1. MUHAMMAD YAQUB ALI, J.-Mehr Din and others, appellants, are the successors-in-interest of one Ameer who died in India during the disturbance of 1947. The claim form for the land abandoned by him was filed by the appellants for Chak No. 149/6-R, Tehsil Fort Abbas, district Bahawalnagar within the border belt. Initially they were given temporary allotment of 15 acres in the Chak. Later on, when the claim form of Ameer was verified the Assistant Rehabilitation Commissioner on the 9tb May 1957, allotted to the appellants 770 kanals and 15 marlas of land inclusive of the land in their temporary allotment. Later on 48 kanals of land was excluded from this area and the rest of the land measuring 722 kanals and 15 marlas was confirmed in the names of the appellants.
2. The appellants were in possession when on the 20th July 1960, the Border Area Committee consisting of Major Abul Faizi (Chairman) and Raja Mohammad Abdullah, Member, Rehabilita-- petition, scrutinized the allotments in Chak No 149/6-ft and purport--ing to exercise authority under paragraph 10 of the Martial Law Regulation No. 9, Zone B, cancelled all the allotments made in the Chak to refugee claimants. A number of representations and telegrams were thereupon sent by the claimants to the G. H. Q. Pakistan Army who thereupon gave directions to the Border Area Committee to rescind the orders passed on the 20th July 1960. In compliance with the directions Major Abul Faizi restored all the allotments in the Chak on the 28th September 1960, and made an endorsement "Re-confirmed" on the khata of each claimant.
3. After a while, the Tahsildar inspected the record of Chak No. 149/6-R, Tehsil Fort Abbas, and discovered an excess to the extent of 191 units in the verification of the claim of Ameer. On his report the Border Area Committee on 1-10-1960 cancelled killas Nos. 16 to 18 and 13 to 25 of sq. No. 56 from the names of the appellants. An endorsement to that effect "cancelled" was made on the Khata of the appellants. In the meantime, Addendum to Martial Law Regulation 9, Zone B, was issued on the 5th November 1960, which provided that claimants who had either registered in or got their claims transferred to any particular estate lying in the border belt before 17th March 1959, would be considered eligible for allotment of evacuee property within the five miles Indo-Pak Border Belt of Bahawalnagar district provided they are temporary allottees of the land actually held by them in that particular estate before this date and provided further that the allotment of the land shall not exceed their temporary allotment. In pursuance to the Addendum dated the 5th November 1960, the Border Area Committee on the 11th June 1965, cancelled the allotment of the appellants leaving with them only 15 acres of land which was in their temporary allotment since 1952 on the finding that the order cancelling the allotment of the appellants on the 20th July 1960, had not been revised and that the endorsement on their Khata "Re-confirmed" was a subsequent interpolation.
4. Aggrieved by the cancellation of the allotment the appellants moved the High Court in writ jurisdiction, but a Division Bench dismissed the writ petition in limine following the decision in Mohammad Khan v. The Border Area Committee (PLD 1965 SC 623) that they had no jurisdiction to set aside an order made by the Border Area Committee.
5. Leave to appeal was granted as the decision in the case of Mohammad Khan was distinguishable as the effective orders in that case were passed during the Martial Law period and prior to the enforcement of the 1962-Constitution. It was urged that if the impugned order was ultra vires of the Martial Law Regula--petition 9, Zone B, itself there would be jurisdiction in the High Court to interfere with the order under Article 98 of the Constitu--petition despite the ouster of the jurisdiction of the High Court and the Supreme Court contained in Paragraphs 15 and 16 of the Regulation.
6. Since leave was granted this Court has in more than one cases held that the ouster of jurisdiction of the High Court and the Supreme Court contained in the provisions of various Martial Law Regulations promulgated during the Martial Law period ceased to be effective from the commencement of the 1962 --Constitution on the 7th June 1962. In Nawab Haji Khair Mohammad Khan v. The State (PLD 1966 SC 604) dealing with the ouster of jurisdiction of the High Court and the Supreme Court under paragraph 27 of the Martial Law Regulation 64, it was provided:- "As a result of the above discussion, we are satisfied that the order of Mr. I. U. Khan is not one that can be made within the powers given by the Regulation. By paragraph 27 of that Regulation, it is provided that no order made thereunder shall be called in question in any Court including the High Court and the Supreme Court. The words are not "any order purporting to be made", but "any order made" and therefore the requirement is that any order in respect of which immunity may be claimed under paragraph 27 must be an order made in accordance with the Regulation in its relevant provisions. Before the 7th June 1962, there were in force certain Martial Law Regulations which had effect to save actions of e.g., the Land Commission authorities, which merely purported to be made under the Regulation, even though not in compliance with its relevant provisions, but these Regulations ceased to have force on the promulgation of the present Constitution, and the bar of jurisdiction under paragraph 27 was limited there--after to orders which were in substance and form made in compliance with the Regulation. Therefore, the High Court had jurisdiction under Article 98 of the Constitution to declare that the order of Mr. I. U. Khan was made without lawful authority and was therefore of no effect.
7. For these reasons, we allow this appeal with costs, and reversing the decision of the High Court, we grant the appellant a declaration that the order made in review in his case, by Mr. I. U. Khan on the 31st July 1962, was made without lawful authority, and consequently is void and of no effect."
8. We may pause here to consider the nature of the jurisdiction of the High Court under Article 98 of the 1962-Constitution. The Article provides that subject to this Constitution a High Court shall have such jurisdiction as is conferred on it by this Constitu--petition or by law. This is re-affirmed in Article 130 that "No Court shall have any jurisdiction that is not conferred on it by this Constitution or by or under the law". This, however, did not mean that the jurisdiction conferred on the High Court by Article 98 could be taken away by a law, passed by the Central or Provincial Legislature. Short of amending the Constitution by an Act of Central Legislature passed by the votes of not less than two-thirds of the total number of the members of the National Assembly as laid down in Article 209 no law could divest the High Court of the jurisdiction to give directions to a person performing in the Province functions in connection with the, affairs of the Centre, the Province or a local authority to refrain from doing that which he is not permitted by law to do and to declare that any act done or proceeding taken by any one of the said persons has been done or taken without lawful authority and is of no legal effect. A Border Area Committee is person performing in the Province functions in connection with they affairs of the Centre". Under Article 225 of the Constitution the West Pakistan Border Area Regulation, 1959, is deemed to be an Act of the "Central Legislature" and with the necessary adaptations has the effect as such. The ouster of jurisdiction of the High Court in paras. 15 and 16 of the Martial Law Regulation 9, Zone B, therefore, ceased to be operative as against the jurisdic--petition conferred on the High Courts by Article 98 from the commencing day viz. 8th June 1962.
9. The view adopted by the High Court that it did not have the jurisdiction to call in question the orders of the Border Area Committee cancelling the allotments of the appellants is thus erroneous and in purporting to follow the dictum in Mohammad Khan's case the learned Judges have omitted from consideration that all the effective orders in that case were passed before the 8th of June 1962 We would have on this premises remitted the case to the High Court for decision on merits, but the records produced by the officials of the Border Area Committee leave no room for doubt that the allotment of the appellants was re-confirmed on 28th September 1960. There is no possibility of any fabrication of this entry as precisely similar orders were passed on the same day on the Khatas of each and every claimant in Chak No. 149/6-R. The learned counsel for the respondent was unable to assail the facts as they appeared in the Register R. L. II, but contended that under the Addendum to Martial Law Regulation dated the 5th November 1960, the allotment of every person in district Bahawalnagar was liable to be cut down to his initial temporary allotment.
10. The construction placed on the Addendum is per se erroneous. Under the original Border Area Scheme contained in Paragraph 55 of the West Pakistan Rehabilitation Settlement Scheme only those were eligible for allotment of land in the border belt who had registered their claims or got their claims transferred to the border area before 24th December 1952. The Addendum extended the date to the 17th March 1959, subject to the condition that the limit of allotment will not exceed temporary allotment. The Addendum thus covers cases of claimants who had registered their claims or got their claims transferred to district Bahawalnagar between 24th December 1952 and 17th March 1959, and had till then not succeeded in obtaining permanent allotment of land. This is fully borne out by the entries in the khatas of other allottees of Chak No. 149/68 appearing in Register R. L. II. In no case the confirmed allotment of a claimant was reduced to his initial temporary allotment under the Addendum as in the case of the appellants. As mentioned earlier this was a clear misrepresentation of the record. The order passed by the Border Area Committee dated the 11th June 1965, cancelling the confirmed appellants was thus without lawful authority.
11. The appeal is; accordingly, allowed and reversing the decision of the High Court we grant the appellant a declaration that the order made by the Border Area Committee on the 11th June 1965; cancelling the allotment of the appellants of 622 kanals and 15 marlas in Chak No. 149/6-R is without lawful authority and consequently is void and of no legal effect. In the circumstances we make no order as to costs.