P L D 1964 Supreme Court 585 (PLP)

(a) to the Deputy Claims Commissioner, where the order has been passed by a Claims Officer; (b) to the Additional Claims Commissioner, where the order, not being an order passed in appeal under clause (a), has been passed by a Deputy Claims Commissioner; (2) The appeal shall be presented in such manner and within such time as may be prescribed. (3) A Claims Commissioner may suo motu call, within the prescribed period, for the record of any case which has been decided by a Claims Officer, a Deputy Claims Com missioner or an Additional 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 an order revising or modifying any order affecting any person without giving such person an opportunity of being heard. (4) The Claims Commissioner or the Additional or Deputy Claims Commissioner, may within the prescribed period and after giving notice to the parties concerned, review his own order under this section. (5) Subject to the foregoing provisions of this section, any order made by the Claims Commissioner, Additional Claims Commissioner, Deputy Claims Commissioner or Claims Officer shall be final and shall not be called in question in any Court." It will be observed that the Claims Commissioner can exercise his suo motu power only "within 'the prescribed period". "Prescribed" as defined in the Act means prescribed by rules. Rules had already been framed even before the Act came into force under Ordinance II of 1955 Registration of Claims (Displaced Persons) Ordinance which had been replaced by the Act. Rules had been framed on the 1st April 1955, while the Act came into force on the 11th April 1956. In the Ordinance section 7 was in the same words as in the Act with the exception that the words "within the prescribed period" did not appear in section 7 (3). Limitation had been provided for appeal and review by the rules framed on the 1st April 1955, but no limitation was provided for the exercise of revisional power nor was it necessary to do so on account of the wording of section 7 (3). The reproduction of rule 6 may be of help in the discussion that follows. It ran: "

6. Limitation for filing an appeal or making an application for review.‑(1) An appeal against an order passed by a Claims officer under subsection (2) of section 6 of the Ordinance shall be made within thirty days of the date of such order. (2) An application for review under subsection (4) of section 7 of the Ordinance shall be made within thirty days of the order sought to be reviewed, but the Claims Commissioner or the Additional Claims Commissioner may review his own order suo motu within ninety days of the date of such order. (3) The provisions of sections 4, 5 and 12 of the Limitation Act, 1908 (IX of 1908) or similar provisions in any other enact ment relating to limitation in force for the time being in the area in which an application is presented, shall apply, as far as may be, in computing the period of limitation prescribed in sub‑rules (1) and (2) above." When, however, the Ordinance was substituted by the Act and the words "within the prescribed period" were inserted in section 7 (3), rule 6 was amended (on the 15th May 1956) by the insertion of sub‑rule (2‑A) which reads as follows:‑ "(2‑A) A Claims Commissioner may under subsection (3) of section 7 of the Act call f9r the record of any case within ninety days of the date of publication of this sub‑rule, or the date on which the case has been decided by a Claims Officer, a Deputy Claims Commissioner or an Additional Claims Com missioner, whichever date be later." On the 16th November 1956, sub‑rule (2‑A) was amended by the addition of the following proviso "Provided that the Claims Commissioner may, if he deems fit, call for the record of any case after the said ninety days." The contention on behalf of the appellant is that the power under section 7 (3) can be exercised only "within the prescribed period" which means that a period has to be prescribed by rules for the exercise of such power and the original rule (2‑A) was a valid rule because it permitted the exercise of revisional power only within ninety days, but the proviso to the rule in fact destroys the rule itself and permits the Claims Commissioner to exercise his powers without any restriction of time. This it is said is not consistent with the words "within the prescribed period" and therefore the proviso to the rule is ultra vires, the result being that there is a limitation of ninety days for the exercise of power of revision and the order of the Claims Commissioner which was passed long after ninety days was void in law. On behalf of the respondent, that is the Pakistan Govern ment, it is contended that the intention of the Legislature by the use of the words "within the prescribed period" was only to grant authority to the Government to provide a limitation for the exercise of revisional power and the intention was not to make it incumbent upon the Government to prescribe a definite period within which alone the power may be exercised. It appears to us that it is not essential for the decision of the present case to determine the correctness of these two opposite views for we have reached the conclusion that even if the intention was to direct the Government to provide a period for the exercise of power under section 7 (3) the impugned proviso is not ultra vires. Even when the Legislature provides a period for A the filing of an appeal or an application it is usual to add clause for the extension of time in appropriate cases. So far as proceedings before Courts are concerned such a provision is contained in section 5 of the Limitation Act and with respect to proceedings before other tribunals either there is a special provision similar to the one contained in section 5 or section 5 is made applicable by a section or a rule. That the fixation of period should be qualified by a clause for extension can very well be appreciated for in the absence of such a clause there will be apprehension or grave injustice in cases where a person is unable to file a proceeding within the ordinary period on account of fraud, accident or some other cause beyond his control. If with respect to a particular application there does not exist a provision for extension of time Courts generally regard it as a lacuna and a defect in Legislation. It would be hardly arguable therefore that when the Legislature directed the Government to prescribe a period for the exercise of power under section 7 (3) of the Registration of Claims (Displaced Persons) Act, a power to add such a clause was not contemplated, Rule 6 as originally, framed applied section 5 of the Limitation Act to appeals and reviews and it is not contended that this was ultra vires. If then the proviso with which we are dealing be in the nature of a provision like section 5 of the Limitation Act there can be no objection to its vires. The question therefore would be as to what exactly is the effect of the impugned proviso. Learned counsel for the appellant urges that it destroys the rule itself for whereas the rule permits an exercise of revisional power only within 90 days the proviso amounts to saying that there is no limitation for a suo motu exercise of power at all. But the function of a proviso is to qualify and to restrict the main rule and not to destroy it and if an interpretation be reasonably possible which gives such .a C function to the proviso that interpretation should be accepted in preference to one the result of which would be to nullify the main rule. A little attention to this matter will reveal that the impugned proviso is an application of the principle contained in section 5 of the Limitation Act to a case of suo motu exercise of jurisdiction. Section 5 provides that an appeal or application may be admitted after the period of limitation if the appellant or applicant "satisfies the Court that he had sufficient cause for not preferring the appeal or application within such period". These words though appropriate for a proceeding filed by a party are altogether inappropriate when a tribunal has to take action on its own initiative. No one is to satisfy such tribunal that sufficient cause exists. It has to apply its mind to the circum stances and determine whether it will act although the ordinary period has expired. The impugned proviso could have said that the Claims Commissioner would be entitled to act after ninety days if there exists in his opinion "sufficient cause," for so doing. But we do not think it makes any great difference if the words "deems fit" are used. Even if there be some difference between "sufficient cause" and "deems fit", the proviso does imply that the Claims Commissioner has to apply his mind and come to the conclusion that it is a case where he should act beyond the ordinary period. The effect of the proviso is not that no period of limitation exists. It only means that while ordinarily the Claims Commissioner will exercise jurisdiction within 90 days if he finds that there are circumstances justifying such a course he can act even beyond that period. Such a findin express or implied will be essential for acting beyond the ordinary period. It is not even correct to assume that the proviso will in practice have no effect. When it is suggested to the Claims Commissioner that in a particular case an apparent illegality has been committed he may say that although there was an illegality as time had already elapsed and there were no special circum stances justifying his departure from the ordinary period he would not interfere. He may at the same time not interfere on the ground of the expiry of the ordinary period of limitation in cases where he finds that substantial justice has been done though the order be patently illegal or he may refuse to exercise jurisdiction on the ground that there is a subsequent transferee in good faith who will be affected. A reference has to be made at this stage to section 14 of the Registration of Claims Act which was relied upon by the respondent during argument. The section runs: "

14. Penalty.‑(1) Any person who‑ (a) submits, in respect of his claim under this Act, any information which he knows to be false or does not believe to be true, or (b) fraudulently conceals or misrepresents facts for the purpose of making a claim which he knows to be false, either wholly or in part, or (c) submits a claim in respect of the same property to more than one Registering or Additional Registering Officer, shall be punishable with imprisonment for a term which may extend to three years or with fine, or with both. (2) The Claims Commissioner, or any other person authorised by the Central Government, in this behalf, may order the forfeiture of any allotment or other benefit obtained as a result of any act which is punishable as an offence under this section." In accordance with this section the Claims Commissioner can if he finds a claim to be false deprive the claimant of the benefit which he may have received and it is correct as contended by the respondent that there is no limitation for an enquiry under this section. There is nothing however on the record to indicate that the Claims Commissioner was acting under this section. It is true that in the order of the Claims Commissioner there are no words saying that the order of the Deputy Claims Commissioner registering the claim of the appellant is set aside, but the heading of the proceedings is "In the matter of scrutiny under section 7 (3) of the Registration of Claims (Displaced Persons) Act" and also the order of the Claims Commissioner does not say that the appellant is being deprived of any benefit received by him on account of his claim. While it would be still open to the Claims Commissioner to take proceedings under section 14 it cannot be said that the present proceedings are under that section. We have found the proviso to be intra vires but according to what is stated above the Claims Commissioner had to apply his mind to reach a conclusion that the circumstances justify his acting beyond the ordinary period of limitation. In this case re there is nothing to show that the Claims Commissioner was conscious of the need of a decision on his part as to extension of the ordinary period of limitation. The objection, therefore, on the score of limitation succeeds to this extent that the case has to be referred back to the Claims Commissioner to decide whether he deems it fit to act beyond the ordinary period of limitation. We come now to the question whether the appellant had a proper opportunity of being heard. According to the Claims Commissioner on the 19th February he had fixed the 20th February as the date for hearing and on that date the appellant had disappeared. According to the appellant the case had finished on the 19th February and he had come to the Claim Commissioner's Office on the 20th February hoping that orders would be announced, but no orders were announced and he went back. He submitted a number of applications for copies of the orders passed, but no copies were given to him. He had applied for copies long before the final orders were to be passed. The final orders were in fact passed about five months after the hearing. We do not find it possible to accept that the appellant was deliberately avoiding appearance before the Claims Commissioner. The learned Claims Commissioner has said in his order that the appellant had not the courage to face Mr. Rizvi, the witness whom he examined on 20th February, but it is to be observed that the 19th February had been fixed for the appearance of the police witnesses and the appellant was present on that date. His bona fides are supported by three applications dated 22‑2‑1960, 6‑3‑1960 and 18‑4‑1960 which he had submitted for a copy of the order of the Claims Commissioner. He was not supplied with any copy. The record of the case is said to be missing so that we do not know what order was passed on the 19th February. Orders were announced five months later and while we cannot say that what the Claims Commissioner remembered was not correct the possibility of some confusion cannot be excluded. There is little doubt in our minds that the appellant was not avoiding appearance and there may have been some misappre hension. It has not been explained why copies were not given to the appellant of the orders passed. Had that been done the appellant may have been in a position to move the Claims Commissioner at once for a further hearing. We are unable to hold that the ex parte decision of the case I due to default on the part of the appellant. Under the circumstances we are of the opinion that the appellant is entitled. to an opportunity of being heard before the case is decided. Accordingly we allow this appeal and set aside the order of the learned Claims Commissioner and send back the case. The learned Claims Commissioner will determine in the first place the question whether he will extend limitation and if he extends time he will grant an opportunity of hearing to the parties before he decides the case. There is no order as to costs. A. H. Appeal allowed.