MUHAMMAD SHARIF And Others vs ADMINISTRATOR THAL And Other
This petition for leave to appeal arises from a judgment of the Lahore High Court dismissing the petitioners' regular second appeal. The predecessor-in-interest of the petitioners was allotted government land in 1950, which allotment was cancelled in 1957 without notice. A civil suit challenging the cancellation was eventually decreed by the trial court, but subsequently dismissed upon re-trial following the setting aside of ex parte proceedings. The District Judge dismissed the first appeal on the sole ground that the jurisdiction of the civil court was barred with retrospective effect by the Thal Development (Punjab Amendment) Ordinance 1975. The core legal question concerns whether a statutory bar on civil court jurisdiction applies retrospectively to pending actions and appeals instituted prior to the promulgation of the amending law. The Supreme Court granted leave to appeal, holding that a statute affecting rights of action or taking away vested rights is presumed not to apply to pending actions unless express words compel such construction, and that the question regarding the legality of the cancellation required detailed consideration.
- Whether a statute taking away or impairing vested rights or jurisdiction has retrospective effect over pending actions?
- Does a bar on civil court jurisdiction created by an amending ordinance apply to suits and appeals already instituted prior to its enactment?
- Whether the cancellation of a land allotment without notice can be challenged in a civil court notwithstanding subsequent jurisdictional bars?
- Thal Development (Punjab Amendment) Ordinance (XIX), 1975
ORDER
1. ASLAM RIAZ HUSSAIN, J.--The petitioners seek leave to appeal against the judgment of the Lahore High Court, Lahore, dated 20-11-1975, dismissing their R . S . A .
2. The facts giving rise to the petition, briefly, are that Karam Din the predecessor-in-interest of the present petitioners was allotted Government land measuring 15 Acres in Chak No. 53/ED, Tehsil Khushab, District Sargodha in the year 1950. Subsequently he was given another piece of land in exchange. He complied with the terms and conditions of allotment and remained in possession till 1956. But his allotment was cancelled in 1957 without any notice to him. He challenged the order of cancellation through a civil suit filed on 24-5-1965. A preliminary objection regarding jurisdiction of the Court was raised by the respondents/ defendants but the same was decided against them.
2. This suit was, however, withdrawn due to a technical defect and a fresh suit was subsequently filed by the petitioner on 9-12-1966, in the Court of Senior Civil Judge, who vide his order, dated 7-12-1967 returned the plaint for presentation to the proper Court which was done on 21-12-1967. The suit was contested by respondent No. 1 and the remaining defendants (including Muhammad Shaft defendant No. 4), were proceeded ex parte. The trial Court decreed the suit in petitioner's favour on 16-3-1972. Muhammad Shaft respondent thereupon filed an application for setting aside the ex parte proceedings against him. This was allowed and after a fresh trial the suit was dismissed by another Civil Judge. The petitioners filed an appeal against the dismissal of the suit before the District Judge, Mianwali, which was dismissed on 22-7-1974 on the sole ground that the jurisdiction of the civil Court had been taken away, with retrospective effect, by the Thal Development (Punjab Amendment) Ordinance (XIX), 1975 as amended by Act LXVI of 1975 and the appeal was, therefore, not competent.
3. The petitioners then filed an R.S.A. Before the High Court which met the same fact vide the impugned judgment.
4. Hence the present petition.
3. Learned counsel for the petitioners submitted that the. Learned District Judge, Mianwali, erred in holding that the appeal before him was not competent in view of the 1975 Ordinance (XIX), because the law applicable to the case was that existing in 1966-67 i.e., at the the when the suit was filed. For this contention he relied on the following observation in Nusrat Waheed v.
5. Administrator Thal 1960 CLC 334:- It cannot be ignored that a statute taking away or impairing vested right acquired under existing laws cannot have a retrospective effect. I have held in Barkat Ali v. Administrator Thal Development, Bhakkar that a statute which takes away or affects right of action is presumed not to apply to pending actions unless there are express words in the statute affecting such rights. Courts have always, leaned very strongly against applying a new statute to pending actions, when the language of the statute does compel to do so. The bar of jurisdiction was first created on 6th June, 1975, when the Ordinance XIX 1949 was promulgated. The Ordinance came in existence at a the when the cause of action had accrued to the appellants and the suit had since been instituted on 31st May, 1975. The Statute having no indication of its application to pending actions cannot be construed to apply to them. In view of the maintainability of the suit notwithstanding the retrospectivity of the Statute there was definitely a question in this case for determination by the civil Court whether the at of the Collector in cancelling allotment was illegal and was thus not "under the Act".
6. We are of the view that this question needs consideration. Leave is, therefore, granted.
7. Security in the sum of Rs. 1,000.
8. To be heard on the same record with permission to file additional documents.