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Civil Appeal No. 75 of 1962

(On appeal from the order of the Claims Commissioner, West Pakistan, Lahore, dated the 15th August 1961).

Civil Appeals Nos. 75 of 1962 and 98 of 1963, decided on 21st January 1964.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 9th January 1963, in Writ Petition No. 793 of 1962).

, S.7(3)‑‑Revision‑Delegated powers exercised by Additional Claims Commissioner‑Second exercise of powers subsequently by Claims Commissioner‑Second exercise of revisional jurisdiction, held, incompetent.

, S. 7 (4) [as amended by Registration of Claims (Displaced Persons) (Amendment) Ordinance (LXXX of 1'962)]‑Review of order of "predecessor‑in‑office"‑Claims Commissioner, reviewing order passed by Additional Claims Commissioner in exercise of delegated powers of Claims Commissioner‑Claims Commissioner not a "predecessor‑in‑office" of Additional Claims Commissioner ---Review by Claims Commissioner incompetent.

, S.7(4) read with S. IS‑Review‑Limitation‑Registration of Claims (Displaced Persons) Rules, 1955, r. 6 as amended by Central Government in 1963, allowing review of order of "any of his predecessor‑in‑office" after "the said ninety days", giving retrospective effect to amendment‑Dower to legislate with retrospective effect not included in power of subordinate legislation--- Section 18, giving rule‑making powers to Government, does not support power of retrospective legislation‑Amendment to extent of retrospective operation, held, invalid‑Delegated legislation--- Limitation prescribed by rules for review of own order intended to apply also to order of "predecessor‑ in‑office"‑ [Rahmat Ullah v. Deputy Settlement Commissioner P L D 1963 S C 633 and Muhammad Tufail v. Muhammad Ramzan and others P L D 1958 S C (Pak.) 201 ref.]

Civil Appeal No. 75 of 1962 Bashir Ahmad Senior Advocate Supreme Court (Fazal‑e‑Ghani Advocate Supreme Court with him) instructed by Zain Tanvir & Company Attorneys for Appellant.

Aftab Hussain Advocate Supreme Court instructed by Iftikhar‑ud‑Din Attorney for Respondent No. 1.

Respondent No. 2 : Ex parte.

Civil Appeal No. 98 of 1963

S. M. Zafar Advocate Supreme Court instructed by Zain Tanvir & Co. Attorneys for Appellants.

Aftab Hussain Advocate Supreme Court appeared under order of the Court for Respondent.

Date of hearing : 21st January 1964.

This judgment will dispose of Civil Appeals Nos. 75 of 1962 (Sh. Fazal Ahmad v. Raja Ziaullah Khan Claims Commissioner and another) and 98 of 1963 (Mst. Barkat Bib and others v. Claims Commissioner). The question of law arising in both of them is the same though the former is a direct appeal against the order of the Claims Commissioner under Article 160 of the late Constitution of Pakistan while the latter is an appeal against the order of the High Court of West Pakistan refusing to set aside the order of the Claims Commissioner by exercise of its power under Article 98 of the present Consti tution.

In the first case Fazal Ahmad appellant had submitted a claim under the Registration of Claims (Displaced Persons) Act III of 1956 for Rs. 80,000 on the allegation that he owned two motor‑workshops in Delhi one at Bhogal on the Rohtak Delhi Road and the other at Kishan Ganj within the municipal area of Delhi. The Claims Officer registered the claim for a sum of Rs. 12,150. Fazal Ahmad appellant filed an appeal against this order before the Deputy Claims Commissioner, Rawalpindi, who by his order dated Vie 26th August 1959, enhanced the amount to Rs. 42,660. The appellant then filed a revision petition under section 7 (3) of the Registration of Claims (Displaced Persons) Act which was heard and rejected by Mr. Abdul Hamid Khan Additional Claims Commissioner to whom the powers of a Claims Commissioner had been delegated. On the strength of this verified claim the appellant obtained a transfer in his favour of the premises of the Northern Motors Limited of Rawalpindi that is 40‑Edwards Road, of which he was an allottee and in possession since 1947. In a small portion of these premises a tailor who was local had a shop. According to the contentions of the appellants this shop was part of the premises allotted and transferred to him, but the Settlement Department refused to accept this contention and put up the shop for sale. It was purchased by Mr. Fazal Ali Khan a retired P. C. S. Officer, and the brother of General W. A. Burki who was at that time a Minister of the Government of Pakistan as well as of Mr. Farzand Ali Khan, Settlement Commissioner, Lahore Division. The appellant filed an appeal against the order of the Additional Settlement Commissioner directing auction of the shop in dispute, but the appeal was rejected. A revision petition filed before the Settlement Commissioner also failed. According to the allegations of the appellant he was approached at this stage by Mr. Fazal Ali Khan who asked him to stop pursuing his remedies for cancellation of the auction in his favour and told him that if he persisted he would find himself in trouble. The appellant disregarded the threat and filed a further petition before the Chief Settlement Commissioner under section 20(2) of the Displaced Persons (Compensation and Rehabilitation) Act for the cancellation of the auction purchase. That revision is still pending disposal. Sometime later the appellant received a notice from the Enforcement Directorate calling upon him to appear before the police and substantiate the genuineness of his verified claim. There was an inquiry by the Enforcement Directorate and it submitted a report to the Chief Settlement Commissioner alleging that the claim was bogus and asking that necessary steps be taken for its cancellation. The Chief Settlement Commissioner referred the matter to Raja Ziaullah Khan, Claims Commissioner, respondent No. 1, who had been appointed by the Government of Pakistan to decide cases referred to him by the Directorate of Enforcement. Respondent No. 1 after notice to the appellant recorded further evidence and holding that the claim was bogus cancelled it by his order dated 15th August 1961. It is this order that is the subject‑matter of Appeal No. 75 of 1962. Apart from the allegations of mala fides and the pleas on the merits it has been urged that the order passed by the Claims Commissioner was wholly without juris diction. The grounds on which this contention is based we will presently examine.

In Appeal No. 98 of 1963 Sheikh Fazal Elahi deceased who was the husband of appellant No. 1 and the father of appellants 2 to 9 preferred a claim for Rs. 44,255 in respect of five houses which he alleged he had abandoned in East Punjab. Sheikh Fazal Elahi died during the pendency of the proceedings before the Claims Officer and the present appellants after they were brought on the record applied for the enhancement of the estimated value of the property as already mentioned in the claim. This application was allowed by the Claims Officer and the amount of the claim was increased to Rs. 77,500. The Claims Officer by his order dated 31‑12‑1956 verified the claim for a sum of Rs. 55,511 and allowed an additional sum of Rs. 10,080 as rent of the post‑migration period. On 22‑10‑1957 appellant No. 1 submitted an application direct to the Claims Commissioner, Lahore, stating that Fazal Elahi had also abandoned 190 hand looms which had not been included in the claim because of the mistaken impression that a claim with respect to the handlooms could not be filed. The Claims Commissioner granted the application and setting aside the order already passed by the Claims Officer on the 31st December 1956, directed a review of the claim. The appellants now estimated their claim at Rs. 2,85,000 and the Deputy Claims Commissioner verified their claim for a total sum of Rs. 1,0,380. Against this order the appellant did not file any appeal, but the Additional Claims Commissioner, Lyallpur, S. Muhammad Behram Khan sent the appellant a notice ore "security" under section 7 (3) of the Registration of Claims (Displaced Persons) Act and after scrutiny by his order dated 6‑2‑1960 verified the total claim for a sum of Rs. 1,53,420. On the 14th June 1961, the appellants received a notice from the respondent, that is, the Claims Commissioner, that he proposed to review the order dated the 6th February 1960, of S. Muhammad Beharm Khan, Additional Claims Commissioner, as there was report by the Directorate of Enforcement that the claim was bogus. On the 13th July 1962, the Claims Commissioner cancelled the claim under Schedule III and substantially reduced the claim under Schedule I. This order dated 13‑7‑1962 of the respondent was challenged by a writ petition. The learned Judges of the High Court ultimately dismissed the writ petition.

In both these appeals it has been argued that the order of the Claims Commissioner is without jurisdiction, because he had no power to review the order of the Additional Claims Commis sioner and in any case the limitation for reviewing the order had expired. On behalf of the respondents it is urged that the Claims Commissioner could interfere with the orders passed by the Deputy Claims Commissioner in the exercise of his revisional power and the fact that there had already been an exercise of revisional jurisdiction by the Additional Claims Commissioner was no bar. At the same time it is urged that the Claims Com missioner had full jurisdiction to interfere in the exercise of the power of review.

The relevant provision in the Registration of Claims (Displaced Persons) Act which grants power of revision and review is section 7 of that Act which on the relevant date ran as below

"7. Appeal, revision and review.‑(1) Any person aggrieved by an order under this Act may prefer an appeal‑

(a) to the Deputy Claims Commissioner where the order has been passed by a Claims Officer;

(b) to the Additional Claims Commissioner where the order, not being an order passed in appeal under clause (a), has been passed by a Deputy Claims Commissioner.

(2) The appeal shall be presented in such manner and within such time as may be prescribed.

(3) A Claims Commissioner may suo motu call, within the prescribed period, for the record of any case which has been decided by a Claims Officer, a Deputy Claims Commissioner or an Additional Claims Commissioner under his jurisdiction for the purpose of satisfying himself as to the correctness, legality or propriety of any order passed therein and may pass such order in relation thereto as he thinks fit

Provided that the Claims Commissioner shall not under this subsection pass an order revising or modifying any order affecting any person without giving such person an opportunity of being heard.

(4) The Claims Commissioner or the Additional or Deputy Claims Commissioner, may within the prescribed period and, after giving notice to the parties concerned, review his own order under this section.

(5) Subject to the foregoing provisions of this section, any order made by the Claims Commissioner, Additional Claims Commissioner, Deputy Claims Commissioner or Claims Officer shall be final and shall not be called in question in any Court.

We would in the first place dispose of the contention that the interference by Raja Ziaullah Khan was justified on account of his power to act in revision. As has already been stated the Additional Claims Commissioner had in each case acted in the exercise of the revisional power of a Claims Commissioner which had been delegated to him. In the first case that is Appeal

No. 75 of 1962 there was a revision petition by the present appellant in which he had claimed more than had been allowed to him by the Deputy Claims Commissioner and after hearing the claimant and examining the record the Additional Claims Com missioner said that there was no force in the revision which was being rejected. In the second case there was no application by any party, but the Additional Claims Commissioner in exercise of the revisional powers which had been delegated to him suo motu examined the record and substantially interfered with the order.

The argument on behalf of the respondents is that the Claims Commissioner was acting in revision not against the order of the Additional Claims Commissioner for that was an order passed in revision, but against the order of the Deputy Claims Commissioner. It is urged that although an order in revision had been passed there was no bar to the passing of a second order in the exercise of the same power unless the second was incon sistent with the first and in this case there was no inconsistency between the two orders.

It is not necessary for the purpose of these two appeals to answer the question whether once an order in revision is passed the order under revision merges in the order passed in revision. It is clear that once an order has been passed in revision a second exercise of revisional power would not be competent to determine a matter which had been determined by the previous order either expressly or by necessary implication. The order relating to Appeal No. 75 of 1962 says : "I have heard the claimant and examined the record. There is no force in the revision which is hereby rejected". It is true that when the Additional Claims Commissioner said that there was no force in the revision he meant that there was no ground for enhancement of claim, but he had examined the record and if he were of the opinion that the claim should further be reduced there is no reason, considering the position of Claims Commissioner, why he should not have interfered in the exercise of revisional power and reduced the amount. Before the Officer of Claims Department no person was appearing to oppose the applications for verification of claims and it is they themselves who had to take care that bogus or inflated claims were not verified, In fact the Claims Commissioners and the Additional Claims Commissioners with, delegated powers of revision were suo motu examining the claims verified by the subordinate officers, a procedure which was called "scrutiny" and which had in fact, been adopted in Appeal No. 98 of 1963. The order of the Additional Claims Commis sioner therefore, does amount to an implied finding in revision that the claim as verified was correct. So far as Appeal No. 98 of 1963 is concerned there was an express adjudication in revision as to the amount to which the claimants were entitled. Under the circumstances it is obvious that the second exercise of revisional jurisdiction was incompetent.

So far as the power to review is concerned the grounds taken by the appellant are

(i) that there was no power in the Claims Commissioner to review the order of the Additional Claims Commissioner; and

(ii) that the order was passed beyond the time allowed by law for review.

So far as the first objection is concerned it has to be stated that section 7 was amended by Ordinance LXXX of 1962 and in section 7 (4) the words "or an order. of any of his predecessors in office" were inserted with retrospective effect from the date of the coming into force of the Act. Learned counsel for the appellant contends, however, that in this case the Additional Claims Commissioner was not a "predecessor‑in‑office." He was only an Additional Claims Commissioner who had been delegated enhanced powers while Raja Ziaullah Khan was a Claims Commissioner who could not be his successor‑in‑office. On a careful consideration of this matter we have come to the e conclusion that the contention of the appellant is sound. The mere fact that the Additional Claims Commissioner was exercising one of the powers of a Claims Commissioner would not make him the holder of the office of a Claims Commissioner. There is further difficulty in accepting the view that a Claims Commis sioner would be the successor‑in‑office of an Additional Claims Commissioner to whom powers of a Claims Commissioner had been delegated. An Additional Claims Commissioner may have powers delegated to him not by name but by office so that if one Additional Claims Commissioner ceases to hold office and is succeeded by another the new incumbent would be his full successor in office and would be entitled to exercise the power of review regarding the orders of his predecessor. The Claims Com missioner cannot be granted x concurrent power of review of the order of an Additional Claims Commissioner along with the successor of that Additional Claims Commissioner for both can pass absolutely inconsistent orders without, one order having any preference over the other. Even in a case where powers are delegated by name to an Additional Claims Commissioner who ceases to hold office and is succeeded by another Additional Claims Commissioner to whom also the powers of a Claims Commissioner are delegated the same situation will arise for the new incumbent of the office of the Additional Claims Commis sioner would be a successor‑in‑office and entitled to review the order of his predecessor.

At the same time there is no material on the record as to whether on the date on which Raja Ziaullah Khan took proceed ings for review in these cases the Additional Claims Commissioner whose order was the subject of review had ceased to hold office or if he had ceased to hold office whether some other person had not taken his place as his successor with delegated powers of a Claims Commissioner.

Coming to the question of limitation it will be observed that In accordance with section 7(4) the review has to be within "the prescribed period." Time had been provided for review by rule 6 of the rules framed under the Registration of Claims (Displaced Persons) Act. This rule runs:‑

6. Limitation for filing an appeal or making an application for review.‑(1) An appeal against an order passed by a Claims Officer under subsection (2) of section 6 of the Ordinance shall be made within thirty days of the date of such order.

(2) An application for review under subsection (4) of section 7 of the Ordinance shall be made within thirty days of the order sought to be reviewed, but the Claims Commissioner or the Additional Claims Commissioner may review his own order suo motu within ninety days of the date of such order.

(3) The provisions of sections 4, 5 and 12 of the Limitation Act, 1908 (IX of 1908) or similar provisions in any other enactment relating to limitation in force for the time being in the area in which an application is presented, shall apply, as far as may be, in computing the period of limitation prescribed in sub‑rules (1) and (2) above."

The orders in review were passed in the cases with which we are dealing long after the original orders were passed and it has been conceded that the orders in review were passed beyond the period of limitation. It is urged, however, on behalf of the respondents that the rule as to limitation has subsequently been amended with retrospective effect so as to protect these orders from attack on the ground of limitation. Following is the amendment which is relied upon

"In the aforesaid rules, in rule (4) (sic) in sub‑rule (2),‑‑

(1) after the words "own order" the words "or an order of any of his predecessors‑in‑office" shall be inserted ; and

(2) for the full‑stop at the end a colon shall be substituted and thereafter the following proviso shall be added, namely :‑

Provided that the Claims Commissioner may, if he deem fit, review his own order or an order of any of his predecessors- in‑office after the said ninety days."

This amendment had come into force on 22‑2‑1963. An obvious objection to this amendment is that it is a notification by the Government in exercise of the power of subordinate legislation and such power does not include a power to give retrospective effect. The power of subordinate legislation which is exercised by the executive is a very limited power. Its exercise even to a limited extent had been objected to on the ground that the fact that a Legislature had been empowered to legislate on a particular subject did not imply that it could delegate its power of legislation to any other person or body of persons. The power of delegation had, however, to be accepted to a limited extent because in many cases it is almost impossible for the Legislature to make provisions in detail and in some cases the time or the occasion for applying a statute has to be left to the executive Government. It was considered that it was not possible for the Legislature to exercise its functions properly unless the grant of subordinate legislative power to the executive was permitted to this extent. However, the subordinate legislative power is to be permitted only to the extent to which i is necessary for the proper exercise of its function by the Legislature and a power to legislate with retrospective effect ha never been accepted as included in a power of subordinate legislation. In Rahmat Ullah v. Deputy Settlement Commis sioner (P L D 1963 S C 633), this Court held that a notification by the Government under the Displaced Persons (Compensation and Rehabilitation) Act could not have retrospective effect.

There are other ways of looking at the matter. One is that the words by which the power to frame rules has been granted do not appear to support a power of retrospective legislation. The power to frame rules had been granted by section 18 of the Registration of Claims (Displaced Persons) Act which says that the Government may "make rules to carry out the purposes of this Act" and in particular "may provide for all or any of the following matters." These words are appropriate for regulating that which is to happen in future and are hardly appropriate for granting a power to give legal force and effect to that which was c wholly void at the time when it occurred.

Another way of looking at the matter is this. According t section 7 an order in review can be passed only within the "prescribed period." This would refer to the period which had been prescribed at the time when the order was made. It can hardly be argued that the orders of review in these cases were passed within the period which had been prescribed. The rule came much later.

We have to consider a question not raised during argument, but which does become apparent on a consideration of the statute and the rules. Learned counsel for the respondent assumed that at the time when the orders were passed they were beyond time, and urged that they were validated by the subsequent amendment. However, it has to be pointed out that there had been no corresponding amendment of rule 6 when Ordinance LXXX of 1962 introduced the words "or predecessor-in-office" with the result that no time was prescribed in the case of review of the order of a predecessor-in-office. The position then is that if the words "his own order" in rule 6 referred only to the orders made by the reviewing officer himself and did not include reference to the order of a predecessor-in-office, for a review of the order of a predecessor-in-office no time had been prescribed at the time when the orders in dispute in these cases were passed. What then would be the effect of there being no provision as to limitation with respect to the order of a predecessor (assuming that the order of a predecessor) If the Act provides for review within the "prescribed period" and no period is prescribed by rule could it be said that there was no power to review at all That would be difficult to hold. Could it on the other hand be I said that the power to review could be exercised at any time because there was no time prescribed That too is not easy to accept. The Government was under an obligation to prescribe time but if it did not perform its obligation what is the result

It is not necessary, however, to answer these questions for the correct position appears to be that the Government intended to include within the words "his own order," as used in rule 6, the order of a predecessor as well. These words are taken fro subsection (4) of section 7 and therein they were quite capable of including the order of a predecessor. The reference by these words could have been not to a particular incumbent of the Office of Claims Commissioner, but to the office itself. The word "the" before "Claims Commissioner" in section 7 (4) may be an indication of the fact that the reference was to the office, for: at least the Legislature could have used the words "a Claim Commissioner" instead of "the Claims Commissioner" if the intention was to refer to a particular incumbent of the office. Other arguments are possible in support of this view. Ordinance LXXX of 1962 had amended the section with retros pective effect and it may be argued that the intention from the very beginning was that "his own order" should include an order of a predecessor. The unreasonable results which would follow if the predecessor-in-office was not included may also be used a an argument. There does not appear to be any good ground for making an order final because an officer was transferred o retired or resigned. It is not necessary, however, for us to determine this matter because we are really concerned only with the intention of the Government in framing the rules and it appears to us that when the Government fixed the limitation for a review of "his own order" as three months they intended to refer not only to the order of the incumbent of the office at that time but to his predecessor too. In fact it is only on account of the judgment of this Court Muhammad Tufail v. Muhammad Ramzan and others (P L D 1958 S C (Pak.) 201) that an amendment had to be made by introducing the words predecessor-in-office. In that case it ha been held that the words his own order' in the Pakistan Rehabilitation Ordinance did not refer to the order of a predecessor.

We hold that the orders passed on review were without jurisdiction. Both these appeals are accepted. Orders of Raja Ziaullah Khan are set aside. In Appeal No. 75 of 1962 the appellant shall have his costs from respondent. There is no order as to costs in Appeal No. 98 of 1963.

A. H. Appeals accepted.

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