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Civil Appeal No. 48 of 1957, decided on 28th March 1958.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 27th April 1956, in Writ Petition Case No. 53 of 1956).

(XIX of 1948), S. 13 (S) ‑Review‑Of predecessor's order‑Not competent.

The words "his own order" in S. 13 (5), Pakistan Rehabilita tion Ordinance (XIX of 1948), can only mean the order made by the reviewing officer, and for this reason alone it was not competent for such officer to review his predecessors' order. This express limitation is a salutary check and it was not the intention of the Legislature that ‑a refugee to whom some property had been allotted for his rehabilitation should constantly live in a state of uncertainty or at the mercy of the authorities who may succeed one another.

S. 13 (S) ‑Review‑Scope of‑Confined to correction of arithmetical or accidental mistakes due to human forgetfulness.

The power to review could only be exercised for the specific purpose of "correcting any error or, supplying any omission" which appears on the surface of the record and could be detected without a further elaborate inquiry or investi gation. This might apply to accidental or arithmetical mistakes due to human forgetfulness not involving a mental process of reasoning or the appreciation of any law or the facts already proved or admitted. Any other view would eliminate the real distinction between the exercise of powers on appeal where the entire subject‑matter is open to re‑assessment and re‑decision by the higher authority, and on review, where the matter has already been finally decided and cannot be re‑opened but for the very narrow object‑ of correcting some errors which had occurred in spite of intention to the contrary. Further, the removal of any error will not confer power of "review"; it must be of a character that without correcting it the rights to which the parties may be entitled, cannot be adjusted.

Ordinance XIX of 1948, recognizes only one ground for review and that too where the reviewing officer himself was guilty of a mistake or a lapse. The discovery of new and important matter or evidence cannot furnish a valid reason for review under the Ordinance and to that extent the ambit within which the Civil P. C. countenances review, is much wider and in certain circumstances may be done by the successor.

A decision come to properly and after hearing the parties,

carries sanctity and both on public and administrative consider ations should not be lightly interfered with.

S. 16- Civil Court can interfere where order of Rehabilitation Authority is not in strict conformity with Ordinance.

The jurisdiction of the Civil Court is expressly barred in the case of an order passed by a Rehabilitation Authority under the Ordinance i.e. in strict conformity with the provisions thereof. Where this is not so, the Civil Court cannot be deprived of its powers of interference. The protection does not cover an order capriciously made or in flagrant breach of the statute giving the protection.

Secretary of State v. Mask & Co. A I R 1940 P C 105 and Muhammad Din and others v. Imam Din and another P L D 1947 P C 317 ref.

1935, S. 223‑A‑May have retrospective effect.

Section 223‑A, Government of India Act, merely provides a new remedy for existing right; it may therefore, have a retrospec tive effect.

Where an order passed in Review by a Rehabilitation Com missioner was not in accordance with the provisions of the Rehabilitation Ordinance and thus was passed without jurisdiction:

Held that the order could be set aside by the High Court by the exercise of their writ jurisdiction under section 223‑A, Govern ment of India Act, 1935, even if the latter section was not in existence when the impugned order was made. In such a case there was no question of taking away any right, because no right was conferred by an order which in law could not be made.

Salamat Ali Jafri v. The Province of West Pakistan and others P L D 1956 Lah. 548 approved.

Rishindra Nath Sarkar v. Sakti Bhushan Ray A I R 1950 Cal. 512 ; Keshavan Madhava Menon v. The State of Bombay A I R 1951 S C 128 ; G. Veerappa Pillai v. Raman and Raman Ltd. A I R 1952 S C 192 ; Manohar Lai v. Custodian, Rajasthan A I R 1953 Raj. 185 and Colonial Sugar Refining Company Limited v. ‑ Irving (1905) A C 369 examined.

When issued‑Government of India Act, 1935, S. 223‑A‑ (Constitution of Pakistan, Art. 170).

Prohibition lies not only for excess of or absence of jurisdic tion, but also for the contravention of some statute or the principles of the common law.

Where total absence of jurisdiction appears on the face of the proceedings in an inferior Court, the Court is bound to issue a prohibition, although the applicant for the writ has consented to or acquiesced in the exercise of jurisdiction by the inferior Court. The reason why, notwithstanding such acquiescence, a prohibition is granted where the want of jurisdiction is apparent on the face of the proceedings, is lest the case might become a precedent if allowed to stand without impeachment.

Farquharson v. Morgan (1894) 1 Q B 552 and Bodenham v. Ricketts 6 N & M 170 ref.

Muhammad Shafi and M. Z. Kitchlew Advocates, Supreme Court, instructed by Naziruddin, Attorney for Petitioner.

Respondents Nos. 2 & 3 : Ex parte.

Khurshid Hasan, Advocate, Supreme Court, instructed by Virasat Husain Naqvi Attorney for Respondent No. 1.

Dates of hearing: 3rd and 4th March 1958.

‑What are the conditions for and the scope of review of a final order passed under Ordinance XIX of 1948 and what remedy is available in the case of excess or absence of jurisdiction‑are the questions that call for determina tion in this appeal by our leave.

The shop No. 6‑S‑55, situated in Block No. 2 in Sar godha Town, consisting of the independent portions "A" and "B" was allotted to the appellant, a refugee from the East Punjab, in 1947. On the revision of allotments, the Deputy Rehabilitation Officer, Sargodha, gave "A" to Muhammad Ramzan respondent No. 1, another refugee, on 27th of October 1948. An appeal was preferred on the ground that the portion "A" was in the occupation of Abdul Ghafoor (now respondent No. 2), a nephew of Muhammad Tufail appellant, and the order of allot ment in favour of Muhammad Ramzan was, therefore, incorrect. This plea was found to be wrong and the appeal was dismissed by the D. R. C. on 31st July 1949. A second appeal to the Additional Rehabilitation Commissioner taken by Abdul Ghafoor and Muhammad Tufail was accepted and the order of allotment to Muhammad Ramzan was cancelled. Muhammad Ramzan approached the Additional Custodian (R) in revision and contended that as no second appeal was competent, the order of the Addi tional Rehabilitation Commissioner was without jurisdiction. This contention prevailed and the second appeal was treated as revision and ordered to be filed before the Additional Rehabilita tion Commissioner. . This was done and the case was ultimately heard by Mr. S. S. Jafri, the then Rehabilitation Commissioner, who dismissed the revision on 3rd of October 1953.

It was held that Abdul Ghafoor was not an independent allottee as he claimed to be and both Abdul Ghafoor and his uncle Muhammad Tufail were "trying to take advantage of the somewhat careless manner in which the Rehabilitation Authorities have dealt with this case". The allotment of "A" to Muhammad Ramzan was confirmed and, since "B" happened to be in the possession of Abdul Ghafoor, it was ordered that his ejectment should be effected after due notice in a regular manner and Muhammad Tufail should be put in his place.

To clear a misapprehension, one other fact may also be added.

After the order of the D. R. O. allotting shop "A" to Muhammad Ramzan, a private agreement was made between Muhammad Ramzan and Muhammad Tufail, according to which the former consented to get "B" in lieu of "A" which should remain with the latter, but this arrangement was never honoured and Muhammad Ramzam was not delivered the possession of either "A" or "B" and instead Muhammad Tufail filed an appeal before the D. R. C. which, as mentioned already, was dismissed on 31st of July 1949.

Muhammad Tufail appellant refused to submit to the order of Mr. Jafri dismissing the revision on 3rd of October 1953. He filed a petition for review. It came up for hearing before his successor, Sayyed Ijaz Husain Shah. He accepted the review on 8th of February 1955 on the ground that his learned predecessor Mr. Jafri "had erred on a very important matter." It was observed that: "It could not be forgotten that Abdul Ghafur is already in possession of shop No. 6‑S‑55/B and Muhammad Tufail of shop No. 6‑S‑55/A. Ramzan is to be accommodated. 1 see no point in uprooting Abdul Ghafur and Tufail in order to settle Ramzan".

It was now the turn of Muhammad Ramzan to move. On l5th of February 1955, he presented a petition to the High Court of West Pakistan, Lahore, for the issue of a writ under section 223‑A of the Government of India Act. Following the decision of this Court in Federation of Pakistan v. Moulvi Tamiz ud‑Din Khan P L D 1955E C 240 that section 223‑A was inserted without the assent of the Governor‑General and was, therefore, not valid in law, the writ petition was dismissed on 5th of April 1955. By, section 3 of the Validation of Laws Act, 1955, published on 3rd of October 1955, the Government of India (Amendment) Act, 1954, by which section 223‑A was first inserted, was validated. Consequently, on 3rd of February 1956, Muhammad Ramzan moved the High Court again for the exercise of its extraordinary writ jurisdiction. This time he met with success and the High Court, by its order of 27th of April 1956, set aside the order of Sayyed Ijaz Hussain Shah as being without jurisdiction and directed the Rehabilitation Authorities concerned "to put Muhammad Ramzan petitioner into possession of shop No. 6‑S‑55/A situate in Sargodha, and to forbear from implementing the order of Mr. Ijaz Husain Shah, dated the 8th of February 1955". The present appeal is against this order.

Section 13 (5) of the Pakistan Rehabilitation Ordinance (XIX of 1948), dealing with review is as follows: ‑

"The Rehabilitation Commissioner or Additional, Deputy or Assistant Rehabilitation Commissioner may after giving notice to the parties concerned review his own order so far as justice may require, to correct errors or supply omissions which are apparent upon the face of the record".

The conditions precedent to "review" may be summarized as under:

(1) the power is given to the officers specified ;

(2) notice to the parties concerned is essential ;

(3) the review can be only of his own order and not of any other's ;

(4) the object is to correct errors or supply omissions apparent on the face of the record ; and

(5) so far as the interests of justice may demand.

There is no dispute that conditions (1) and (2) above were satisfied, but can the same be said of the others In the first place, the order sought to be reviewed was not made by S. Ijaz Husain Shah himself ; it was made by his predecessor‑in‑office. It was conceded that the words "his own order" can only mean the order made by him, and for this reason alone it was not competent of S. Ijaz Hussin Shah to interfere with the order of Mr. S. S. Jafri. This express limitation is a salutary check and ill was not the intention of the Legislature that a refugee to whom some property had been allotted for his rehabilitation should constantly live in a state of uncertainty or at the mercy of the authorities who may succeed one another.

Secondly, the power to review could only be exercised for the specific purpose of "correcting any error or supplying any omission" which appears on the surface of the record and could be detected without a further elaborate inquiry or investiga tion. This might apply to accidental or arithmetical mistakes due to human forgetfulness, not involving a mental process of reasoning or the appreciation of any law or the facts already proved or admitted. Any other view would eliminate the real distinction between the exercise of powers on appeal where the entire subject‑matter is open to re‑assessment and re‑decision by the higher authority, and on review, where the matter has already been finally decided and cannot be re‑opened but for the very narrow object of correcting some errors which had occurred in spite of intention to the contrary. Further, the removal of any error will not confer power of "review"; it must be of a character that without correcting it the rights to which the parties may be entitled, cannot be adjusted.

A comparison of the phraseology of Order XLVII, rule 1, Civil P. C., will be instructive. Review under the Civil P. C. may be allowed (1) "on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made; and (2) "on account of some mistake or error apparent on the face of the record" and (3) "for any other sufficient reason". Ordinance XIX of 1948 recognizes only one ground for review and that too where the reviewing officer himself was guilty of a mistake or a lapse. The discovery of new and important matter or evidence cannot furnish a valid reason for review under the Ordinance and to that extent the ambit within which the Civil P. C., countenances review, is much wider and in certain circumstances may be done by the successor.

Sayyed Ijaz Hussain Shah superceded the previous order as it failed to take into account that "Abdul Ghaffoor is already in possession of shop No.‑6‑S‑55/B and Muhammad Tufail of shop No. 6‑S‑5S/A". This is not factually true. As a matter of fact, Mr. S. S. Jafri was fully alive to the whole position and took pains to point out that "Abdul Ghaffoor should be proceeded against for ejectment from shop No. B in a regular manner", and on his ejectment Muhammad Tufail was to take his place. The very basis for review, unsustainable as it is, would thus be taken away. It cannot be over‑stressed that a decision come to properly and after hearing the parties, carries sanctity and both U on public and administrative considerations should not be lightly interfered with.

Mr. Muhammad Shafi, learned counsel for the appellant, vehemently maintained that no Court can question the order of the Rehabilitation Commissioner Sayyed Ijaz Husain Shah and relied on section 16. Its relevant portion may be quoted: ‑

"No order passed by a Rehabilitation Authority under this Ordinance shall be called in question in any Civil Court in any suit, appeal, execution application or other proceeding".

According to this section, the jurisdiction of the Civil Court is expressly barred in the case of an order passed by a Rehabilitation Authority under the Ordinance i.e., in strict con formity with the provisions thereof. Where this‑ is not so, they Civil Court cannot be deprived of its powers of interference. The protection does not cover an order capriciously made or in flagrant breach of the statute giving the protection. The general principle was enunciated in Secretary of State v. Mask & Co. A I R1940 P C 105. At page 110, their Lordships observed: "It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure". Similarly, to Muhammad Din and others v. Imam Din and another A I R 1948 PC 33: P L D 1947 P C 317, the Privy Council held that "Their Lordships have no doubt that the Civil Court has power to entertain a suit, in which the question is whether the executive authority has acted ultra vires".

Judged in the light of the above propositions of law, it cannot be asserted that the order of "review" passed by Sayyed Ijaz Husain Shah was immune from attack simply because of section 16 of the Ordinance.

It was then contended that the power to issue a writ under section 223‑A of the Government of India Act having been declared invalid and therefore not existing on 8th of February 1955, the order made on that date was placed beyond challenge. The argument was that subsequent validation of section 223‑A on 3rd of October 1955 did not give it a retrospective effect and it could not be made applicable to what was done earlier. There is an obvious fallacy in this argument. No right was created by section 223‑A; the High Court was given the powers to act more expeditiously by the issue of appropriate writ.

In support of his contention, the learned counsel for the appellant referred to A I R 1950 Cal. 512; A I R 1951 Supreme Court 128; A I R 1952 Supreme Court 192 and A I R 1953 Rajasthan 185, In Rishindra Nath Sarkar v. Sakti Bhushan Ray A I R 1950 Cal. 512 on 27th April 1949, an application purporting to be under section 151, Civil P. C., was made for setting aside a decree passed by consent on 2nd November 1943. It was dismissed. An appeal to the Chief Judge of the Court of Small Causes was also dismissed. Then an application for review was made on 25th of August 1949. That too was rejected. After the Indian Constitu tion came into force, it was contended that though the order of the Chief Judge was final at the time it was made and could not be questioned, it could be interfered with under the Constitution. It was held: "When the order was passed it was a final order with which this Court could not interfere. The Constitution Act was not in force then. Assuming that subsequently this Court has been given powers of interference that would not in our opinion entitle this Court to interfere with an order which was passed at a time when such power of interference did not exist."

In Keshavan Madhava Menon v. The State of Bombay A I R 1951 S C 128, a question arose whether a fundamental right granted by the Constitution could affect the rights which had accrued before the Constitution. It was held that the Constitution "have no retrospec tive operation, and the transactions which are past and closed and rights which have already vested will remain untouched".

G. Veerappa Pillai v. Raman and Raman Ltd. A I R 1952 S C 192, deals with a case for the grant of permits under the Motor Vehicles Act. It was held that the grant of a permit was discretionary and the High Court could not issue a direction "to grant to the petitioner permits in respect of the five buses". It was further pointed out that "The remedies for the redress or grievances or the correction of errors are found in the statute itself and it is to these remedies that resort must generally be had".

In Manohar Lal v. Custodian, Rajasthan A 19 1953 Raj. 158 a question arose as to What remedy besides a regular suit was available where the Custodian had acted beyond the powers entrusted to him under the Act. Under the Administration of Evacuee Property Act, 1950, "A debt due to or payable to an evacuee is evacuee property", and under section 5 "it is made payable only to the Custodian who can give a valid discharge for the same. But section 5 does not authorise the Custodian to adjudicate the matters of disputed debts and to recover them as arrears of land revenue. * * * Hence, if the debtor pleads discharge of debt due to evacuee, any action taken by the Custodian to recover it as arrears of land revenue would be without jurisdic tion and contrary to the provisions of the Ordinance". It was geld that "Where the action of the Custodian is without jurisdiction regarding the recovery of the amount from the petitioner as arrears of land revenue, the mere fact that the petitioner has a remedy by way of a regular suit under section 4 of the Revenue Recovery. Act, 1899, is not sufficient to disentitle him to an order or direction in the nature of a writ of prohibition under Article 226 of the Constitution of India". It further held that "The provisions of the Constitution no doubt are not retrospective in the sense that anything done in accordance with law then in force cannot be regarded as illegal now after the coming into force of the Constitu tion simply because it is contrary to the provisions of the Constitu tion. But anything which was illegal before the coming into force of the Constitution remains illegal, and, a person, who is aggrieved against such an illegal act, cannot be deprived of his remedy under Article 226 of the Constitution. Illegalities com mitted before the coming into force of the Constitution cannot be allowed to continue because of the coming into force of the Constitution". Surely, these observations, instead of supporting the case of the appellant, go against it.

The other case of Colonial Sugar Refining Company Limited v. Irving (1905) A C 369, relied upon is on appeal from the Supreme Court of Queens land and simply lays down that the Act which took away a right of appeal to the Privy Council was not retrospective and a right of appeal to the King in Council in a suit pending when the Act was passed was not affected.

It is difficult to see how the cases cited above can improve the position of the appellant. There is no quarrel with the proposition of law contained in them that a right which has accrued to a part could not be destroyed by subsequent legislation, unless it was expressly made applicable retrospectively. In the present case, we are not confronted with such a position. All that is material for our purpose is to ascertain whether an illegal order or an order made without jurisdiction ceased to suffer from this infirmity before section 223‑A was restored on 3rd of October 1955. If it did not, there is no question of taking away any right, because no right is conferred by an order which in law could not be made.

The order of Sayyed Ijaz Husain Shah of 8th of February 1955, having been found to be without jurisdiction and not in accordance with the provisions of the Ordinance, the only question that needs consideration is: What remedy is now available to set it right It has been indicated above that there was nothing to prevent a Civil Court from declaring that the order was not under the Ordinance or beyond it. This course was not availed of. The aggrieved party, on the other hand, invoked the writ jurisdiction of the High Court and it has not been shown that it could not be so invoked. It may not have existed at the time the impugned order was made, but the illegality was there and the High Court was invested with the powers to remove it. In Salamat Ali Jafri v. The Province of West Pakistan and others P L D 1956 Lah, 548, the learned Judges of the High Court rightly held that F "Section 223‑A, Government of India Act, merely provides a new remedy for existing right; it may therefore have a retrospective effect."

Halsbury's Laws of England, Second Edition, Volume IX, Para. 1397 defines the cases where a writ of prohibition may issue. It says: "Prohibition lies not only for excess of or absence of jurisdiction, but also for the contravention of some statute or the principles of the common law;". In Farquharson v. Morgan (1894) 1 Q B 552 it was held that "where total absence of jurisdiction appears on the face of the proceedings in an inferior Court, the Court is bound to issue a prohibition, although the applicant for the writ has consented to or acquiesced in the exercise of jurisdiction by the inferior Court. The reason why, notwithstanding such acquiescence, a prohibition is granted where the want of jurisdic tion is apparent on the face of the proceedings, is explained by Lord Denman in Bodenham v. Ricketts 6 M & M 170, to be for the sake of the public, lest the case might become a precedent if allowed to stand without impeachment," and to this dictum Lord Lopes, L. J. added: "because it is a want of jurisdiction of which the Court is informed by the proceedings before it, and which the Judge should have observed, and of which he himself should have taken notice". It may be remarked that not question of laches or acquiescence ever arose in this case.

For the reasons given above, we see no force in this appeal which is hereby dismissed with costs.

A. H. Appeal dismissed.

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