' This judgment shall dispose of Writ Petitions Nos.280-R/1985, 321-R/1984 and 117-R/1989 as common question of law and facts are involved in all these petitions.
2. The facts, in brief, leading to these constitutional petitions are as follows:-- Writ Petition No,280-R of 1985.
3. Respondent No,2 Subedar Ghulam Muhammad was allotted a piece of land in village Rayya, Tehsil and District Kasur under a Military Scheme and out of his allotment, he sold land measuring 83 Kanals and 8 Marlas vide sale deed registered on 23-9-1981 to the petitioner Rehmat Ali. On 8-3- 1984, one Captain Saif Ullah gave an application to respondent No,1, Border Area Committee to the effect that as the allottee, respondent No,2, had sold the land in violation of Martial Law Regulation No,9 as amended by Ordinance No,III of 1981, without prior permission of the G.H.Q., the allotment was liable to be cancelled. On receipt of the application, the Border Area Committee issued notices to the allottee as well as the vendee i,e, respondent No,2 and the petitioner and later on notice was issued to them through citation in a daily newspaper and on their failure to appear, ex parte proceedings were conducted against them and vide its impugned order dated 20-6-1984, the Border Area Committee cancelled land measuring 83 Kanals and 18 Marlas from the allotment of respondent No,1 and resumed the same in favour of the State. The allottee obtained a post facto sanction from the G.H.Q. On 2-5-1985 and thereafter moved the Border Area Committee for the recall of the impugned order but as no reply was received by the Border Area Committee, therefore, the vendee has instituted the present petition which was admitted to regular hearing on 16-11-1985. In the written statement filed by Border Area Committee, it was disclosed that post facto sanction granted by the G.H.Q. Was cancelled/withdrawn by it vide letter dated 7-9-1985, a copy of which has been attached with the written statement as Annexure R/1. Whereafter, the petitioner moved C.M. No,5266 of 1989 seeking permission to implead G.H.Q., Rawalpindi as respondent No,3 in the writ petition and C.M. No,5267 of 1989 seeking permission to submit additional grounds having been necessitated due to the withdrawal order passed by G.H.Q. On 7-9-1985. On 31-3-1993, notice was issued to respondents in both the applications and it was also ordered that these will be heard alongwith the main petition. Respondent No,1 has submitted replies to both these applications and has opposed the same. To avoid any further delay C.M: No,5266 is rejected. C.M.
No,5267 is allowed.
Writ Petition No,321-R of 1984
4. Havaldar Nazir Ahmad, respondent No,2 was allotted land measuring 218 Kanals 15 Marlas under a Military Scheme on 26-1-1963 and he sold the same to the petitioners Muhammad Rafiq, Abdul Majeed and Muhammad Hafeez vide registered sale deed dated 9-3-1981 for a consideration of Rs,1,30,000 and the Revenue Mutation No,846 was also attested in favour of the petitioners on 9-12- 1981. On 8-3-1984, one Captain Saif Ullah gave an application to respondent No,1, Border Area Committee, to the effect that the allotment in favour of respondent No,2 was liable to be cancelled as the allottee had sold the same in favour of petitioners in violation of Martial Law Regulation No,9 as amended by Ordinance No,III of 1981 because the sale had been effected by the allottee in favour of the petitioners/vendees without prior permission from the G.H.Q. The applicant also asked for the allotment of this land after its cancellation from the name Of the allottee. On receipt of the application, the Border Area Committee, issued notice to the petitioners and thereafter a notice was also issued to them through a newspaper and on their failure to appear, ex parte proceedings were conducted against them and vide its order dated 20-6-1984, ftspondent No,1/Border Area Committee, cancelled the allotment of respondent No,2, Havaldar Nazir Ahmad and resumed the same in favour of the State, hence this petition which was admitted to regular hearing on 1-4-1985.
Respondent No,1, Border Area Committee vide its parawise comments and written statement, has opposed the petition. The application of Captain Saif Ullah (C.M. No,1080 of 1987) under Order I, rule 10, C.P.C. For impleadment as a party to this petition was disposed of by this Court on 18-4-1987 with an observation that he is neither a necessary nor the proper party but was allowed to watch the proceedings and was also allowed to make submissions with the permission of the Court. Mr. Aitezaz Ahsan, Advocate has represented Captain Saif Ullah and in view of the above order passed on 18-4-1987, he has also been allowed to make submissions.
Writ Petition No,117-R of 1989
5. Sher Muhammad Khan, respondent No,2, ex-Army Personnel was allotted land measuring 191 Kanals and 8 Marlas in villages Fatha and Bharo Chak Jattan, Tehsil Shakargarh, District Sialkot under a Military Scheme. He transferred the said land to his son Dilshad Khan, respondent No,3, on.
13-9-1981 through a registered gift deed. The gift was given effect to in the revenue record.
Respondent No,3, the donee, then sold the land to the petitioners through different transactions effected on different dates in the year 1984-85. In pursuance of the sales, the mutations were also sanctioned in favour of the petitioners/vendees. One Muhammad Arshad Khan, Advocate gave an application to respondent No,1, the Border Area Committee, that the allottee/respondent No,2 had gifted the land comprising of his allotment to respondent No,3 without obtaining permission from the G.H.Q. And the respondent No,3, the donee, without obtaining prior permission from G.H.Q. Sold the said land to petitioners and both these transactions were illegal and violative of Martial Law Regulation No,9 of 1959 and as such the allotment may be cancelled and the allotted land be resumed in favour of the State. On .Receipt of the application, the notices were issued to the allottee, the donee, and the vendees, and thereafter the notice was issued to them through daily Nawa-i-Waqt and on their failure to turn up, ex parte proceedings were conducted against them and the Border Area Committee vide its impugned order dated 12-4-1988, the land allotted to respondent No,2 was cancelled and resumed in favour of the State. Hence this constitutional petition which has remained in motion from 1989 may be due to the fact that in routine, it has been linked with the abovementioned connected petitions. The Border Area Committee vide its factual report and parawise comments has opposed this petition. It has also furnished copies of the interim orders passed by it to show that the parties were properly served and ex parte proceedings conducted against them were proper.
6. In all these petitions, only the vendees have challenged the orders of Border Area Committee and the allottees have not challenged the impugned orders of cancellation of their allotments and though made a party in these petitions as respondents, the allottees have not turned up in spite of having been served except in W.P. No,321-R of 1984. They are thus being proceeded ex pane.
7. Mr. Rashad Masood Ghangohi, learned counsel for the petitioner in Writ Petition No,280-R of 1985 has made his submissions from petitioner's side which have been adopted by Mr. Tahir Qayyum Lodhi, Advocate appearing on behalf of the counsel for the petitioners in Writ Petition No,321-R of 1984. None has turned up on behalf of the petitioners in W.P. No,117-R of 1989. Ordinarily, the petition is not to be decided on merits in the absence of the petitioner's counsel but as the Writ Petition No,117-R of 1989 has been linked with the abovementioned other two writ petitions and as the common question of law and facts are involved in all these petitions and as the arguments have been addressed from both sides at length, therefore, this petition is also being decided on merits alongwith other two.
8. I have heard the learned counsel for the parties and have also seen the record.
9. In order to better appreciate the issues involved, the provisions of relevant law are quoted below: ' Martial Law Regulation No,9 called as West Pakistan Border Area Regulation, 1959 (hereinafter referred to as the Regulation was issued by Martial Law Administrator Zone B and came into effect on 20-3-1959.
' The Border Area Committee was constituted under para. 4(a) of the Regulation. Schedule III of the Regulation provides conditions of allotment of land/property under the Border Scheme and Condition No,9 of Schedule III which permitted the Central Government to prescribe the terms and conditions of allotment reads as under:-- "9. The allotment will be subject to payment of such price, terms and conditions as may be determined by the Central Government in this respect."
' In pursuance to this power, the Central Government framed a scheme in 1961 known as the Scheme for Determination of Price, Terms and Conditions for the Allotment of Land under Martial Law Regulation No,9 Zone B.
' The provisions of para. 6 of this Scheme relevant to the extent are reproduced below:-- "6.--(1) The allotment of land will be subject to the following terms and conditions:-- The allottee shall ---
(a) .
(b) not alienate the land by sale, gift, exchange, mortgage after acquiring the proprietary rights except for the objects specified in clause (a) above, or otherwise without the prior permission of the Deputy Commissioner concerned who, before passing any order in this respect, shall satisfy himself that the alienee_is a suitable person for settlement in the border area. In case of the Military allottee the Deputy Commissioner concerned shall obtain approval from the General Headquarters before passing final order for alienation of the land. The Deputy Commissioner before according such a permission, shall in consultation with the Aajutant-General, General Headquarters Det (W&R) Dte Rawalpindi satisfy himself further that no Military personnel is willing to purchase the land;"
' The Regulation was amended on 1-2-1981 by Ordinance No,III of 1981 called as the West Pakistan Border Area Regulation, 1959 (Punjab Amendment) Ordinance, 1981 (hereinafter referred to as the Amending Ordinance).
' Section 11 of the Amending Ordinance substituted the then existing Condition No,10 and added a new Condition No,11 to Schedule III of the Regulation, the substituted and the added conditions read as below:-- "(10)The allotment shall be liable to be cancelled for breach of any of the conditions mentioned in this Schedule provided the allottee is given an opportunity of being heard before the allotment is cancelled.
(11) The allotment shall be liable to be cancelled if the land is transferred by the allottee to any person without permission of the General Headquarters."
10. It is contended by the learned counsel for the petitioners that in all these petitions, the Border Area Committee passed ex parte orders of cancellation of allotment without giving an opportunity of being heard to the petitioners and without satisfying itself, that the petitioners/vendees cannot be served in an ordinary manner, recourse to the substituted service by way of citation in the newspaper is illegal and therefore, the impugned orders being violative of the principle of audi alteram partem are illegal and liable to be set aside on this ground alone; that the sanction of G.H.Q. Is required to keep the Border Area clean from the unwanted elements and as some of the petitioners are ex. Servicemen, therefore, in its real spirit the law has not been violated; that after the acquisition of the proprietary rights, the allottees became absolute owners of the land in dispute and were not governed by the regulation and the Ordinance and were governed by the ordinary law of the land under which they could transfer their ownership in any manner they liked in favour of anyone; that Condition No,11 as added in the schedule to the Regulation by the Amending Ordinance No,III of 1981 merely speaks of the cancellation of allotment but does not render the sale as void and as this Condition is penal in nature, therefore, it should be liberally interpreted in favour of the allottees and transferees; 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 into the rights of Displaced Persons settled in land, houses and shops etc. And thereafter Border Area Committee had no jurisdiction over the corpus of the property and consequently could pass no order in relation thereto; that Ordinance No,III of 1981 which has introduced fundamental changes in the constitution of Border Area Committee and has also imposed new conditions in Schedule No,III i,e, Conditions Nos.10 and 11 is repugnant to the relevant provisions of MLR 9 which is the existing law and, therefore, provisions made by Punjab Ordinance No,III of 1981 are ineffective to the extent of repugnancy by virtue of Article 143 of the Constitution. In the last, it is submitted in regard to the rights of the petitioners in Writ Petition No,280-R of 1985 that withdrawal of post facto sanction by the G.H.Q. Without granting the petitioners an opportunity of being heard is illegal. In support of his contentions, learned counsel for the petitioners relied on Muhammad Ibrahim v. Havaldar Muhammad llyas and 3 others (1983 CLC 963 (Lahore), Abdul Ghafoor and others v. Muhammad Ismail (PLD 1982 SC 364), Muhammad Rafiq and 2 others v.
Border Area Committee and another (1982 CLC 1196) (Lahore), Abdul Karim v. The Border Area Committee, District Kasur (1980 CLC 670 (Lahore), Haji Saleh Muhammad and 2 others v. Haji Jumma Khan Agha and 4 others (1983 SCM R 587) and Chief Engineer, Building Department v. M/s. Pakistan National Construction (1988 SCM R 723).
11. Mr. Tahir Qayyum Lodhi, Advocate appearing for learned counsel for the petitioners in Writ Petition No,321-R of 1984 and Mr. Muhammad Farooq, Qureshi Chishti, Advocate appearing for respondent No,2/allottee in this petition have further submitted that the allottees have been recorded as owners in the revenue record and no condition to their ownership can be read in law. It has also been submitted by them that the Scheme for the Determination of Price, Terms and Conditions for the Allotment of Land under MLR-9, Zone B issued by the Central Government in 1961 in exercise of the powers conferred to the Central Government by paragraph 9 of Schedule III of the Regulation, shows that the condition of the permission for transfer has been laid down as is apparent on the bare reading of para. 6(i)(b) only to keep out the undesirable elements from settling down in Border Area and there is no finding of fact recorded by the Border Area Committee that the petitioners are not suitable persons. In support of his contention, Mr. Muhammad Farooq Qureshi Chishti, Advocate has also relied on Sher Afzal Khan and others v. Haji Razi Abdullah and others (1984 SCM R 228), Manzoor Husain v. Fazal Hussain and,others (1984 SCM R 1027) and Province of Punjab and others v. Member (Colonies), Board of Revenue, Punjab and others (1986 SCM R 529).
12. On the other hand, while opposing these petitions, Ch. Muhammad Rafiq Khan, Advocate, learned Legal Advisor of the Border Area Committee has submitted that the petitioners and allottees in all these petitions were lawfully proceeded ex parte on their failure to appear in spite of various notices having been served upon them and all of them were also served through citation in the newspaper; that the Border Area Committee can scrutinize allotment of any State land or immovable evacuee property within any border area at any time and on being satisfied that the allotment was made to a person not eligible for allotment, can cancel such allotment and direct the allottee to surrender it forthwith and any such property surrendered or taken into possession in pursuance of the Regulation can be allotted by the Committee in such manner and on such terms and conditions as are described in the Schedules annexed to the Regulation, reference in this regard is made to paras. 10 and 13 of the Regulation as amended by the Ordinance; that the allotment can be cancelled for breach of any of the conditions mentioned in Schedule III of the Regulation and the allotment is liable to be cancelled if the land is transferred by the allottee to any person without the permission of G.H.Q., reference in this regard is made to Conditions No,10 and 11 as respectively substituted and added by the Amending Ordinance in the third schedule of the Regulation; that even prior to the abovementioned substitution and addition of Conditions Nos.10 and 11, the permission from G.H.Q. Was required for a valid transfer by the allottee, reference in this regard is made to para. 6(i)(b) of the Scheme for Determination of Price, Terms and Conditions for the Allotment of Land under Martial Law Regulation No,9, Zone B issued by the Central Government in 1961; that the evacuee land in Border Area was acquired by the Central Government for General Headquarters for the purposes of the Regulation on 17-3-1959 and thereafter the land was acquired by the Central Government and Provincial Government on 15-4- 1959 and 8-6-1960 respectively, under section 4 of the Displaced Persons (Land Settlement) Act XLVII of 1958 for the purposes of the said Act and, therefore, there is no conflict between the two statutes; that the Regulation being an independent law continues to exist on the Statute Book despite repeal of Evacuee, Rehabilitation and Settlement Laws and even otherwise no objection to Committee's constitution or to the order passed by it can be taken in view of the provisions of paragraph 18 added by the Amending Ordinance in 1981 and all orders passed by the Border Ar"a Committee are to be deemed to have been passed validly. In support of his contentions, learned counsel has relied upon (i) Sohail Khan and others v. Border Area Committee, an unreported judgment passed by this Court on 30-4-1983 in Writ Petition No,10-R of 1983 affirmed in (ii) I.C.A.
No,110 of 1983 on 23-5-1983, (iii) judgment delivered by a Division Bench of this Court in I.C.A. No,144 of 1979 on 13-1-1992, (iv) a decision given by a learned Single Judge on 28-4-1992 in Writ Petition No,200-R of 1989 and (v) Muhammad Latif and 5 others v. Border Area Committee and 2 others (PLD 1978 SC 270). In the last, he has submitted that the abovereferred judgments of the Division Bench of this Court and also of the honourable Supreme Court show that the submissions made on the petitioner's side have no force and the law is already settled in these judgments.
13. Mr. Aitezaz Ahsan, Advocate appearing for the informer, Captain Saif Ullah while adopting the submissions made by the learned Legal Advisor of the Border Area Committee has also submitted that the petitioners are not bona fide purchasers, they knew of the condition of prior permission by the G.H.Q. And furthermore the revenue record also shows that the allottees were allotted the land under Military Scheme and, therefore, the vendees/purchasers were put on notice and it was their duty to further check up the terms and conditions under which the allotments were made to the allottees before striking any bargain with them. Learned counsel has referred to the established rule of Caveat Emptor.
14. The perusal of the original record produced by the learned Legal Advisor of respondent/Committee has disclosed that in Writ Petitions Nos.280-R of 1985 and 321-R of 1984, many notices were sent by the Border Area Committee to the allottees as well as the vendces and ultimately they were served through citation in daily Wafaq and, therefore, the contention that the order of ex parte proceedings against them suffers from an illegality has no merit. Similarly, in Writ Petition No,117-R of 1989, the Border Area Committee issued many notices to the allottee, the donee and the vendees and thereafter all of them except petitioner No,9 were also served through citation in daily 'Nawa-i-Waqt. The name of petitioner No,9 Abdus Sattar was misprinted in the newspaper as Abdul Ghaffar but his parentage has been correctly given. However, he has also not turned up today in support of his petition. The perusal of the record has further disclosed that on 18-3-1987 petitioner No,I lqbal Khan and Fazal Ahmad father of petitioners Nos.5 to 8 appeared before the Border Area Committee and thereafter they absented themseives.
15. Now I proceed to discuss the case-law cited by the learned counsel for the petitioners and also by Mr. Muhammad Farooq Qureshi Chishti, learned counsel for the respondent/allottee in W.P.
No,321-R of 1984. In Muhammad Ibrahim v. Havaldar'Muhammad Ilyas and 3 others (supra), it was held by the learned Single Judge of this Court in a Constitutional petition that the plaintiff. Even if incompetent to purchase land from an allottee under the Regulation (MLR-9) can validly pre-empt sale made in favour of respondent by exercising, right of pre-emption created in his favour by.The Regulation. However, it was not held that the pre-emptor if successful in his suit would not be governed by the provisions of MLR-9 as amended by Ordinance III of 1981. Abdul Ghafoor and others v. Muhammad Ismail (supra) has no relevance to the facts and law involved in the present petition. In Muhammad Rafiq and 2 others v. Border Area Committee and another, a judgment delivered by Single Judge of this Court, evacuee land was allotted to predecessor in interest of petitioner and was gifted away to petitioners later on through registered deed and the notice issued by the Border Area Committee was challenged through the constitutional petition and it was held that after the allotment, the land ceased to have its evacuee character for all intents and purposes and notice issued by the Border Area Committee regarding illegal possession of the land by the allottee was void ab initio and of no legal effect. The law laid down in this judgment is no more a good law in view of the judgments delivered by the Division Benches of this Court in Intra- Court Appeals which have been discussed in later paragraphs. The judgment delivered by the learned Single Judge, Abdul Karim v. The Border Area Committee, District Kasur (supra) is no more relevant as the same was set aside by the Division Bench of this Court in I.C.A. No,144 of 1979 discussed in later paragraphs. Haji Saleh Muhammad and 2 others v. Haji Jumma Khan Agha and 4 others (supra) was cited by the learned counsel for the petitioners to submit that it is an established rule of interpretation of statutes that while interpreting them the legislative intent is to be made effective. There is no denying the fact that while interpreting the statute, the legislative intent has to he. Made effective and the legislative intent has been fully discussed and interpreted in the judgments delivered by the Division Benches of this Court and by the honourable Supreme Court which have been cited by the learned counsel for the Border Area Committee and have been discussed in the later paragraphs of this judgment. Chief Engineer, Building Department v. M/s. Pakistan National Construction (supra), was referred by the learned counsel for the petitioners to contend that the inherent want of jurisdiction results in vitiating the proceedings taken by the Tribunal and. Is incurable notwithstanding waiver by conduct or otherwise. In the instant case, the proceedings initiated and finalised as is seen later on were fully competent by the Border Area Committee.
16. Similarly, the authorities relied upon by Mr. Muhammad Farooq Qureshi Chishti, Advocate are of no help to the petitioners or the allottees. In Sher Afzal Khan and others v. Haji Razi Abdullah and others (supra), it has been held by the honourbale Supreme Court that in a case where P.T.D.
Issued in favour of the respondent remained in field until repeal of the settlement laws by Act XIV of 1975, the exercise of jurisdiction by the settlement authorities, after coming into force of repealing act, in undertaking any inquiry in order to review and reopen such past and closed transactions, was palpably coram non judice and wholly incompetent. The subject-matter was governed by a different law and not by the Regulation or by the Amending Ordinance Manzoor Hussain v. Fazal Hussain and others (supra) has no relevance to the facts and law involved in the present case. In Province of Punjab and others v. Member (Colonies), Board of Revenue, Punjab and others (1986 SCM R 529), the land allotted under Border Area Allotment Scheme was cancelled by the Board of.
Revenue but subsequently restored on second 'review, the restoration order was challenged unsuccessfully before the Board of Revenue and writ petition was dismissed on account of laches.
In the appeal, the honourable Supreme Court held that the order passed by the Border Area Allotment Committee being immune from attack, first order of Board of Revenue cancelling allotment was without jurisdiction and corrective which removed that order from scene could not be objected to on any legal or jurisdictional plan as the order of Board of Revenue cancelling allotment made by the Border Area Committee had to be corrected and even if not so corrected, it had to be ignored so far as its legal implications were concerned. The law laid down by the honourbale Supreme Court in this judgment in fact supports the point of view of Border Area Committee and not of the petitioners as it has been held by the Supreme Court that if there is any illegality or impropriety in making allotment of land in Border Area by the Border Area Committee, the procedure prescribed in the Regulation (MLR-9) or under the Regulation has to be followed and none outside it.
17. The law relied upon by the learned counsel for Border Area Committee in support of his contentions is discussed below.
18. The facts, in brief, of Writ Petition No,10-R of 1983 titled Sohail Khan and others v, Border Area Committee relied upon by the learned counsel for Border Area Committee are that petitioner No,1 Sohail Khan being a Military, Personnel was allotted land measuring 248 Kanals 11 Marlas on 29-9- 1960 by the Border Area Allotment Committee. He deposited Rs,1,817, the requisite price of the land in question and acquired proprietary rights of the land measuring 236 Kanals vide mutation sanctioned on 24-1-1974, on 12-5-1982 alienated the property for a sum of Rs,2,50,000 through sale deed in favour of petitioners Nos.2 and 3 namely Qamar Din and Nizam Din. One Major (Retd.) Noor Muhammad Malik made a complaint to the Border Area Committee against petitioner No,1 that he had alienated the land in dispute without permission of General Headquarters, Rawalpindi. On which a notice was issued to petitioner No,1 but he did not appear before the Border Area Committee and challenged the validity of the proceedings by means of the above constitutional petition. Learned Single Judge while dismissing the petition on 30-4-1983 and while referring to Condition Nos. 10 and 11 of Schedule III of the Regulation, reproduced above, held that:-- "It appears that the purpose to retain the power to cancel the allotment in case of alienation of the land without approval of the General Headquarters is to have suitable proprietors of the land settled on the Border Belt. The petitioner once accepted the terms and conditions of allotment of land in dispute, he has to abide by the same."
' The writ petitioners challenged this decision in I.C.A. No,110 of 1983 and the Division Bench of this Court while upholding the decision of the learned Single Judge and while dismissing the I.C.A. In limine on 23-5-1983 held that the contention that with the repeal of laws relating to evacuee property the condition in question also disappeared, is withour any substance as:-- "The appellant procured his allotment under the West Pakistan Border Area Regulation and the condition in question was also imposed in pursuance to a provision of this Regulation. This Regulation continues to be still in force."
' Learned Judges also repelled the contention of the learned counsel for the appellants 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 and held that:-- "Article 143 debars the Provincial Legislature from making any law which is repugnant to any existing law in the concurrent field. 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."
19. All the issues have been dealt with and discussed exhaustively by a Division Bench of this Court comprising Mr. Justice M. H. Sial and Mr. Justice Khalil-ur-Rehman Khan in I.C.A. No,144 of 1979 and I.C.A. No,154 of 1979' titled "Lt.-Col. Sarfraz Khan Malik v. Abdul karim and Border Area Allotment Committee. Learned Judges while accepting both the appeals with costs on 11-12-1991 and while setting aside the impugned judgment passed by the learned Single Judge and while considering the effect of the repeal of the evacuee, rehabilitation and settlement laws, concluded that with the repeal of the evacuee and settlement laws, the Regulation being an independent law continues not only to exist but also is operative to achieve the purpose for which the law was promulgated.
The issues have been discussed in detail in paras. 6, 7, 8 and 9 of the judgment which are reproduced below:-- "6. .................................................
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 of 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 time 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/property 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 be 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" mean 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 Regulation being an independent law continues not only to exist but also is operative to achieve the purposes for which the law was promulgated."
' Learned Judges also held that:- "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 have registered their claims before 24-12- 1952 have been allotted the land and whose allotments have been upheld after scrutiny by the Border Area Committee or to retain the land in accordance with the provisions of MLR-9 and not under the Settlement Laws."
'Learned Judges in para. 12 of the judgment went on to hold that:-- "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 MLR-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 the 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 Eevacuee Property and Displaced Persons Laws (Repeal) Act XIV of 1975."
The honourable Judges also rejected the plea that the Committee having once made allotment cannot review its own order and it was held by them in para. 13 of the judgment that:-- "Para.10 of the Regulation when seen in the context of the Scheme of the Regulation as discussed abbve, would show that the scrutiny is a continuous power vesting in the Committee to be exercised from time to time as and when occasion arises. It is not that the power is exhausted after it has been exercised once and the Committee does not become functus officio thereafter. Para.20 of the West Pakistan General Clauses Act, can also be relied upon in this context. Reference may also be made to the case of Sahibrai v. The Custodian of Evacuee Property; (PLD 1957 SC 63), wherein the Supreme Court observed that "the principle of finality is applicable in full force only to matters decided in Courts of law."
Similarly, it was held that newly added para 18 by the Amending Ordinance does not provide a blanket protection to the allotment orders passed by the Border Area Committee and does not validate all and every order passed by the Committee and was further held that the words "provided any such order was passed with the approval of the G.H.Q." clearly categorise the orders which stand validated.
' The honourable Judges also attended to the plea as to the vires of the Amending Ordinance and its alleged repugnancy based on Article 143 of the Constitution and in para. 15 of the judgment held as follows:-- "Martial Law Regulation No,9 became Central Act from 9-6-1962 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.' 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 Notifications 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."
' Clause (1) of Article being relevant may be quoted as under:-- "(1) Except as provided by this Article all existing laws shall, subject to 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 Legislative List. The Provincial Assembly in 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. ##TE# ' Learned Judges also mentioned the above-referred decision given by a Division Bench of this Court comprising Mr. Justice Saad Saood Jan and Mr. Justice Abaid Ullah Khan in I.C.A. No,110 of 1983.
20. In Muhammad Latif and 5 others v. Border Area Committee and 2 others (PLD 1978 SC 270), relied upon by the learned counsel for the Border Area Committee, the honourable Supreme Court held that MLR No,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 operation of the former in any way.
21. Similarly the learned Single Judge while dismissing in limine Writ Petition No,200-R of 1989 on 28- 4-1992 of the vendee and while discussing the Condition No,6 of the abovementioned Scheme issued by the Central government and the Conditions Nos.9, 10 and 11 of the Schedule of the Regulation held that "it will, therefore, be not right to assert that prior to enforcement of Ordinance III of 1981, the Military allottee was free to alienate the property to any one he likes, Such a plea otherwise will not be available as the very purpose of MLR-9 would stand frustrated if any one can be brought into the said area by an allottee through sale of the allotted land". Learned Single Judge also repelled the plea of violation of fundamental rights and held that as the grant obtained was subject to the conditions attached thereto, the grantees cannot claim right to deal with the property under grant contrary' to the said conditions.
22. The abovementioned shows that all the pleas and contentions raised on behalf of the petitioners/vendees and allottees in these petitions were discussed in detail in the judgments and orders relied upon by the learned counsel for the Border Area Committee and all these pleas and contentions were rejected as having no merit. Thus following the above law laid down by the Division Benches of this Court and by the honourable Supreme Court, it is held that these petitions have no merit and are accordingly dismissed with no orders as to costs.