P L D 1963 (W (PLP)

MUHAMMAD DAUD KHAN, J.‑--sIn the present review petition, Begum Zebun Nisa Kureshy, wife of Mr. S. A. Kureshy, Canton ment Executive Officer, Nowshera Cantonment, petitioner called in question the order of the Division Bench of this Court dated 20‑4‑1962, which was reported in Zebun Nisa Kureshy v. "Chief Settlement and Rehabilitation Commissioner, Pakistan and another (P L D 1962 Pesh. 186) passed in Writ Petition No. 74 of 1961 of ;his Bench. In this order it was held that the petitioner could not be deemed to have been in possession of the property in dispute within the meaning of Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) even if the allotment order passed in her favour on the 31st of May 1958, be considered as valid which clearly it was not (as it was passed by the Station Headquarters, Peshsawar, which purported to make the allotment, had no authority to do so, jurisdiction vesting only in the Deputy Settle ment Commissioner). It was, therefore, found that the petitioner had no locus standi to claim transfer of the bungalow, subject matter of this review petition. In her grounds of review, the petitioner had urged that :‑ (1) that she had claimed the transfer of the property on the basis of a Notification No. F. 3(1)/60‑SI dated the 11th of August 1960, issued by the Central Government, Ministry of Rehabilitation and Works and the learned Judges had held that the petitioner was not in possession of the property because no ejectment proceedings had been ordered by a Court or a Rehabi litation Authority for her benefit and the contention of the petitioner that this Notification was not mandatory, had not been accepted, and (2) that the petitioner had learnt only yesterday that this Notification had been amended by another Notification No. F. 3(3)/60‑SI, dated the 12th of April, 62 issued by the Central Government in the Ministry of Rehabilitation and Works, published in the Extraordinary Gazette of Pakistan of the same date, and reproduced in the grounds of the review application. This order ran as follows :‑ Rawalpindi, the 12th April 1962. No. F. 3(3)/60‑SI.‑In exercise of the powers conferred by the second proviso to clause (6) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958), the Central Government is pleased to direct that in this Ministry's Order No. F. 3(3)/60‑SI, dated the 11th of August 1960 the following amendments shall be made and shall be deemed always to have been so made, namely :‑‑ In the aforesaid Order ‑ (a) for the word, brackets and letter "clause (b)" the word; brackets and figure "clause (6)" shall be substituted ; and (b) for the full‑stop at the end a colon shall be substituted, and thereafter the following proviso shall be added, namely :‑ Provided that any such allottee of a house or shop situated within the limits of a Cantonment shall be deemed to be in possession thereof for the purpose aforesaid even if ejectment proceedings have not been so ordered for his benefit.

2. It is clear from the above that, according to the Notifica tion of the 11th of August 1960 (given on page 163 of the Manual of Settlement) made under the second proviso to clause (6) of section 2 of the Displaced Persons (Compensation and Rehabili tation) Act, 1958 (which hereinafter be called as an Act), the petitioner was rightly held to be not in possession of the property as no ejectment proceedings had been ordered by a Court or a Rehabilitation Authority for the petitioner's benefit in respect of the property in dispute. Under the Notification dated the 12th of April 1962, no such ejectment proceedings were necessary for the benefit of the petitioner. It is thus clear that had this latter mentioned Notification been in force at the time when the impugned orders were passed by the different Settlement Authorities, then she would have been held to be in possession of the property within the meaning of clause (6) of section 2. of the Act.

3. Mr. Karimullah Khan Durrani, counsel for the petitioner, contended that the order of the Division Bench, which is sought to be reviewed, was passed on 20th of April 1962 while the latest Notification was made on 12th of April 1962, e.g. during the pendency of the writ petition, that had this latest Notification been brought to the notice of the Court, the petitioner should have been found to be in possession of the property in dispute and since the order runs counter to the latest Notification of the Central Government; therefore, it is an error on the face of the record as provided in Order XLVII, rule 1, C. P. C. and, therefore, the Court is competent to correct it in review. The learned counsel relied on three judgments in support of his contention. One judgment is of the Lahore High Court reported in Kehar Singh v. Attar Singh and others (A I R 1944 Lab. 442). The second is of the Bombay High Court reported in Chiminlal Girdhar Ghanchi and others v. Dhyabhai Nathubhai Ghanchi and others (A I R 1938 Bom. 422) and the third is of the Karachi Bench reported in Muhammad Khan v. Pakistan through Secretary, Ministry of Interior, Karachi (P L D 1958 Kar. 75). Both in Lahore and in Bombay cases, the review was allowed by the High Courts under Order XLVII, rule 1, Civil Procedure Code, in their ordinary appellate jurisdiction. In the Lahore case, the Court overlooked the amendment and decided the case under the old provision and it was held that :‑ There was a mistake or error on the face of the record as alleged by the applicant which entitled him to a review. In the Bombay case, the change in law and the decision of the case on the amended law was found to be error apparently on the face of the record. These decisions, therefore, obviously are of not much help to the petitioner. In P L D 1958 Kar. 75, review was granted against the order passed in the exercise of the writ jurisdiction. In this case, there was no alteration in the law but Article 181 of the Constitution was interpreted by the Karachi Bench quite differently than the manner in which it was interpreted by the Supreme Court after the writ petitions were decided by the Karachi Bench. In granting the review, the learned Judges held that "this was not a question of alteration but of declaration of law by the Supreme Court, and as the High Court, in dismissing the writ petition at the preliminary hearing, had pro ceeded on a mistaken view of the law, which mistake was apparent on the face of the record, because the petitioner now relied on Article 181 of the Constitution, and the relevant Police Rules were not repugnant to Article 181, the High Court was justified in setting aside the order of dismissal and admitting the main petition to a regular hearing." It is thus obvious that this case is also not of much help to the petitioner.

4. Mr. Sheikh Muhammad Shafi, counsel for respondent No. 2, resisted the review petition on the following grounds:‑ (1) that Article 162 of the Limitation Act was the only Article applicable to the review petitions, and according to this Article, this petition was barred by time ; (2) that the Central Government was not competent .to apply the Notification of 20th of April 62 retrospectively ; (3) that the Settlement Authorities had decided the question if the petitioner was in possession of the property at the time when the Notification of 11th of August 1960, was in force and, therefore, the High Court in the exercise of the extra ordinary original jurisdiction was only to see if the Settlement Authorities had decided the question of possession in accordance with the law then in force, and (4) that the High Court had no powers to review its order passed in extraordinary jurisdiction as there was Lo statutory provision in the Constitution, or any other enactment favoring the exercise of this power. In dilating upon the third point, he referred to the Interpretation of Statutes by Maxwell, 11th Edition, p. 212 wherein it has been laid down that:--‑ "In general, when the law is altered during the pendency of an action, the rights of. the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights." He contended that the question of possession was to be determined according to the Notification of the Central Govern ment of 11th of August 1960; as it had not been amended even up to the date when the Chief Settlement Commissioner had decided this question with respect to the property in dispute. This Notification was still in force when the writ petition was instituted, but the new Notification of 20th of April 1962, came into force only a few days before the decision of the writ petition. He, therefore, contended that, assuming that the Central Govern ment had the powers to apply the Notification of 20th of April 1962, retrospectively, even then the High Court could not enforce it in the exercise of the writ jurisdiction because it had only got to see if the orders passed by the Settlement Authorities were in conformity with the Notification, then in force. His contention appears to be quite reasonable. The High Court was not to apply the Notification which was made applicable during the pendency of the writ petition, but it had only to see if the orders passed by the relevant departments were strictly in accordance with the rules and law in force at the time when they were passed. If the latest Notification was placed before the High Court at the time of the consideration of the writ petition, the fate of the writ petition could not have been different. The decision of the Court under the old Notification, in spite of the fact that there had been a new Notification changing the meaning of the word "possession" in clause (6) of subsection (2) of the Act, therefore, would not be even an error on the face of the record because the department concerned had decided the case under the law which was then in force. There is a distinction between the orders of the High Court in the exercise of extraordinary writ jurisdiction and its normal appellate jurisdiction. In the former, the change in, law cannot affect its decision when the impugned orders were passed at the time when the latest law was not in force. In the ordinary appellate jurisdiction, the High Court is enjoined to see that a decision had been made in accordance with the law in force at the time of the decision of a matter before it. It is, therefore, obvious that the order passed by this Court in the writ petition does not stiffer from an error apparent on the fac3 of the record.

5. In support of his contention recorded above as ground No. 4, Mr. Sheikh Muhammad Shafi contended that the powers of review are given to the Courts by a specific provision with respect to the powers of review to be exercised by the Supreme Court, but there is no such provision empowering the High Court to review its own orders passed in the exercise of the writ jurisdiction. Had the Legislature intended that High Court should have also the powers to review its own judgments then it should have specifically enacted it in the Constitution. The reason for this is quite obvious. While against the order of the Supreme Court no appeal lies and, therefore, the Supreme Court itself was to correct its own judgments, in case of the High Court its judgments could be corrected by the Suprem a Court in appeal. He has relied in M. J. Kutinha v. Mrs. Nathal Pinto Bai and another (1) in support of his contention. It has been laid down therein that unless a statute provides a remedy by way of review, the Court cannot review its own judgment except in very exceptional circumstances, such as, for example, where it passed an order inadvertently or on account of some false representation by the officers of the Court.

6. Besides this, High Court had a discretion to interfere in the orders passed by the departments in exercise of the writ (1) A I R 1941 Mad. 272 jurisdiction and when it was of the view that the department had passed orders strictly in accordance with law then in force and that the order of the authority or the department did not suffer from any illegality, then it may not interfere in the exercise of writ jurisdiction. On this ground, as well, the order passed by Court on the ground that the Settlement Authorities the High had passed the orders strictly in accordance with the law then in force was correct, and it cannot be reviewed at the instance of the petitioner. In our view, the decision on the contentions con tained in grounds 1 and 2 of Mr. Sheikh Muhammad Shafi is not necessary for the disposal of this review petition as it could be s decided on the findings given on the other grounds against the petitioner. The review petition, therefore, fails and is dismissed with costs. This order is passed without prejudice to the proceedings which the petitioner might initiate, if so advised, in the depart ment concerned for reconsideration of the case in the light of the latest Notification of the Central Government, referred to above. K. B. A. Petition dismissed.