P L D 1965 Supreme Court 453 (PLP)

B. Z. KAIKAUS, J.‑This is an appeal by special leave under the Constitution of 1956 against an order of the Custodian of Evacuee Property refusing to review certain orders to which reference will presently be made. The appellants before us are Khushiram, Atmaram Madhavdas Atmaram, Gokaldas Atmaram all sons, and Devibai, widow of Atmaram Hashmatrai. All the four appellants along with Atmaram Hashmatrai constituted a joint Hindu family which according to the appellants owned: (i) agricultural land about 1,200 acres in villages Tajodero, Pirbux and Azmatabad of Jacobabad district; (ii) one rice mill in village Hashmatabad, Jacobabad district; (iii) one residential house in Hashmatabad, Jacobabad district; (iv) one bungalow on plot No. 69, N.

1. Lines, Cantonment Garden Road, Karachi; and (v) three open plots of land in Garden East and one in Clifton quarters, Karachi. Atmaram Hashmatrai was the manager of this joint Hindu family who went away to India in 1948. After the introduction of evacuee property law in Sind the Rehabilitation Department commenced taking possession of the above‑mentioned property and allotted part of it to refugees. The appellants made several representations to the Custodian as well as to the Government and ultimately the Custodian by his letter dated the 23rd April 1951, directed the appellants to make an application under section 18 of the Pakistan (Administration of Evacuee Property) Ordinance. The appellants then made an application under section 18 with respect to the rice mill, the agricultural land and the three open plots of land in Karachi before the Custodian of Evacuee Property. The Custodian by his order dated the 25th May 1951, held the application to be time‑barred in respect of the rice mill at Hashmatabad, the agricultural land in deh Tajodero and three open plots in Karachi, as this property had been allotted in 1951 and the cause of action for applying under section 18 had arisen at that time. He held the application to be within time, however, with respect to the agricultural land in dehs Pirbux and Azmatabad. On the merits the agricultural lands were found to be joint Hindu family property and the share of the appellants which was held to be 3/4th was declared to be non‑evacuee property. The share of Atmaram which was 1/4th was found to be evacuee property. On the 19th June 1951, the appellants filed an application for review against the said order on the ground that their application under section 18 was not barred even in respect of the rice mill at Hashmatabad, the agricultural land in deh Tajodero and the three open plots in Karachi. They also contended in this application that the share of Atmaram Hashmatrai in joint family property was in Hindu law not 1/4th, but 1/5th. Mr. Fayyazali the successor of the Custodian who had disposed of application under section 18 maintained the order of his predecessor with respect to limitation, but he accepted the contention of the appellants that the share of Atmaram Hashmatrai in the joint family property was 1/5th and not 1/4th. A second application was made by the appellants under section 18 of the Pakistan (Administration of Evacuee Property) Ordinance on the 15th November 1953, with respect to the bungalow bearing Survey No. 69 in N. I. Lines, Garden Road, Karachi, claiming it to be joint family property. This application was disposed of by the Deputy Custodian who held that the bungalow was the self‑acquired property of Atmaram. The appellants filed an appeal against this order and Mr. Riaz‑ud‑Din, Additional Custodian, accepting the appeal held that the bungalow in dispute was joint family property. He declared it to be non‑evacuee property to the extent of 4/5th share of the appellants. Against this order the Central Government made a reference under section 43‑A of the Pakistan (Administration of Evacuee Property) Ordinance to the Evacuee Property Tribunal. The Tribunal by an order dated the 19th April 1960, found the order of Mr. Riaz‑ud‑Din to be wholly unjustified and declared the bungalow to be self‑acquired property of Atmaram. While by a separate application the appellants were claiming title to the bungalow mentioned above they were at the same time taking further proceedings against the order which had been passed on their first application under section

18. The first review application which was disposed of by Mr. Fayyazali has already been referred to. The appellants filed another application for review which was dismissed by the then Custodian Mr. Z. H. Lari by an order dated ‑4‑7‑1953. The appellants filed a third review application in 1957 which was dismissed by Mr. Muhammad Bux A. Memon, the then Custodian, on 9‑3‑1957. The appellants then approached the Ministry of Refugees and Rehabilitation and the case of the appellants is that the Ministry directed the Custodian to take proceedings suo motu for review of his previous orders. The Custodian issued a notice on the 14th May 1958, to the four appellants, the Rehabilitation Commissioner, Karachi and three allottees to appear on the 21st May 1958, for a consideration of a question whether the previous orders of the Custodian on the application of the, appellants under section 18 should not be reviewed. These proceedings were disposed of by the Custodian on the 23rd September 1959. At that lime proceedings were pending before the Evacuee Property Tribunal against the order of the Additional Custodian relating to the bungalow in Plot No. 69, N. I. Lines, Karachi. The Custodian assumed that the proceedings before the Evacuee Property Tribunal related to the property in dispute in the proceeding before him and on this ground alone he ordered the proceedings to be "filed." At this. the appellants filed a writ petition in this Court against the order of the Custodian, because under the Constitution of 1956, a writ petition could be filed even in the Supreme Court. Later, however, a prayer was made, which was allowed, that the writ petition be converted into a petition for special leave to appeal. Leave to appeal was subsequently granted mainly on the ground that the Custodian had on a mistaken ground refused to exercise jurisdiction. That the order of the Custodian filing the proceedings for review was based on a misapprehension is obvious. The proceedings before the Evacuee Property Tribunal related only to the bungalow and the review petition before the Custodian was not concerned with the bungalow at all. The application under section 18 the decision in which was sought to be reviewed related to the agricultural land, the rice mill and the open plots, the bungalow in Karachi not being the subject‑matte of the application. Yet the Custodian directed the proceedings to be filed on the ground that the case before him had been referred to the Evacuee Property Tribunal. The Custodian said: "As the matter is now before the Tribunal it is unnecessary for me to decide whether any of the previous orders require modification". If there was no more to be said this appeal would have succeeded for the Custodian had refused to exercise jurisdiction on a mistaken ground. In the meantime, however, there has been legislation which has deprived the Custodian of the power of deciding the proceedings for review. The Custodian had a power of review by virtue of section 43 (6) of the Pakistan (Administration of Evacuee Property) Act, 1957. Section 43 (6) runs: "43 (6). The Custodian or Additional Custodian may on application made to him in this behalf within the prescribed period or of his own motion at any time and after giving notice to the parties concerned and the Rehabilitation Authority, review his own order or an order passed by his predecessor -in‑office on any ground whatsoever as the justice of the case may require: Provided that no final order passed on or before the seventeenth day of November 1956, declaring any person to be not evacuee or any property to be not evacuee property shall be reviewed." By Ordinance LXIII of 1962 which came into force on the 7th June 1962, section 43 (6) was substituted by the following section: "(6) Clerical or arithmetical mistakes in any order passed by any Custodian under this Act, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Custodian concerned or his successor‑in‑office," It will be observed that there remained after this amendment only a power of correcting clerical or arithmetical mistakes or accidental slips or omissions. The saving clause contained in this Ordinance may also be reproduced here for it is on the basis of the saving clause that the jurisdiction of the Custodian will have to be decided. It is in the following words: "Savings, etc.‑It is hereby declared that the amendment of section 43 of the said Act shall not affect review applications pending immediately before the commencement of this Ordinance, on which proceedings have, before such commencement, started, or which relate to such mistakes ' or errors as are referred to in subsection (6) of that section as substituted by this Ordinance, and applications on which no c proceedings have started or which do not relate to such matters shall forthwith abate." Two contentions have been put forward on behalf of the appellants in support of the proposition that even after the coming into force of Ordinance XLIII of 1962 there still remained jurisdiction in the Custodian to review his orders. The first is that the question as to whether a pending proceeding is saved should be decided with reference to section 6 of the General Clauses Act. The second is that even in accordance with the saving clause the Custodian retained jurisdiction in the present case because there was an application before him in which notice had been issued. For convenience of reference section 6 of the General Clauses Act is reproduced below: "

6. Where this Act, or any Central Act or Regulation made after the commencement‑ of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not‑ (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed ; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed." Reliance is placed on clause (e) of this section and it is urged that any proceeding which could have been taken if the Act remained m force can be taken if it is repealed. It will be observed however that clause (e) refers to "such right, privilege, etc. as aforesaid" and this has reference to clause (c) in accordance with which any "right, privilege, obligation or liability" which has already accrued or been incurred, remains unaffected.. For the application of clause (e), therefore there has first to be a right and then a legal proceeding in respect of such right. This does not appear to be applicable to a case where the' only possible right which can be said to have accrued is the right to prefer a particular legal proceeding. From its wording clause (e) would apply to legal proceedings in respect of substantive rights which have already occurred under a repealed enactment and would not cover a case where only a procedural right is granted. It is not necessary however to pursue this matter furthers as section 6 applies in accordance with its wording only where a different intention does not appear and in the present case there is a saving clause in the repealing enactment which should govern the question as to what proceeding will remain 'unaffected. According to the saving clause which has bee reproduced above review applications pending immediately before the commencement of this Ordinance on which proceedings) had started before the commencement of the Ordinance remained unaffected. As only applications for review have been mentioned in the saving clause it is proper to infer that suo motu reviews were not intended to be saved. From the fact that the Legislature provided a saving clause it is apparent that the question as to what should be saved r was considered by the Legislature. If the intention was to save suo motu proceedings also there is no reason why those proceedings should not have been mentioned. Expressio unius excluvio alterious, is not a rule of universal application for the Legislature may mention a matter on account of excessive caution, but if it be clear that the mention of one out of several matters is not on account of excessive caution it is legitimate to regard the provision as exhaustive and exclusive of what is not mentioned in it. In the present case the Legislature appears to have made a distinction for which a good reason existed. It has continued pending proceedings in the case of an application because to submit an application was the right of a party and the right having been exercised the proceedings should not on account of the repeal of the power of review become infructuous. On the other hand there was no right of any person involved in a suo motu review, the only person aggrieved by the loss of further jurisdiction being the Custodian himself. The further contention of the appellants on this point is that the proceedings before the Custodian should be regarded as proceedings on an application for review. It is not the case of the appellants that any application had been submitted to the Custodian for review. The contention is that as the; appellants had approached the Ministry for Refugees and Rehabilitation and the Ministry had given a direction to the Custodian to review the matter the position is the same as if there was an application to the Custodian for review. We are unable to accede to this contention. The letter of the Government in compliance with which the Custodian started proceedings for review is not on the file. But assuming, as is alleged by the appellants, that the Ministry had given a direction for review the situation would not be the same as it would be when there is an application for review. The order issuing notice makes it clear that the Custodian was taking proceedings suo motu. The order issuing notice is in the following words: "You are called upon to appear before the Custodian of Evacuee Property, Karachi, on 21‑5‑1958 at 10 a.m. to show cause why the order mentioned in the subject‑matter should not be set aside or reviewed suo motu. In case of non‑appearance, the matter will be heard and decided ex parte." It will be observed that there is an express reference to suo motu review. In the heading of the notice also there is a reference to a suo motu review. In fact the appellants in their concise statement have themselves said that the notice had been issued in a suo motu review. It is to be remembered that according to section 43 (6) an application for review could be submitted. only within the "prescribed period" which was thirty days though it could be extended for sufficient cause, but for suo motu review there was no limitation. The ordinary period of limitation for review had expired long ago. The Custodian issued notice for review not because there was any application before him and he found sufficient cause for condoning delay, but because he decided to exercise his jurisdiction for suo motu review which he could exercise at any time. In view therefore of the fact that the jurisdiction of the Custodian to review his order has terminated we are unable to' set aside the order and to send back the case to him. This appeal is dismissed, but there is no order as to costs. A. H. Appeal dismissed.