1971 PLP 791 (SCMR)

HAMOODUR REHMAN, C. J.‑This appeal, by special le arises out of a judgment of a Division Bench of the High Court of West Pakistan in a proceeding under Article 9 y of the constitution of 1962. The appellants herein, who are all the sons of one, Karam Din claimant displaced persons from Amritsar, had filed. and antler the Registration of Claims (Displaced Persons) Act III of 1956, the following claims :‑ (i) Tile appellant No. 1, Muhammad Sharif, had filed a claim form No. 4743 for an ancestral house, abandoned at Amritsar. (ii) The appellant No. 2, Muhammad Ismail, had tiled a claim form No. 4744 for another house abandoned at Amritsar. (iii) The appellant No. 3, Muhammad Ibrahim, lead tiled a claim form No. 11415 for a Lime Factory. The then Claims Officer, Lahore, had consolidated all the three claims and verified them on the 14th of June 1958, as follows .'.‑ (1) Schedule No. I _______________ Unit No. 1 Rs. 59,2110 Unit No. 2 Rs. 14,800 (2) Schedule No. III _________________ Unit No.1 Rs. 13,600 Some five years later in July or August 1963, tile respondent No. 2 herein filed an undated application before the Settlement Commissioner, Lahore, for tile re‑verification of the above claims on the ground that tile same were bogus claims anti their verifica tion lead been obtained fraudulently. This complaint was presumably forwarded to the Claims Commissioner who, purporting to exercise his suo motu note revisional powers under subsection (3) of section 7 of the Registration of Claims (Displaced Persons) Act, 1956, caused a show‑cause notice to be issued to the appellants. They appeared before him and produced some evidence to support their respective claims. The Claims Commissioner also give them a number of opportunities to submit any document or certificate from the industries Department meat or the Chief Inspector of Boilders in support of their claim suit, regarding the Lime Factory, but they failed to do so. In the Za circumstances, the Claims Commissioner, on the 27th of December 1963, cancelled their claims regarding the Lime Factory and R reduced the verification of the other claims as follows :‑ Unit No. 1 was re‑verified at ... Rs.25,920 Unit No.2. was re‑verified at ... Rs.7,344 Against this order the appellants went tip to the High Court under Article 98 of the Constitution of 1962 where the only point raised was that the Claims Commissioner could have suo moto revised the order of the Claims Officer, Lahore, after the expiry of 90 days prescribed tinder sub‑rule (2‑A) of rule 6 of the Registration of Claims (Displaced Persons) Rules, 1955, only "if tie deems it fit" to call for the record of any case after tile said prescribed period. The words "if lie deems fit", it was said, meant that the Claims Commissioner could exercise his jurisdic tion to revise all order of a subordinate Claims Officer after the expiry of 90 days only if lie, after applying his mind to the question, expressly Or by necessary implication, find F that there are circumstances justifying such a course. This postulates, as was pointed out by this Court in the cases of Muhammad Farooq Imam v. Claims Commissioner, Lahore (P L D 1964 S C 585) and Tufail Muhammad and others v. Raja Alithammad Ziatilluh Khan and another (P L D 1965 S C 269). That tile Claims Commissioner "must apply his mind to reach a con clusion that the circumstances justify his acting beyond the ordinary period of limitation." In the present case, to such finding, express or implied, lead been, it was complained, recorded by the Claims Commissioner. I‑fence the order of revision way without jurisdiction. During the course of the hearing tile High Court pointed out to tile appellants that the position had, since the pronouncement of the above decisions of tile Supreme Court, changed materially by the introduction of an amendment in section 7 of the Registra tion of Claims (Displaced Persons) Act, 1956 (Act lit of 1956) by Ordinance No. XII1 of 1964 promulgated on the 28th of December 1964. In subsection (3) itself for the words "within the prescribed period" the words "at any tune before tile 31st March 1965" have been substituted. The scheme of Ordinance No. XIII of 1964 was also that the amendments were not only to be inserted in the appropriate places but were to be "deemed always to have been so inserted" and furthermore section 3 of the Ordinance provided as follows :-- "

3. Validation‑‑‑Anything done, action taken, order passed rule made or notification issued, or purporting to have been done, taken, passed, made or issued, under any of tile aforesaid Acts, before the promulgation of this Ordinance, shall be deemed to have been done, taken, passed, made or issued tinder such Act as amended by this‑ Ordinance, ‑and shall have‑ and shall be deemed always to have had effect‑‑accordingly." The appellants, when confronted with this Ordinance, chal lenged the mires of the latter, Ordinance itself, on the ground that by reason of the provisions of Article 2 of the Constitution of 1962; the Legislature could not amend a law retrospectively, ‑ so as to take away or destroy vested rights, and in support of this argument relied on a decision of the East Pakistan High Court in the case of Haji Ghulam Zamin and another v. A. B. Khondkar and others (P L D 1965 Dacca 1936). The High Court, after an elaborate discussion and an exhaustive review of a large number of decisions, both of 'this ‑Court as well as from foreign jurisdictions repelled this con tention and held that Article 2 of the Constitution' of 1962 "does not place a fetter on the‑power of the Legislature to pass retros pective laws with regard to subjects and items over which it has authority to pass laws. No check on the powers of the Legis lature can be carved out merely from the provisions of Article 2." It also pointed out that there was an inherent conflict" in the Dacca decision itself which, on the one hand, recognized that laws could be made retrospectively but on the other held that the law in that case could not have been made with retrospective effect. The petition under Article 98 of the Constitution of 1962 was, accordingly, dismissed as being without any merits. From this decision the appellants came up to this Court and obtained leave on the 26th of October 1967, to consider whether the Claims Commissioner had exercised his jurisdiction to suo motu revise the order of his subordinate Claims Officer, after the expiry of the prescribed period of 90 days, in accordance with the law as laid down by this Court in the case of Farooq Imam, It is no doubt correct that on the 27th of December 1963, when the Claims Commissioner made his order, the law, as declared by this Court in the above‑mentioned case, prevailed, and according to the principles therein laid down the order of the Claims Commissioner was defective, in so far as he had not at all applied his mind to the question of the necessity of exercising his suo motu powers of revision after the expiry of the prescribed period of limitation. There is nothing in the order to suggest that he was even conscious that such a declaration of the necessity of revising the order had at all to be made. Notwithstanding this the question now is as to whether this appeal should be allowed to succeed on this ground in view of the change in the law brought about by the amendment introduced by Ordinance No. XIII of 1964 on the 28th of December 1964. The provisions of the Ordinance quoted above would indicate that the amendment had been given retrospective effect from 1956 and the Legislature, had thought it fit also to validate everything done before the coming into force of the Ordinance by introducing the validating clause by section 3 of the Ordinance. The effect of such an identically Worded validating clause in Ordinance No. XVIII of 1965, by Which retrospectively certain amendments were introduced in the Displaced Persons (Compensation and Rehabilitation) Act, 195&, came to be considered by this Court in the case of Muhammad Yusuf v. The Chief Settlement and Rehabilitation Commissioner and another (P L D 1968 S C 101). There too the argument against such retrospec tive or retroactive legislation was raised by invoking in aid the provisions of Article 2 of the Constitution of 1962 and the decision of the Dacca High Court in the case of Ghulam Zamin, but the argument did not find favour with this Court. It was ‑pointed out by Cornelius, C. J:‑- "To give the fullest effect to this argument would operate as a prohibition against the making of laws with retrospective effect in respect of all matters that are specified in Article

2. We do not conceive that the Article was intended to produce so wide an effect in relation to the well‑established practice of retrospective‑or-retroactive legislation. It is difficult to con strue Article 2 as conveying a fundamental right in every citizen of Pakistan and every person for the time being within Pakistan against the making of laws by the established Legislatures, which expressly operate retrospectively or retroactively against his interests." With regard to the validating clause the Court held as follows :‑ "The effect of this validation clause was clearly to oblige all Courts before which any order of the relevant kind was brought up for examination to assume for the purposes of its decision that the order at the time when it was made was one that was subject to the provisions of Chapter VI. That obligation applies to the Supreme Court, notwithstanding the contrary view expressed in Jalal Din's case, on pure construction of the relevant provisions." We see no reason to take any different view. The result, there fore, is that in December 1963, when the Claims Commissioner made his final order in the case he must be held to have had ‑ the power to revise a finding of a subordinate authority, notwith standing the fact that the period prescribed by the rules had expired. Therefore, notwithstanding the decision in the case of Farooq Imam, it is incumbent on this Court now to give affect to the amendment and to hold that the order of the Claims Officer could, under the provisions of the amendment, have been revised by the Claims Commissioner at any time before the 31st of March 1965, after giving notice to the parties concerned. Notices were in fact given, parties were heard, they were afforded ample opportunity of producing their evidence and this evidence was duly considered. On a consideration of the entire evidence the Claims Commissioner came to the conclusion teat the previous verification was not proper. The appellants cannot now complain against that revision, notwithstanding the fact that the Claims Commissioner had not stated that he deemed it, fit to exercise his powers of suo motu revision in this case. After the amend ment he was not required to do so, as in subsection (3) of section 7 of the Registration of Claims (Displaced Persons) Act III of 1956, the words "within the prescribed period" had been substituted by the words "at any time before the 31st March 1965," the order of the Claims Commissioner was made with jurisdiction and in accordance with law. For the reasons given above, this appeal must fail and is, accordingly, dismissed. Having regard to the fact that the appeal has failed only because of the amendment of the law made sub sequently in 1964, after the impugned order had been passed, we make no order as to costs. Appeal dismissed