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Civil Appeal No. 105 of 1966, decided on 13th December 1967.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 8th October .1964, in Writ Petition No. 712 of 1960).

S. 7 (3) read with Registration of Claims (Displaced Persons) Rules, 1955, r. 6 (2‑A)‑High Court following decision in P L D 1964 S C 585 issuing writ holding that order passed by Claims Commissioner suo motu beyond prescribed period was without conscious application of his mind to question of extension of time‑Special Leave to Appeal granted by Supreme Court to consider question whether High Court in circumstances of case, had erred in issuing writ and failing to remand case to Claims Commissioner.

(b) Appeal to Supreme Court‑Civil appeal against order of High Court passed in writ petition‑Person party to writ proceedings (albeit impleaded at his own request) and having real Interest in defending proceedings‑Has locus standi to appeal to Supreme Court‑Constitution of Pakistan (1962), Arts. 58 & 98.

S. 7 (3) read with Registration of Claims (Displaced Persons) Rules, 1955, r. 6 (2‑A) proviso‑Revisional power suo motu‑Can be exercised "at any time"‑Claims Commissioner, however, to apply his conscious mind to facts of case before exercising suo motu revisional powers‑Claims Commissioner revising order, passed more than 3 years ago, without conscious application of his mind to case‑Order of Claims Commis sioner bad in law‑High Court in setting aside such order, however, has to remand case back to Claims Commissioner- Constitution of Pakistan (1962), Art. 98.

Rule 6 (2‑A) of the Registration of Claims (Displaced Persons) Rules, 1955 provides a period of ninety days for moving the Claims Commissioner in revision but he may "at any time " suo motu revise the order of the subordinate authorities subject to giving of notice to the party affected thereby. As held in the case of Muhammad Farooq v. Claims Commissioner P L D 1964 S C 585 there must, however, be conscious application of the mind of the Claims Commissioner that the case before him is fit for extension of time after the expiry of 90 days prescribed in the rule. Where, therefore, the High Court did not find such an application of mind by the Claims Commissioner and set aside his order, it was held by the Supreme Court in appeal, that the order passed by the High Court was unexceptional. The Supreme Court, however, held that the proper course, in the case, for the High Court was to remand the case back to the Claims Com missioner for conscious application of his mind to the question of extension of time, because he had the jurisdiction to condone the delay. Since the High Court had failed to do so, the Supreme Court held that the failure of the High Court to remand the case back to the Claims Commissioner amounted to removing from the jurisdiction of the Claims Commissioner a case with which he was lawfully seized acrd this certainly was beyond the scope of Article 98 of the Constitution of Pakistan, 1962. The Supreme Court, in the circumstance, therefore, accepted the appeal, recalled the writ issued by the High Court and remanded the case back to the Claims Commissioner for fresh decision in accordance with law.

Muhammad Farooq Imam v. Claims Commissioner P L D 1964 S C 585 ref.

Mian Alahmud Ali Qasuri, Senior Advocate Supreme Court instructed by M. Siddiq, Senior Attorney for Appellant.

Aftab Ahmad Sheikh, Senior Advocate Supreme Court instructed by (S. M. Zamir Zaidi, Advocate Supreme Court with him) instructed by Mahboob Ahmad, Attorney for Respondents Nos. 1‑4.

Mian Fazal‑i‑Mahmood, Advocate Supreme Court instructed by Muhammad Nazar Khan, Senior Attorney for Respondent No. 5.

Respondents Nos. 2 and 3 : Ex parte.

Date of hearing: 13th December 1967.

.‑This appeal calls in question an order of the High Court of West Pakistan setting aside in writ jurisdiction tile order of the Claims Commissioner whereby on a reference by the Enforcement Directorate he had substantially reduced the claim of the respondent No. 5 in Schedules I, III and VI.

The facts relevant to the appeal are that Ch. Hassan Din, respondent No. 5, a refugee from Jullundur Punjab India submitted a claim for urban properties consisting of a house, shops, godowns and two plots of land under Schedule I for a sum of Rs. 4,14,000 a cinema house under Schedule III for a sum of Rs. 1,80,060, and for rent of the said properties under Schedule VI for Rs. 1,07,162. Mr. Z. .A. Shah the Deputy Claims Commissioner by order dated 4‑1‑1957, under the formula of cost of construction then in force verified the claim under Schedule I for Rs. 1,00,000, Schedule III for Rs. 34,000 and Schedule VI for Rs. 61,000. Later on the formula of evaluation was changed to forty years rental value and on appeal by the res pondent No. 5 Mir Ajam Khar, Additional Claims Commissioner by order dated the 1st November 1957, enhanced the valuation of his claim to Rs. 2,32,840, Rs. 1,20,000 and Rs. 73,764 respectively under the aforesaid schedules. In ignorance of the said order Malik Atta Muhammad Bandial, Deputy Claims Commissioner, on a later date, purporting to apply the new formula to the evaluation of the respondent No. 5's claim by an ex parte order dated the 6th December 1958, re-verified the claim at Rs. 1,00,000 under Schedule I, Rs. 40,800 under Schedule III and Rs. 61,413 under Schedule VI.

It is admitted by both sides that the order of Mr. Z. A. Shah having merged in the order of Mir Ajam Khan the order of Malik Atta Muhammad Bandial was without jurisdiction and of no legal effect. The matter, however, did not rest here. The respondent No. 5 and Sheikh Amir‑ud‑Din, appellant, were co allottees of the Nishat Cinema, Sargodha, and if the claim of the former under Schedule III held good for a sum of rupees one lac or more, he had under paragraph 15 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the right to its transfer. The appellant who did not qualify for transfer would in that case have been deprived of the opportunity to buy the cinema at an open auction. Accordingly on the promulgation of Martial Law Order No. 49 Rafiq Ahmad, son of the appellant, along with one Raunaq Ali laid information with the Enforcement Directorate that the respondent No. 5 had by misrepresentation got a highly exaggerated claim verified by the Additional Claims Commissioner. On 31‑12‑1959 the Directorate on the basis of an inquiry held by a subordinate officer moved the Claims Commissioner under section 7 of the Claims Registration Act, 1956, for revising the claim of the respondent No. 5 which was found to be false in respect of certain properties and highly exaggerated in respect of others. The particulars of the witnesses to be examined were set out in the report.

The Claims Commissioner instead of holding an inquiry himself sent the case to Mr. Muhammad Behram Khan, Additional Claims Commissioner, Lyallpur, for scrutiny and report with the directions that the "witnesses whose statements have been recorded by the police be examined before you give judicial findings as to the bogus nature or otherwise of the claim." Mr. Muhammad Behram Khan, in due ,course, issued notices to the parties and required them to produce such evidence as they considered fit in proof of their respective claims. Only few of the witnesses, however, turned up and others in spite of being served and issuance of warrants evaded service. It was complained by the respondent No. 5 that certain witnesses cited by him were not summoned by the Additional Claims Commissioner as their names were not included in the report by the Enforcement Directorate. On material brought before him Mr. Muhammad Behram Khan found that the respondent No. 5 was entitled to compensation in respect of all the properties mentioned in Schedules I and III and to rental under Schedule VI, but held that the evaluation by Mir Ajam Khan was "rather liberal" and adopted the assessment made by Malik Atta Muhammad Bandial as "more reasonable".

The report by Mr. Muhammad Behram Khan was adopted by the Claims Commissioner by the following order:

"I confirm the order of the learned Additional Claims Commissioner after hearing the claimant and objector at length.

(Sd.) M. Khurshid Zaman

Dated: 29‑7‑1960. Claims Commissioner Pakistan, Lahore."

This had the effect of not only substantially reducing the claim of the respondent No. 5, but also denying the entitlement for the transfer of the Nishat Cinema. The order was, accordingly, challenged by the respondent No. 5 in writ jurisdiction before the High Court inter alia on the ground that it was made beyond the period of ninety days prescribed in rule 6 (2‑A) of the Registration of Claims Rules, 1956, that the proviso to the rule which entitled the Claims Commissioner to revise the orders of the subordinate officers suo motu "at any time" was ultra vires of the Registration of Claims Act which required that a period of limitation for exercise of revisional jurisdiction by the Claims Commissioner under section 7 shall be prescribed and that at any rate the impugned order did not show any conscious application of his mind to extend the ordinary period of limitation. It was further urged that the acceptance of the report of Mr. Muhammad Behram Khan by the Claims Commissioner without considering the reasons on which the order of Mir Ajam Khan was based was bad in law. Some grievance was also made of the refusal by Mr. Muhammad Behram Khan to examine the witnesses cited by the respondent No. 5 on the ground that they were not included in the reference by the Enforcement Directorate to the Claims Commissioner.

All the three grounds found favour with the learned Judges and relying on the decision in the case of Muhammad Farooq Imam v. Claims Commissioner (PLD 1964SC585) they set aside the impugned order of the Claims Commissioner. It may be mentioned at this stage that the respondent No. 5 impleaded only the Claims Com missioner as a respondent to the writ petition, but the appellant on an application made in this behalf was in spite of the objec tion taken by the respondent No. 5, joined as a party and heard in support of the order of the Claims Commissioner.

Leave to appeal from the order of the High Court was granted to consider the contentions: (i) that while purporting to follow the decision in Muhammad Farooq Imam v. Claims Commissioner that rule 6 (2‑A) was intra vires the rule making authority under the Registration of Claims Act, 1956, the High Court had erred in failing to remand the case to the Claims Commissioner; (fi) that Mr. Muhammad Behram Khan only adopted the reasons on which the claim of the respondent No. 5 was verified by Malik Atta Muhammad Bandial; and (iii) that the High Court was in error in holding that proper opportunity was not given to the respondent No. 5 to produce evidence in support of his claim,. On the contrary the Claims Commis sioner had directed the respondent No. 5 to produce such evidence before him as he desired, but no witnesses were examined by him.

A preliminary objection' is taken to the competence of the appeal on the ground that the appellant not being a party to the proceedings in which the respondent's claim was verified at various stages he did not have the locus standi to impugn the order of the High Court by which the order of the Claims Commissioner was set aside and the order of Mir Ajam Khan was allowed to remain in the field. There is little merit in the objection. It has been brought out above that the appel lant and the respondent No. 5 are rival claimants for the transfer of the Nishat Cinema, Sargodha, and that if the writ issued by the High Court is recalled and the order of the Claims Commissioner is maintained the entitlement of the appellant and the respondent No. 1 for the transfer of the cinema will be at par. However, if the order of Mir Ajam Khan remains in the field and the order of the Claims Commissioner stands quashed the respondent No. 5 has a right to the transfer of the cinema and the appellant must make an exit. The appellant thus has a real interest in defending the order of the Claims Commissioner and seeking reversal of the order of the High Court in appeal. Moreover, the appellant was in spite of the objection raised by the respondent made a party to the writ petition in the High Court and that order was not brought in appeal before this Court. Being a party to the proceedings in which the impugned order was made the appellant has thus a locus standi to bring it under challenge.

On merits the main ground on which the High Court order was based stands concluded by the Amending Ordinance XVIII of 1965. The learned Judges in the High Court found that the Claims Commissioner had not consciously condoned the delay of more than 3 years in revising the order of Mir Ajam Khan and thereby added without lawful authority Rule 6 (2‑A) framed under the Claims Registration Act, 1956, provides a period of ninety days for moving the Claims Commissioner, but he may at any time suo motu revise the order of the subordinate authorities subject to giving notice to the party affected thereby. As held in the case of Muhammad Farooq Imam v. Claims Commissioner there must, however, be conscious application of the mind by the Claims Commissioner that the case before it is fit for extension of time after the expiry of 90 days prescribed in the rule. The learned Judges did not find such an application of mind by the Claims Commissioner in the present case and to that extent the conclusion reached by them is unexceptionable. But the law on the subject has since then been changed. Section 3 of the Displaced Persons Laws Amendment Ordinance XVIII of 1965 validates all such orders with retrospective effect. The main ground on which the High Court has set aside the order of the Claims Commissioner thus no longer holds good.

There was, however, substance in the grievance made by the respondent that the Claims Commissioner had not brought his own independent mind to hear on the valuation of his claim and the order made by him was defective inasmuch as he had failed to meet the reasons on which the valuation by Mir Ajam Khan was based.

Learned counsel for the appellant pointed out that on receipt of the report by the Additional Claims Commissioner a notice was issued to the respondent to produce such evidence as he considered fit in support of his claim, but he produced none and in the circumstances the Claims Commissioner had no material before him to differ from the valuation by Mr. Muhammad Behram Khan. This, however, is besides the point for as mentioned above Mir Ajam Khan had by a detailed order enhanced the valuation of the respondent's claims and that order being under revision before the Claims Commissioner it was necessary for him to examine its merits and in case he found fault with it to give reasons therefor and to determine the valuation afresh in accordance with law. There is thus no escape from the conclusion that the order of the Claims Commissioner was bad in law and the High Court acted rightly in setting it aside. But this does not put an end to the dispute.

In the case of Muhammad Farooq Imam v. Claims Commis sioner the case was remanded to the Claims Commissioner for conscious application of his mind to the question of extension of time, because he had the jurisdiction to condone the delay. On similar basis if fault was found with the order of the Claims Commissioner that he had not applied his own mind to the valuation of the claim by the respondent No. 5 it was necessary to remit the case to him for fresh decision. However, the learned Judges chose to depart from the rule on the grounds:

-----------that an order of remand in the present case is not warranted for the reason that not only the learned Claims Commissioner has not made conscious application of his mind to extend the ordinary period of limitation, he has also ignored the fact that the report itself is not a legal document as the conclusions in the report are based on an order of Malik Atta Muhammad Bandial which order itself is a nullity."

In coming to this conclusion the learned Judges omitted to notice that they were not only setting aside the order of the Claims Commissioner for the fault that he had not applied his conscious mind to the facts of the case, but they were further removing from his jurisdiction a case with which he was lawfully seized. This certainly was beyond the scope of Article 98 of the Constitution. The proper course to be adopted in the circumstances of the case, therefore, was to remand the case to the Claims Commissioner for determination whether the valuation of the claim by Mir Ajam Khan, Additional Claims Commissioner, called for interference and if so, what was in his judgment the correct valuation.

This appeal is, accordingly, allowed and the writ issue) by the High Court is recalled with the direction that the case shall now go to the Claims Commissioner for fresh decision in accordance with law. There shall, however, be no order as to cost.

K.B.A Appeal accepted.

Case Remanded

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