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Appeal No. 75 of 1976, decided on 19th November 1986

‑‑‑Ss. 22 & 43‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S. 2(2)‑‑General Clauses Act (X of 1897), S.6‑‑Right of appeal under Ss. 22 and 43 of Act XII of 1957, whether survived after repeal of Evacuee Laws and coming into force of Act XIV of 1975‑‑Parties to suit would acquire a right to file appeal against adverse order even if law under which proceedings were taken was repealed‑‑Such right, however, would presuppose existence of appellate authority and non‑existence of "a different intention" in repealing Act itself‑‑Appellate Authorities under Ss. 22 and 43 of Act XII of 1957 having ceased to exist by repeal of Act under which same were created, and repealing law expressly exhibiting intention that pending proceedings would be finally disposed of by the Notified Officer, right of appeal, held, would not survive under S. 2(2) of Act, 1975.

Sungreen & Co. Ltd., Karachi v. Noman Bai and 4 others PLD 1978 Kar. 100 and Mst.

Asghari Khanum v. Maj. Iqbal Cheema and 3 others P L D 1982 Lah. 569 rel.

Colonial Sugar Refining Company Ltd. v. Irving 1905 AC 369; Garikapati Veeraya v. Subbiah Choudhry P L D 1957 SC (Ind.) 448; Sutlej Cotton Mills Ltd., Okara v. Industrial Court, West Pakistan, Lahore and others P L D 1966 S C 472, Sungreen & Co. Ltd. Karachi v. Noman Bai and 4 others P L'D 1978 Kar. 100 and Headmaster, Muslim High School No. 1, Rawalpindi and another v. Mst. Asghari Khanam and 2 others 1984 S C M R 332 ref.

‑‑‑Ss. 2(2), (3) & (4) and preamble‑‑Object, scope and effect of Act‑‑All proceedings pending before authorities under repealed Law would stand transferred to Notified Officers‑‑Such proceedings would be decided in accordance with repealed Law‑‑Final orders by Notified Officers were to be executed by Board of Revenue‑‑Although Notified Officers were to decide pending proceedings in accordance with repealed Law, right to file appeal would not be available as such right would not be covered by pending proceedings‑‑Where proceedings commenced were concluded by first Court and no appeal was filed, before promulgation of repealing Act no proceeding would be deemed to be pending.

Mst. Asghari Khanum v. Maj. Iqbal Cheema and 3 others P L D 1982 Lah. 569; Mst. Karim Bibi and others v. Hussain Bakhsh and another P L D 1984 S C 344 and Muhammad Abdullah v. Deputy Settlement Commissioner, Centre‑1, Lahore P L D 1985 S C 107 ref.

Headmaster, Muslim High School No. 1, Rawalpindi and another v. Mst. Asghari Khanam and others 1984 S C M R 332 rel.

Mian Nusratullah for Appellant.

Abdul Majid Sheikh for Respondents Nos. 2 to 16.

Ch. Muhammad Nazir Ahmad for Respondent No. 1.

Rashid Aziz Khan, A.‑G. with Tanvir Ahmad Khan, Addl. A.‑G and Shehzad Jahangir for the State.

In this appeal as well as several others the question that requires determination is, whether the appeal is competent It has arisen in the circumstances that under the Pakistan (Administration of Evacuee Property) Act, 1957 (XII of 1957) against the order of the Deputy Custodian under section 22 thereof an appeal was competent before the Custodian under section 43 thereof. The said Act was repealed by Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (XIV of 1975), which came into force on the 1st of July, 1974. It provided under subsection (2) of section 2:

"(2) Upon the repeal of the aforesaid Acts and Regulations, all proceedings which, immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified as aforesaid.

(3) Any proceedings transferred or remanded to an officer in pursuance of subsection (2) shall be disposed of by him in accordance with the provisions of the Act or Regulation hereby repealed to which the proceedings relate.

(4) The final orders passed under subsection (3) shall be executed by the Board of Revenue of the Province in accordance with the provisions of the Act or Regulation hereby repealed to which the proceedings related."

In these cases the orders appealed against had been passed by the Notified Officer to whom the pending cases before the Deputy Custodian stood transferred for final disposal. The question is whether these could be appealed against before the Notified Officer to whom the cases pending before the Custodian were transferred.

2. Mian Nusratullah, Advocate, appearing for one of the appellants, submitted that the appeals were filed, entertained and were disposed of by my predecessor and some by me on merits, and it would be too late after several years of pendency of these appeals to say that these were incompetent. If it had been said when filed the appellants would not have waited for long years hoping that their appeals would be decided on merits and they would have had recourse to appropriate remedies. The learned counsel is quite right in what he says. Except that when the question was raised for the first time before me in Appeal No. 21 of 1975, relying on a judgment of the learned Custodian of Sind Mr. Justice Zaffar Hussain Mirza, now a learned Judge of the Supreme Court of Pakistan reported in Sungreen & Co. Ltd., Karachi v. Noman Bai and 4 others P L D 1978 Kar. 100 and Mst. Asghari Khanum v. Maj. Iqbal Cheema and 3 others P L D 1982 Lah. 569, it was held that "learned counsel for the appellant is quite right that when a suit is instituted the party acquires a right to file an appeal against the adverse order even if the law under which the proceedings were taken is repealed in view of section 6 of the General Clauses Act. But this presupposes that the appellate Authority exists and "a different intention" does not appear in the repealing Act itself as laid down in the General Clauses Act. In the case in hand, appellate Authority has ceased to exist by repeal of Act under which it was created. See section 2 of Act XIV of 1975. The repealing Act itself viz. XIV of 1975 exhibits express intention that the pending proceedings shall be finally disposed of by the Notified Officers. I need not elaborate the point further for the simple reason that it has already been dealt with in extenso by the learned Custodian and the learned Judge of the High Court whose decisions have been quoted by the learned counsel for respondent No. 1. Respectfully following the same, the appeal is dismissed as being incompetent. This is vide order, dated 10‑7‑1984.

3. Since these appeals have remained pending for a number of years and it appeared hard to tell the appellants that their time is wasted because the appeal could not be entertained and the further fact that the learned counsel appearing for the appellant submitted that the view taken by me previously required reconsideration, they were heard at length and anxious consideration given to see if these appeals could be found to be competent and disposed of on merits.

4. Mr. Nabi Ahmad Cheema led arguments ably and with great precision. He started with the classic case of Colonial Sugar Refining Company, Ltd. v. Irving 1905 AC 369 and the following passage from the Privy Counsil's decision was quoted which was referred to with approval in Garikapati Veeraya v. Subbiah Choudhry P L D 1957 SC (Ind.) 448 to the following effect:

"As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence' at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And, therefore, the only question is: Was the appeal to His Majesty‑in‑Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well‑known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested."

In the reported case of Garikapati Veeraya v. Subbiah Choudhry P L D 1957 S C (Ind.) 448, the following principles on the point were enumerated at page 470 of the report:

That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceedings.

(ii) The right of appeal is not a mere matter of procedure but is a substantive right.

(iii) The institution of the suit carries with it the implication that all rights of appeal then in force are reserved to the parties thereto till the rest of the career of the suit.

(iv) The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceedings and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.

(v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise."

He then referred to Sutlej Cotton Mills Ltd. Okara v. Industrial Court, West Pakistan, Lahore and others P L D 1966 SC 472 wherein the facts were that a Petition for Special Leave to Appeal against an order of a Tribunal was filed under Article 160 of. the Constitution of Pakistan, 1956 read with Laws (Continuance in Force) Order (I of 1958), only a day prior to coming into force of the Constitution of Pakistan, 1962. The petition was accepted after the coming into force of the new Constitution. At the hearing of the appeal, a preliminary objection was raised that the appeal was not competent inasmuch as under Article 58(3). of the new Constitution of Pakistan, 1962, the Supreme Court had the jurisdiction to hear and determine appeals from judgments, decrees, orders or sentences of a High Court only, and not from those of a Tribunal. The learned Supreme Court held that Article 58 of the new Constitution, is not retrospective either by express enactment or by necessary implication and if under Article 160 of the Constitution of Pakistan, 1956, the Supreme Court held jurisdiction to grant Special Leave to Appeal from order of a Tribunal and if leave had been granted before the commencing day of the new Constitution the appeal by such special leave would not have abated. The position would be the same if the petition for special leave had only been filed before the relevant day. Appeal by special leave allowed under Article 160 of the late Constitution of Pakistan, 1956 was in the nature of a right and not a mere matter of procedure. It gave to a person aggrieved by an order of any Court of Tribunal the right to approach the Supreme Court for special leave even in cases where ordinarily no appeal lay. It was a valuable right and not a mere matter of procedure. This right of the appellant certainly had vested in him on the day he filed his petition and if the petition was heard on that day the objection raised would not have been available then. This right should not be denied to him merely because in the ordinary course of business of the Court the petition came up for hearing after the coming into force of the new Constitution, 1962. Even under Article 250 of the new Constitution the preceedings commenced for the enforcement of a right which had already accrued to the appellant before the commencing day should be continued as if the Laws (Continuance in Force) Order, 1958 had not been repealed. A vested right cannot be so taken away and the appellant had a right to have his petition heard on the basis of the law prevailing on the day he filed his petition.

5. Learned Advocate‑General and learned counsel appearing for the Settlement Department, especially. Ch. Muhammad Nazir Ahmad, Advocate, who attended the proceedings throughout submitted that on the commencement of the Repealing Act XI V of 1975 all cases pending before the relevant authorities stood transferred to the Notified Officers concerned for final disposal. No appeal or revision was provided for against the orders of such Notified Officers. Ch.Muhammad Nazir Ahmad, Advocate, referred to the decision of the learned Custodian of Sind reported in Sungreen & Co. Ltd., Karachi v. Noman Bai and 4 others P L D 1978 Kar. 100 and to a judgment of the learned Supreme Court in Headmaster, Muslim High School No.l, Rawalpindi and another v. Mst.Asghari Khanam and 2 others 1984 S C M R 332 wherein the order of the learned Single Judge holding that after the repeal of the relevant law against an order of Deputy Settlement Commissioner no revision was competent before the Settlement Commissioner, was upheld.

6. The precise contention of Mr. Nabi Ahmad Cheema, Advocate is that with an institution of an action or a suit, the litigant acquires a right to get a decision, test it in appeal and the latter right is not lost even if the law under which the action was commenced is repealed. He is quite right. But it all depends, and is not disputed, upon the provisions of the repealing Statute. If the repealing law expressly says, or, by necessary intendment it follows from the statutory provision, that no appeal would lie, that would be end of the matter.

7. Now looking at the provisions of the repealing Statute quoted above (Act XIV of 1975) it would be seen that it is provided in subsection (2) of section 2 that all proceedings pending before the authorities under the Repealed Law "shall stand transferred for final disposal" t Officers Notified; they would decide the same vide subsection (3) in accordance with the Repealed Law. And, under subsection (4) the fina orders passed under subsection (3) shall be executed by the Board of C Revenue. It was submitted that the cases pending before the Deputy Custodian stood' transferred to the Notified Officer and the later was to decide according to the Repealed Law and thereunder appeal was; competent before the Custodian,, therefore, when filed, will have to be disposed of by the Custodian who is notified to dispose of the cases pending before the Custodian. The argument apparently is attractive and sweet. But there is a catch. And the catch is that the appeal be pending before the Custodian when he is notified to dispose of the. pending proceedings. After the commencement of the Repealing Act, vide Notification, dated 14th of November,1974 the Governor of the Punjab was pleased to notify Mr. Justice Zaki‑ud‑Din Pal as Custodian of the Evacuee Property for the Province of Punjab for disposal of proceedings pending on 30‑6‑1974 under the Pakistan (Administration of Evacuee Property) Act, 1957 (XII of 1957). It may be noted that Mr. Justice Zaki‑ud‑Din Pal was notified to dispose of the "proceedings pending on 30‑6‑1974". Not to entertain fresh proceedings. The contention of Mr. Cheema that proceedings commenced continue to remain pending until concluded finally after appeal, is stretching the point tool far. If the proceedings commenced are concluded by the first Court and no appeal is filed, it cannot be said that the proceedings were pending. Learned counsel submitted that that would be true. But only when the period of filing of appeal has expired. As long as period of limitation is there for filing an appeal, proceedings commenced though concluded by the first Court, would still be deemed to be pending and would grow in full glory when the appeal is filed. But this presupposes that the appeal will be filed before an appellate Court competent to hear it. The appellate Court must exist or be substituted as such. In the case in hand, against the order of the officer notified as Deputy Custodian, no appellate Court is provided. The fact that under the old repealed law, against an order of Deputy Custodian, an appeal could be filed before the Custodian is only history now. Both Deputy Custodian and the Custodian disappeared and ceased to exist as such on the repeal of the law under which they were created. The Notification of Mr. Justice Zaki‑ud‑Din Pal as Custodian for disposal of proceedings pending on 30‑6‑1974 is under the new dispensation as expressly stated. To highlight the point, the jurisdiction is to dispose of "proceedings pending on 30‑6‑1974". Not to entertain fresh proceedings. While interpreting the word 'proceedings', learned Custodian of Sind in the judgment aforequoted P L D 1978 Kar. 100 at page 107 observed that "the word proceedings even though given a liberal construction canvassed for by the learned counsel cannot be stretched to mean proceedings notionally pending". While upholding the judgment of the High Court on the point reported in Mst. Asghari Khanam v. Maj. Iqbal Cheema and 3 others PLD 1982 Lah. 569 in Headmaster, Muslim High School No. 1, Rawalpindii and another v. Mst. Asghari Khanam and 2 others 1984 S C M R 332 the learned Supreme Court observed as under:

"As regards the other argument raised before the learned Judge in the High Court to the effect that the revision petition filed by respondent No.l herein may be treated as a "pending proceeding" for the purpose of subsection (2) of section 2 of the Repealing Act, the learned Judge observed that "pending proceeding means a proceeding which is being heard, tried or considered by any authority but if any proceeding is yet to be taken to the "higher authority" it cannot be called a pending proceeding". In other words it was held that since the revision petition had not been instituted before the Settlement Commissioner before repeal of Displaced Persons (Compensation & Rehabilitation) Act of 1958 it could not, therefore, be treated as pending proceeding, within the meaning of subsection (2) of section 2 of the Repealing Act. This view too is supported by a judgment of this Court in Mst. Jaleesa Begum v. Iqbal Ahmad Qureshi (2)."

The additional reason given. by their Lordships was that "this position (that is to say, no revision would be competent) is evident from the circumstance that even the forum for such a revision, namely, the Settlement Commissioner, before whom the appellant instituted his revision was not kept alive by the Repealing Act". In the two reported cases of the learned Supreme Court of Pakistan, i.e. Mst. Karim Bibi and others v. Hussain Bakhsh and another P L D 1984 SC 344 and Muhammad Abdullah v. Deputy Settlement Commissioner, Centre‑1 Lahore P L D 1985 SC 107, it was taken for granted that no appeal or revision was competent against the order of a Notified Officer because when a writ petition was filed against the order of a Notified Officer and it was dismissed by a learned Single Judge, it was urged in an intra‑Court Appeal that since the order of the Notified Officer was not appealable, therefore, bar of section 3(2) of the Law Reforms Ordinance, 1972 would not be applicable. The argument was repelled on the ground that under the later provision the appeal was barred as the 'original order' in the proceedings was appealable or revisable. It was nobody's case not taken that the appeal against the order of a Notified Officer was competent before another Notified Officer to whom cases were transferred from the appellate or revisional authority. It was accepted on all hands that against an order of a Notified Officer no appeal or revision was competent. Therefore, if nothing was 'pending', nor, there be any 'forum' to entertain fresh proceedings, that would be the end of the matter. Resurrection of inchoate permissible under the by gone era is not recognized. It is the existing kicking live proceedings which were saved by the new enthrowned law. Therefore, no appeal being pending' before the outgoing Custodian on 30‑6‑1974, nothing would be found pending by the new incumbent notified to dispose of the pending proceedings. His successor, that is me, shall have the same what my predecessor had. No more. Therefore, whatever proceedings were pending on 30‑6‑1974 those alone can be taken up and disposed of. No new proceedings can be entertained or disposed of.

In view of the precedents and what has been stated above, there is no option but to say that these appeals are incompetent. These are accordingly dismissed. As it is done in view of the legal provisions, parties are left to bear their own costs.

A. A. Appeals dismissed

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