Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: NASEER AHMAD KHAN VS Respondent: PROVINCE OF WEST PAKISTAN
Court Name: Lahore High Court Judge(s): Abdul Shakurul Salam Title: NASEER AHMAD KHAN vs PROVINCE OF WEST PAKISTAN Case No.: Writ Petition No, 1625 of 1965 Date of Judgment:1980-05-25 Reported As: PLD 1980 Lahore 684 Result: Petition allowed
JUDGMENT
JUDGMENT ' Petitioner is a claimant displaced person. He having no house in his possession participated in Earmarking Scheme under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 in drawing of lot for the evacuee houses in 1960. He was lucky in respect of two houses, one at Quetta, the other at Lahore bearing No, 96-A, Upper Mall. He gave up the former to take the latter. He paid its transfer price of Rs, 96,000 and was issued P. T. 0. On 1-2-1960 and Permanent Transfer Deed on 16-11-1961, The house happened to be in the occupation of one Col. Mukhtar Hussain, Military Secretary to the then Governor. According to the case of the petitioner, he asked the occupant to pay him the rent of the house. The occupant in turn asked the house to be sold to him and on refual the petitioner was threatened that the occupant would see that the house did not remain with the petitioner, Petitioner protested but the representations bore no fruit. Martial Law Administrator Zone B, Lahore issued Martial Law Order 115 directing the Provincial Government to acquire the house. The petitioner challenged the Order through W. P. 121/1963. The Order was followed by Ordinance XXV of 1963 promulgated on 9th June, 1963 acquiring the house. It was approved by the West Pakistan Provincial Assembly under Article 79(3) of the Constitution on 16th July, 1963. The petitioner was returned the amount paid by him which he received under protest. The Ordinance was challenged through the above titled petition. The earlier petition on the statement of the learned counsel for the parties having become infructuous was disposed of as such on 28-4-1977. The present petition questions the validity of the Ordinance. 2. Learned counsel for the petitioner contended that the Ordinance is mala fide as it has come about because of the mechanization of the occupant who happened to be the Military Secretary to
---
## Page 2
the Governor and wanted the house to purchase himself. Having been thwarted by refusal, he got the house acquired. Learned counsel for the petitioner vehemently contended that it is open to this Court, rather, it is its duty to declare that what purports to be a law' is not law' if it is not so but a mala fide act of a law-maker. He heavily relied on a decision of a learned Division Bench of the Karachi High Court in Constitutional Petition No, 863 of 1973 titled as Shamimur Rehman v. Federation of Pakistan and another decided on 9-4-1980, Secondly, that the Ordinance purports to acquire a named individual's house, i,e, petitioner's. It is no 'law' of a general nature but at the most is an exercise of judicial or executive authority which cannot be clothed as law. He placed reliance on Liyanage and others v. Reginam (1) and The Trustees of Dartmouth College v. Woodward (2) and The State v. Zia-ur-Rahman and others (3). Thirdly, that the house worth 16 lacs has been acquired for Rs, 96,000 and it is not adequate compensation, so acquisition is invalid. He referred to a passage at pages 171-2 of the Munir's Commentary on the Constitution of 1962. Fourthly, that the preamble proceeds on the basis that the house was evacuee and the petitioner was only a provisional transferee. The contents of the preamble have to be taken as correct per dictum in Sardar hider Singh v. The State of Rajasthan and others (4). Therefore, the house being evacuee could not have been acquired by the Provincial Authorities without the prior sanction of the Central Government vide section 16 of Pakistan (Administration) of Evacuee Property) Act, 1957 Act XII of 1957 which had, in fact, been refused. Further the Ordinance is violative of Article 234 of the Constitution being inconsistent with Central laws like Land Acquisition Act, etc. And is, therefore, invalid. Alternatively, it is argued that if the house is not evacuee, then, the Ordinance proceeding on wrong premise as it does because it takes it as evacuee, the Ordinance cannot be given effect to by Courts. He placed reliance on Pickin v. British Railways Board and another (5), Fifthly, it is contended that the Ordinance purports to validate actions taken under M. L. 0. 115 but no action had been taken thereunder because the Provincial Government did not acquire the house as directed, Therefore, the Ordinance is infructuous or void. 3. Mr. Tanvir Ahmad Khan, learned Assistant Advocate-General, very diligently argued the case for the respondent. He submitted that question of mala fide does not arise in the circumstances of the case. Neither the Military Secretary could have influenced the Martial Law Administrator or the Governor in issuing the Order or Ordinance nor could the Provincial Assembly be taken to have been influenced by him when it approved the Ordinance. He referred to a number of authorities in support of his contention like The Punjab Province v. Malik Khizar Hayat Khan Tiwana (6), The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Khan and others (7) and Brig. (Retd.) F. B. All and another v. The State (8). Then, he submitted that the fact that the Ordinance affects one individual, that is, the petitioner, is no reason to say that it is not law. A law can be passed to affect one individual, or one property. He relied upon The Punjab Province v. Malik Khizar Hayat Khan Tiwana, Brig. (Retd.) F. B. Ali and another v. The (1) (1966) 1 All E R 650 (2)4Wh.USCSL ed 629 (3) PLD 1963 SC 49 (4) AIR 1957 SC 510 (5) (1972) 3 W L R 824 (6) PLD 1956 FC 200 (7) PLD 1974 SC 151 (8) PLD 1975 SC 506 State, Inamur Rehman v. Federation of Pakistan and 3 others (1) and to Damages Act, 1965 avoiding payment of compensation to Burmah-Shell Co. As regards the compensation, the learned Assistant Advocate-General submitted that that is the amount for which the house was transferred to the petitioner and, therefore, that was quite adequate. As regards the contents of the preamble, the learned Assistant Advocate-General submitted that that is only introductory and when the terms of the statute are clear there is no need to look to the preamble. Learned counsel, then, submitted that Permanent Transfer Deed having been issued to the petitioner, the property was no
---
## Page 3
longer evacuee and it vested in the petitioner, therefore, it could be acquired by the Provincial authorities. He has also submitted that question of inconsistency with Central laws, like Land Acquisition Act etc., does not arise because under the scheme of the 1962 Constitution, these were all "existing laws" and could be amended by the Provincial Legislature in whose sphere these were placed. He relied on Saiyyld Abul A'la Maudoodi etc. v. The Government of West Pakistan and the Government of Pakistan (2), Syed Azizuddin v. Abdul Ghafoor "train and three others (3) and Sheikh Atta Muhammad v. Mian Muhammad Abdullah and 10 others (4). As regards validation of the M. L. 0. 115, the learned counsel submits that some steps had been taken under the Order which were saved by the Ordinance. Finally, the learned counsel contended that a law promulgated by a law- making authority has to be given effect notwithstanding its hardships, etc. He placed reliance on The Punjab Province v. Malik Khizar Hayat Khan Tiwana and Mir Said Muhammad and another v. Mir Chakar and others (5). About the judgment from Karachi, the learned counsel submitted that that is not final as appeal to the Supreme Court is most likely, besides that it lays down an unusual proposition of law. 4. Before proceeding . Further, the contention regarding mala fide may be attended to. Not only the Military Secretary cannot be supposed to be so effective as to get a Martial Law Administrator and Governor issue a Martial Law Order and Ordinance but the Order and Ordinance could only be issued after proper advice and on the decision of the authorities themselves. In the present case, the Ordinance has been approved by the Provincial Assembly. Nothing has been stated as to how the Provincial Assembly was effected by any mala fide of the Military Secretary. The contention is without any basis and is repelled as it deserves. 5. The Ordinance in question may be reproduced for facility of reference as below :- "An Ordinance to provide for the acquisition of certain property situate in Mauza Mian Mir, District Lahore for use as residence of Government Officials and to validate actions taken under the Martial Law Order No, 115 issued by the Martial Law Administrator, Zone B. Whereas the property described in the Schedule was evacuee property and in pursuance of the provisions of the Displaced Persons (Compensation and Rehabilitation Act, 1958 (Act XXVIII of 1958), had been provisionally transferred to Mr. Nasir-ud-Din and party in lieu of ninety-six thousand rupees ; (1) PLD 1977 Kar. 524 (2) PLD 1964 SC 673 (3) PLD 1964 Kar. 88 (4) PLD 1971 Lah. 210 (5) PLD 1973 Quetta 43 ' And, whereas, the Martial Law Order No, 115 was issued by the Martial Law Administrator, Zone 'B' on the 24th February, 1962, providing for the acquisition of the said property for the purpose of residence of Government Officials ; ' And, whereas, the validity of the said Martial Law Order and the action taken thereunder has been questioned ; ' And, whereas, it is expedient in the public interest to provide for the acquisition of the said property for the purpose of residence of Government Officials and to validate the actions taken in pursuance of the said Martial Law Order No, 115 ; ' And whereas, the Provincial Assembly of West Pakistan is not in session and the Governor of West Pakistan is satisfied that circumstances exist which render immediate legislation necessary ; ' Now, therefore, in exercise of the powers conferred on him by clause (1) of Article 79 of the Constitution, the Governor of West Pakistan is pleased to make and promulgate the following Ordinance :- 1.-(1) Short title and commencement.-This Ordinance may be called the West Pakistan Acquisition of Property (Residence of Government Officials) Ordinance, 1963.
---
## Page 4
(2) It shall come into force at once and shall be deemed to have taken effect on and from the 24th February, 1962. 2. Definitions.-In this Ordinance, unless the context otherwise requires, the following expressions shall have the meanings hereby respectively assigned to them, that is to say--- (a) "Government" means the Government of West Pakistan ; (b) "Martial Law Order No, 115" means the Martial Law Order No, 115, issued by the Martial Law Administrator, Zone '13' on the 24th February, 1962, and (c) "property" means the property described in the Schedule to this Ordinance. 3. Acquisition of property for residence of Government Officials.-Notwithstanding anything to the contrary contained in the Land Acquisition Act, 1894 (Act I of 1894), the Town Improvement Act, 1922 (Punjab Act IV of 1922), as amended by the Punjab Town Improvement (West Pakistan Amendment) (Ordinance XVIII of 1962), the Municipal Administration Ordinance, 1960 (Ordinance No, X of 1960) or any other law for the time being in force, or in any decree, judgment or order of any Court of Authority- (a) Government shall forthwith take possession of the property, summarily ejecting, if necessary, any person in occupation of any part thereof ; , (b) Government shall pay, ninety-six thousand rupees by way of compensation to Mr. Nasir-ud- Din and party or any other person found to be entitled thereto. (c) Thereon the property shall be deemed to .Have been duly acquired by Government free from all encumbrances and the action taken under Martial Law Order No, 115 shall be deemed to have been validly taken under this Ordinance and shall be continued. Schedule 96-A Upper Mall, Lahore constructed on the land bearing Khasra No, 2057, Mauza Mian Mir, Tehsil and District Lahore, measuring 11 kanals, 7 marks, and 250 square feet and comprising certain buildings and vacant site." 6. The contention as regards validity of the Ordinance being inconsistent with a Central Law, Land Acquisition, Act 1894, is without force as the latter was "existing law" under Article 225 of the Constitution and was subject to A alteration, repeal or amendment by the appropriate Legislature which happened to be Provincial Assembly under the Constitution. Therefore, the contention is repelled. 7. Now come to the contentions which require greater, consideration. The first is that the preamble be taken as it is without question to its contents. The argument is that preamble states that the property has been provisionally transferred to the petitioner. If that be so, it is contended, it would still be vesting in the Central Government under section 3 of the Displaced Persons (Land Settlement) Act, 1958 because it is only after permanent transfer on issuance of Permanent Transfer Deed under the Act and the Scheme thereunder that the property vests in the transferee. Therefore, the Provincial Legislature would have no right to stretch its hand to acquire property vesting in the Central Government and consequently, the Ordinance would be invalid. If the Court can look into the facts stated in the preamble, it is submitted, it should also look into the fact whether there was any circumstance existing requiring immediate legislation necessary through an Ordinance when the matter could be taken up by the Provincial Assembly which met only a month and a half later. There are two points to be taken into account in this behalf. Firstly, the preamble is not to be referred to unless there is any ambiguity in the enactment. The preamble is only a preface. What I laid down as law is in the enactment part. Secondly, when preamble is referred to, it has to be remembered that it is only introductory and even I the introduction be faulty that would not annul the subject matter deal with in the enactment. Proceedings on these principles, there is no compelling reason to refer the preamble. Statute i. e. The Ordinance is clear. It purports to acquire the property transferred to the petitioner on payment of certain sum. The
---
## Page 5
preamble is not sacrosanct as the learned counsel for the petitioner wishes it to be, so as to invalidate the Ordinance. There is factual mistake therein when it states that the property has been provisionally transferred to the petitioner. It had, in fact, permanently been transferred to the petitioner and he had been issued the Permanent Transfer Deed prior to the promulgation of the Ordinance. Therefore, there was no question of the property vesting in the Central Government to be beyond the reach of the Provincial Legislature. But the fact that the Court can look into the contents of the preamble does not necessarily mean that in all events it can either start a enquiry or an inquest that the facts stated therein are not correct. It is for the Legislature to see the facts as it finds and proceed on their basis. It is its judgment of the facts and the situation requiring legislation. The Courts do not sit as Appellate Authority of facts over the Legislature. Both institutions are separate and independent in their own sphere. It is only where the Constitution permits one or the other to pass judgment or over rule the other, otherwise, each functions within its own domain. Therefore, the contention of the learned counsel for the petitioner that there was no circumstance to call for immediate legislation by promulgation of the Ordinance cannot be examined by this Court in the circumstances of the case. 8. Now, we come to the crucial controversy as to whether the Ordinanc is law. Law is nowhere defined nor can it be. It is a concept like beauty which one can behold but not define. Description is possible but that doe not tell the whole truth. Beautiful dame can be described as tall and fair with big eyes and long lashes, hanging hair below the waist. But what 9 bewitches the looker is the spirit and animation therein all. Otherwise it may only be a statue of stone. Lord Lawton L. J. In Young v. Sun Allianc and London Insurance Ltd. (1) referred to a mundane aphorism that an elephant is "difficult to define but easy to recognize". This too requires seeing eyes. Otherwise, one can only know the partial truth or falsehood as the story of four blind men unfolds itself when one who touched the legs said that an elephant comprises of pillars like those of a mosque, another who held the trunk that it is like a heaving tree, still another who caught the ears that it is like big fans and the fourth who felt the tail that it is a flexible rod. It is common saying that all that glitters is not gold. So also what may pass as law may not always be law, Consequently, we have to see whether the Ordinance apparently a law is, in fact, a law. Blackstone in his Commentaries, Vol. I, page 25, Third Edition said centuries ago, "Law in its most general and comprehensive sense signifies a rule of action, and is applied indiscriminately, to all kinds of action whether animate or inanimate, rational or irrational, Thus we say, the laws of motion, of gravitation of optics, or mechanics, as well as the laws of nature and of nations." In his treatise on Jurisprudence at page 20 Salmond says, "there are many kinds of law, like, (1), Imperative law, (2) Physical or Scientific law, (3) Natural or Moral law, (4) Convential law, (5) Customary law, (6) Practical or Technical law, (7) International law, or the law of Nations, (8) Civil law or the law of the State etc." There is one thing worth-noticing and that is that the law is a rule of general application and not for one solitary phenomenon. Generality does not necessarily partake of universality. A law may be passed to deal with some situations, places or persons, may be single one, but that is on the basis of, what is called, reasonable classification as e. g. a law may provide for rationing when goods are not available freely and fairly, tax at places of entertainment or for regulating terms of services of the members of the Armed Forces. But in all events, the classification is reasonable. Within the category, circumstances being similar, all will be dealt with equally. A law may deal with one property like Taj Mahal, or Badshahi Mosque, or, individual like President, Inspector- General of Police or Prison etc. But the classification is there based on reason as each forms a class by itself because of its unique or distinguished position. What does not come within the idea of law is taking away the property or life of a named individual out o the blue. Again Blackstone has said in his Commentaries at page 30 that "a particular act of the legislature to confiscate the goods of Titius, or to attain him of high treason, does not enter into the idea of a Municipal law ; for
---
## Page 6
the operation of this act is spent upon Titius only, and has no relation to the community in general ; it is rather a sentence than a law. But an act to declare that the crime of which Titius is accused shall be deemed high treason ; this has permanency, uniformity and universality, and therefore is properly rule." From the above, it would be clear that if a particular act of the Legislature is to confiscate or acquire the property of a named individual, it would not enter into the idea of law for the reason that its operation is G spent on the individual and it would be, a sentence rather than a law. Blackstone would have not held the Ordinance under question a law as it took away the property of the petitioner but a sentence passed against the latter. (1) (1976) 3 All E R 561 9. At this stage cases relied upon by the learned Assistant Advocate, Ge .Eral may be referred to. In the F. B. Ali's case, Chief Justice Hamoodur Rehman observed at page 528 of the report that "Law has not been defined in the Constitution of 1962, and, therefore, in its generally accepted connotation, it means positive law, that is to say, a formal pronouncement of the will of the law- giver. There is no such condition that a law must in order to qualify as a law also be based on reason or morality. The Court cannot strike down a law on any such higher ethical notions nor can Courts act on the basis of philosophical concepts as pointed out by me in the case of Asma Jilani." Mr. Justice M. Yaqub Ali observed at page 548 that "It thus becomes clear that the observations made by me in, the cases of Asma Jilani and Manzoor Ilahi are confined to their own facts and do not enunciate that Courts can strike down a law made competently by a legislature on the ground of reason or morality. Laws made by a Legislature can be struck down only if they are repugnant to the provisions of the Fundamental Law under which the Legislature is itself created." Mr. Justice Muhammad Gul at page 555 quoted the learned Chief Justice from Asma Jilani's case to the effect that "So far as a Judge is concerned, if a definition is necessary, all that he has to see is that the law which he is called upon to administer is made by a person or authority legally competent to make laws and the law is capable of being enforced by the legal machinery. This in my view brings in the notion both of legitimacy and efficacy." Mr. Justice Muhammad Gui concluded, "This would exclude from the term "law" what are mere theories and legal concepts". Mr. Justice Anwarul Haq at page 550, however, after pointing out that section 11 of the Frontier Crimes Regulation was not treated as "law" by the Supreme Court of Pakistan, "in spite of the fact that there was no challenge to the competence of the authority which had promulgated the Regulation", observed that "I find it difficult to accept the contention that the term "law" as used in Fundamental Right No, 1 of the 1962 Constitution, should be interpreted as meaning only positive law. On the contrary, the term "law" as used in this Fundamental Right, must be construed as also including judicial principles laid down from time to time by the Superior Courts, and the accepted forms of legal process and jurisdictional norms obtaining in Pakistan. These accepted judicial principles, forms of legal process and jurisdictional norms are so well established and specific that they cannot be brushed aside as being mere abstract or vague considerations of ethics and morality or philosophical concepts of law. They are not mere theories advanced for purposes of invalidating competently enacted laws on the contrary, they are established rules and concepts which give substance and meaning to all laws by promoting the ends of a just legal order." The facts of the case were that persons not amenable to Army Act were brought within its purview by virtue of the two amending Ordinances III and IV of 1967, if they were involved in seducing the members of the Armed Forces from their duty or allegiance to the Government. The validity of the Ordinances was challenged by the affected persons on the principal grounds that the Central Legislature was not competent to promulgate the Ordinances as that affected laws within the ambit of the Provincial Legislature and that those deprived the challengers of the norms of ordinary trial. The Court unanimously found that the impugned Ordinances, in pith and substance, appertained to the subject over which the Central Legislature
---
## Page 7
had the jurisdiction to make laws and that the Ordinances were valid laws because those were based on reasonable classification of people similarly situated and were by no means contrary to the "equal protection of law" clause. It was observed in this behalf that "The principle is well recognized that a State may classify persons and objects for the purpose of legislation and make laws applicable only to persons or objects within a class. In fact almost all legislation involves some kind of classification whereby some people acquire rights or suffer disabilities which others do not. What, however, is prohibited under this principle is legislation favouring some within a class and unduly burdening others. Legislation affecting alike all persons similarly situated is not prohibited. The mere fact that legislation is made to apply only to a certain group of persons and not others does not invalidate legislation if it is so made that all persons subject to its terms are treated alike under similar circumstances. This is considered to be permissible classification." A deeper reflection and closer examination of the case would show that it does support the contention of the learned Assistant Advocate-General that since the Ordinance is the formal pronouncement of the will of the Governor, who was competent to make a law through Ordinance under Article 79 of the Constitution, that is that and…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.