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Writ Petitions Nos. 680 to 691 and 823 of 1962, decided on 15th September 1965.

S. 7(3) read with S. 17(2)‑Suo motu powers of revision Additional Claims Commissioner, not specifically delegated with any power under S. 7(3) read. with S. 17(2) by Claims Com missioner ‑ Not competent to exercise suo motu powers of revision under S. 7 (3).

No. 89, para. 4 (1)‑Expression "claim pending for verification"‑Includes revision pending before Claims Commissioner.

Where a revision against the order of an Additional Claims Commissioner was pending before the promulgation of Martial Law Regulation No. 84 (as reconstituted by Martial Law Regulation No. 89) the impugned order of verification could not be regarded as final. The very, fact that paragraph 4 (1) of the Martial Law Regulation makes provision for disposal of claims pending verification makes it clear that the Regulation never intended to confer any finality on such orders which were under appeal or revision. To hold pending revision to be infructuous would really mean that the aggrieved party would be deprived, by retrospective operation of the . Martial Law Regulation No. 84, of a right. already accrued to him. In the absence of any clear provision to that effect in the Regulation, this would be against all canons of construction.

Art. 98‑Certiorari‑Failure to raise objection as to jurisdiction before authority passing impugned order‑Disentitles party to any relief by way of certiorari.

Ghulam Mohiuddin v. Chief Settlement Commissioner P L D 1964 S C 829 ref.

A. S. Pirzada for Petitioner.

Wasim Rizvi for Respondent No. 1.

N. A. Faruqui, S. A. Nusrat and Mehdi Hassan for Respon dents Nos. 2, 3, 4 and 5.

Dates of hearing: 14th and 15th September 1965.

This judgment will dispose of 13 Writ Petitions Nos. 680/62 to 691/62 and W. P. 823/62 as common question of law is involved in them.

2. The petitioner belong to non‑agreed areas. They are refugees from Sikar District; Jaipur State, Rajisthan and migrated from there in the year 1947 and settled in the Sind Region of West Pakistan. They claim to have left agricultural property in India and their claims were verified under Schedule V by various Claim Officers concerned. On the report of the Enforcement Police, Mr. Moghul, the then Additional Claims Commissioner, Hyderabad, acting in his suo motu revisional powers under section 7 (3) of the Registration of Claims (Displaced Persons) Act III of 1956, found the claims of the petitioners as bogus and cancelled the verification of their claims by a common order dated the 2nd July 1960, in Suo Motu Revision Nos. 41 to 54. This order was challenged before the Claims Commissioner on 23rd July 1960. But before the Revisions could be heard Martial Law Regulations 84, 89 and 91 had come into force. In some of these matters the claim of the petitioners relating to urban immovable property was dealt by Mr. A. R. Chaudhri, Settlement Commissioner, in his capacity as Claims Commissioner, Pakistan and had been allowed. In respect of agricultural property the learned Officer did not pass any final order.

3. It may be stated at this stage that during the pendency of the above‑mentioned Revision Applications before the Claims Commissioner, the petitioners in December 1960, on the promulga tion of Martial Law Regulation No. 84 had filed their statement M. R. I. and on the basis of this had received a receipt M. R. III. But before the statement of the petitioners could be verified under clause 3 of this Regulation Martial Law Regulation 89 was promul gated on 23rd August 1961, whereby all investigations under Martial Law Regulation No. 84 were stopped and under clause 5 of the Regulation, the Central Record Office, Lahore, had to verify the entitlement of the claims on the basis of a slab system men tioned therein. It is not disputed that the petitioners' Q. P. R. V. was accepted by the Central Record Office and entitlement M. R. V. was issued to them in accordance with this slab system.

4. It further appears that the petitioners, after the filing of the Revision Applications, had obtained stay orders in respect of the order passed by the Additional Claims Commissioner in July 1960. But this stay order was discharged by the Chief Settlement Commissioner by order dated the 2nd August 1962. Thereupon, the petitioners have challenged the impugned order of the Additional Settlement Commissioner in these writ petitions and have claimed that their claims verified by the Claims Officers still remain intact and they are entitled to retain the land according to the index unit's issued to them under M. R. V. by the Central Record Office, after the promulgation of Martial Law Regulation No. 89.

5. The petition is opposed on behalf of the‑Department. Their main contention is that after the Additional Settlement Com missioner had set aside the verified claims of the petitioners on the ground that they were bogus, the petitioners have no right in respect of the land in dispute and are not entitled to any relief under Martial Law Regulation No. 89.

6. The short question, therefore, for consideration in these writ petitions is whether the order of Mr. Moghul, the then Additional Claims Commissioner, Hyderabad, passed on 2nd July 1960, in respect of the claims of the petitioners in the above writ petitions Was valued or not. In this connection it will be noticed that under section 7 (3) of Act III of 1956 the power of, suo motu revision can only be exercised by a Claims Commissioner. This is quite obvious from a perusal of the contents of this provision of law which is reproduced below:

"7 (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 affect ing any person without giving such person an opportunity of being heard."

The learned representative of the department contended that the Claims Commissioner had delegated this power under the above mentioned provision of law to all the Additional Claims Commis sioners under section 17 (2) of the said enactment. The power of the Claims Commissioner to delegate all or any of his powers under the above‑mentioned enactment is not open to any doubt. Section 17 (2), dealing with this aspect of the case reproduced below is quite clear:‑

"17 (2) Subject to the provisions of this Act and the rules made thereunder; a Claims Commissioner may delegate all or any of his powers under this Act to any Additional Claims Com missioner as may be specified by him."

In support of his contention that all the Additional Commissioners have been delegated this power. Mr. Wasim relied on the Manual of Instructions for the Claim Organization contained in Chapter IX. Sub‑clause (iii) dealing with their duties and functions reads as under:

"(iii) to exercise all such powers of the Claims Commissioners as are delegated to them by the latter under subsection (2) of section 17 of the Act."

It will be noticed that these instructions would be of no help to the Department unless the Claims Commissioner had delegated his power under section 7 (3) to Mr. Moghul.

7. The petitioners' contention that on the 2nd July 1960, the date on which the impugned order was passed, Mr. Moghul, the then Additional Claims Commissioner, was not delegated any of the powers of the Claims Commissioner under section 7 (3) read with section 17 (2) of Act III of 1956 is not without force. The Department in spite of repeated questions put to them was unable to place on record any order passed by the Claims Commissioner under section 17 (2) of the said enactment. The Department's reply was that such order must have been passed, but it is not traceable in their records. The Department was, therefore, called upon to file an affidavit of an officer conversant with the facts of the case that the Claims Commissioner had delegated his powers by any Special or general order to the Additional Settlement Com missioner, but his opportunity also was not availed and the learned representative of the Department frankly stated that the Depart ment is not in a position to file any such affidavit: In these circumstances, it is quite plain that Mr. Moghul on 2nd July 1960, had no jurisdiction to pass the impugned order, and was not A competent to set aside the verified claims of the petitioners.

8. The dispute, however, cannot be disposed of on the decision of this point alone. After the promulgation of Martial Law Regulation No. 89, the claimants of agricultural land are entitled to get evacuee lands only on two basis. In cases where a valid M. R. V. has been issued to them they are entitled to claim certain index produce units on the basis of the slab system recog nised under clause 5 of the said Martial Law Regulation. In those cases, where the claims are still pending, the claims have to be verified by a special officer appointed under clause 4 of the Regula tion and the claims o: such persons are to be settled on the basis of the scrutiny of the it claim by such officer.

9. Mr. Abdul Hafeez Pirzada, counsel appearing for the petitioners contended that the order of Mr. Moghul being a nullity, the original claim of the petitioners remained intact and their claim should have been settled under paras. 5, 6, 7 and 8 of Martial Law Regulation 89. But the difficulty in the way of the petitioners is that the impugned order has not been set aside by any competent authority. The petitioners are themselves to be blamed for it. They did not object to the jurisdiction of Mr. Moghul and without demur subjected themselves to his jurisdiction. In view of the Supreme Court decision in Ghulam Mohiuddin v. Chief Settle meat Commissioner (P L D 1964 S C 829) the petitioners have lost their right to gets the impugned order set aside by this Court by a writ of certiorari. I would therefore repel this contention.

10. But there is another favourable aspect of the case for the petitioners. Admittedly, in the present case, after Mr. Moghul had set aside their verified claims they had challenged the impugned order of the Additional Claims Commissioner. It is doubtful‑ that at that stage the petitioners' Q. P. R. V. were validly subsisting or they were as of right entitled to get M. R. V. entitlement under Martial Law Regulation 89. But the petitioners' contention that their claims were still pending under clause 3 of the Martial Law Regulation No. 89 cannot be lightly disregarded. The mere fact that the order of Mr. Moghul was without jurisdiction or an illegal order could not deprive them of their right to get it set aside in suo motu revisional proceedings provided under section 7 (3) of Act III of 1956. The revision petitions filed by them before the Claims Commissioner were before a competent tribunal and rightly entertained by the Claims Commissioner for further consideration. In this connection, it will be convenient to consider paragraph 4 of Martial Law Regulation No. 89, which is in the following terms:‑

"4 (1) Any claim pending for verification at the time of the commencement of this Regulation shall be verified by such officer not below the rank of an Additional Settlement Commissioner as may be appointed by the Chief Settlement Commissioner in that behalf.

(2) Verification of any claim under sub‑paragraph (1) shall be done on the basis of such documentary evidence as might have been produced by the claimant at the time of filing his claim, and the order of verification shall contain all particulars of the verified land needed for the preparation of an Entitlement Certificate.

(3) The order of verification passed under sub‑paragraph (2) shall be final and shall form the basis' for the preparation of Entitlement Certificate."

On a plain reading of this provision of law it cannot be said that the Revision filed by the petitioners were not in the nature of claims pending for, verification at the time of the commencement of the said Regulation. This point was recently considered by their Lordships of the Supreme Court in an unreported case Civil Appeal No. K‑10 and K‑I1 of 1962, decided on 11th March 1964. In this connection their Lordships observed as under:

"The above section clearly provides that the decision of a Deputy Claims Commissioner is appealable and also open to revision and review. In the instant case a revision was pending from before the passing of the Martial Law Regulation No. 84, against the appellate order of the Additional Claims Commis sioner. Subsection (5) of section 7 of the Act clearly says that subject to the foregoing provisions of this section any order shall be final.' Thus so long as Revision was pending, the impugned order of verification could not be regarded as final. From the very fact that paragraph 4(1) of the Martial Law Regulation makes provision for disposal of claims pending verification. it is clear that the Regulation never intended to confer any finality on such orders which were under appeal or revision. We are, therefore, unable to read paragraph 12 of the Regulation in such a way so as to give it a meaning which is obviously contrary to the express provision of the Regulation. We may further observe that to hold that the pending revision would be infructuous would really mean that the aggrieved party would be deprived, by the retrospective operation of the Martial Law Regulation No. 84, of a right possessed by him. In the absence of any clear provision to that effect in the Regulation, this would be against all canons of construction. On the contrary, as already pointed out, pending cases were kept alive by paragraph 4(1) of the Regulation No. 89."

In view of these clear observations, the contention of the a legal representative of the Department that the revisions pending before the Claims Commissioner cannot be considered to be as pending claims within the meaning of clause 4(1) of the Martial Law Regulation No. 89 is not tenable and repelled. It was brought to my notice that in some of the cases the revisions of the petitioners were referred to the Additional Settlement Commissioner, West Pakistan, Lahore, under Martial Law Regulation No. 89 for disposal on merits. But he has refused to entertain them by order dated the 7th September 1964, on the following observations:‑

"Mere filing of further revision petitions against suo motu revision by Claims Commissioner do not entitle the claimants to adjudication of such petitions as pending claims under Martial Law Regulation 89. Thus, without going further into the merits of these claims I hold that these revisions are not tenable and are, therefore, rejected."

This order applies to the case of petitioner in Writ Petitions Nos. 680 to 687, 690 and 691 of 1962. But in the light of the above discussion this view is not sound in law. The learned officer failed to notice that in the revisions an illegal order of the Additional. Commissioner was challenged and under section 7 (3) of the relevant enactment the Claims Commissioner was fully competent to entertain it. I would, therefore, hold that this order is illegal and should not come in the way of the Department to get the right of the petitioners adjudicated under clause 4 of Martial Law Regulation 89. Although no specific relief was claimed against the said order, the learned representative of the Department has con ceded that it may be quashed. Accordingly, the said order dated 7‑9‑1964 is quashed.

11. The upshot of the above discussion is that, in law, in view of the pending revisions of the petitioners before the Claims Commissioner, the Claims of the petitioners are still pending for verification under clause 4‑of Martial Law Regulation 89, which should be disposed of by a competent officer appointed by the Chief Settlement Commissioner. Accordingly, I would direct respondent No. 1 to place the claims of the petitioners before a competent officer, other than the officer, who passed, the order dated the 7‑9‑1964 referred to above for adjudication in accordance with law.

12. In the result, subject to the above remarks, the petitions are allowed with no order as to costs.

K.B.A. Petitions accepted.

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