SHAFIUR RAHMAN, J.-- Leave to appeal was granted in these seven appeals to examine the following questions relating to the vires of the Punjab Act XXV of 1975 (hereinafter referred to as the Punjab Act):-- "(1) That section 2 of the Act has purported to reopen the orders passed by the Rehabilitation Authorities which had attained finality under the Central LAWS made for the rehabilitation and settlement of the refugees and the schemes made thereunder. The Punjab Act was ultra vires and hit by the provisions contained in Article 143 of the 1973 Constitution.
(2) That in so far as section 3 of the Act enables the contenders to move the relevant authorities appointed thereunder, its provisions were repugnant to the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance XV of 1974 as the orders passed thereunder had attained finality by virtue of section 6 of the. General Clauses Act and could not be reopened in this manner in contravention of the provisions contained in Article 143 of the Constitution.
(3) That the Punjab Act by permitting the adjudication upon private rights of the parties constitutes as unauthorised encroachment upon the judicial field and therefore, suffers from constitutional invalidity.
(4) That the persons having acquired rights in the lands in dispute on the hypothesis that the widow was a full owner their entitlement stood clinched by efflux of time under the Limitation Act which is a central statute and this could not have been undone by the Punjab Act XXV of 1975.
(5) That the Punjab Act also enables the alienations in favour of bona fide purchasers for valuable consideration to be challenged in conflict with the provisions contained in section 41 of the Transfer of Property Act and other cognate matters forming the subject-matter of the central statutes."
2. The factual background of these appeals is that in Civil Appeal No. 181/1978, Mst. Bhag Bhari widow of Ghulam Muhammad Jat, had on migration to Pakistan received allotment of land held by her as a limited estate holder in India. Her allotments were in two Chaks of Faisalabad District. She thereafter made gifts of the land in favour of her daughters, and the two daughters sold further what they had received from their mother as donees. Abdul Hamid claiming to be husband of Mst.
Niaz Bibi, the deceased daughter of Ghulam Muhammad, and Mst. Riaz Fatima his daughter from her and Abdul Latif his son from her, contested the alienation but did not succeed. He, therefore, on the enforcement of Punjab Act, approached the Revenue Officer/Assistant Commissioner who by an order dated 5-2-1976 reopened the question of the inheritance of the limited estate of Mst. Bhag Bhari. The appellants forthwith filed a Constitution Petition (W.P.No.422 of 1976) challenging the reopening of such a past and closed matter but their Constitution Petition was dismissed by a judgment dated 13-10-1976 which is common to all the appeals now before us.
3. In Civil Appeals Nos.182, 183 and 185 of 1978, one Akbar Ali Khan was the last male holder who died in 1900 in India leaving behind the agricultural property to be inherited as 1/2 by his mother Mst.
Atar Bibi and the other 1/2 share by Mst. Piar Bano another mother of the deceased. On migration to Pakistan, both received separate allotments. Mst. Atar Bibi died in 1955 and her inheritance was attested to the extent of i/3rd share in favour of Mst. Piar Bano which she gifted to R.I Ahmad Hassan, and 2/3rd share was attested in favour of collaterals of her husband Nabi Bakhsh. In 1967, Piar Bano also died and litigation over her inheritance took place and concluded treating her to be the full owner of the property. On the promulgation of the Punjab Act, applications were made by the collaterals of Akbar Ali Khan for revival of the question of inheritance of Mst. Piar Bano and Mst.
Atar Bibi in respect of the land allotted to her in Sheikhupura (challenged by Writ Petition No.1284/76), Jaranwala (challenged by Writ Petition No.1286/76) and Faisalabad (challenged by Writ Petition No.1085/75). All these Writ Petitions were dismissed by the aforesaid order dated 13-10- 1976 upholding the entertainment of such applications by Revenue Officers Sheikhupura, Jaranwala and Faisalabad respectively. Civil Appeal No.182/78 relates to property in Sheikhupura, Civil Appeal No.183/78 to the property in Jaranwala and Civil Appeal No.185/78 to the property in Faisalabad.
4. In Civil Appeals Nos.184 and 187 of 1978, Mst. Karam Bibi a widow of Sher Muhammad had received allotment of land in Sialkot District. She died on 30-7-1963. Treating her to be the full owner of the property, 1/3rd share was mutated in favour of Nazeer Ahmad (appellant in CA. 187/78) and the other 2/3rd share in favour of the brothers of Mst. Karam Bibi, who sold the property to strangers. The descendants of the sisters of the husband of Mst. Karam Babi (Sher Muhammad) contested the alienation but failed. On the promulgation of Punjab Act, an application was made to the Revenue Officers on which proceedings were revived. Two Writ Petitions (No.1084/75 and 1083/75) were filed in the High Court which were disposed of by the same common judgment which has given rise to two appeals, one by the beneficiary by will and the other by the alienees from Mst. Karam Bibi.
5. In Civil Appeal No.186/1978, Mst. Hashmat Bibi widow of Samand Khan had received allotment and she had made an oral gift. The nephews of Samand Khan challenged it but did not succeed.
On the promulgation of Punjab Act, they filed a Constitution Petition (W.P. No.2881/75) which was dismissed by the same common judgment which led to this appeal.
6. The vires of the Punjab Act have been challenged on various grounds. The first contention is that the Evacuee Property and Displaced Persons Laws (Repeal) Act is a Federal statute. It deals with evacuee properties. Evacuee property is listed at serial No.36 of the Concurrent Legislative List in the Constitution. The Laws mentioned in the Repealing Act were all existing laws under Article 143 of the Constitution. So was the Limitation Act under serial No.3 of the Concurrent Legislative List. `Existing Law' has been defined in Article 268 clause(7) of the Constitution and this definition has been adopted by reference to it in Article 143 of the Constitution. The Punjab Act, being repugnant to the aforesaid existing laws and the Family Law, was void on that account.
7. The next argument of the learned counsel for the appellants is that Fundamental Right 24 guarantees protection of property rights to the citizens. The Punjab Act under discussion is a big inroad on the property rights of the female allottee owners and also those who happened to be bona fide purchasers or transferees from such bona fide owners. They could not be denied their property rights without being compensated and on that account too, the Punjab Act is void.
8. It has also been contended by the learned counsel for the appellants that the Punjab Act is derogatory of the decision given by Supreme Court in Additional Settlement Commissioner (Land)
Sargodha v. Muhammad Shari and others (PLD 1971 SC 791) whereby an express direction was given that that decision would not lead to reopening of the past and closed transactions. Such a legislation, as it encroached upon the judicial independence and affects the adjudication rendered by the Supreme Court, is void on account of its repugnance and inconsistency with the law laid down by the highest Court in the country.
9. It has further been contended by the learned counsel for the appellants that the decision rendered in PLD 1971 SC 791 and also the Punjab Act are manifestation of the urge and the objective of achieving Islamization in the Laws of the country. The very dictates of the Islam enjoin that past and closed transactions are not to be reopened in the process. The learned counsel has referred to various instances where a prospective effect was given even to the injunctions of Islam and past and closed transactions were not reopened or affected by the injunctions coming into the field subsequent to the events.
10. Mr. M. Saleem Shahnazi, Advocate, the learned counsel appearing for sonic of the respondents in the two appeals contended that there was no question of repugnancy at all between an existing law and the Provincial Legislation. In the first place, what the Provincial Legislation under challenge purported to do was to reiterate what the law already provided, what the Supreme Court declared to be a correct law and what the authorities were in error in applying and enforcing. It was, therefore, consistent with the law and the decision of the highest Court of the land and hence no question of repugnancy at all arises or arose. In the second place, in this context, the learned counsel contended that for testing the repugnancy, one has to follow the law laid down initially by the Lahore High Court in Megh Raj and another v. Allah Rakhia and others (AIR 1941 Lah. 177) and approved in the same case by the Federal Court in AIR 1942 Federal Court 27 and by the Privy Council in AIR 1947 Privy Council 72. According to him, neither expressly nor impliedly, the repealed evacuee laws or the Limitation Act is affected by the impugned legislation. Besides, according to the learned counsel, section 29 of the Limitation Act allowed a scope in express terms for a special or a local law prescribing a period of limitation different from that prescribed in the Limitation Act's Schedule and that could be done without any repugnancy if the subject-matter of the legislation was within the competence of the legislature, limitation being affected only incidentally and consequentially and not independently of the substance of the legislation.
11. As regards the bona fide of the purchasers from limited estate holders, it was contended that on the express language of section 41 of the Transfer of Property Act such purchases were not protected or saved. Finally, as regards the islamization process and retrospectively, it was urged that there was no new legislation affecting the vested rights of individuals. The whole object was to correct an erroneous view of the law taken by the authorities who were administering it for the time being.
12. The arguments advanced in defence by Mr. Saleem Shahnazi have been adopted and further supported by the learned counsel appearing for the other respondents.
13. The Punjab Act has reproduced in great detail the purpose, the object, the subject-matter of the law and why it was necessitated. It is expressed in the following words:-- "An Act to provide for the removal of difficulties of the lawful heirs of last male holders in respect of the limited estates held by refugee females and to protect their rights with respect to the said property (Gazette of Punjab, Extraordinary, 31st March, 1975)
(First published, after having received the assent of the Governor of the Punjab, in the Gazette of the Punjab '(Extraordinary) dated the 31 March 1975).
No. PAP/Lcgis-2(7)/75/45.- The Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Bill, 1975, having been passed by the Provincial Assembly of the Punjab on the eighteenth day of February, 1975, and assented to by the Governor of the Punjab on the 31st day of March 1975, is hereby published as an Act of the Provincial Legislature of the Punjab.
Preamble.-- Whereas refugee females who were limited owners under custom were allotted evacuee property in the Punjab and such allottees were erroneously treated as full owners of the property allotted to them; and whereas, the Supreme Court of Pakistan has held that allottees are limited owners under custom; and whereas, it is expedient to extend the benefit of the said decision of the Supreme Court of Pakistan to the persons aggrieved by the said erroneous view; .......
14. The error in the treatment of limited owners has been taken note of and mentioned and then the decision of the Supreme Court that such allottees were limited owners under custom and the object of the Act was to benefit those persons who were aggrieved by the erroneous view of the Courts and authorities other than the Supreme Court. Such an exercise by the Legislature was justified in view of the law declared by the Supreme Court and the duty of the authorities to enforce it as such. The element of repugnance is sought to be established by pointing out that while declaring the law the Supreme Court had in the case of Muhammad Shafi and others (PLD 1971 SC 791) made an observation to the following effect:-- "The provisions of sections 15 and 16 of the latter Act on which much emphasis has been laid do not in my view disclose any contrary intention. All that they provide is that land which has been permanently settled on an allottee shall "vest absolutely" in such allottee. What does such vesting connote? Does it mean that an absolute estate vests or does it only mean that only those rights and interests which have been compensated vest in the allottee in the same manner and to the same extent as they would have done if the property had not been evacuee property. The fact that it is evacuee property makes no difference for what vests is the right or -interest which was allotted and then permanently settled and this was "according to the Shajra-e-Nasab incorporated in the special Jamabandi, How could this then enlarge the estate of the female or entirely change the stock of descent.----In so holding I would also make it clear that this would not entitle the settlement authorities to reopen the orders of mutations against which no appeals have been filed and which have become final."
15. The legislature by reopening such past and closed transactions and decided matters has not encroached on the judicial power nor impaired it in the process. The view to the contrary about the exercise of legislative power is erroneous. The Supreme Court had in Muhammad Shari's case declared the law and that declaration has been adopted, reinforced and applied by the impugned legislation. The observation of the Supreme Court that the declaration of law by it "would not entitle the Settlement Authorities to reopen the orders of mutation against which no appeals have been filed and which have become final" was in fact the statement of law as it existed. A declaratory decision on a question of law by the Supreme Court has the implication of stating the law as itst existed from the beginning; its misinterpretation apart. But such a declaration of law, though retrospective, could not by itself be taken to be a ground for reopening the cases which had otherwise become past and closed. It was the normal consequence and such would have been the consequence even if not so stated in the judgment. By stating so, nothing more was accomplished except to make the situation clear and undisputed. Such an indication, observation or statement was not intended nor expressed to hold good against the legislative will.
16. As a matter of fact, on the question of legislative power in relation to Court's declaration of law, the matter had already been set at rest by this Court in Muhammad Yusuf v. The Chief Settlement and Rehabilitation Commissioner, Pakistan, Lahore and another (PLD 1968 SC 101) in the following words:-- "This judgment was delivered on the 2nd November 1964, and its consequence was "that as from that date all Courts subordinate to the Supreme Court and all executive and quasi-judicial authorities were obliged by virtue of the Constitution to apply the rule as laid down by the Supreme Court in cases coming up before them for decision. It did not have, and it cannot be contended that it had, the effect of altering the law as from the commencement of the Act so as to render void of its own force all relevant orders of the Settlement Authorities or of the High Court made in the light of the earlier interpretation which was that the exercise of the delegated power was subject to the provisions in Chapter VI of the Act..: ... ... ... ... ... ... ... ... ... ... .. ... ... ... ... ... ... ... .. ... ......To give the fullest effect to this argument would operate as a prohibition against the making of laws with retrospective effect in respect of all matters that Article was intended to produce so wide an effect in relation to well-established practice of retrospective or retroactive legislation. It is difficult to construe Article 2 as conveying a fundamental right m every citizen of Pakistan and every person for the time being within Pakistan against the making of laws by the established Legislatures, which expressly opera:: retrospectively or retroactively against his interests. Reference may here be made to the Fourth Fundamental Right which gives protection against retrospective punishment and the argument was raised on the basis of this Fundamental Right that the express protection against retrospective effect being provided in one particular case, is to be construed as having the effect of maintaining the ordinary power of Legislatures to legislate with retrospective effect in cases not specified."
17. To hold that the evacuee laws made the female limited owners full owners of the allotted land would be misinterpretation of the law going against the decision of the Supreme Court and not accepting the declaration of law as was made by the Supreme Court in Muhammad Shari's case. It is only on this erroneous assumption that a repugnance, that deprivation of proprietary rights without compensation, and the purchase of a larger interest in property than was actually possessed by the vendor can be claimed. There is no warrant for such an assumption.
Consequently, there is no repugnancy anywhere to be found or seen except in interpreting and applying the law by Authorities and Courts other than the Supreme Court. Such a situation had to be remedied and cured and the remedial statute in the field accomplishes it and does not interfere or obstruct any matter in the field already covered by the law as such.
18. Section 41 of the Transfer of Property Act and the protections there under would not apply because the very first requirement, that is, the consent, express or implied, of the persons interested in the immovable property was not there, nor there was an ostensible owner. There was no express consent of the real owner and there was no ostensible owner as such. It was all an act under the statute misconceived and misperformed by the authorities and functionaries who are supposed to know better.
19. In the circumstances the reopening of the cases by the Revenue Officers as has been provided for in the legislation under examination is in accord with the law of the land encroaching upon none of the vested rights of the parties. Hence, the appeals are without merit and are dismissed leaving the parties to bear their own costs,