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SECTION 21 OF THE GENERAL CLAUSES ACT, 1897 IN JUDICIAL PROCEEDINGS <!--[if gte mso 10]> SECTION 21 OF THE GENERAL CLAUSES ACT, 1897 IN JUDICIAL PROCEEDINGS By Ali Hyder Qureshi, Senior Civil Judge, Larkana The word 'Order' employed in section 21, General Clauses Act, 1897 is controversial; as it is connected with that authority which issues notification, rules or bye-laws in addition. The Court cannot pass notifications, rules or bye-laws, therefore, the only word 'Order' has been construed and applied in Judicial Proceedings with different interpretations by the Courts at the altar of authority. For the sake of convenience the provisions of section 21 of the General Clauses Act, are reproduced below: "Section 21. Power to make, to include power to add to, amend, vary or rescind orders, rules or bye-laws.--Whereby any (Central Act) or Regulation, a power to issue (notifications), orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any (notifications), orders, rules or bye-laws so (issued)." By virtue of section 21, the authority which can pass an order is entitled to vary, amend, add to or rescind that order. Whether that authority is either legislative or statutory to pass the orders, that is, an order having the force of law or a judicial authority is included therein? The reference could be made in the case-law AIR 1960 Madh. Pra. 282, to see the purport of Authority. "Here the reference of authority is a legal authority the purport whereof is significantly described as authority of law which is required to act judicially. It matters little if the authority is acting as executive or administrative. The reference of law made by authority is State-made law and there is no doubt or controversy about that. The real question here is whether by 'authority of law' is meant something which the statute broadly enables and leaves it to the parties concerned." There are for and against rulings on this subject. The different opinions with different interpretations thereon will be referred hereto, vis-a-vis the applicability of section 21, whether it works in the judicial process as applicable provision of the law or a stop-gap. (1) Section 21. General Clauses Act not applicable in judicial proceedings.-‑ In the case of Venkatesh Yashwant Desh Pande v. Emperor, AIR 1938 Nagpur 513, the Full Bench observed that: "It is well-recognised rule of construction that the words used in a statute must be interpreted according to their context. Section 21, General Clauses Act, therefore, be read in the light of sections 14 to 20 which precede and sections 22 to 24 which follow. These considerations make it clear that the word 'Order' used in section 21 is a legislative or statutory order, that is, an order having the force of law. Section 21 occurs among sections which are grouped under the heading, provisions as to orders, rules, etc. made under enactments. The relevant words in section 21 are 'whereby any Central Act or Regulation, a power to issue notification, orders, rules or bye-laws is conferred." In the case of Shaikh Liaquat Hussain v. The State 1997 PCr.LJ 61, the High Court of Sindh, Karachi, forcefully reiterated the same position with the following observation:-‑ "Section 21. Word 'order' in section 21 refers to legislative or executive orders and not a judicial order. Section 21 cannot be pressed in relation to orders passed in judicial proceedings." Section 21, General Clauses Act, 1897 and section 20, West Pakistan General Causes Act, 1956 is the same provision which provides that the same authority empowered to add, amend or rescind orders, rules or bye-laws, can undo that. The Maxwell on Interpretation of Statutes signifies the words "Notifications, orders, rules or bye-laws" have, it would appear no reference to judicial orders the passing and cancellation whereof is subject to and regulated by the Procedural Law of the land. According to well known canons of construction when two analogous meanings are associated together, they must be understood in their cognate sense; in other words general expressions are in such cases restricted in the absence of an indication to the contrary to a sense analogous to the less general. AIR 1961 Allahabad 836, obviates the words notifications, orders, rules and' bye-laws with which the expression 'order' is associated must be deemed to limit the scope of the word "Orders" to non-judicial orders. When an order of any modification or amendment is passed, a possibility of locus poenitentiae was clearly at an end. The term 'locus poenitentiae' with reference to judicial interpretations connotes power of receding or rescinding an order before such order had been conveyed and legal rights accrued in favour of a party. The reasonable inference obviously leads to hold the term 'order' as is employed in section 21 is referred to the statutory or legislative order exclusively. Notwithstanding that the case-laws namely AIR 1938 Nagpur 513 (F.B.) and Gopal Jairam v. State of Madhya Pradesh, AIR 1951 Nagpur 181, the controversy of 'order' could not be decided in finality to hold section 21 applicable only for legislative and statutory orders; and that is, an order having the force of law, was left open in those cases. (2) Section 21.--General Clauses Act--Application in judicial proceedings: As to applicability of section 21 in the Judicial matters, the point blank observation was recorded by his Lordship Kaikaus in a case of Bashir Ahmed v. District Magistrate, PLD 1957 Lahore 892, wherein the contention was raised that once bail has been refused it could not be granted by the same Court. The contention was repelled with the observation of his Lordship that the authority which can pass an order is entitled to vary, amend, add to or rescind that order, therefore, bail could be granted after it was refused. It was observed at page 897 that: "It will be observed that even in section 497 there is no express mention of jurisdiction to release an accused on bail after he has once been ordered to be detained except in a case where it appears froth the evidence that there is no prima facie case of commission of a non-bailable offence against him. Let us assume that the material on record does disclose a case of non-bailable offence and the Court has on the first hearing ordered his detention in custody. Can it be argued seriously that the Court has no jurisdiction to grant bail? Yes. No such power is expressly mentioned in section 497. The section mentions the power to release on bail (even when a prima facie case exists) only in connection with the first appearance. Then there is section 21 of the General Clauses Act by virtue of which the authority which can pass an order is entitled to vary amend, add to or rescind that order." The provisions of section 21, General Clauses Act have also been made applicable in civil matters. In the case of Aziz Flour Mills v. I.D. Bank of Pakistan, 1990 CLC 1473 Lahore, it was observed: "S. 2--Civil Procedure Code (V of 1908), O.IX, R.9 & S.151-General Clauses Act (X of 1897), S.21---Suit for recovery of bank loan adjourned without any fixed purpose by' Court--Court was yet to determine the proceedings to be taken in suit--Provisions of O.IX, R.9, C.P.C., would be applicable when suit was dismissed on a date which was not a date of hearing. Leaving apart provisions of O.IX, R.9, C.P.C., Court passing order of dismissal of suit was competent to undo the same under provisions of S.21, General Clauses Act, 1897 when suit had been dismissed illegally. Matter of restoration of suit--Even if not covered by any provisions of law would still be covered by the inherent powers of the Court--Where harm was done to a party by an illegal order of Court, it could not be held that there was no provision in law to redress the grievance of the party wronged." In the case of Durga Prasad v. The State of Uttar Pradesh, AIR 1952 All. 959, the District Magistrate had requisitioned one house and passed the requisition order under Rule 75-A, Defence of India Rules. The jurisdiction of High Court was invoked to undo the District Magistrate's order of requisition besides other reliefs of damages, etc. The Court held that: "Though Rule 75-A. Defence of India Rules does not expressly provide for the release of property from requisition, there is no prohibition also in that rule to that effect. But having regard to the provisions of section 21, General Clauses Act and on general principles also the authority which has power to requisition property may be presumed to have by implication the power to cancel the requisition and release the property." This shows that the provisions of derequisition were not available in "Defence of India Rules" but the Courts allowed to undo that under section 21, General Clauses Act, authorising the District Magistrate. Regarding the rent cases there is insufficient procedure provided under the rent laws towards trial. The Rent Controller as well as Appellate Tribunal lend the support of procedure from C.P.C.; General Clauses Act and the rule of natural justice to make the trial processed towards usual proceedings. His Lordship Kayani had distinguished between 'Tribunal' and 'Court' with the following observation in PLD 1961 Lahore 788: "Tribunals constituted under the said Ordinance are Courts of Civil Jurisdiction, and therefore, section 141 of the Civil Procedure Code, which provides that the procedure in the Code for suits shall be followed in all proceedings in any Court of Civil jurisdiction, also applied to proceedings under the Ordinance." This view was repealed by Supreme Court in PLD 1965 SC 459, wherein it was held that some of the functions of the Rent Controller are judicial in character but yet he is not required to act judicially in discharging many of his functions. At the most it may be said that he acts in quasi-Judicial capacity. When the procedure of civil was excluded to apply in the rent cases then the superior Courts resorted to the provisions of section 20 of West Pakistan General Clauses Act, 1956, inter alia holding that the authority empowered to issue an order has also the power to vary or cancel that order. In the case of Haseen Ahmed Khan v. Irshad Khan, PLD 1987 Karachi 16, the High Court of Sindh held as under: "So far the legal aspect of the matter is concerned, no doubt Sindh Rented Premises Ordinance, 1979 does not provide for review of the order already passed by the Rent Controller but such power of review is available by invocation of section 20 of West Pakistan General Clauses Act, 1956. It is held in N.Q. Industries v. Mrs. Bapai Kaikhusro by Noorul Arfin, J. (as he then was) that Rent Controller and first appellate authority acting under provisions of West Pakistan Urban Rent Restriction Ordinance, 1959 are competent to recall, review, rescind, vary, cancel, alter or amend their orders for the reason that Authority which is competent to issue order has also power to vary or cancel the order as is contemplated under section 20 of the West Pakistan General Clauses Act do attract." In the case of Messrs Siddiqui Tailors v. State Life Insurance Corporation 1988 CLC 2332, Karachi, it was observed: "When there is no power in the Rent Controller to dismiss or restore, the provisions of section 20 of General Clauses Act do attract." (3) Is section 21, General Clauses Act applied in judicial proceedings as stop-gap? The Rt. Hon. Lord Dennings, Master of Rolls, in his famous treatise "The Discipline of Law" under Chapter 2, 'The interpretation of statute' at page No.10, has observed for the Judges as to how should they construe and order the statute within their domain. The relevant extract is reproduced herewith:-‑ "At one tithe the Judges used to limit themselves to the bare reading of the statute itself to go simply by the words, giving them their grammatical meaning, and that was all. That view was prevalent in the 19th century and still has some supporters today. But it is wrong in principle. The meaning for which we should seek is the meaning of the statute as it appears to those who have to obey it and to those who have to advise them what to do about it; in short, to lawyers like yourselves. Now the statute does not come to such folk as if they were eccentrics cut off from all that is happening around them. The statute comes then as men of affairs---who have their own feeling for the meaning of, the words and know the reason why the Act was passed just as if 'it had been fully set out in a preamble. So, it has been held very rightly that you can inquire into the mischief which gave rise to the statute to see what was the evil which it was sought to remedy." Section 21, General Clauses Act, is said to be read in the light of sections 14 to 20 and sections 22 to 24 and all these provisions are subjugated to central statutes with regard to their construction, application and extension of the laws by the legislative and executive. The word 'order' in section 21 has been construed with different meanings by the authorities of their time. Some times this term is exclusively connected with the legislative and statutory orders. Notwithstanding that the provisions of section 21 have been mutatis mutandis applied in judicial proceedings which stands maintained by the superior Courts with different interpretations. We will examine here as to reason for the use of section 21, General Clauses Act, in judicial proceedings either as stop-gap owing to paucity of procedure or it is correctly and permanently used in the judicial proceedings imputing the term 'order' with a judicial order in conjunction to legislative or statutory order. Our Courts try different cases under different procedures. The same Court tries the civil suit, criminal case and rent matter under different procedural Laws. For the civil trial the civil procedure is exhaustive and complete in all respects which seeks no support from any other procedural law. Towards the Sessions trial the procedure is provided under the Criminal Code; but it does not suffice the totality in the entire process contemplated within the Code particularly for review proceedings. From where the procedure will be borrowed? Either from the general procedure of any other law or from the General Clauses Act? In such circumstances what the Courts should do? Either Court should maintain the form leading towards insufficiency of the procedure or see and follow the procedure from another enactments. The inherent jurisdictional power as is conferred upon the High Court under section 561-A, Cr.P.C. does not vest in the Sessions or the Magisterial Courts. Similarly these Courts are not equipped 'with all the machinery of powers to recall that judicial order which if, so wanted subsequently. There is no jurisdiction to do that. Only the High Court can undo such sort of order under section 561-A, Cr.P.C. What will these Courts do when approached to recall such orders demanded at the altar of inherent jurisdiction? For instance, the Sessions and Magisterial Courts are invested with powers to issue harder process against the defaulters, whosoever connected with the case. Patently the procedure lacks to vacate that order of harder process. Wherefrom the Procedure will be taken to undo that? The entire Cr.P.C. is silent in that perspective. Can the Courts decline to take cognizance for want of provisions? Normally the Court which passes the order to secure the ends of justice should have been equipped with full powers to give effect to the orders passed under the Code, to prevent the abuse of process of Court and to secure the ends of justice. To hold that the High Court only is competent to exercise inherent jurisdiction the case-law reported in PLD 1959 Karachi 388 is referred hereto: "The High Court, by virtue of section 561-A, Cr.P.C. is competent to entertain even those applications which are not contemplated by the Code of Criminal Procedure. Therefore, if High Court feels that the ends of justice require that an order should be made in any application although the application is not contemplated by the Code, the High Court will entertain the application and make the necessary orders to secure the ends of Justice." Once the non-bailable warrant is issued against the offender and the same is intended to be recalled at the subsequent stage for any reason, the High Court will undo that under section 561-A, Cr.P.C'. No provision is available with Courts of Sessions and Magistrates; but they do under section 21 of the General Clauses Act. The real purport of section 21 obviates for the authority to recall, amend or rescind his previous order, rules or bye-laws. The significance of order is imputed with the judicial order and the authority is conceived by the Courts through Judges with different interpretations. This provision does not imply the real purport or significance of authority either exclusively meant for the particular class or section; and similarly the order either it is judicial, executive or statutory. Similarly, the procedure to try the rent case cannot be commenced without the aid of General Clauses Act or the Procedure of Civil Code. For instance, suppose none attends on behalf of the applicant on the day when matter is called. What will happen if the application is at the primary stage and not ripe for disposal? Naturally the rent application will be dismissed for want of prosecution. Is it correct procedure to he adopted by the Court? The answer is no. Then what should be the procedure? The procedure is not contemplated under the Rent Ordinance. The restoration application if, it is filed in the meanwhile; that too is not the procedure provided so far. Let us go for another process of disposal which is provided under the rent law. The ex parte order is passed for non-filing of written objections within required time in the rent application. The ex parte order is provided in the rent ordinance vis-a-vis mandatory bar to set aside the order. Such orders are being set aside under section 20 of the West Pakistan General Clauses Act; 1956. Where a law prescribes a particular form for an order that form must be followed; but where no such form has been prescribed then the pith and substance of the matter must be seen and not the form. In these circumstances don't we apply the provisions of section 21, General Clauses Act, in the judicial procedure as stop-gap? ***