. The formal allotment was issued on 7th August, 1975. It cannot be denied that at the time of above allotment, the Industrial Estate was being set-up in Lasbella District by the Government of Baluchistan, for which, it was acquiring even the private land. According to the official respondents there was total prohibition on the allotment/sale of land in Lasbella district.
61. It is not necessary for this Court to record a finding of fact, whether factually any official of political influence was exercised for obtaining the allotment or the land. For the purpose of the present Constitutional Petitions, if we find that there is some material on record, on the basis of which, the Committee and the Martial Law Administrator could take the view, which found favour with them, it would not warrant interference with the above finding of fact by this Court in exercise of Constitutional jurisdiction, even if we were to take a different view of the matter on the basis of the same material. Additionally, we may also point out that we are surprised to note that the show- cause notice under the M. L. O. Was issued by the Member of the Board of Revenue, Baluchistan on 4th January, 1978, which was withdrawn on 4th March, 1982 as per documents on record filed by the petitioners, but before the withdrawal of the above show-cause notice, the said respondents succeeded in obtaining the execution of the sale-deed on 16th June, 1981 and sold about 50 Acres out of the allotted 123 Acres for a sum over Rs. 30 lacs in the month of September, 1981, i. e. Within 3 months from the execution of the above sale-deed, whereas they had paid a total sum of Rs.
62. 1,84,81.8.76 as a sale considera--tion for the above 123 acres and the payment was made in three instalments during the period from 15th July, 1980 to 14th June, 1981, the details of which are given hereinabove, inter alia, in para. 8 (i). To put it precisely, the said respondents made a profit of more than Rs. 28 lacs within a period of few months, as the major portion of sale consideration. i. e. Rs.
63. 1,47,855.04 was paid on 14th June, 1981 by them and that said profit was made by selling less than half of the allotted land. In the additional Affidavit filed by the said respondents, it has been averred that they had made improvements by leveling the land, etc. Upon incurring considerable expenses, but no detail whatsoever as to the amount, has been furnished, nor any document to support the above averment has been produced.
64. We cannot also overlook the fact that the land is situated very close to Karachi and, therefore, it would not have been possible to obtain the allotment of the same upon just presentation of an undated application without having any address and without getting it referred for any report, in the absence of exercise of official/political influence. We cannot also overlook the fact that since the four applicants had made a joint application, they must have entered into some agreement or understanding between themselves and that one of the applicant's father was serving as the Deputy Commissioner Collector of the district, where the land was situated.
65. The cumulative effect of the above discussion is that the above contention of the learned counsel for the petitioners and of the said respondents is untenable.
(vi) It was also urged by Mr. Basharatullah, learned counsel for the said respondents that under the M. L. O., the action could have been taken if the land would have remained with the allottee and that the land would have remained as land. It was further submitted by him that since the land, i. e.
66. About 50 Acres were sold to the petitioners by the said respondents and two of the petitioners in Constitutional Petitions Nos. 79 of 1986 and 84 of 1986 have installed factories by investing millions of rupees, it cannot be said that the original land is available.
67. In furtherance of his above submission, he has referred, inter alia, to paras. 2, 3 and 4 of the M. L. O., wherein the word "land" has been used, particularly to para. 4 which provides that no compensation of claim for improvement, other than the compensation in respect of any standing crops shall be payable by the Government to the outgoing allottee. It was therefore, tenaciously contended that reference to the "any" standing crops and outgoing allottee" manifests that land should be in the hands of the original allottee and it should be as such.
68. In our view, the above contention is devoid of any force. An action could be taken under the M. L. O.
69. Notwithstanding anything contained in any law for the time being in force or any order or decree of a Court, tribunal or authority. If we were to accent the above contention of Mr. Basharatullah, it would amount to awarding premium to an allottee who by his manoeuvring succeeds in getting the allotment of land and either he disposes of the same or raises some construction thereon and then he can turn and say that the provisions of the M. L. O. Are not attracted to. The use of the word "improvement" in para. 4 of the M. L. O. Covers a situation where the allottee makes addition or alteration. Since the abov L word has not been defined in the M. L. O., we will have to construed the same in its literal meaning, which is, inter alia, given in the "Concise Oxford Dictionary, sixth edition" as "improving or being improved ; addition or alteration that adds to value". Furthermore, it is also well-settled principle of law that any construction raised on a land becomes part of such land. It has been expressly provided in the above para. 4 that no compensation is payable in respect of any improvement except for any standing crops. However, the above conclusion is subject to the question, whether section 41 of the Transfer of Property Act, 1882, which has enacted an equitable principle can be invoked by a purchaser or transferee.
(vii) Lastly, it was contended that in any case, the M. L. O. Provided that no order of cancellation shall be passed without granting the allottee a reasonable opportunity of being heard and that since no opportunity, what to say a reasonable opportunity was given either to the petitioners or to the said respondents, the impugned order is without jurisdiction.
70. On the other hand, Mr. Muhammad Aslam Chishti, learned counsel for the official respondents has urged that under para. 2 of the M. L. O., a reasonable opportunity was to be given to the allottee and not to the petitioners, as the word used is "allottee " and not his transferee, which opportunity was given by issuing the aforesaid show-cause notice dated 4th January, 1978, to which, reply was submitted by the said respondents on 22nd January, 1978, which was considered by the competent authority. It was also submitted by him that admittedly the impugned order was passed on 11th July, 1985 and that the said respondents have not challenged the same till the time of the arguments in the above cases even after the expiry of one and a half years and, therefore, they have accepted the same. It was also contended by him that since the said respondents have not filed any writ petition, they have no locus standing in the present petitions to attack the impugned order and that since the petitioners are claiming through the said respondents, they have also no legal right to impugn the same. It was further submitted by him that on the basis of the record available before this Court, it is evident that even if the personal hearing would have been provided to the said respondents, it would not have affected the result and, therefore, even the alleged non- observance of the above requirement would not vitiate the impugned order.
71. Mr. Akhtar Ali Mehmood, learned counsel for the petitioners in addition to the case already referred to hereinabove, has relied upon the case of Rashid Ahmed v. The State (PLD 1972 SC 271) in order to contend that since the condition precedent to the exercise of power under the M. L. O., namely, to provide reasonable opportunity of being heard, was not adhered to in the instant case, the impugned order is without jurisdiction. In the above --cited judgment, the facts were that the competent authority had not accorded sanction for the prosecution of a public officer for corruptions.
72. The Honourable Supreme Court of Pakistan in that context observed as follows :- "It has been held by this Court in the above-mentioned case that if a mandatory condition for the exercise of a jurisdiction before a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction.
73. Any order passed in continuation of these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction."
74. Whereas, Mr. Basharatullah, learned counsel for the said respondents has referred to the following cases, namely:
(a) Messrs Faridsons Ltd., Karachi and another v. Government of Pakistan through its Secretary, Ministry of Commerce, Karachi and another (PLD 1961 SC 537).
(b) Abdus Saboor Khan v. Karachi University and another (PLD 1966 $ C 536).
(c) Mian Arif Iftikhar and others v. Commissioner, Lahore Division and others (PLD 1969 Lab. 53), and
(d) Syed (Mir Muhammad v. N.-W. F. P. Government through` Chief secretary(PLD 1981 SC 176)
75. In the above first case, the question before the Honourable Supreme Court was, whether the appellants were entitled to be heard before the passing of the order of cancellation of their import licences. The Full Bench comprising of A. R. Cornelius, C. J., S. A. Rahman, Fazle-Akbar, B. Z. Kaikaus and Hamoodur Rehman, JJ heard the case and delivered their separate opinions and held that the appellants were entitled to hearing before passing of the impugned order. They reiterated the view taken by the Supreme Court in the case of Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak (PLD 1959 SC (Pak.) 45), in which, it was held that the maxim "audi alteram parten" i. e. "no man shall be condemned unheard" applies to judicial as well as administrative bodies, specially where the proceedings taken may affect the person or property or other rights of the parties concerned in the dispute. In the other cited cases, the above principle was adhered to and applied to even in the cases of disciplinary action against the students or disciplinary action against a civil servant, etc. :- On the other hand, Mr. Muhammad Aslam Chishti, learned counsel l for the official respondents has referred to the following cases :-
(a) Mehrab Khan v. Taj Muhammad and others (PLD 1961 (W. P.) Quetta 1), in which, a Division Bench of the erstwhile High Court of West Pakistan at Quetta while construing the provisions of the F. C. R., held that a personal hearing before deciding a matter is not a necessary requirement of the principle of natural justice. All that is necessary is the full and fair opportunity of making a representation or showing cause and that what is full and fair opportunity depends upon the facts of each case. It was further held that in some cases, it may be enough if a party has placed his point of view and has shown cause for the consideration of the authority, and no prejudice is shown to have been caused.
(b) Chairman, Employees' Old-age Benefits Institution and others v. M. Ismail Munawar (1984 SC 14 R 143). In the above case, the Honourable Supreme Court of Pakistan while construing the State Life Employees (Service) Regulations, 1973 made the following observation on the question of personal hearing.
76. "Therefore, these requirements cannot be read into Regulation No. 31. As for the personal hearing said to have been denied, it is not at every stage that it can be insisted that the respondent should be heard. It is enough if he is heard at the stage of the holding of the enquiry in his defence.
77. Cornelius, C. J., while construing Article 177(1) (b) of the 1962 Constitution in Abdul Latif Niazi v.
78. Government of West Pakistan PLD 1967 SC 62 held :- "The requirment of the Constitution is that there should be a reason--able opportunity given to show-cause as above. In the rule, the emphasis is upon the time interval which might be though reasonable and nothing is indicated as to the manner in which the cause shall be shown, i. e.
79. Whether in writing or orally. Since the procedure prescribes a charge and a reply at the outset, and that at the enquiry, the official concerned should have the choice of being heard in person (which choice was duly exercised by Abdul Latif Niazi, and a personal hearing was actually given) it seems anexcessive requirement that a personal hearing should also in every case be given in relation to the show-cause notice".
(c) Saiyyid Abul A'1a Maudoodi and 2 others v. The Government of West Pakistan and another (PLD 1964 SC 673), in which, the Honourable Judges of the Supreme Court delivered their separate opinions and Fazle-Akbar, J. After referring to the above case of Messrs Faridsons Ltd., Karachi and another v. Govern--ment of Pakistan, through its Secretary, Ministry of Commerce, Karachi and another (PLD 1961 SC 537), made the following observations :- "No doubt as far as possible it must be respected in period of calm and even in times of trouble. But certainly it cannot be said that it is merely a technical conception with a fixed content unrelated to time place and circumstance. It is really a matter of procedure and its application must depend on the particular facts and circumstances of the case. What is unfair in one situation may be fair in another. Furthermore, there may be conceivable circum--stances in time of emergency in which it might be necessary for the Authorities to take immediate action, for example the activities of an association may be sub service to Government and a serious menace to the country. In such circumstances it will be unrealistic to impeach the action of the Government on the ground that the association was not heard. It must be remembered that sometimes because of abnormal conditions, abnormal means are required to cope with them and this justifies the authorities to take immediate action under the law enabling them to do so. Hence taking action in an emergency without observing the maxim audi alteram parten would be a valid exercise of plenary administrative discretion. If other words in such exceptional cases the safeguard of fair hearing can be relaxed. It is against this background of guiding consideration I must view the action of the Government."
(d) The University of Dacca through its Vice-Chancellor and another (PLD 1965 $C9Q), in which case also, the principle "no man shall be condemned unheard" was discussed and the view taken in the case of Messrs Faridsons Ltd., Karachi and another v. Government of Pakistan, through its Secretary, Ministry of Commerce, Karachi and another was reiterated. However, at the same time, it was observed that "in other words," in order to act justly and to reach just ends by just means "the Courts insist that the person or authority should have adopted the above" elementary and essential principles, "unless the same had been expressly excluded by the enactment empowering him to so act"
(e) Mr. Muhammad Aslam Chishti, learned counsel for the official respondents has also referred to the well-known book "Judicial Review of Administrative Action" by De Smith, 4th edition, wherein the author had observed that "in administrative law a prima facie right to prior notice and opportunity to be heard may be held to be excluded by implication if any of the following factors is present, singly or in combination with another". After explaining the above principle, he has cited 10 instances, in which, the above principle would be attracted to, namely "(a) Where the functions of the competent authority are held to be non-judicial ;
(b) Where the authority in which is vested the power to decide is entrusted with a wide discretion ;
(c) Where legislation expressly requires notice and hearing for certain purposes but imposes no procedural requirement for other purposes ;
(d) Where the action taken constitutes denial of a privilege as distinct from interference with a right ;
(e) Where to impose an obligation to disclose relevant information to the party affected would be prejudicial to the public interest ;
(f) Where an obligation to give notice and opportunity to be heard would obstruct the taking of prompt action, especially action of a preventive or remedial nature ;
(g) Where for any other reason it is impracticable to give prior notice or opportunity to be heard ;
(h) Where appropriate substitutes for prior notice and opportunity to be heard are available ;
(i) Where the matter in issue or the monetary value of the interest at stake is too trivial to justify an implication that notice or oppor--tunity to be heard be afforded before action is taken ; and
(j) Where the power exercised is disciplinary."
80. In our view, by now it is a well-settled principle of law that the maxim "audi alteram parten", i. e. "no man shall be condemned unheard" is not only applicable to judicial or quasi-judicial proceedings, but also to administrative proceedings which may affect the person or property or other rights of the parties concerned in the dispute. It is also a well-settled principle of law that the Court will lean to extend the above principle instead of curtailing its applicability. However, the application of the above principle can be excluded by the Legislature either expressly or by necessary implication by enacting appropriate provisions in the relevant statute. Furthermore, the question, what constitutes a reasonable oppor--tunity will depend on the facts of each case. No rigid or fixed criterion can be prescribed. It may also be observed that while considering the question, whether a reasonable opportunity was provided or not in a particular case, the Court may inter alia, consider the facturn, whether failure to provide a reasonable opportunity to be heard has caused any prejudice -to the aggrieved party. The Court may also consider the question, whether in the circumstances of the case, to provide a reasonable opportunity to be heard, was possible and practicable. It may also be mentioned that there seems to be some diversity of view, as to the effect of non-providing of opportunity of being heard.
81. It is true that under the M. L. O., the requirement is to give reasonable opportunity of being heard to an allottee. However, it was contended by Mr. Akhtar Ali Mehmood, learned counsel for the petitioner that since explanation No. 1 to para. 2 of the M. L. O. Provides that the term "allotment' includes any grant, lease, exchange, sale, restoration of resumed lease or any other transaction so declared by the Board of Revenue for the purposes of the MA. O., the term "allottee" would also include the purchaser.
82. In our view, reference to the expressions grant, lease, exchange, sale and restoration of resumed lease, referred to in explanation No. 1 to para. 2 of the M. L. O. Relates to the transactions effected by the Government in. Either of the above forms, which arc covered by the M. L. O. By extending the scope of definition of the word "allotment", but it ha nothing to do with a transaction entered into between an allottee and a third person. Therefore, a plain reading of the M. L. O. Indicates that it does not provide any notice or opportunity of hearing to any person other than to the allottee, which term may include his legal heirs. However, if a purchaser purchases the allotted land with the consent of the competent Authority or the circumstances of the case are such that the competent Authority by their acts, conducts and omissions are estopped from challenging the sale transaction, in that event, even a purchaser may claim right of hearing before the allotment is cancelled.
9. This leads us to the submission of Mr. Akhtar Ali Mehmood, learned counsel for the petitioners that the petitioners being bona fide purchasers for valuable consideration without notice are entitled to protec--tion under section 41 of the Transfer of Property Act, 1882.
83. On the other hand, it was submitted by Mr. Muhammad Aslant Chishti, learned counsel for the official respondents that since the Transfer of Property Act has not been made applicable to Baluchistan, the above provision cannot be pressed into service and secondly, at no stage, it was brought to the notice of the authorities entrusted with the enforcement of the provisions of the M. L.
84. O. That the petitioners had purchased a portion of the land and that they were installing industries.
85. In furtherance of his above submission, Mr. Akhtar Ali Mehmood, learned counsel for the petitioners has invited our attention to the following facts :-
(i) That the official respondent No. 2 through the Collector, Lasbella executed sale-deed and got it registered in favour of the said respondents on 16th June, 1981 ;
(ii) That the Revenue record at the relevant time indicated the names of the said respondents as the owners of the land ;
(iii) That the petitioner in Constitutional Petition No. 79 of 1986 was allowed to raise construction and install factory at the cost of Rs. 160 millions and the factory has been in operation since January, 1984, and the petitioner in Constitutional Petition No. 84 of 1986 was allowed to raise construction and install industry at the cost of Rs. 272 millions, which has been in operation since 1st September, 1983.
86. It has also been pointed out by him that though the show-cause notice was issued, but no prohibitory order was issued by the Revenue authorities or other Government functionaries preventing the sale of the land and that factually the Government functionaries converted the land into Sikni and also granted No-Objection Certificate for installing the factories, etc. On the other hand, Mr. Muhammad Aslam Chishti, learned counsel for the official respondents has pointed out that at no stage either the petitioners has informed the Martial Law Authorities or the official respondents dealing with the question of cancellation of the allotment of the land that there had been the above sale transactions in favour of the above petitioners.
87. In this regard, he has invited our attention to the memo. Of review filed by the said respondents before the Governor on 7th September, 1986 for withdrawing the impugned order, in which, even at that late stage, the said respondents had not disclosed the factum that they had sold about 50 acres of !And out of 123 acres in favour of the petitioners.
88. In order to appreciate the respective contentions of the learned counsel for the parties, it may be pertinent to refer to section 41 of the Transfer of Property Act, 1882, which reads as follows :- "41. Transfer by ostensible owner.-Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it : provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the tranfer, has acted in good faith."
89. A plain reading of the above section indicates that in order to press it, into service, one has to prove :-
(i) That the person is the ostensible owner with the express or implied consent of the persons interested in the immovable property ;
(ii) That the ostensible owner transfers the same for consideration ;
(iii) That the transferee had taken reasonable care to ascertain that the transferor had the power to make the transfer ; and
(iv) That the transferee has acted in good faith.
90. The above ingredients are questions of facts, which are more eminently suited to be probed into in a regular suit and not in a Constitutionally Petition.
91. Mr. Akhtar Ali Mehmood, learned counsel for the petitioners has referred to the following cases :-
(i) More Khan and others v. Imam Bux and others PLD 1959 (W. P.) Kar. 767 ;
(ii) Khair Din and another v. Mst. Zenab Bibi and 2 others PLD 1973 Lah. 586 ; and
(iii) Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC53.
92. In the above first case, a learned Single Judge of the erstwhile High Court of West Pakistan at Karachi and in the second case, a learned Single Judge of the Lahore High Court while construing the provisions of section 41 of the Transfer of Property Act held that "the above section is based upon the principle of natural equity, which must be universally applicable that where one man allows another to hold himself out as the owner of his estate and that man purchases it for value from the owner in the belief that he is the real owner, the man who so allows the other to hold himself out shall not be permitted to recover upon his secret title unless he can overthrow that purchaser by showing either that he had direct or constructive notice of the real title". Whereas, in the last case, the Honourable Supreme Court of Pakistan held that "section 41 is a statutory application of law of estoppel, making an exception to rule that no person can confer a better title titan he himself has".
93. On the other hand, Mr. Muhammad Aslam Chishti, learned counsel for the official respondents has referred to the following cases :-
(1) Dilbar Hussain v. Muhmoodul Hassan and 3 others reported in PLD 1986 Quetta 198, in which, a Division Bench of this Court has held that the provisions of the Transfer of Property Act were extended to Baluchistan States Union, and Quetta being never a part of Baluchistan States Union, the provisions of the same are not applicable. However, equitable principies contained in the Transfer of Property Act, can be pressed into service by the Court in a fit case.
(ii) Mst. Maryam Begum v. Ch. Shah Muhammad and others reported in 1976 SCMR 342. In the above case, the Honourable Supreme Court of Pakistan while dismissing petition for leave against the judgment of the High Court held that section 10 of the Displaced Persons (Land Settlement) Act, 1958 empowered the annulment of allotment obtained by fraud and that the allotment was mere in nature of a grant subject to confirmation, section 41 of the Transfer of Property Act, 1882 could not be pressed into service.
(iii) Muhammad Yamin and others v. Settlement Commissioner and others reported in 1976 SCMR 489, in which, the facts were that land. Was purchased by' the petitioners from the allottee against the verified claim of his alleged father. Subsequently, it was found that he was not the son of the alleged father, hence his allotment was cancelled. The petitioner had purchased the aforesaid land from the said allottee and contended that he was bona fide purchaser for value and was entitled to protection under section 41 of the Transfer of Property Act. The Honourable Supreme Court while dismissing the petition for leave held that he was not entitled to protection under the above section.
94. In the instant case, as observed hereinabove, that at no point of time it was brought to the notice of the Martial Law authorities or to the Board of Revenue that the said allottees had sold a portion of the land in favour of the petitioners, nor the petitioners had brought this fact to the notice of the aforesaid authorities. As pointed out hereinabove, as late as in September, 1986, while filing a review petition under para. 5(2) of the M. L. O. Before the Governor, the said respondents suppressed the fact of disposal of a portion of the land in favour of the petitioners. It may again be observed that the said respondents obtained the sale-deed in their favour on 16th June, 1981, whereas the petitioners got the sale-deed in their favour in September/October, 1981 before the withdrawal of the show-cause notice dated 4th January, 1979, which was withdrawn according to the petitioners on 4th March, 1982. Apart from the above factual side, in our view, since the impugned order was passed by the Martial Law Administrator, it was covered by para. 5 of Article 15 of the Provisional Constitution Order, 1981 and, therefore, we cannot allow the relief to the Q petitioners even if we were to hold that the provisions of the Transfer of Property Act are applicable to Lasbella district and the petitioners have made out a case of pressing into service the above section 41 thereof in constitutional petition.
10. This leads us to the question, whether factually the impugned order is covered by sub-para. (5) of Article 15 of the Provisional Constitu--tion Order, 1981 or by Article 270-A of the Constitution of Islamic Republic of Pakistan, 1973.
11. Before dilating upon the above question, it may be appropriate to dispose of some minor contentions of the learned counsel for the petitioners, as to the making of Mutation Entry No. 676, dated 23rd September, 1985 without any notice.
95. In this behalf, it will suffice to observe that if the impugned order is to be declared as without lawful authority the consequential action in the .Form of the above mutation entry will also fall through.
12. Adverting to Mr. Akhtar Ali Mehmood, learned counsel for the petitioner's contention that the petitioners were entitled to the inspection of the revenue record pertaining to the land and also to obtain copies thereof, it will suffice to observe that since the official respondents have brought on record of the present petitions, the relevant documents, the above controversy has also lost its significance. However, it may be observed that a party is entitled to obtain copy of an order which may adversely affect his liberty, property or any other right.
13. Adverting to the question, whether factually the impugned order is covered by sub-para. (5) of Article 15 of the Provisional Constitution Order, 1981 or by Article 270.A of the Constitution of Islamic Republic of Pakistan, 1973, it may be observed that it has been vehemently urged by Mr. Akhtar Ali Mehmood, learned counsel for the petitioners as well as by Mr. Basharatullah, learned counsel for the said respondents that the saving provisions cannot cover the cases of without jurisdiction, coram non judice and malafide. Mr. Akhtar Ali Mehmood has also submitted that endeavour of the Courts has been to grant relief to a petitioner in spite of the embargo contained in the Martial Law Orders and Martial Law Regulations. He has referred to the following cases in support of the above contention :-
(i) Israr Ahmad v. President, Summary Military Court, Sanghar (PLD 1981 Kar. 47), in which, a Division Bench of the Sind High Court, to which, one of us (Justice Ajmal Mian, Actg. C. J.) was a party, while construing majority view given in Constitutional Petition No. 242 of 1980 relating to Article 212-A of the Constitution of Islamic Republic of Pakistan, 1973 observed as follows :- "A perusal of the above-quoted extract from the judgment of the Full Bench indicates that even according to the majority view the ouster of jurisdiction of this Court in respect of those matters which are covered under Martial Law Order 77 is conditional, namely, upon fully complying with Martial Law Order 77. It, therefore, follows that if a petitioner can show that a Summary Military Court has taken cognizance of a matter not falling within the compass of Martial Law Order 77 or that the provisions thereof have not been fully complied with, a writ petition will be competent."
(ii) Muhammad Afzal Khan v. Karachi Development Authority and 6 others (PLD 1984 Kar. 114). In the above case, a Division Bench of the Sind High Court, made the following observations :- "However, we are inclined to hold that the Court still have jurisdic--tion to be satisfied, whether the impugned order or action purported to have been passed/taken under a M. L. O. Or M. L. R. Was passed/ taken by the authority/person, prima facie clothed with the power, which he purported to exercise, e. g. An Officer neither connected with the administration of the Martial Law nor authorised to act under the relevant Martial- Law Order/Regulation or by the Martial Law Authorities in terms of the relevant Ma L. O./M. L. R., cannot claim immunity from scrutiny of his order by the Court on the ground that he purported to have passed the order under a M. L. O. Or M. L. R.
(iii) Abdul Hai v. The Administrator, Hyderabad Municipal Corporation, Hyderabad and another (PLD 1985 Kar. 319). In the above case also, a Division Bench of the Sind High Court has made the following observation:- "5. Though no objection was raised before us on the ground that the petitions were hit by the P. C.
96. O., but we have examined this aspect. In our view, a distinction into 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. 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. O. 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 1983 CLC 918 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. O. 241 issued by Martial Law Adminis--trator, 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--operative Societies and Co-operative Bank (Repayment of Loans)
97. Ordinance, 1966, is the foundation of commencement of proceedings, under M. L. O. 241, against him. It is not disputed that no such determination was made. On behalf of the respondent, however, reliance is placed .On the acknowledgement of his liability by the petitioner (Annexure R/12) before the Assistant Registrar on 31-3-1972. The background of this acknowledgement, 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 measures under M. L. O. 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. O. 241 was thus not satisfied. This subsequent acknowledgement, therefore, would not validate these proceedings. Furthermore, the record is suggestive of the inference, 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. O.
98. 241 is immune from attacks before the Courts but such immunity is available only if the functionaries under M. L. O. 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."
(iv) Salahuddin Khan and 10 others v. Member, Board of Revenue III and 18 others (PLD 1985 Quetta 192), in which a Division Bench of this Court held that the order passed by the Member of the Board of Revenue was not in terms of Martial Law Order No. 16 and remanded the case to the Member of the Board of Revenue for fresh hearing after relying upon the above Karachi case of Abdul Hai v.
99. The Administrator, Hyderabad Municipal Corporation, Hyderabad and another (PLD 1985 Kar. 319).
100. It may be observed that incidently, all the above-cited judgments were delivered by one of us (Justice Ajmal Mian, Actg., C. J). In our view, the principle enunciated in the above judgments are not attracted to. The first case relates to the period prior to the Provisional Constitution Order, 1981.
101. The ratio decidendi of the second, third and fourth cases cannot be pressed into service, as admittedly, the impugned order was passed by the Martial Law Administrator himself and not by a civil functionary as the delegatee. There seems to be no jurisdictional defect on merits of the case, as highlighted while dilating upon the various contentions of the learned counsel for the petitioners.
14. Mr. Akhtar Ali Mehmood, learned counsel for the petitioners has also invited our attention to the cases referred to hereinabove on the question of saving Article in the Constitution of Islamic Republic of Pakistan, 1973.
102. Before dealing with the said cases, it may be pertinent to produce hereinbelow the Article 281 of the Interim Constitution of 1972, which reads as follows:- "281(1).-All Proclamations, President's Orders, Martial Law Regula--tions, Martial Law Orders, and all other laws made as from the twenty-fifth day of March, 1969, are hereby declared, notwith-- standing any judgment of any Court, to have been validly made by competent authority, and shall not be called in question in any Court.
(2) All orders made, proceedings taken and acts done by any authority, or by any person, which were made, taken or done, or purported to have been made taken or done on or after the twenty- fifth day of March, 1969, in exercise of powers derived from any President's Orders, Martial Law Regulations, Martial Law Orders, enactments, notification, rules, orders or bye-laws, or in execution of any orders made or sentence passed by any authority in the exercise or purported exercise of powers as aforesaid, shall be deemed to be and always to have been validly made, taken or done.
(3) No suit or other legal proceedings lie in any Court against any authority or any person for or on account of or in respect of any order made, proceedings taken or act done whether in the exercise or purported exercise of powers referred to in clause (2), or in execution of or in compliance with orders made or sentence passed in exercise or purported exercise of such powers."
(i) In the case of The State. v. Zia-ur-Rahman and others (PLD 1973 SC 49), Hamoodur Rahman, C.
103. J. While dealing with the above-quoted Article 281 of the Interim Constitution of 1972 on the question of exclusion of the jurisdic--tion of the Court observed as follows:-- "It is a well-established rule of interpretation that where in a statute there are both general provisions as well as special provisions for meeting a particular situation, then it is the special provisions which must be applied to that particular case or situation instead of the general provisions. Applying this principle of general special bus non-derogate, the provisions of Article 295 will have to be applied to the repealed legislative measures and thereunder it is significant that only acts "duly done" or things "suffered under the law" are protected. Acts done mala fide or without jurisdiction or acts which are coram non judice would clearly not be acts "duly done" and, therefore, the protection would not extend to such acts."
104. In order to nullify the effect of the above judgment, the then President by President Order No. 3 of 1973 brought about amendments in the above-quoted clause (2) of Article 281 and inter alia, provided that notwithstanding any judgment of any Court, the Martial Law Regulations, Martial Law Orders, enactments, etc. Shall not be called in question in any Court on any ground whatsoever.
105. The above-amended provision was enacted in the Permanent Constitution of Islamic Republic of Pakistan, 1973. It would be advantageous to reproduce herein below clause (2) of Article 269 of the Permanent Constitution of Islamic Republic of Pakistan, 1973, which reads as follows:-- "269(2).-All orders made, proceedings taken and acts done by any authority or by any person, which were made, taken or done or purported to have been made, taken or done, between the twentieth day of December, one thousand nine hundred and seventy-one an the twentieth day of April, one thousand nine hundred and seventy-- two (both days inclusive), in exercise of the powers derived from any President's Orders, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws, or in execution of any orders made or sentence passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding any judgment of any Court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any Court on any ground whatsoever."
(ii) In the case of the Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Khanand others (PLD 1974SC151 ), it was contended by the State that in view of the above change in the contents of clause (2) of Article 269 of the Constitution of Islamic Republic of Pakistan, 1973, the Court could not question any President's Order, Martial Law Regulation, Martial Law Order, enactment and the orders passed in pursuance thereof. However, the above contention was repelled by Hamoodur Rahman, C. J. And the following observations were made:-- "The result, therefore, to which we have arrived as a result of the interpretation of the provisions of Article 281 of the Interim Constitu--tion as amended by President's Order No. 3 of 1973 and Articles 269 and 270 of the Permanent Constitution, is that we are still unable to agree, upon the accepted principles of construction to which we have adverted earlier, that acts, orders or proceedings, which are done, taken or made without jurisdiction mala fide or coram non judice, have been saved from the scrutiny of the Courts by the ouster clause now incorporated in these provisions.
106. However wide a meaning is given to the word "validity", the result would still be the same, for, the validity that has been conferred is to acts done or purported to be done in the exercise of or in the purported exercise of powers derived from such Orders, Regula--tion, Enactments, Rules, Orders, Bye-Laws, etc. And to nothing else."
(iii) The above view seems to have been kept intact by the Honourable Supreme Court of Pakistan in the recent case of Fauji Foundation and another v. Shamimur Rehman (PLD 1983 SC 457), in which inter alia the following observa--tions were made by the Hon'ble Chief Justice:- "149. In the background in which Article 281 was enacted, the object was to legalise not only the legal measures but also the actions taken there under and to indemnify the persons from prosecu- -tion who had acted under these legal measures. This was in the nature of an indemnity clause for it provided legal exemption from incurred liabilities or penalties as a result of the promulgation of the legal measures by a usurper. It favorably compares with sections 1, 5 and 6 of the Indemnity Act, 1920, enacted by the British Parliament after the First World War to give protection to the persons and so also to the laws and the actions taken there-- under. In essence both under the Indemnity Act and under Article 281 validation is given and the jurisdiction of the Courts is barred.
107. The only exception under our constitutional provision that it has been construed not to cover actions which are mala fide or coram non judice or without jurisdiction. In all other cases validation is conclusive."
108. On the other hand, Mr. Muhammad Aslam Chishti, learned counsel for the official respondents has relied upon the case of Nazar Muhammad Khan v. Pakistan and 2 others (PLD 1986 Kar. 516), decided recently by a Full Bench of the Sind High Court comprising of five Judges, namely, Naimuddin, C. J., Abdul Qadeer Chaudhry, M. Zahoorul Haq, Ally Madad Shah and Haider Ali Pirzada, JJ., in which, through a Constitutional Petition the action of termination of petitioner's services under Martial Law Regulation 52 was impugned. The Full Bench while dismissing the above petition in limine, inter alia, relied upon an unreported judgment of a Division Bench, which was delivered by one of us (Justice Ajmal Mian, Actg. C. J.) and in which, the petition was dismissed on the ground of abatement under the Provisional Constitution Order, 1981 though prima facie the action was not covered. He has particularly relied upon para. 18 of the above judgment, which reads as follows :- "18. In Sirajuddin's case (supra) a Division Bench of this Court held as follows :- "It has also been urged that when a competent authority has juris--diction to pass an order, it has jurisdiction to pass even a wrong order and even a wrong application of Martial Law Order or Regulation by a competent authority shall beyond the power of judicial review of this Court according to Articles 15(4), (5) and (6) of the Provisional Constitution Order, 1981. In this connection, we may quote with advantage the observations made by Ajmal Mian, J. Of this Court in Constitutional Petition No. D-1330 of 1978. After quoting the provisions of Article 15 the learned Judge observed as under :- "A perusal of the above-quoted paras indicates that this Court cannot go into the validity or affect of an order of Martial Law Regulation made by the Chief Martial Law Administrator or any Martial Law Order made by the Chief Martial Law Administrator or a Martial Law Administrator of anything done or action taken or intended to be done or taken there under. In our view the phrase `anything done' or 'action taken' or `intended to be done or taken thereunder' employed in the above-quoted para. (a) of the P. C. O. Is of wide import as to exclude the jurisdiction of this Court to go into the validity of an order, though prima facie it seems that the impugned order is not in accordance with the M. L. O. We are sure that if the petitioner will approach the competent authority his grievance will be redressed."
(3) In view of the above-quoted clause (6) of Article 15 of the P. C. 0., the above petition stands abated."
109. We are in respectful agreement with the above observations and consequently are of the view that this petition is barred by Article 15 of the P. C. O. 1981. Accordingly, the petition is dismissed in limine."
110. We are, therefore, of the view that the order of termination of service having been passed under Martial Law Regulation No. 52, was protected under Article 15(2) of the Provisional Constitution Order, 1981, and could not have been called in question in this Court, and therefore, the petition is not maintainable."
15. Mr. Akhtar Ali Mehmood, learned counsel for the petitioners has candidly conceded that the petitioners have not alleged any mala fide and, therefore, the question of mala fide is not involved in the present case. Even otherwise on the facts, as discussed hereinabove, the impugned action is evidently bona fide. In this view of the matter, learned counsel for the petitioners has contended that clause (2) of above Article 270-A of the Constitution of Islamic Republic of Pakistan, 1973 is couched in identical words as clause (2) of above Article 269 of the Constitution of Islamic Republic of Pakistan, 1973 and, therefore, the ratio decidendi of the above Supreme Court cases is very much attracted to the instant case, except that question of mala fide cannot be examined in view of insertion of para. 5 in the above Article 270-A, which provides that "for the purposes of clauses (1),
(2) and (4) all orders made, proceedings taken, acts done or purporting to be made, taken or done by any authority or person shall be deemed to have been made, taken or done in good faith and for the purpose intended to be served thereby and therefore, the above clause (5) is not pertinent to the controversy in issue as submitted by him."
111. It is not necessary to examine the question, whether in spite of insertion of Article 270-A in the Constitution of Islamic Republic of Pakistan, 1973, the Court still has jurisdiction to examine the case, if the impugned order is without jurisdiction or mala fide or corom non judice, as we are of the vie w that there is no jurisdictional defect in the impugned order, except that the said respondents were not heard at the time of passing of the impugned order, though their reply to the show-cause notice was on record, in which, the plea taken by them was that they had obtained the land with the object to grow more food and, therefore, the show-cause notice be withdrawn, but even before the withdrawal of the show-cause notice, they succeeded in obtaining the sale-deed in their favour and disposed of about 50 acres of the land out of 123 acres in favour of the petitioners for a sum of about Rs. 30 lacs against the total payment as sale consideration to the Government amounting to Rs. 1,84,818.7 as pointed out hereinabove. They are not petitioners before us. Till today they have not impugned the above order and evidently they have acquiesced to the same.
112. Whereas, we are not inclined to allow the petitioners's above petitions, inter alla, for the following reasons :-
(i) That the impugned order is covered by para. 5 of Article 15 of the Provisional Constitution Order, 1981, which has been re-affirmed by Article 270-A of the Constitution of Islamic Republic of Pakistan, 1973 and there seems to be no jurisdictional defect of the nature warranting application of the ratio decidendi of the above Honour able Supreme Court cases i.e. The State v. Zia-ur-Rehman and others PLD 1973 SC 49 and the Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan, Rawalpindi v. Saeed Ahmad Khan and others PLD 1974 SC 151 ;
(ii) that the petitioners's right to have been heard under the M. L. O. Is not free from doubt;
(iii) that the petitioners had purchased the aforesaid portions of the land, while the show-cause notice dated 4th January, 1978 under the M. L. O. Was not withdrawn till then ;
(iv) that the said respondents were not singled out while passing the impugned order, but as many as over 200 cases of irregular allotments/sales were scrutinized and action in respect of most of them was taken ;
(v) that the impugned action is for the benefit of the public at large, as the tendency to obtain irregular allotments of the State land by exercising official/political influence is to be deprecated ;
(vi) that from the record it seems that the Provincial Government had imposed ban in respect of the transfer of land in Lasbella District, as the industrial estate was being set-up at the relevant time ;
(vii) that though the petitioners in their petitions have pleaded estoppel, but they have not expressly pleaded what reasonable care they had taken before entering into the above transaction, nor they have specifically pleaded section 41 of the Transfer of Property Act, 1882.
(viii) that the petitioners in the above three petitions have purchased about 50 acres of land out of 123 acres. As the said respondents have not challenged the impugned order, as pointed out hereinabove, it is doubtful as to whether the impugned order can be declared to be without lawful authority in respect of less than half of the allotted land purchased by the petitioners,
(ix) that the Constitutional Writ Petition remedy is a discretionary relief and the Court may after taking into consideration various U aspects decline to exercise the writ jurisdiction.
16. Before parting with the above discussion, we may observe that Mr. Muhammad Aslam Chishti, learned counsel for the official respondents has candidly submitted that he has asked his clients that in case, the petitioners approach them, their cases may be sympathetically and favourably considered for regularization.
113. We are also of the view that since the petitioners in the first two petitions have invested capital running into millions of rupees and as the factories are in operation and several hundred persons are employed therein it would be in the interest of justice that the petitioners' request for regularization in respect of the portions of the land in their possession, is properly and seriously considered.
17. With the above observations, the petitions are dismissed with nor order as to costs.
114. However, we grant sixty (60) days stay to the petitioners in V order to enable them to approach the honourable Supreme Court of Pakistan for obtaining a stay order, in case they wish to contest this judgment. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.