Constitution
of Pakistan, 1962

Article
30(4) read with Article 131(2)–

On
the outbreak of war between India and Pakistan on the 6th September, 1965 the President
of Pakistan proclaimed Emergency in the country and on that very day he
promulgated the Defence of Pakistan Ordinance (Ordinance No. XXIII of 1965) in
exercise of his power under clause (4) of Article 30 read with clause (2) of
Article 131 of the Constitution.

Sunil Kumar
Ghosh vs State 39 DLR 377.

CONSTITUTION OF PAKISTAN, 1962

Articles—6, 58 and 93

Prior permission of the
specified authority for registration of deed of transfer of immovable property
by a member of minority community—Section 4 of the Disturbed Persons
Rehabilitation Ordinance declared violative of Fundamental Right by the High
Court—Supreme Court pending hearing of appeal stayed operation of the judgment
of High Court—Deed of transfer registered without requisite permission during
the period operation of the judgment of the High Court remained stayed—Whether
the transfer in the absence of permission valid?—Disturbed Persons Rehabilitation
Ordinance (1 of 1964)S.4.

High Court Division held the transfer to be valid on the
ground that sec. 4 & 6 of Ordinance I of 1964 having been declared void in
Chittaranjan Sutar’s case, the said provision not being in existence in the eye
of law, the transfer in question never lost its legal validity on account of
non-compliance of the requirement of sec. 4. The High Court Division further
concurred with the finding of the trial Court that the plaintiffs failed to
prove that defendants collusively created the impugned kabala. S. Ahmed, J
upheld the decision of the High Court Division and F. Munim, J concurred with
S. Ahmed, J. R. Islam, J held that the kabala was invalid for noncompliance of
the requirement of section 4 and also held that the kabala was a product of
conspiracy and fraud. B.H. Chowdhury, J did not render any opinion as to the
necessity of complying with the provision of section 4, but held that the
kabala was spurious.

Per R. Islam, J

In view of the certificate granted by the Special Bench under
Article 58 of the Constitution and the order of the Supreme Court staying
operation of the judgment and order of the Special Bench, I find it difficult
to appreciate the view taken by the learned Judges of the High Court Division
that section 4 having been declared ultra vires of the Con- situation, the
requirement of production of prior permission from the competent authority was
no longer required, and in the absence of such requirement of law validity of
the impugned kabala was not lost.

The finality of the judgment of the Special Bench in
Chittaranjan Sutar’s case was subject to the decision in the appeal preferred
by the Government of East Pakistan on the basis of the certificate granted by
the Special Bench under Art. 58 of the Constitution. Beside that the operation
of the judgment and order of the Special Bench having been stayed by the
Supreme Court on July 3, 1965, the declaration made in the judgment became
ineffective. Consequently sections 4 and 6 of the Ordinance continued to be operative.

Since section 4 as substituted by Ordinance X of 1964 was
declared ultra vires of the Constitution it means that section 4 (new) never
came into existence This state in the statute brings in another consequence,
that is the provision of law which was repealed or substituted by the statutory
provision declared ultra vires, automatically became revived.

When an amendatory provision proves unconstitutional, the
amended provision stands wholly unaffected. That being the position section 4
as obtaining in Ordinance I of 1964 before its substitution by Ordinance X of’
1964 remained unaffected, as if section 4 (old) continued to he operative.

Whatever restrictions the section (sec. 4 old) imposed on the
registration of transfer deeds by the members of the minority .community could
not be termed unreasonable as contemplated in the Thirteenth Fundamental Right.
Section 4 (original) is harmless, and there is nothing in the section to be in
conflict with the Fundamental Rights. Section 4 (new) has been rightly found by
the Special Bench to have no relation to the object of the legislation, that
Ordinance I of 1964 as promulgated on 12.2.1964, and it was in excess of the
object and the prevailing circumstances did not warrant the restriction.

Chittaranjan Sutar V. Secretary, Judicial Department, Government of
East Pakistan, 17 DLR 451; Frost V. State Corporation commission, (1929) 278 Us
515, ref

Per S. Ahmed, J

The Ordinance was intended to provide speedy rehabilitation of
persons affected by communal disturbance in January, 1964 and for the
protection of their property during the disturbed period. But to impose a legal
restriction on transfer of their property for an indefinite period extending
over years cannot be said to be the object of the Ordinance. Since sections 2
and 5 of the Ordinance could provide adequate remedy to the members of the
minority community affected by the civil disturbance of January, 1964 legal
restrictions on transfer of their property as contemplated in sections 4 and 6
of the Ordinance are found to be inconsistent with Fundamental Rights 13 and 15
are void abinitio and as such these sections did not revive when the
Fundamental Rights were suspended. Nor were these sections re-enacted during
the period when the Emergency continued. The doctrine of eclipse is not
applicable to Ordinance I of 1964.

Ful Chand Das and others Vs. Mohammad Hammad and others; 3BLD (AD) 68

Ref: 17 DLR 451; (1929)278 U.S. 515; A.I.R. l963(SC)lOl9.

Article—177

Service matter—Meaning of the expression ‘Temporarily’—When an
officer is elected from one service to another service by such expression as
‘appointed temporarily’ the idea of temporariness attaches to the appointment
may be whittled down by any subsequent event or development—The temporariness
or permanence of an appointment would not depend so much upon whether the
appointment is intended to be permanent, though apparently made temporarily—If
the cadre is temporary, the appointment would also be temporary but not so if
the cadre continues to exist—The abolition of the cadre itself renders the
decision in the case of Bangladesh Vs. Md. Ismail Hossain, reported in 31
DLR(AD) 127 in applicable to this case.

Saleh Ahmed Zoarder Vs. People’s Re public of Bangladesh; 4BLD (AD) 113

Ref: 31 DLR(AD)127.