KHALIL-UR-REHMAN KHAN, J.- This judgment will dispose of two Intra Court Appeals (ICA No. 144/79 and ICA No. 154/79), as the judgment under challenge in both the appeals is one and the same as as such common question of law are involved in these appeals.
2. The brief facts of both these appeals may first be noted:- ICA No. 144/79 Abdul Karim, allegedly obtained allotment of the land on 26.8.1971 from Border Area Allotment Committee against his verified claim equivalent to 790 units at Khata No. 202 of Register RL-II of village Wehgal, District Kasur. Lt. Col. Sarfraz Khan, appellant, who is allottee of land under the Indo- Pak Border Scheme in the said village supplied information to the Deputy Commissioner that Abdul Karim was not a bona fide claimant and that the allotment of land statedly obtained by him was bogus and fraudulent. On this application, the parties were summoned by the Assistant Commissioner, Kasur, who was entrusted an inquiry in the case. Abdul Karim respondent, challenged the jurisdiction of the Assistant Commissioner through W.P. No. 293-R/77 and the same was disposed of vide order dated 1.7.1977 by this Court as the matter had been by then referred to the Border Area Committee. The parties were then summoned by the Border Area Committee which after providing hearing vide its order dated 14.7.1977, declared that the allotment of land in the name of the respondent was bogus and fraudulent as he was not a bona fide claimant and he was also not recorded as owner of the land in special 'jamabandi' of village Jakopur Khurd/Kalan received from India. This is the village in which the respondent statedly abandoned the land and in lieu thereof he had allegedly filed the claim. This order of the Border Area Committee was then challenged by filing Writ Petition No. 1119/R/77 which was accepted vide judgment dated 21st May, 1979, impugned in this appeal.
ICA. No. 154/91 One Sami Khan son of Hasti claiming to be the successor of Chhotay Khan son of Mamla, Meo by caste, who had died during disturbances in 1947, filed a claim for the land abandoned by said Chhotay Khan in India. Sami Khan got the land measuring 320-kls. 11-Mls. Allotted in village Wadhana, Tehsil and District Kasur. This allotment in the name of Sami Khan was cancelled by the Border Area Committee on 1,4.2.1962, holding that he was not entitled to the allotment at all. This order was challenged in the High Court by filing a petition (W.P No. 1464-R/63, but the same was dismissed by learned Judge of this Court vide judgment dated 6.6.1969. Sami Khan against the same claim got allotment in village Moakkal, District Kasur vide order dated 1.6.1972 on the basis that the Border Area Committee had reviewed its order dated 14.2.1962 through an other order subsequently passed in review on 1.6.1962. In the process of preparation of record of right holders of village Moakkal, the Additional Deputy Commissioner, (Consolidation) Lahore, observed a number of irregularities in the Khata of the writ petitioners. He investigated the matter through verification of cases of allotment of land in the name of respondent-writ petitioners and finding that the khatas were not genuine and the signatures thereon were forged and some of the khatas were also not confirmed by the competent authority, he referred the matter to Border Area Committee for appropriate decision as the land fell within the border belt. The Committee after hearing the parties noted that the proposal made in the khata in the name of respondents-petitioners was not confirmed by the competent authority; that the land allotted on the basis of claim of Chhotay Khan, in village The Wadhana, Tehsil and District Kasur, was cancelled in 1962 and the said order was not interfered with in the writ petition No. 1464/63, as the same was dismissed by the High Court vide judgment dated 6th June, 1969 and this judgment still holds the field. It was further noted that the record produced also revealed that the claim was transferred to District Bahawalnagar on 1st December, 1971 and against the said claim, the allotment was obtained in village Nagar Aminpura as well. This order dated 15.1.1978, cancelling and resuming the land, was then challenged in W.P.No. 358-R/78.
3. Both these petitions were heard together and were accepted vide judgment dated 21st May, 1979.
This judgment was then assailed in present Intra Court Appeals.
It may be noted at this stage that the contention that the Border Area Committee as constituted is not competent to exercise powers and perform the function assigned under the Martial Law Regulation No. 9 of 1959 as office of the Rehabilitation Commissioner no longer exists and as such no question arises to nominate his representative on the Committee was not dealt with by the learned Judge in the impugned judgment by observing that it was not necessary to decide this and certain other contentions as the question of composition of the Border Area Committee has been assailed in Civil Petition for Special Leave to Appeal No. 459-R/77 and in which leave has already been granted. It was, however, noted that this by itself cannot take the case of the petitioner any further as the order of High Court (D.B.) was adverse to them. This appeal, it was stated before us, was not pursued and as such was dismissed in default with the result that the order of the Division Bench repelling the objection as to constitution of the Border Area Committee still holds the field. (See Intra Court Appeal No. 65/77 decided vide judgment dated 2.7.1977).
4. We have heard the learned counsel for the parties. Learned counsel for the appellants argued that the view taken by the learned Judge in the impugned judgment is not sustainable in view of the conclusion recorded by the learned Judges of the Supreme Court in Muhammad Latif and 5 others Vs. Border Area Committee and two others: (PLD 1978 S.C. 270); that the Martial Law Regulation No. 9, being an independent law, continues to exist on the statute book despite repeal of Evacuee, Rehabilitation and Settlement Laws. It was added that the Border Area Committee as such continues to exist by virtue of Martial Law Regulation 9 and that in any case, no objection to its constitution or to the order passed by it, can be taken in view of the provisions of paragraph No. 18 added by Ordinance-Ill of 1981, West Pakistan Border Area Regulation 1959, (Punjab Amendment)
Ordinance 1981, in the Regulation. According to the learned counsel all orders passed by the Border Area Committee are to be deemed to have been validly passed and shall be deemed always to have had effect accordingly. It was argued that the orders passed by the Border Area Committee impugned in the Constitution Petition, are to be taken to have "been valid and effect in law.
In reply, learned counsel for the respondents relied On the conclusions recorded by learned Judge in Chamber in the impugned judgment and, therefore, reiterated the same contentions which were urged before the learned single Judge. These contentions were that after the repeal of all Evacuee, Rehabilitation and Settlement Laws by Act XIV of 1975, there is no jurisdiction left in any authority to intermeddle in the rights of displaced persons settled on lands, houses and shops etc. Which had already come to vest in them absolutely by operation of laws; that the properties not so disposed of were to vest in the Provincial Government and were to be disposed of under the repealing law; that the repealing Act had come into force from 1.7.1974 and as such the Border Area Committee had no jurisdiction in 1977 over the corpus of the property and consequently, could pass no order in relation thereto and that the Border Area Committee as constituted is not competent to exercise powers and perform the function assigned under the Martial Laws Regulation No. 9 of 1959 as office of the Rehabilitation Commissioner no longer exists and as such no question arises to nominate his representative on the Committee. Lastly, it was contended that the constitution of Border Area Committee provided by West Pakistan Border Area Regulation, 1959 (Punjab Amendment)
Ordinance, 1981 (Ordinance III of 1981) is repugnant to the relevant provisions of MLR-9, which is the "existing law" and, therefore, the provisions made by Punjab Ordinance III of 1981 are ineffective to the extent of repugnancy by virtue of Article 143 of the Constitution.
5. We have given serious consideration to the respective submissions of the parties. The learned Judge in the impugned judgment has recorded the following conclusions:- i) With the repeal of the Evacuee, Rehabilitation and Settlement Laws, all authorities created thereunder ceased to exist, for the simple reason that with the disappearance of the creator, the created beings also lost their entities and that the Rehabilitation Commissioner has ceased to exist with the repeal of the Rehabilitation Act under which he Was created, so it would be a remarkable feat of more than a Masiha to bring forth a representative from a deceased being. ii) The Border Area Committee could scrutinize allotments of "evacuee property", but now after the evacuation of its owner some 30 years ago, what right or interest is left with the owner to have a right or interest in the property, so that the property be called as evacuee property. Moreover, all evacuee land was acquired by Notification under section 4 of the Displaced Persons (Land Settlement) Act, 1958 with which all interest of evacuee or persons claiming through him extinguished and the land vested wholly and absolutely in the Central Government or the Provincial Government free from all encumbrances. So still to call such property as evacuee property would amount to rendering the statutory words meaningless and redundant. iii) If the property is ceased to be 'evacuee' by way of legislation and vested in the Government, then in that event, it is obvious that the Border Area Committee would have no jurisdiction to operate over such property. iv) From the observation made in the Supreme Court case of Muhammad Latif, (supra) it is quite clear that their Lordships were of the view that the West Pakistan Border Area Regulation (M.L.R. 9) is an independent enactment quite distinct from the Displaced Persons (Land Settlement) Act, 1958.
But from this it does not follow that Martial Law Regulation No. 9 shall operate over evacuee property which has ceased to be such over which it exercised jurisdiction. The Martial Law Regulation No. 9 vide para 10 provided that a Border Area Committee may scrutinize allotments of "evacuee property". The evacuee properties have ceased to be evacuee long ago, the law under which those were defined as evacuee, all have been repealed. All such properties vested in the relevant Government by operation of law and formed part of Compensation Pools from where those were transferred or allotted and came to vest absolutely in the transferees or the allottees, again, by operation of laws. What was not so disposed of and was "available" came to vest with the Provincial Governments to be disposable under Scheme to be framed by the concerned Board of Revenue vide repealing Act, XIV of 1975, therefore, it is no use, nor possible to follow the ghosts of the departed souls. These have been buried by the debris of the time and cremated by the laws of the land. There are no more evacuee properties and authorities who exercised jurisdiction thereon have also ceased to exist. The properties transferred or allotted vest absolutely in favour of the transferees or allottees. v) Pending proceedings and "available properties" have to be disposed of by the "notified" authorities under the latest law i.e. Act XIV of 1975, but the impugned orders having been passed not by the notified authorities under section 2(2) of the aforesaid Act are illegal and without lawful authority".
6. The above conclusions are based on the premises that the evacuee property has formed part of the Compensation Pool constituted under the Displaced Persons (Land Settlement) Act, 1958 and that all such land allotted to the displaced persons vested absolutely in the allottees and thereafter on the repeal of the Evacuee, Rehabilitation and Settlement Laws, these properties can neither be treated as evacuee property nor the authorities who were created under these laws exist and, therefore, there is no question of exercising any power or function by such non-existent authorities. These observations and conclusions are correct in so far as these relate to the erstwhile evacuee properties situated outside the border belt. Unfortunately, it was not brought to the notice of the learned Judge in Chamber that the evacuee land situated in the border belt was treated differently from the evacuee land falling outside the said belt. The Border Scheme was introduced in the year 1952 to accord altogether different treatment to the evacuee land on the Indo-Pak Border. The Border Scheme is a complete code in itself as the provisions contained in the Rehabilitation Scheme of the year 1952 or the Rehabilitation Settlement Scheme of 1956, did not apply to the evacuee land situated on the Indo-Pak border. This evacuee land formed a distinct category even under the Rehabilitation Laws.
The Settlement laws i.e. Displaced Persons (Compensation and Rehabilitation) Act, 1958 and Displaced Persons (Land Settlement) Act, 1958, were then brought on the Statute Book in the year 1958. The Notification under section 4 of the Land Settlement Act, acquiring evacuee land was notified and published in the gazette on 1st May, 1959.
7. Before issuance of the aforesaid Notification for acquiring the land under the said Act which will have the effect of extinguishing the right, title and interest of any evacuee or persons claiming through him in the land and of vesting the land wholly and absolutely in the Central Government, the MLR-9 of 1959 was promulgated and gazetted on 20th March, 1959. This Regulation provides that the Provincial Government shall constitute a committee or such number of committees as it considers necessary for the Border Area. The Committee is to consist of two members, one a representative of the Rehabilitation Commissioner and the other of the Pakistan Army. Para 5 conferred power on the Committee to declare by order in writing a person to be an undesirable person on the grounds mentioned therein and to direct him to furnish statement giving full particulars of immovable property within a border area of which he is the owner, or has, in any other capacity the possession or control thereof. The effect of the order so passed is that a person in respect of whom an order has been made has no immovable property within a border area, he shall, within seven days of the order, remove himself and not to enter or stay in the border area without the permission in writing of the Deputy Commissioner of the district concerned.
8. Para-6 of the Regulation provides that Committee may direct an undesirable person to surrender, within such lime as may be specified, all immovable property within a border area of which he is the owner, or has, in any other capacity, possession or control. The immovable property mentioned therein has been categorised as the "property which is not evacuee property" and "property which is evacuee property", with a view to distinguish one kind or category of immovable property from the other. The nomenclature used was thus descriptive of the two kinds of immovable property. Such use of the term evacuee property in the two Settlement Acts has been acknowledged in the impugned judgment as well. The officers to whom each category of property is to be surrendered are also mentioned. In case the property, is of the nature of evacuee property, it is to be surrendered to the Deputy Rehabilitation Commissioner within whose jurisdiction such property is situate. Para-9 requires of persons who are in unauthorised occupation of any immovable evacuee property to surrender the same to the Deputy Rehabilitation Commissioner or the Committee may take possession of the property by evicting the person. Para-10 confers power on the Committee to scrutinize all allotments of evacuee property within the border belt and after such scrutiny, if it is satisfied that any allotment so made to a person not eligible for allotment under the West Pakistan Rehabilitation Settlement Scheme including the Border Scheme, it may cancel the allotment and direct the allottee to surrender forthwith the property to the Deputy Rehabilitation Commissioner within whose jurisdiction the property is situated. Para-11 provides that no compensation shall be payable in respect of any property which is surrendered in pursuance of paragraph 9 or paragraph 10, or is taken possession of under paragraph 7, paragraph 9 or paragraph 10. Para 12 provides that all properties surrendered or taken possession of under this Regulation shall vest in the Provincial Government free from all encumbrances. Para 13 then provides that evacuee property surrendered or taken in pursuance of this Regulation shall be allotted by the Committee in such manner, keeping in view the principle of consolidation of holdings, and on such terms and conditions as may be prescribed by the Provincial Government.
The three schedules attached to the Regulation give the categories of persons who are eligible for allotment of evacuee land/properly for the purpose of Regulation 9. This includes claimants who had registered or got their claim forms transferred to any particular estate in the border belt before the 24th December, 1952. The Scheme framed under the Regulation also regulates even the disposal of the land by the allottees.
9. The entire scheme of the MLR-9 would show that all the properties, whether owned by the citizens or whether abandoned by evacuees on account of being situated on the Indo-Pak border, were dealt with specifically by this law in the interest of security and defence of the country. The immovable property on the Indo-Pak border as was of two categories, was described with that description which could make distinct one from the other kind or nature of the property. It will, therefore, be seen that the property which is described for identification purposes as evacuee property, even though formed part of the Compensation Pool constituted under the Displaced Persons (Land Settlement) Act, 1958, yet the property situated within the border belt is to be dealt with in accordance with provisions of the MLR-9. The evacuee land despite vesting in the allottees by virtue of the provisions of Displaced Persons (Land Settlement) Act, 1958, remains liable to be dealt with under the Martial Law Regulation No. 9. Both the statutes i.e.The regulation as well as the Settlement Law are operative and are as such to applied. Moreover, the term "evacuee property" is defined by the MLR-9 as under:- 3(d)..."evacuee property" has the same meaning as in the Pakistan Rehabilitation Act, 1956 (XLII of 1956), and "Rehabilitation Commissioner" and "Deputy Rehabilitation Commissioner" means respectively the Rehabilitation Commissioner and any Deputy Rehabilitation Commissioner appointed thereunder as such"; The intention is clear that for purposes of knowing the meaning of the descriptive term "evacuee property", reference is to be made to these laws. The incorporation of these laws in the definition clause is only for identifying one of the properties dealt with by the law. It is, therefore, obvious that with the repeal of Evacuee and Settlement Law, the Regulations being an independent law continues not only to exist but also is operative to achieve the purposes fore which the law was promulgated.
10. Now the objection as to the constitution of the Committee may be taken. It may be noticed that Para-4 of the Regulation does not provide that the Rehabilitation Commissioner is to nominate his representative on the Committee. It is the power vesting in the Government. Even the Rehabilitation Commissioner is not to be consulted by the Government for making the nomination. The question is as to why the nominee has to be the representative of the Rehabilitation Commissioner. The answer is that a specific type of the property is to be dealt with and the record of that property is with the concerned department whose head is the Rehabilitation Commissioner and who is dealing otherwise with the property of the same kind and as such Committee's work will be facilitated by appointing the representative of the said department. It may also be pointed out that evacuee property after cancellation of allotment of ineligible property is to vest in the Government.
Even no compensation is payable of any property including the evacuee property which is ordered to be surrendered in pursuance of paragraphs 9 and 10. No question, therefore, arises of the vesting of the property situated in the border belt absolutely in the allottee or the transferee. Even the claimants who had registered their claims before 24th December, 1952 have been allotted the land and whose allotments have been upheld after scrutiny by the Border Area Committee, are to retain the land in accordance with the provisions of Martial Law Regulation No. 9 and not under the Settlement Laws. Had these features of the Regulation been brought to the notice of the learned Judge in Chamber, the conclusions as above would have been arrived at by the learned single Judge.
11. The contention that with the repeal of the Displaced Persons (Land Settlement) Act, 1958, the Border Area Committee was no longer competent to review the allotments made by the Committee, was repelled in Muhammad Latif's case, (supra) by the Supreme Court with the observations as under:- "So far as the first contention that with the repeal of the Displaced Persons (Land Settlement) Act the Border Area Committee was no longer competent to review the allotments made by it earlier is concerned, we are clearly of the view that the West Pakistan Border Area Regulation (MLR.9) is an independent enactment quite distinct from the Displaced Persons (Land Settlement) Act, 1958, and the repeal of the latter enactment does not affect the operation of the former in any way. Hence we find no force in this contention".
12. In view of the distinctive features noted above there is no alternative but to hold that the repeal of the evacuee laws has no effect on the operation of M.L.R. 9- West Pakistan Border Area Regulation, 1959. This regulation exists independent of these laws, .And any mention of these laws in the regulation is only by way of legislation for (He purposes of specification of the property to be dealt with under the regulation. This property as such is not to be dealt with by the notified officers under the evacuee property and Displaced Persons Laws Repeal Act XIV of 1975. After repeal of the Rehabilitation and Settlement Laws, the other evacuee property which firstly formed part of the compensation pools and then became available property came to vest also in the Provincial Government and is to be dealt with by the Board of Revenue and in these circumstances, in accord with the Scheme of the Martial Law Regulation No. 9, the representative of the Board of Revenue i.e. Secretary Rural was nominated on the Committee alongwith a representative of the Army. This nomination as such was in accord with the Scheme of MLR-9. The Committee so constituted as such was competent and no justifiable exception to its constitution can, therefore be taken. The objection to the composition of the Committee may not be gone into by us in detail as one of these appeals is liable to be dismissed on another formidable ground noted hereunder and also for the reason that another Division Bench of this Court has already repelled this objection in another case. This is constitution petition (W.P.No. 895-R/77) filed by Sami Khan, predecessor-in-interest of petitioners in W.P.No. 358-R/78 out of which ICA No. 154-91 arose. The judgment in the aforesaid writ petition was upheld by a Division Bench of this Court in ICA No. 65-77. The petition for Special Leave to Appeal No. 459/77 was, then filed before the Supreme Court. Leave was also granted, but ultimately the appeal as was not prosecuted, was dismissed for non-prosecution. However, the fact is that imported for the purpose of rendering orders made by Custodian in the very difficult circumstances attending their duties, final and unchangeable for all time". These considerations are applicable with full force to the orders made by the Committee under equally difficult circumstances.
14. The plea that newly added para-18 by Ordinance-III of 1981 has the effect of rendering the order passed by the Border Area Committee-appellant valid has no merit as this para does not provide a blanket protection and does not validate all and every order passed by the Committee. Para-18 reads as under:- Para-18..."Notwithstanding any judgment, decree or order of any Court, an order passed at any time before the commencement of this Ordinance, by the Committee or any of its members, in exercise of the authority conferred on the Committee or its members by the Regulation, shall not be invalid merely because of any defect in the constitution of the Committee or the incompetence of the person making the order or the repeal of evacuee laws by the Evacuee property and Displaced Persons Laws (Repeal) Act, 1975, (XIV of 1975), provided any such order was passed with the approval of the General Headquarters, and all such orders shall be deemed to have been validly passed and shall have, and shall be deemed always to have had, effect accordingly".
The words "provided any such order was passed with the approval of the G.H.Q." clearly categories the orders which stand validated. The impugned orders of the Committee do not thus qualify the validation clause.
15. Now the plea as to the vires of Ordinance III of 1981, West Pakistan Border Area Regulation, 1959, (Punjab Amendment) Ordinance, 1981, and the plea of alleged repugnancy based on Article 143 of the Constitution may be attended to.
Martial Law Regulation No. 9 became Central Act from 8.6.1962 by virtue of Article 225(3) of the Constitution of Pakistan 1962. This Regulation was accorded status of "existing law" under Article 268(7) of the Constitution of Islamic Republic of Pakistan, 1973. Article 260 of the Constitution defines the "existing law" as under:- "Existing law" has the same meaning as in clause (7) of Article 268". Sub-clause (7) of Article '268 reads as follows:- "In this Article "existing law" means all laws (including Ordinances, Orders-in-Council, Orders, Rules Bye-laws, Regulations and Letters Patent constituting a High Court, and any Notification and other legal instruments having the force of law) in force in Pakistan or any part thereof, or having extra- territorial validity, immediately before the commencing day".
Sub-clause (1) of Article 268 being relevant may be quoted as under:- "(1) Except as provided by this Article all existing laws shall, subject tc the constitution, continue in force, so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature".
The erstwhile evacuee property is mentioned at serial No. 36 in Concurrent Legislative List. (See Fourth Schedule of the Constitution). Article 142(b) of the Constitution provides that 'Majlis-e- Shoora (Parliament), and a Provincial Assembly also, shall have power to make laws with respect to any matter in the Concurrent Legislative List". A study of these Articles make it abundantly clear that the existing laws except as provided by Article 268 shall, subject to the Constitution, continue in force so far as applicable and with necessary adaptations until altered, repealed or amended by the appropriate Legislature. The "appropriate Legislature" includes for the matters in the Concurrent Legislature List, the Provincial Assembly also. The appropriate Legislature i.e. Provincial Assembly is thus competent to amend, alter and repeal the existing laws. The MLR-9 of 1959 was thus competently amended by promulgating West Pakistan Border Area Regulation, 1959, (Punjab Amendment) Ordinance 1981. No argument based on such repugnancy is thus available. This very contention was also repelled by a Division Bench of this Court comprising Mr. Justice Saad Saood Jan and M.rJustice Abaid Ullah Khan in I.CA. No. 110/1983 observing as under:- "The learned counsel for the appellants contended that the West Pakistan Border Area Regulation was an existing law within the meaning of Article 143 of the Constitution and as such the Provincial Legislature}, was not competent to amend it. This contention is also without merit. Article 143 debars the Provincial Legislature from making any- law which is repugnant to any existing law in the concurrent Held. There is no repugnancy between the Ordinance and ' the provisions of the said Regulation so far cancellation of allotment consequent upon alienation without permission of the General Headquarters is concerned for as already pointed out even under the Regulation an allotment was liable to be cancelled if the person obtaining the allotment sold away the same without prior permission. Thus the Ordinance does not create a new situation which is inconsistent with the one already existing".
For the reasons given above, this plea is also held to be without merit and repelled.
16. The appeal (ICA. 154/79) is liable to be dismissed on an other score as well. The allotment order dated 1.6.1972, was obtained on the basis that the order dated 14.2.1962 had been reviewed by the Border Area Committee vide order dated 1.6.1962. This order is non-existent as per the stance taken by the Border Area Committee. Even otherwise had this order dated 1.6.1962, been passed by the Border Area Committee, then the same would have been relied upon by the petitioners during the hearing of writ petition No. 1464-R/63 filed earlier. No such order was relied upon then. Sami Khan was found to have no entitlement to succeed to Chhotay Khan son of Mamla. It was further held that the claim filed by him was bogus. These findings were not interfered with by the High Court as the petition filed was dismissed after full consideration vide judgment dated 6.6.1969. This judgment was not challenged and the same holds the field till date. In the presence of the said judgment, respondents or their predecessor-in-interest on the basis of the same claim could not have obtained allotment presently in question in village Moakkal. For this reason no right can be claimed on the basis of the allotment in question and hence order of cancellation dated 15.1.1978 despite all other pleas taken against the said order, merits not to be interfered with in exercise of equitable constitutional jurisdiction.
For all the above reasons, the impugned judgment is set aside, the writ issued by the learned single Judge vide impugned judgment dated 21.5.1979 is recalled and both the appeals are hereby accepted with costs.