Find a Lawyer

Writ Petition No. 532 of 1964, decided on 10th May 1967.

S. 7(3) [as amended by Displaced Persons Laws Amendment Ordinance (XIII of 1964)]‑Revision ‑ Limitation Effect of amendment to subsection (3) of S. 7.

The effect of this amendment is that the condition of ordinarily revising an order within ninety days and giving reasons for late exercise of jurisdiction if it was revised beyond period of ninety days as contained in rule 6(2‑A) Registration of Claims (Displaced Persons) Rules, 1955 was done away with. Another effect of this amendment was to render ineffective the decision of the Supreme Court reported in P L D 1965 S C 269. According to the new law, 31st of March 1965, was an ordinary date up to which the Claims Commissioner could revise any order of his subordinates and now there was no such provision of the kind which was contained in rule 6(2‑A).

Tufail Muhammad and others v. Raja Muhammad Zia Ullah Khan and another and Khalil‑ur‑Rahman Dawoodi v. The Claims Commissioner P L D 1965 S C 269 and Jalal Din and others, v. Sh. Muhammad Rafiq and another P L D 1965 S C 261 ref.

[as amended by Displaced Persons Laws Amendment Ordinance (XIII of 1964))‑‑Ordinance bringing about retrospective amendments‑Not ultra wires the Constitution‑Central Legislature, subject to rider contained in Fundamental Right No. 4, competent to make retrospective laws‑Power to make retrospective laws which purport to validate acts or orders not covered by legislative enactments at time of their passage or which destroy vested rights Whether can be conceded to Central Legislature‑Constitution of Pakistan (1962), Arts. 2 & 31‑Application of Art. 2 arises only when violation of some "right" is involved‑Verification of "claims" of displaced persons‑"Claim" not a vested "right"‑Revisional jurisdiction of Claims Commissioner just another procedural step in manner of verification of claims‑Scrutiny of claims under such jurisdiction cannot be said as destroying any right of any person‑ Article 2 of Constitution cannot be invoke in circumstances of case‑Constitution of Pakistan (1962), Art. 6, Fundamental Right No. 4‑[Per K. E. Chauhan, J. Fazl‑e‑Ghani Khan, J., agreeing but reserving his opinion on interpretation of Arts. 2 & 31 of Constitution for some other occasion‑[Haji Ghulam Zamin and another v. A. B. Khondkar and others P L D 1965 Dacca 150 dissented from].

The Displaced Persons Laws Amendment Ordinance, 1964, when it purported to bring about retrospective amendments was not ultra vires the Constitution and the Central Legislature could make retrospective laws.

Hashmat Ali v. Abdul Karim and another W. P. No. 879/R of 1963 and Sh. Amanullah v. Pannu Ram P L D 1967 S C 289 ref.

It was argued that even though the power to make retrospective laws may be conceded to the Central Legislature in general, it cannot be conceded to in such cases where it purports to validate acts or orders which were not covered by a legislative enactment at the time when they were passed or where it will destroy vested rights. The basis for this argument was made Article 2 of the Constitution which guaranteed an inalienable right of a person to be dealt with in accordance with law:

Held that the application of Article 2 arises only when violation of some right is involved.

Since the claim is not a right, therefore, no question of destruction of any vested rights was involved in the instant case when the amendment in the relevant law was made and Article 2 cannot be invoked here.

It is not the Central Government but rather the Central Legislature which has enacted law that verification of a claim will be subject to revisional jurisdiction of the Claims Commissioner which could be exercised before the 31st of March 1965. If the change in' the panel of the eligible claimants cannot be said to be interfering with any right of a person much less the confirmation or creation of revisional jurisdiction can be said to interfere with any right. Revisional jurisdiction is just another step in the manner of verification and in this way being procedural, scrutiny cannot be said as destroying any right of any person. Article 2 of the Constitution, therefore, cannot be brought in aid of proving the invalidity of Ordinance XIII of 1964.

There is a distinction between a totally void act which is not covered by any law, at the time it is done and an act done in the purported exercise or implemention or interpretation of a statute. Entirely void acts may not be curable by retrospective legislation but acts in the irregular or purported exercise of jurisdiction may be validated by retrospective laws.

It is well‑known that there are statutes which are known as validating statutes, remedial statutes, curative statutes, amending statutes, declaratory statutes and retrospective statutes. If the view laid down in Haji Ghulam Zamin's case is to be accepted, then it means that the Central Legislature of our country will have to be deprived to a considerable extent of the power of passing the aforesaid types of statutes effec tively. Article 2 does not place a fetter on the power of Legislature to pass retrospective laws with regard to subjects and items over which it has authority to pass laws. No check on the powers of the Legislature can be carved out merely from the provisions of Article 2. It may be emphasised that it is well‑known that a statute should not be ordinarily interpreted to be retrospective unless it is expressly declared to be so or there is a necessary intendment to this effect, the reason being that Courts should not incline towards touching rights accrued or vested under old laws. But this has never been doubted that when a law is specifically made retrospective, it may touch past transactions so well as long so there is a remedy, forum, machinery and provision to touch them. The only limitation in our Constitution prohibiting making of retrospective laws is contained in Fundamental Right No. 4.

Subject to the rider contained in Fundamental Right No. 4, there is no disqualification on the part of the Central Legislature to make retrospective laws.

M. Munir's Constitution of Islamic Republic of Pakistan (1st Edn.), p. 78; Syed Abdur Rashid v. Pakistan and others P L D 1962 S C 42; Fateh Muhammad v. Settlement and Rehabilitation Commissioner Writ Petition No. 222/R of 1963; Hashmat Ali v. Abdul Karim and another Writ Petition No. 879 of 1963; Ghulam Murtaza Khan v. Malik Fateh Khan and another Civil Petition for Special Leave to Appeal No. 146 of 1966; Mst. Zainab Khatoon v. Mian Ghulam Shabbir and another P L D 1965 S C 55; Ghulam Murtaza v. Malik Fateh Khan, Settlement Commissioner and another P L D 1966 Lah. 569; In re : Neagle (1890) 135 U S 1; In re: Debs (1895) 158 U S 554; Youngstown Sheet and Tube Co. v. Sawyer (1952) 343 U S 579; Moti Lal etc. v. Government of State of Uttar Pradesh A I R 1951 All. 257; Basu on "Constitution of India", Vol. 2, (4th Edn. 1962), pp. 351 to 362 and Vol. IV, pp. 108‑109; Syed Sharifuddin Pirzada on "Fundamental Rights and Constitutional Remedies in Pakistan" (1st Edn.), p. 213; J. K. Jute Mills v. State of U. P. A I R 1961 S C 1534; United Province v. Atiqa Begum A I R 1941 F C 16; Jadao v. Municipal Committee A I R 1961 S C 1486; State of Orissa v. B. K. Bose A I R 1962 S C 945; Jadab Singh and others v. H. P. Administration and another A I R 1960 S C 1008; Gulabrao v. Pandurang A I R 1957 Born. 266; Kunnathvelli Visawanthan v. Kunnanbarapoyil Kanaran A I R 1956 Mad. 604; Union of India v. Mandangopal A I R 1954 S C 158; Sundarraramier & Co. v. State of A. P. A I R 1958 S C 468; State of Bihar v. Kameshwar A 1 R 1952 S C 252; Barada Kant v. State of Assam A I R 1956 Assam 23; Robert Dobie v. Tamporalitis Board (1.881) 7 A C 136; Blackstone Commentaries Vol. 1, p. 90; Bloomer v. Stoller (1850) Mclean 161; Luce Legislative Problems, p. 641 Ellen Street Estates v. Minister of Health (1934) 1 K B 590; British Coal Corporation v. The King 1935 A C 500 and Vauxhall Estates v. Corporation of Liverpool (1932) 1 K B 733 ref.

Haji Ghulam Zamin and another v. A. B. Khondkar and others P L D 1965 Dacca 150 dissented from.

Retrospective laws‑May not cure void acts but may validate acts done in irregular or purported exercise of jurisdiction.

Zaki‑ud‑Din Paul for Petitioners.

Nemo for Respondent No. 1.

Ch. Muhammad Sadiq for Respondent No. 2.

Dates of hearing: 8th and 10th May 1967.

The petitioners in this case are (1) Muhammad Sharif, (2) Muhammad Ismail and (3) Muhammad Ibrahim sons of Karam Din. The petitioner No. 1 filed a claim Form No. 4743, for one ancestral house under the Registration of Claims (Displaced Persons) Act III of 1956 (hereinafter called the Parent Act). Petitioner No. 2 filed Form No. 4744 for one house and petitioner No. 3 filed a claim form bearing No. 11415 for one lime factory and also for one of the houses involved in the claim of his other brothers. Mr. Subhani, the Claims Officer, vide his order, dated the 14th of June 1958, (Annexure "A") verified these claims as follows:‑

Schedule I. Rs.

Unit No. 1 Verified for 59,200.00

Unit No. 2 Verified fur 14,800.00

Schedule III.

Unit No. 1. Verified for 13,600.00

2. In July or August 1963, respondent No. 2, submitted an undated application to the Claims Commissioner in which he alleged that house shown in Schedule 1, Unit No. 1 was purchased by the father of the claimants in year 1900 and 1904 at a total value of Rs. 425.00 and the claimants have got it verified for an amount of Rs. 59,200.00, It was alleged that they have not submitted any documentary evidence in support of the reconstruction of the house, As regards Unit No. 11, Schedule I, it was pointed out that it was purchased by the claimants or the father of the claimants on the 21st of March 1941, for a petty sum of Rs. 1,100.00, whereas it had been got verified by producing false and, bogus witnesses for Rs. 14,800.00. It was further alleged that the claimants themselves had claimed Rs. 13,000.00 as the value of this house, whereas the claim had been verified for a far excessive amount. As regards the claim for lime factory under Schedule III, it was submitted in the said application that the claimants had neither produced any receipt for the machinery which was allegedly installed by them nor they had given any solid proof of its situation and existence. The claimants, it was complained had got a claim accepted for this artificial factory by means of fraud and distortion of facts. After making these averments, it was prayed shat a thorough enquiry should be made in this respect and the exaggerated claim should be reduced to a considerable extent and the claim of Schedule III may totally be cancelled. On receiving this complaint, the learned Claims Commissioner issued a show‑cause notice to the petitioners asking them to explain as to why the order verifying‑their claim should not be revised. The petitioners appeared in response to the said notice and in support of the fact that their claim was genuine they showed willingness to lead further evidence. Consequently, the Claims Commissioner recorded whatever evidence they had produced and thereafter finding. the claim with regard to lime factory as bogus, cancelled the same in toto, but as regards the Unit No. I in Schedule 1, he reduced it to Rs. 18,720.00 and as regards Unit No. II of the said Schedule he reduced it to Rs.7,200.00. The final order making above deductions and cancellation etc., was passed by the learned Claims Commissioner on the 27th of December 1963 (Annexure "C"). The petitioners have come up in writ petition against the aforesaid order of the Claims Commissioner. The learned counsel for the petitioners raised a number of contentions which we will presently dispose of.

3. The first point argued by the learned counsel for the petitioners was that the jurisdiction of the Claims Commissioner to revise orders of his subordinates was contained in section 7(3) of the Parent Act. In the said section it was laid down that a Claims Commissioner may suo motu call, within the prescribed period, for the record of any case which has been decided by a 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 the order refusing or modifying any order affecting any person without giving such person an opportunity of being heard. The word "prescribed" was defined in section 2(4) as to mean prescribed by rules under the Patent Act. In rule 6(2‑A) of the Registration of Claims (Displaced Persons) Rules, 1955, it was laid down that a Claims Commissioner may under subsection (3) of section 7 of the Act, call for the record of any case within ninety days of the date of publication of this rule or the date on which the case has been decided by a Claims Officer, the Deputy Claims Commissioner or an Additional Claims Commissioner, whichever date be later: provided that the Claims Commissioner, may, if he deems fit, call for the record of any case after the said ninety days. The learned counsel argues that the ordinary jurisdiction of the Claims Commissioner was confined to call for the record of a case within ninety days of the date of the order of a subordinate officer, but if he deemed fit, he could call for the record of any case even after the said ninety days. It was submitted icy the learned counsel that the phrase "if he deems fit" really meant that when the Claims Commissioner was to exercise the jurisdiction beyond the period of ninety days, Ten lie must give reasons in his order as to what were the circumstances due to which he deemed it fit to exercise his jurisdiction at such late stage and unless he gave reasons for such a late exercise of his jurisdiction, it could not be said that he had exercised his jurisdiction conscientiously or properly. Reliance for this proposition was placed on Tufail Muhammad and others v. Raja Muhammad Zia Ullah Khan and another and Khalil‑ur‑Rahman Dawoodi v. The Claims Commissioner (P L D 1965 S C 269). There is no quarrel with this contention, supported as it is by the law laid down by the Supreme Court. The position, however, is that on the 28th of December 1964, was promulgated Displaced Persons (Laws Amendment Ordinance) XIII of 1964, which recast sub section (3) of section 7 of the Parent Act, so as to do away with the phrase "within the prescribed period" and substituted it with a phrase "at any time before the 31st of March 1965." This Ordinance was approved by the National Assembly of Pakistan on the 23rd of July 1965. The amendment which was so added was made retrospective a so as to be deemed always to have been so substituted in the Parent Act. Section 3 of the Amending Ordinance then validated all actions taken or orders passed under the Parent Act, before the promulgation of the Amending Ordinance and stated that they shall be deemed to have been taken or passed under the Parent Act as amended by the Amending Ordinance and shall have and shall be deemed always to have had effect accordingly. The effect of this amendment is that the condition of ordinarily reviling an order within ninety days and giving reasons for late exercise of jurisdiction if it was revised beyond period of ninety days as contained in rule 6(2‑A) aforesaid was done away with. Another effect of this amendment was to render ineffective the decision of the Supreme Court reported in P L D 1965 S C 269. According to the new law, 31st of March 1965, was an ordinary date up to which the Claims Commissioner could revise any order of his subordinates and now there was no such provision of the kind which was contained in rule 6(2‑A). The point raised by the learned counsel, therefore, has lost its efficacy due to the change which has been brought about by Ordinance XIII of 1964 and we, repel the same. This is not the only example in which the Legislature has tried to overcome the difficulty created due to the rulings of the Supreme Court. In another case also under the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), when the Supreme Court held in Jalal Din and others v. Sh. Muhammad Rafiq and another (P L D 1965 S C 261), that the orders passed by the delegates of the Chief Settlement Commissioner could not be appealed against or revised by the superior officers, the Legislature eased the situation by enacting Ordinance XVIII of 1965 and making retrospective amendments so as to make the said orders appeal able or revisable etc. and thus made them subject to the provisions of Chapter of of the Displaced Persons (Compen sation and Rehabilitation) Act (XXVIII of 1958) retrospectively. We will advert to Ordinance XVIII of 1965 later on in little detail in another aspect as well. "So far as the case in question, therefore, is concerned, the amendment successfully does away with the situation which had cropped up due to the ruling of the Supreme Court and the point raised by the learned counsel for the petitioner can no longer be available to him.

4. When confronted with the above situation, learned counsel for the petitioners argued that the Displaced Persons (Laws Amendment Ordinance) XIII of 1964, when it purported to B bring about retrospective amendments, was ultra vires of the Constitution and he submitted that the Central Legislature could not make retrospective laws. This contention again has not force and stands repelled in a judgment of this Court reported in Hashmat Ali v. Abdul Karim and another W. P. No. 879/R of 1963 decided on the 13th of May 1966, as also in Sh. Amanullah v. Pannu Ram (P L D 1967 S C 289).

5. A further point raised in this behalf was that even though the power to make retrospective laws may be conceded to the Central Legislature in general, it cannot be conceded to in such cases where it purports to validate acts or orders which were not covered by a legislative enactment at the time when they were passed or where' it will destroy vested rights. The basis for this argument was made Article 2 of the Constitution which guaranteed an inalienable right of a person to be dealt with in accordance with law. Further support for this proposition was sought from a Full Bench decision of the Dacca High Court reported in Haji Ghulam Zamin and another v. A. B. Khondkar and others (P L D 1965 Dacca 150). We will deal with both these matters separately.

6. As regards Article 2 of the Constitution, it reads as follows:---

"2. Right of individuals to be dealt with in accordance with law etc.‑(1) To enjoy the protection of the law and to be treated in accordance with law and only in accordance with law, is "the inalienable right of every citizen, wherever he may be and of every other person for the time being within Pakistan

(2) In particular‑-----

(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;

(b) no person shall be prevented from, or be hindered in, doing that which is not prohibited by law; and

(c) no person shall be compelled to do that‑which the law does not require him to do."

Famous Jurist M. Munir in his Book Constitution of the Islamic Republic of Pakistan (1st Edition) on page 78 writes as follows:‑---

Article 2 is an original contribution, as its equivalent is not to be found in the American, Indian or the 1956‑Constitution. If the Article creates any rights, it is obvious that their infringement and contravention may be complained against. But it is difficult to see how the aid of the Article can be invoked in any particular case where no public or private right is involved. What the Article declares is that any public functionary or person taking any action affecting the life, liberty, body, property or reputation of a person, or affecting his profession, trade or business, must rely on some law to justify his' action. Thus a hangman must be equipped with a legal authority to hang, a jailer or a whipper with a legal warrant to imprison or whip, an officer or other person seizing another person's property with a legal warrant to seize or confiscate and a person who interferes with another person's right to carry on his trade, profession or business, with a legal power to regulate or stop such activity. Similarly, a person requiring another person to do some thing, as for instance, a jailer requiring a person to work, must show that the law gives him the authority to compel the person to do the particular act. To put the rule in other words, every public functionary or person must show a legal authority for his interference with the right of another person. Thus, a direction or order by the Executive, which infringes a present right, would be invalid, if it does not have the backing of a valid contemporaneous law, Ghulam Zamin v. Khondkhar P L D 1965 Dacca 156, Farid Ahmad v. Government of West Pakistan P L D 1965 Lah. 135 and Rehmat Ali v. Government of West Pakistan P L D 1965 Lah. 112. On the question whether, in the absence of a law, the Executive can take an action which does not infringe a private right, see the comments on Article 31."

Then continuing the subject while commenting upon Article 31 of the Constitution, the learned author under the heading "Exercise of executive power in accordance with Constitution and law", writes as follows on pages 255 and 256 of the Book.

"Article 31 provides that the executive authority of the Republic shall be exercised by the President in accordance with the Constitution and the law. Executive functions are incapable of comprehensive definition, for they are merely the residue of the functions of Government after legislative and judicial functions have been taken away. They include in addition to the execution of laws, the maintenance of public order, the management of State Property and nationalized industries and services, the direction of foreign policy, the conduct of military operations and the provision and supervision of such services as education, public health, transport and State insurance. Halsbury's Laws of England, Vol. VII, (Third Edition), para. 409 ; Ram Jawaya Kapur v. The State of Punjab A I R 1955 S C 549. The words in accordance with the Constitution and the law', are capable of lending themselves to two different constructions. One view is that in the absence of any provision to the contrary in the Constitution or the law, the President may exercise his general executive power in any way he thinks fit in regard to matters to which the executive authority of the Republic extends under Article 135, provided that the power exercised does not amount to a legislative or judicial act. Ram Jawaya Kapur v. The State of' Punjab A I R 1955 S C 549. A further proviso to this rule, which has its foundation in the terms of Article 2, is that the exercise of the power should not involve an infringement of the rights, fundamental or not, of the subject. This is the view taken of Presidential powers by the Supreme Court of United States In re: Neagle (1890) 135 U S I; In re Debs (1895) 158 U S 564; but see Youngstown Sheet and Tube Co. v. Sawyer (1952) 343 U S 579 and the Supreme Court of India Rama Jawaya Kapur v. The State of Punjab. The other possible view is that the true import of the words 'in accordance with the Constitution and the law' is that for every executive act done by the President there must exist either in the Constitution or the law some authority for the doing of such specific act and that the President cannot perform any executive functions which are not authorised by a provision in the Constitution or the law, (See Youngstown Sheet and Tube Co. v. Sawayer (1952) 343 U S 579; where, on the construction of the relevant statute it was held that the statute bad taken away the President's power to make the impugned order). The Dacca High Court adopts the latter view‑Ghulam Zamin v. Khondkar, though there is no reference in its judgment to Article 31 or to the leading case of the Supreme Court of India on the subject Ram Jawaya Kapur v. The State of Punjab."

The above discussion shows that the application of Article 2 arises only when violation of some right is involved. The question to be seen, therefore, is as to whether a claim or C verification of a claim is a right or not. On this point, there is the famous case of the Supreme Court reported in Syed Abdur Rashid v. Pakistan and others (P L D 1962 S C 42), where after tracing the complete theory and history of a claim, they held that a claim was not a right. The actual passage in the judgment of the Supreme Court reads as follows:

"It is fallacious to conceive of a claim under the Act of 1956 as being in the nature of a right or interest in property which could devolve like property according to the personal law of the deceased. The deceased displaced person had not up to that stage become vested of any property in Pakistan which could devolve upon his heirs according to the law of succession prevailing in Pakistan."

At an earlier place, they held with reference to a claim under the Registration of Claims (Displaced Persons) Act, 1956 that:‑--

a claim is merely the assertion of a right to the ownership of, or to any interest in, property which has been treated as evacuee property in India or of which a displaced person has otherwise been deprived under any law in force in India. To constitute claim, therefore, within the meaning of this Act, it is sufficient that a Displaced Person should merely essert ,that he has a right to the ownership of, or some interest in, a property in India, which has been treated as evacuee property or of which he has been deprived by some law in India and it is this claim which he submits for registration‑Under this Act, there is no question of the claimant being allotted any property at all in respect of his claim."

Respectfully following the law declared by the Supreme Court we hold that since the claim is not a right, therefore, no question of destruction of any vested rights was involved in the instant case when the amendment in the relevant law was made and Article 2 cannot be invoked here. It may be pointed out that in Syed Abdur Rashid's case, the facts were that during the pendency of the verification of a claim, Central Government issued instructions directing that such and such should be the persons in whose names claims on the basis of inheritance should be verified. Objection was taken that the instructions were ultra vires inasmuch as they interfered with the rights or vested rights of those who otherwise were heirs to the property for which claim had been filed and purported to substitute an altogether different or additional set of persons in this behalf as eligible to get claim verified. The Supreme Court held that claim was not a right and, therefore, the instructions which stated as to in whose names it should be verified did not fetter with any right and were quite valid. On the same analogy in the instant case, it is not the Central Government but rather the Central Legislature which has enacted law that verification of a claim will be subject to revisional jurisdiction of the Claims Commissioner which could be exercised before the 31^st of March 1965. If the change in the panel of the eligible claimants cannot be said to be interfering with any right of a person much less the confirmation or creation of revisional jurisdiction can be said to interfere with any right. Revisional jurisdiction is just another step in the manner of verification and. in this way being a procedural scrutiny cannot be said as destroying any right of any person. Article 2 of the Constitution, therefore, cannot be brought in aid of proving the invalidity of Ordinance XXII of 1964.

7. The next thing to be kept in mind is that there is a) distinction between a totally void act which is not covered by any law, at the time it is taken (sic) and an act done in the purported exercise or implementation or interpretation of a statute. Entirely void acts‑(assuming without conceding the argument of the learned counsel for the petitioners to be correct) may not be curable by retrospective legislation but acts in the irregular or purported exercise of jurisdiction may be validated by retros pective laws. In the instant case, the order of the Claims Commissioner was not an order totally without jurisdiction, but it was such an order which was passed by irregular exercise of that jurisdiction the irregularity being the failure to record reasons that he deemed it fit to take up this case in revision after the normal period of ninety days. Such acts can be validated by retrospective legislation and even, therefore, if the principle enunciated in Dacca case be accepted, the same will have no application to the facts and the circumstances of the present case. The view, which we have taken, was taken by Qadeer‑ud‑Din Ahmad, J., in Fateh Muhammad v. Settlement and Rehabilitation Commissioner Writ Petition No. 222/R of 1963, decided on the 6th of January 1966 and it was held that the principle laid down in the Dacca case was not applicable to Ordinance XVIII of 1965, which like the Ordinance, presently under discussion, made retrospective amendments and changes as already mentioned earlier. The relevent passage in the judgment of the learned Jadgetruns as follows:---

"The observations that are contained in the Full Bench Judgment of the High Court of East Pakistan, to which reference has been made above, are clearly distinguishable on the ground that in the case which was under consideration the impugned notification was issued at a time when there was no law which could justify its issuance. Thus, it amounted to treating those who were hit by it otherwise than in accordance with law. By subsequent and retrospective legislation that defect of the notification was sought to be cured. Therefore, the learned Judges of the High Court had pointed out that it amounted to taking away a constitutional right by a contrivance or a legislative fiction. In the present case, the action which was taken was the result of mistaken application of law and not without the basis of any law. If the law has been changed and now that question is to be decided according to the existing law then it will not be right to say that an action which was taken without law, is now sought to be supported by law. Moreover, in this case, the amendment which has been made conferred the power of hearing appeals and revision on certain officers of the Settlement Department. It is the consequence of the exercise of that power of hearing appeals and revision which is the cause of complaint by the petitioner and not direct interference of the amendment with any right of the petitioner."

One of us (K. E. Chauhan, J.,) also took the same view in Hashmat Ali v. Abdul Karim and another, Writ Petition No. 8 17 9 of 1963, decided on the 13th of May 1966. As a matter of fact, the view mentioned above, has a support of the Supreme Court as well in Ghulam Murtaza Khan v. Malik Fateh Khan and another Civil Petition for Special Leave to Appeal No. 146 of 1966, decided on the 13th of April 1966. That was a case in which a question arose as to whether orders passed by delegates of the Chief Settlement Commissioner in the exercise of delegated revisional jurisdiction could be reviewed or not. The Supreme Court had in Mst. Zainab Khatoon v. Mian Ghulam Shabbir and another (P L D 1965 S C 55), held that the power of review in that context could not be regarded as ancillary to the revisional power conferred on the delegatee. The revisional power and the power of review of his own order, conferred on the Chief Settlement Commissioner were contained in two separate sections of the Act and the delegation of power under one section could not be construed to carry with it a delegated power under the other section also. The power of review is a creation of the statute and it cannot be said that a delegatee exercising the revisional powers under sub‑section (2) of section 20 of Act XXVIII of 1958, had inherent power to review orders passed in his capacity as a delegatee. After this judgment of the Supreme Court, the law was changed by Ordinance XVIII of 1965, retrospectively, which stated that orders of delegates would also be subject to the provisions of Chapter VI of the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) and it was further laid down that any orders that may have been passed earlier on the purported exercise of such a jurisdiction would be valid. A Division Bench of this Court in Ghulam Murtaza v. Malik Fateh Khan, Settlement Commissioner and another (2), held that even though earlier, no review could lie against the order of a delegatee but since such an order has been made subject to the provisions of Chapter VI of the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) retrospectively, therefore, after the change in law, the review had become permissible and that the order which had been passed earlier in review would be quite lawful, validated as it was by Ordinance XVIII of 1965. A petition for Special Leave to Appeal bearing No. 146 of 1966 was taken to the Supreme Court and the said Court held as follows:‑--

"The second point urged is that the review order, in any event, was not competent, as powers of review had not been delegated to him by the Chief Settlement Commissioner under section 31 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The defect, if any, was cured by Ordinance XVIII of 1965, which was brought into force on the 2nd June 1965, with retrospective effect. By this Ordinance, a new subsection (3) was added to section 31 of the Act, providing that any order passed by a Settlement Commissioner oil an Additional, Deputy or Assistant Settlement Commis sioner in exercise of any power delegated to him under sub‑ section (P L D 1966 Lah. 569) shall be and he deemed always to have been, subject to the provisions of Chapter VI in the same manner and to the same extent as any other order passed by a Settlement Commissioner, Additional, Deputy or Assistant Settlement Commissioner, as the case may be, is so subject. Section 3 of the Ordinance further validated all the previous orders passed in the purported exercise of such a power. The High Court, therefore, rightly held that the impugned order, passed by Malik Fateh Khan, was not open to exception on the legal plane".

Respectfully following the same view, we are of the opinion that the principle enunciated in Dacca case is not the least applicable to the facts and the circumstances of the present case, which is covered more by the view of the Supreme Court in the case for Special leave to Appeal No. 146 of 1966.

8. Taking up the case of Haji Ghulam Zamin and another v. A. B. Khondkar and others, before embarking upon this discussion, it is essential to explain as to what its facts were. A notification was issued by the Government of Pakistan on the 2nd of January 1964, claiming that regulation of trade and commerce between the two Wings of Pakistan was the responsibility of the Central Government under the Constitution and thus, in order to reorganise the trade in Pan' between the two Wings of Pakistan, it was decided that the Ministry of Commerce would thenceforward handle the work instead of the Pakistan International Airlines Corporation. In the said notification it was decided to set up a committee to devise procedure for allotment of 'Pan' quotas for transportation from East to West Pakistan by air and to actually allocate quotas to deserving parties. In pursuance of the said notification the Pan' Allocation Committee in turn issued a public notice on the 12th January 1964, inviting applications from the nationals of Pakistan who had traded in some agricultural and commercial items for allotment of quotas of Pan' for which space would be available with Pakistan International Airlines Corporation, stating that application received before the publication of the said notice or after the 22nd of January 1964, would not be considered as valid. Subsequently, on the 30th of June 1964, the President of Pakistan promulgated the Inter‑Provincial Trade Ordinance, 1964, (Ordinance No. IV of 1964) empowering the Central Government, inter alia to regulate, by licence, permits or otherwise, the movement and transport of any commodity or class or description of commodities, including imported commodities, between the two Wings of Pakistan. The said Ordinance also empowered the Central Government to delegate its powers, to such officer or authority subordinate to it or such Provincial Government or such officer or authority subordinate to a Provincial Government. It also provided that any such order made by the Central Government before the promulgation of the Ordinance would be deemed to have been validly made as if this Ordinance were in force at the time of making such order.

Murshed, C. J., who wrote the leading judgment was of the view that it was not permissible to validate an order which would require a citizen to do something at a time when such order had no efficiency in the sense that there was no contemporaneous law to support such a kind of infringement of a "present right". He further held that the executive authority of the Republic extended only to the execution of laws and that in order to enable the executive to function in respect of any subject there must be a law already in existence. In other words, in order to undertake any function to regulate any trade or business the executive must obtain prior legislative sanction and if that sanction did not exist then no law could be made retrospectively validating any earlier executive action of the Republic. My respectful comments on the said case, so far as relevant for the purpose of the subject under discussion are as follows:‑--

(a) The Authority does not take a justifiable note of Articles 31 and 135 of the Constitution and does not consider in detail as to what was their effect. In Article 31 it is written that the executive authority of the Republic is vested in the President and shall be exercised by him, either directly or through officers, subordinate to him, in accordance with this Constitution and the law. In Article 135, it is laid down that the executive authority of the Republic extends:‑

(a) to all matters with respect to which the Central Legislature has exclusive power to make laws under clause (1) of Article 131;

(b) where a law made by the Central Legislature in pursuance of clause (2), clause (3) or clause (4) of Article 131 provides that the law shall be administered by the Central Government‑to the execution of that law; and

(c) in relation to a part of Pakistan not forming part of a Province‑to all matters.

Reading these two Articles together, it is clear that a mandate and sanction is already contained in the Constitution authorising the exercise of Executive authority by the Republic with respect to various matters within its sphere and no further specific law is needed to confer a further authorisation to act in each separate and small affairs. This is, however, subject to one clarification and that is that where action of the executive encroaches upon any private right then it must have a support of law for it. This was so pointed out in Ram Jowaya Kapur v. The State of Punjab, where in the relevant portion of head note (a), it was held as follows:‑--

"The executive indeed can exercise the powers of depart mental or subordinate legislation when such powers are delegated to it by the Legislature. It can also, when so empowered, exercise judicial function in a limited way. The executive Government, however, cannot go against the provisions of the Constitution or of any law. This is clear from the provisions of Article 154 of the (Indian) Constitution, but it does not follow from this that in order to enable the executive to function, there must be a law already in existence and that the powers of the executive are limited merely to the carrying out of these laws."

Then at another place in the same headnote, it is written:‑--

"Where the Ministry or the Executive Government of a State formulate a particular policy, in furtherance of which they wane to start a trade or business a specific legislation legislating such trade activities before they could be embarked upon it not always necessary. If the trade or business involves expenditure of funds, it is certainly required that Parliament should authorise such expenditure either directly or under provisions of a statute . . . . .

Specific legislation may indeed be necessary if the Government require certain powers in addition to what they possess under ordinary law in order to carry on the particular trade or business. Thus when it is necessary to encroach upon private rights in order to enable the Government to carry on their business, a specific legislation sanctioning such course would have to be passed."

In the same authority it is further explained that:‑--

"The functions of a modern State like the Police States of old are not confined to mere collection of taxes or maintenance of laws and protection of the realm from external or internal enemies. A modern State is certainly expected to engage in all activities necessary for the promotion of the social and economic welfare of the community."

Neither of Articles 162 and 73 contain any definition as to what the executive function is and what activities would legitimately come within its scope. They are concerned primarily with the distribution of the executive power between the Union on the one hand and the States on the other. They do not mean that it is only when the Parliament or the State Legislature has legislated on certain items appertaining :o their respective lists, that the Union or the State executive, as the case may be, can proceed to function in respect to them. On the other hand, the language of Article 162 clearly indicates that the powers of the State executive do extend to matters upon which the State Legislature is competent to legislate and are not confined to matters over which legislation has been passed already. The same principle underlies Article 73 of the Constitution.

It may not be possible to frame an exhaustive definition of what executive functions means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. The Indian Constitution has not indeed recognised the doctrine of a separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another."

This is the view which has been described as "one view" by Munir in his passage quoted in para. 6 of this judgment. This view has also the support of the Americal cases In re: Neagle ((1890) 135 U S I) and In re: Debs ((1895) 158 U S 564), which I propose to examine in little detail. In re: Neagle, the Supreme Court assigned to the President a power which was not specifically granted either by the Constitution or by any law made by Congress. Apprehending danger to the life of a Judge of the Supreme Court itself, a marshal was appointed by the President to act as the bodyguard of the Judge and the marshal killed a person who attempted to attack the Judge. In a prosecution of the marshal by State authorities for murder. it was contended that there was no 'law' authorizing the appointment of the marshal to act as bodyguard of the Judge and to use force in that capacity, because the federal statute under which habeas corpus was sought to be issued enabled the writ to be issued where a person was "in custody for an act done or omitted in pursuance of a law of the United States". The Supreme Court held that though Congress had not already enacted a law to protect the Judges, it was a duty of the President inferrible from the Constitution and that was a 'law' of the United States. It was also observed that the President's duty to see that "the laws are faithfully executed" is not limited "to the enforcement of acts of Congress . . . . . according to their express terms but includes also:‑

"The rights, duties and obligations growing out of the Constitution itself, our international relations and all the protection implied by the nature of the Government under the Constitution".

Thus, the duty assigned to the marshal was considered to arise under the authority of the 'law of the United States even though there was no Congressional law to authorise it.

In re:Debs; the theory of stewardship or of inherent powers was also applied by the Supreme Court in granting an injunction, sought by the President against a railway strike, though there was no statutory basis for such injunction against the strikers. The Supreme Court granted the injunction on the following ground‑

"Every Government entrusted, by the very terms of its being, with powers and duties to be exercised and discharged for the general welfare, has a right to apply to its own Courts for any proper assistance in the exercise of the one and the discharge of the other."

The other American case which needs to be examined is Youngstown Sheet and Tube Co. v. Sawyer ((1952) 343 U S 579), known as Steel Seizure case, which has been stated by Munir should also be seen. The question which arose in that case was as to whether the President in the absence of congressional legislation empowering him, may, by any executive order take possession of the steel mills of the country in order to protect the defence preparation against a strike.

Chief Justice Vinson, speaking for the three dissenting Justices, advocated the theory of inherent or residual powers by supporting the President's order, with reference to his duty:‑

"to faithfully execute the laws in an emergency to maintain the status quo, thereby preventing collapse of the legislative programmers until Congress could act."

Though the majority of six Judges nullified the President's order, it is a difficult task to formulate the agreed principle underlying the majority decision inasmuch as each of the six Judges wrote a separate judgment:

Though Justice Black, who delivered the majority judgment observed‑

"the President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself".

meaning express provision and Douglas, J., agreed with him, the other four Judges do not appear to have gone so far. The common point of agreement appears to be that Congress had, in fact, legislated on the subject, namely, the Labour Management Relations Act, 1947, (known as the Taft‑Hartley Act), for dealing with a national emergency arising out of a break down in peaceful industrial relations, but that it did not vest in the President the power to seize property. The law, in laying down the procedure as to how the emergency was to be met, had "reserved to itself the right to determine where and when to authorise the seizure of property in meeting such an emergency" (Burton, J.). In other words, the anticipatory power of the President to act in this specific matter had impliedly been taken away by law made by the Congress.

Nevertheless, Jackson, J., opined that where there was no express or implied prohibition by the Constitution or a law, the President had an independent' power to take anticipatory action, pending legislation, the ambit of which, of course, depends upon the gravity of the situation:

"Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, an actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law".

Justice Clerk concurred with this view:

" . . . . . where Congress has laid down specific procedure to deal with the type of crisis confronting the President, he must q follow those procedures in meeting the crisis; but that in the , absence of such action by Congress, the President's independent power to act depends upon the gravity of the situation t confronting the nation."

Frankfurter, J., also appears to subscribe to the foregoing view when he said‑

"We must therefore put to one side consideration of what powers the President would have had if there had been no legislation whatever bearing on the authority asserted by the seizure, or if the seizure had been only for a short, explicity temporary period, to be terminated automatically unless Congressional approval was given . . . . .

The body of enactments . . . . . demonstrates the Congress demeed seizure so drastic a power as to requite that it be carefully circumscribed whenever the President was vested with this extraordinary authority . . . . it expressed its will to withhold this power from the President as though it had said so in so many words."

Burton, J., also relied on statutory construction when he said:‑----

"The controlling fact here is that Congress, within its constitutionally delegated power, has prescribed for the President specific procedures, exclusive of seizure, for his use in meeting the present type of emergency."

It may, therefore, be asserted that the majority of four who concurred in the decision of the Court, did not rule out the theory that the President had the inherent power to take anticipatory action to meet national emergencies, but held that such power could be barred not only by the expressed provisions of a law, but also by his implied prohibition which was, of course, a question of statutory interpretation.

I am of the opinion that the view taken in Americal cases, is a middle view and a better one than the Dacca view which goes to the extreme. This view will tend to maintain coherence in the State, avoid confusion and chaos and will make working of the executive smooth; because otherwise to insist for a statute with regard to every trifling act of the executive will be well high impossible. The Dacca authority proceeds on two assumptions; Firstly, it thinks that when inn 3rd Schedule Item 5 read with Article 131 of the Constitution, "trade and commerce between the Provinces" has been specifically made the exclusive responsibility of the Central Legislature, then this job can be executed only by the Legislature by legislation and that the Executive Government is only authorised with responsibilities of carrying into effect legislative policies and provisions. Secondly, it thinks that the same is the true effect and import of Article 135 when it says that the executive authority of the Republic extends to such and such items. It is further assumed in the said case that Article 135 relates to execution of the mandates and requirements of Central Laws and the executive authority must be derived from a particular statute or law for every particular act apart from and other than the aforesaid constitutional provisions themselves. With great humility and, utmost respect I do not agree and the reasons for my view, I have already given. It may be mentioned that a similar question came up for consideration in a foreign judgment reported in Moti Lal etc. v. Government of State of Uttar Pradesh (A I R 1951 All. 257). In that case view of Agarwala, J., (which was a minority view) was the same as has been laid down in the Dacca case. However, the other Judges, Malik, C. J., Sapru Moothan and Wanchoo, JJ., took a contrary view. Not only the view of Agarwala, J., was not share by his brother Judges but the Supreme Court of India in the case of Ram Jawaya Kapoor and others v. The State of Punjab described it as, too narrow and unsupportable view. Same is the opinion of Philosopher and eminent jurist Brohi at page 163 of his book fundamental Law of Pakistan (1958 Edition). After discussing the case law, the learned author writes as follows at page 165 under the heading "A summing up and conclusion:‑---"

"The fundamental question whether in all cases executive action to be immune from a challenge in the Law Courts must necessarily flow from a legal source (whether that source is conceived to be the Constitution or law) must, therefore, be answered in the negative. It is not correct to say that the executive is entitled to do only that, which it is expressly empowered by the Legislature to do. The limitation on the scope ' of executive action, which identifies it with the field of legislative competence, primarily appears to have been due to the operation of the federal principle; the paramount purpose, which was thus sought to be realized by this means, was to avoid clashes of jurisdiction between the Provincial and the Federal executive action. It is true that powers of the several organs set up under the Constitution must be derived from the language of the Constitution, but there is no provision in the Constitution which expressly limits the executive action to being, confined only to the implementation of the laws. The right to challenge administrative action accrues to the subject only in those cases where as a necessary result of such an action his rights are invaded. It is in those cases that the executive must justify its action by appeal to the existence of some legal source whence its power to act in a particular manner could be said to flow. The Latin‑tag salus populi suprema lex cannot be used by Government as an excuse for pursuing its own idea of the public interest without regard for legality. Substantially therefore, it would be correct to say that the executive is the respository of all power which it is necessary to have in order to run the administration of the country and to promote the purposes for which Governments are established and it is only in respect of matters that are forbidden to it by or under the constitutional provisions that its authority must be declared to be confined within those limits. The Executive action cannot override the Constitutional limitations nor can it be suffered to violate the legal rights of any person. Where a law directs the executive to do certain things, it is duty bound to carry out that mandate; but this is not the same thing as saying that unless there is express provision of the law enabling the executive to do certain things it cannot do those things."

I respectfully endorse the view of the learned author. To the similar strain are the views of Basu as expressed in his book entitled, "Basu's Commentary on the Constitution of India", Volume II, (Fourth, 1962 Edition) at pages 351 to 362.

(b) It is well‑known that there are statutes which are known as validating statutes, remedial statutes, curative statutes, amending statutes, declaratory statutes and retrospective statutes. If the view laid down in Haji Ghulam Zamin's case is to be accepted, then it means that the Central Legislature of our Country will have to be deprived to ac considerable extent of the power of passing the aforesaid types of statutes effectively. Article 2, in my respectful opinion, does not place a fetter on the power of Legislature to pass retrospective laws with regard to subjects and items over which it has authority to pass laws. No check on the powers of the Legislature can be carved out merely from the provisions of Article 2. In Dacca Authority, there is one inherent conflict and that is that though it recognises that retrospective laws can be made, yet it says, that in that given case, law could not have been made retrospective. It has not been pointed out that‑(apart from Article 2)‑if retrospectively legislating power is not doubted then why is it doubted when it is used to cover past civil transactions. It may be emphasised that it is well‑known that a statute should not be ordinarily interpreted to be retrospective unless it is expressly declared to be so or there is a necessary intendment to this effect, the reason being that Courts should not incline towards touching rights accrued or vested under old laws. But this has never been doubted that when a law is specifically made retrospective, it may touch past transactions as well so long as there is a remedy forum, machinery and provision to touch them. The only limitation in our Constitution prohibiting making of retrospective laws is contained in Fundamental Right No. 4, which reads as follows:‑

"4. Protection against retrospective punishment.‑No law shall authorize the punishment of a person‑

(a) for an act or omission that was not punishable by law at the time of the act or omission; or

(b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed."

Commenting on this right, Syed Sharifuddin Pirzada in his book "Fundamental Rights and Constitutional Remedies in Pakistan" (1st Edition) on page 213 writes:

"A sovereign Legislature has power to enact prospective as well as retrospective laws. Retrospective legislation is one of the incidents of plenary legislative powers."

Then on page 214 he says:‑-

"There is a great and apparent difference between making an unlawful act lawful; and the making an innocent action criminal and punishing it as a crime."

This will show that subject to the rider contained in Fundamental Right No. 4, otherwise, there is no disqualification on the part of the Central Legislature to make retrospective laws.

(c) Some of the principles as laid down in various cases with regard to legislative powers of a Legislature can be stated as follows, as I have gathered them from the discussion on the subject by Basu in his "Commentary on the Constitution of India" (1963 4th Edition) (Volume Fourth) pages 108 and 109:‑--

"Where a Legislature has a present power to legislate with respect to a subject, it can validate an ultra vires subordinate, legislation, such as an order or a notification, relating to that subject, with retrospective effect; J. K. Jute Mills v. State of U. P. A I R 1961 S C 1534 at p. 1539. The reason is that the power to validate by subsequent Legislation, any defective law or act done, under a law, is subsidiary or ancillary to the power to legislate with respect to a subject within the competence of the Legislature concerned; United Province v. Atiqa Begum A I R 1941 F C 16 and Jadao v. Municipal Committee A I R 1961 S C 1486. The power is available to validate not only subordinate legislation but any statutory act, such as an election held under defective electoral rolls or under an irregular procedure, or even an executive order relating to a subject within the competence of the Legislature United Province v. Atiqa Begum A I R 1941 F C 1. such a power is available to the President or the Governor even for making Ordinance State of Orissa v. B. K. Bose A I R 1962 S C 945. It is competent for the Legislature to put an end to the finality of a judicial decision and reopen a past controversy and even to pass a validating Act to declare to be valid a law which has been pronounced to be void by the Court Jadab Singh and others v. H. P. Administration and another A I R 1960 S C 1008. By so enacting, the Legislature does not exercise a judicial function. Gulabrao v. Pandurang A I R 1957 Born. 266 at p. 268. It is competent for the Legislature to rectify a mistaken view of the law Kunnathvelli Visawanathan v. Kunnanbarapoyil Kanaran A I R 1956 Mad. 604. Similarly, it is competent for the Legislature to override a decision under Article 226 of the Indian Constitution (which corresponds to Article 98 of our Constitution) as in the case of other decisions by validating an Act pronounced to be void by the High Court State of Orissa v. B. K. Bose. When a Legislature has a legislative power with respect to a subject under any entry in the Legislative Lists, it has a plenary power to exercise that power, including the power to give retrospective power to such legislation; United Provinces v. Atiqa Begum. Even Taxing Laws are no exception to this competence of the Legislature Union of India v. Madangopal A I R 1954 S C 158. Sales‑tax can be imposed with retrospective effect Sundarraramier & Co. v. State of A. P. A I R 1958 S C 468. Legislature can validate ultra vires notification imposing such tax with retrospective effect J. K. Jute Mills v. State of U. P. The legislative competence of the Legislature is not fettered by the terms of Any grant; State of Bihar v. Kameshwar A I R 1952 S C 252 per Mahajan, J., or any contract Barada Kant v. State of Assam A I R 1956 Assam 23. The power of a Legislature to repeal, modify or alter laws, is, as a rule co‑extensive with its powers of direct legislation. Robert Dobie v. Tamporalitis Board (1881) 7 A C 136. A sovereign Legislature is not fettered by its previous legislation. The general rule in England Blackstone Commentaries Vol. 1 p. 90 as well as in the U. S. A. Bloomer v. Stoller (1850) Mclean 161; Luce Legislative Problems page 64 is that, "Acts of Parliament derogatory , from the power of subsequent legislation bind not." So one Parliament which comes into being after each general election 1 is legally competent to repeal either expressly or by implication Ellen Street Estates v. Minister of Health 1934 I K B 590 (597) or amend any of the previous enactments of the realm, though such a course may not be advisable in view of political considerations British Coal Corporation v. The King 1935 A C 500 (520). From the same principle, it follows conversely that one Parliament cannot either declare its unrepeachable Vauxhall Estates v. Corporation of Liverpool (1932) 1 K B 733; Ellen Street Estates v. Minister of Health (1934) 1 K B 590, or declare in advance the intent of subsequent legislation or the effect of subsequent legislation among existing Statutes Bloomer v. Stoller (1850) Mclean 161; Luce Legislative Problems page 64.

(d) In any case the whole tenor of the judgment is that a contemporaneous law is necessary where the infringement of a right of a person is involved. In cases, therefore, where a petitioner has no right, the principle laid down in the said case would not be applicable as is the position in the present case.

9. The last point argued by the learned counsel for the petitioners was that the order of the Claims Commissioner in this cast does not show that he has examined the correctness, legality or propriety of the order which he revised and since the order of the Claims Commissioner does not show as to what were the defects which he found in the order of the Claims Officer, therefore, the order of the Claims Commissioner was not in accordance with the provisions of section 7(3) of the Parent Act. There is no force in this contention. An application had been filed before the Claims Commissioner, the contents of which have. already been noted down in paragraph 2 of this judgment. As is admitted by the petitioners themselves in paragraph 4 of the writ petition, the Claims Commissioner thereupon issued a notice to them to show cause as to why the order verifying their claims should not be revised. The petitioners appeared in response to the said notice and in support of the fact that their claim was genuine they desired to lead further evidence. They then led whatever evidence they wished to produce and thereafter the Claims Commissioner proceeded to decide the case and gave the findings which are recorded in his order. If these findings are compared with the order of the Claims Officer, then it is obvious that the Claims Commissioner did not agree with the reasoning of the Claims Officer and gave his own reasons in support of the order which he ultimately passed. Examined in this comparative way, it is evident that the Claims Commissioner was trying to satisfy himself about the correctness, legality and propriety of the order of the Claims Officer and since the material brought on the record was not up to his satisfaction, he reduced or cancelled the claims wherever he found it necessary to do so after giving cogent reasons in support of his view. The documents which had been relied upon by the Claims Officer were closely scrutinised by the Claims Commissioner and he had differed in the evidentiary value of those documents and did not consider them worth so much as to accept the claim of the petitioners on the level and at the figures where they wanted it to place. It is pertinent to mention that when we asked the learned counsel to find fault with the appreciation of evidence as made by the Claims Commissioner, he could not successfully tell us as to what were the defects in that behalf. In this view of the matter we cannot upset such an order to which even the learned counsel cannot take exception to on merits. The order of the Claims Commissioner is carefully written order after fully hearing the petitioners and giving them opportunity to lead even additional evidence. We are not prepared in the exercise of our jurisdiction under Article 98 of the Constitution to interfere with such an order.

10. The upshot of the above discussion is that this writ petition has no merits and is hereby dismissed with costs.

I have read with advantage the exhaustive and elaborate judgment which is proposed to be delivered in this case by my learned brother K. E. Chauhan, J. and I agree with him that this writ petition be dismissed with costs for the reasons given by him in paragraphs 1 to 7 and 9 of his judgment. I also agree with him that the principles enunciated in the case of Haji Ghulam Zamin v. A. B. Khondkar "are not the least applicable to the facts and circumstances of the present case", which is covered by the decision of this Court on an identical question in the case of Ghulam Murtaza v. Malik Fateh Khan (P L D 1966 Lah. 569), as approved by their Lordships of the Supreme Court in Petition for Special Leave to Appeal No. 146 of 1966 but I do not wish to express any opinion on the learned discussion which has been made by my learned brother in paragraph 8 of his judgment and would like to reserve the same on the interpretation of Articles 2 and 31 of the Constitution for some other occasion.

S.Q. Petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.