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Date: 5/26/2020

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EastLaw Online Web Edition, Copyright © 2020
Tuesday, May 26, 2020
Printed For: Ubaid Ur Rehman

Court:Unclassified
Before: Justice Haider, Aftab Hussain, Zakaullah Lodhi and Karimullah Durrani,
Members
Hakim Syed Muhammad Government Of Pakistan
VS
Warsi And Other

Appeal:Shariat Petition No. K-38 of 1979

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Judgment Date:17/12/1980

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Citation No:P L D 1981 F S C 111
Result:Petition dismissed w
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JUDGMENT
JUSTICE AFTAB HUSSAIN, MEMBER. The petitioner has challenged the vires of
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Martial Law Regulations 84. 89 and 91 issued during the Martial Law regime of Field
Martial Ayub Khan in regard to the scrutiny of claims of displaced persons migrating from
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areas other than 'prescribed areas' in India. He has also challenged the vices of the
evacuee property and Displaced Persons (Laws Repeal) Act of 1975 by which inter alia
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Martial Law Regula petition No. 91 was repealed except to the extent of cases pending
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before the Settlement Authorities, High Court or the Supreme Court.

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It will be necessary to give a brief historical perspective of these laws in order to

appreciate the points raised by the petitioner.

After the mass migration of Hindus and Sikhs from the territories which were designated
as Pakistan by the Independence Act of 1947, the properties abandoned by them had to
be looked after. In order to achieve this objective evacuee property laws were enforced-
the last law in this series being the Administration of Evacuee Property Act, 1957 to
provide for appointment of Custodian of Evacuee Property and for vesting such
properties m him to enable him: to manage them. Rehabilitation laws were enforced to
empower the Rehabilitation Department to accommodate the large number of displaced
persons from India who had to migrate to Pakistan on account of riots and fear of rights in
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that country.

Considering it necessary to compensate the displaced persons for the loss of the
properties they had incurred by their mass migration to Pakistan the Government devised
a Scheme firstly to assess the loss suffered by each displaced person and secondly to
make good that loss as far as possible from the evacuee property in Pakistan. Two types
of laws were therefore, enforced at different stages. Since the displaced persons of the
prescribed areas which are defined in the West Pakistan Rehabilitation Settlement
Scheme as areas of Punjab (India) States, Delhi Province and States of Alwar, Bharatpur
and Bikaner, had suffered much more than displaced persons from other parts of
Pakistan and agreement had been reached between India and Pakistan for mutual

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exchange of records of evacuee properties of that region a law was enforced in the early

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fifties for inviting their claims of rural agricultural lands abandoned by them in India.
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The claims submitted by the displaced persons under these laws were verified by the
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officers named therein. Since the present petition pertains to the scrutiny of claims in
regard to agricultural land it may be clarified that the rural claims of displaced persons
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from the prescribed areas were verified on the basis of the revenue record received from
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India in terms of area of land while the claims under Schedule V of other displaced
persons were verified in terms of money value on the basis of other evidence led before
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the officers appointed under the Act of 1956.

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Martial Law Regulation No. 84 was reconstituted in 1961 as Martial Law Regulation 89,
since the Scheme of verification of such claims on the basis of Indian Revenue Records
had to be abandoned. This Regulation reduced the ceiling of allotment from 36000
produce Index Units in respect of claims of displaced persons from non prescribed areas
of India other than Hyderabad and Junagarh.
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The following scales were fixed:

"(i) Where previous allotment does not exceed 1500full entitlement

P. I. U.

(ii) Where previous entitlement exceeds 15001500 P. I. U.

P. I. U. But does not exceed 3000 P. I. U.Plus 30% of

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the excess.
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(iii) Where previous allotment exceeds 3000 P. I. U1950 P. I. U.

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plus 20 f of
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the entitlement
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in excess of

(iv) Where previous allotment exceeds 4,000 P. I. U.2150 P. I. U.

plus 10 % of

the entitle

ment in excess
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of 4000

Units."

It was provided that any person holding area under permanent allotment in excess of this
scale would surrender the same.

Martial Law Regulation 89 was later amended by Martial Law Regulation 91. The
allottees who had to surrender the excess areas were given an option to purchase the

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same at the rate of Rs. 10 per Produce Index Unit choice for which was to be exercised

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within the period to be fixed in the Scheme. The other surrendered areas were vested in
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the Provincial Government to be utilized as it liked, no doubt subject to the rights of the
sitting tenants to opt for purchasing it at the same rates. The time fixed for surrender of
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excess area and exercise of option to purchase the same given to the allottee, has long
elapsed with the result that ail cases of surrender and purchase have already become
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final.
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All the laws about evacuee properties were repealed by the Evacuee Properties and
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Displaced Persons (Laws (Repeal) Act of 1975. The only cases that were saved and to
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which the repealed laws remained operative are cases which were pending decision
before the Settlement Authorities or Courts.
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From the above history it will be clear that Martial Law Regulation 84 had already ceased
to exist after it was reconstituted as Martial La Regulation 89. Martial Law Regulation 91
only incorporated cereal amendments in Martial Law Regulation 89 and was thus not an
independent Regulation. The only Regulation that remained in operation was Martial Law
Regulation 89 as amended by Martial Law Regulation 91 which wane also repealed by
Act of 1975. That law being no longer in force it cannot be declared as being repugnant
to the Holy Qur'an and Sunnah. The jurisdiction of this Court extends only to existing
laws as distinguished from laws which have become non-existent. This petition is liable to
be dismissed for this reason alone.
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It has been noticed that there are saving clauses in the repealing Act but those clauses
will not apply now since the policy of reduction in the ceiling of verification of claims and
the consequent surrender of land which are the subject of challenge had already become
effective in the early sixties.

The question of inequality of treatment making one class eligible to allotment up to 36000
produce index units and reducing the scale of allotment in respect of other is eminently a
matter- pertaining to violation, if any, of Fundamental Rights for which this Court does not
provide the proper forum.

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