P L D 1960 Supreme Court 362 (PLP)

On 20th August 1960, the office of the Claims Commissioner sent a remainder to him for furnishing a list of persons on whom notices were to be served. Thereafter he supplied a list of co‑claimants which included some of the appellants before us. On 13th September 1960, Abdul Rahman, son of Azim Ali filed a petition before the Claims Commissioner for being added as a party to the revision petition and therein he stated in paragraph 2 "that the share of the applicant ‑which has been determined by the learned Deputy Claims Commissioner, Hyderabad in his order dated 29th December 1959, and subsequently confirmed by the learned Additional Claims Commissioner, Hyderabad in January 1960, against which Revision is pending in claim No. 10,000 proper share be verified in favour of the applicant". On 2nd January 1961, Martial Law Regulation No. 84 was promulgated. On 10th January 1961, Khairuddin submitted a petition stating that "since Ordinance No. 84 has been promulgated and all orders of agricultural land have been annulled, those persons mentioned above need not be called for the next hearing of the case" and the following order was passed on the said petition: "If summons have not been issued they need not be issued in view of his request, because the persons were called on the request of this party." On 17th January 1961, Jiwan Ali, son of Hussain Ali and Abdul Sattar, son of Sharfuddin, who are appellants Nos, 16 and 7‑C respectively, in Civil Appeal No. K‑10 of 1962 filed the following petition before the Claims Commissioner: "Mr. Shafiullah, Additional Claims Commissioner, Block No. 68, Karachi. Registration No. 10000 (Khairuddin, son of Abid Ali). In the matter of claim of house, agricultural land of Khairuddin son of Abid Ali. Dear Sir, It is respectfully submitted that in the above‑mentioned claim the date of hearing is fixed for 24‑1‑1961 and the applicant and others are respondents in it. Until now no card has been issued for the date of hearing. It is prayed that information be given of the date of hearing for Schedules ‑I and V. I shall be grateful for this. On that very date the following order was passed on this petition "There is a list of objectors in this case where his name is shown and everybody was made a party and the notices issued on previous occasions. They should be informed of the date of hearing." On 28th April 1961, the Revision Petition was heard only with regard to the claim of Khairuddin relating to the house property. It is evident that Khairuddin's grievance relating to Agricultural land was not considered before because of the bar imposed by Martial Law Regulation with regard to verification of such lands. From the above it is abundantly clear that from the very beginning Khairuddin was challenging the order regarding verification of the Agricultural land. This is also manifest from the petitions filed by the co‑claimants before the Claims Commissioner. It may also be mentioned that Wahiduddin and others, the appellants in Civil Appeal No. K‑11 of 1962 have stated in their writ petition that they had entered into the compromise under pressure and that they had also filed a Revision Petition against the order of the Additional Claims Commissioner. In view of the above facts and circumstances we are unable to accept the suggestion of Mr. Brohi that the"' words Agricultural Land were surreptitiously inserted after filing of the Revision Petition. It was next contended that if it was assumed that agricultural land was the subject‑matter of the Revision Petition, even then paragraph 4 (1) of the Martial Law Regulation No. 89 would not be attracted because no claim for verification was pending at the commencement of the Regulation No.

84. It was argued that as in pursuance of the order of the Additional Settlement Commissioner Entitlement Certificates first in Form Q. P. R.V and later in Form M. R‑V had been issued to the appellants it could not be said that their claims for verification were pending. This argument was developed in this way. After promulgation of Martial Law Regulation No. 84 the claimants filed written statements in Form M. R. I along with their Entitlement Certificates in Form Q. P. R.‑V and thereafter fresh Entitlement Certificates in Form M. R‑V were issued to them. Hence in view of paragraph 12 of the Martial Law Regulation No. 89 the order for verification became final and could not be questioned by the Department. On the other hand Mr. Manzur Qadir has contended that the provision of paragraph 12 was not attracted to a claim in respect of which a revision was pending. Paragraph 12 provides that "Entitlement Certificate issued under this Regulation shall be final and shall not be questioned in any Court". In order to appreciate the nature of the Entitlement Certificates in Form Q. P. R.‑V and M. R.‑V it will be necessary to refer to the Schemes framed both under the Registration of Claims (Displaced Persons) Act; 1956, and the Martial Law Regulation No. 84 for the allotment of land in compliance with the order of verification. Under the Scheme framed under the Act, a claimant was required to file an application in Form Q. P. R. I along with the certified copy of the order of verification and after a thorough checking of the details mentioned therein an Entitlement Certificate in Form Q. P. R.‑V was issued to him. Similarly under the Scheme framed under Martial Law Regulation No. 84 he was required to file a written statement in Form M. R‑I along with the Form Q. P. R.‑V and after due checking an Entitlement Certificate was issued under Form M. R.‑V. The entitlement of a claimant was worked out thus under the schemes. . In other words they provided a machinery c for the purpose of allotment of land verified under Schedule V of the Act. The officers under the Scheme have no power to question the legality or propriety of the verification order. It therefore, cannot be said that by ere issue of an entitlement certificate the verification order would become final. In this case the respondent Khairuddin is not questioning the correctness of the Entitlement Certificate. He is challenging the verification order itself under which the Entitlement Certificates have been issued. This he was entitled to do under section 7 of the Registration of Claims (Displaced Persons) Act, 1956, which is in these terms: "

7. Appeal, revision and review.‑ (1) Any person aggrieved by an order under this Act may prefer an appeal,‑ (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 (1), 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 Commissioner 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." The above section clearly provides that the decision of a Deputy Claims Commissioner is appealable and also open to revision and review. In the instant case a revision was pending from before the passing of the Martial Law Regulation No. 84, against the appellate order of the Additional Claims Commissioner. Subsection (5) of section 7 of the Act clearly says that `subject to the foregoing provisions of this section any order shall be final.' Thus so long as Revision was pending, the impugned order of Verification could not be regarded as final. From the very fact that the paragraph 4(1) of the Martial Law Regulation makes provision for disposal of claims pending verification, it is clear that the Regulation never intended to confer any finality on such orders which were under appeal or revision. We are therefore, unable to read paragraph 12 of the Regulation in such a way so as to give it a meaning which is obviously contrary to the express provision of the Regulation. We may further observe that to hold that the pending revision would be infructuous would really mean that the aggrieved party would be deprived, by the retrospective operation of the Martial Law Regulation No. 84, of a right possessed by him. In the absence of any clear provision to that effect in the Regulation, this would be against all canons of construction. On the contrary, as already pointed out, pending cases were kept alive by paragraph 4(1) of the Regulation No.

89. It may also be pointed out that ouster of the jurisdiction of the Court has been clearly mentioned in paragraph 15 of the Regulation. If there was any such intention of excluding the jurisdiction of the Revisional Authority in pending cases, a clear provision to that effect would have been made in the Regulation. For the above reasons we are unable to accept the contention of Mr. Brohi that verification having become final under paragraph 12, provision of paragraph 4(1) of the Regulation was not attracted to this case. Mr. Brohi then argued that section 7 of the Act has not conferred any right on the aggrieved party to file a revision. No doubt subsection (3) of section 7 empowers the Claims Commissioner to revise an order of a Deputy or an Additional Claims Commissioner suo motu. It is also true that section 7 does not specifically mention that for the purpose of revision a Claims Commissioner should be moved by any party in that behalf. Now the question is what this subsection means. Does it prescribe limitation for the exercise of Claims Commissioner's power in revision; or does it also give right to a party to move him in that behalf? If the former view is correct then the scope of Revision would be confined only to such matters coming to his notice otherwise than from parties directly interested in the claims in question. That this cannot be the intention is clear from the object of the Acct, and the setting of the above section therein. The primary object of the Act was to provide for the registration and verification of claims of displaced persons in respect ' of their properties in India. It was really a measure designed to eliminate the hardships and miseries of as large a number of persons as possible, who had been compelled to leave India just after Partition. One must also not forget that the displaced persons had to leave India suddenly and hence evidence of title to the abandoned properties was not always readily available. The object of this section was therefore, to provide remedies to those who were aggrieved by an order improperly made, rejecting or reducing their claims. The narrow interpretation which Mr. Brohi wants to put on it will really defeat the very object of the Act. It is a sound rule of Construction that procedural enactments should be construed liberally and in such manner as to render the enforcement of a substantive right effective. Reading subsection (3) of section 7 in the context of the whole enactment, in our opinion, the power of revision was not intended to be limited in the manner suggested by Mr. Brohi. This view also finds support from the decision of this Court in Sahibrai v. The Custodian of Evacuee Property (1)(1957)1SCR

71. For the reasons stated above we hold that this subsection (3) which gives revisional power to the Claims Commissioner in the words of the widest amplitude must necessarily be assumed to cover revision filed by an aggrieved party. It was then contended that Mr. A. Rauf Chaudhary, Settlement, Rehabilitation and Claims Commissioner, Karachi was not competent to hear the revision because he was not properly appointed in that behalf by the Chief Settlement Commissioner. Paragraph 4(I) of Martial Law Regulation No. 89 empowers the Chief Settlement Commissioner to appoint an officer not below the rank of an Additional Settlement Commissioner for the purpose of hearing claims pending for verification at the commencement of the Regulation. On the petition filed by Khairuddin for appointment of an officer under the above paragraph for the disposal of his revision petition, the Private Secretary to the Chief Settlement Commis sioner made the following note: "This concerns S. C. Karachi as Ex Officio Claims Commissioner and it may be sent to him for disposal please." The Chief Settlement Commissioner then initialled the said note. We are not impressed with Mr. Brohi's contention that this cannot be regarded as an order of appointment of Mr. A. Rauf Choudhary to hear the revision petition. The prayer in Khairuddin's petition was "that your honour may be pleased to appoint some officer under para. 4 of Martial Law Regulation No. 89 to hear the pending Revision of the claim according to its provisions." On that very petition the Private Secretary noted that the Ex Officio Claims Commissioner, Karachi was the proper person to dispose of the revision petition. By endors ing the said note the Chief Settlement Commissioner approved of his appointment for disposal of the revision petition. If the nothings are read along with the petition it will leave no room for doubt that the Chief Settlement Commissioner was exercising his power under paragraph 4(1) of the Regulation in appointing Ex Officio Claims Commissioner, Karachi for disposal of the revision petition. The fact that at that time Mr. A. Rauf Choudhary was the Claims Commissioner; Karachi has not been challenged before us. Hence the argument that he was not competent to hear) the revision cannot be accepted. We now proceed to examine the question whether the High Court had jurisdiction to entertain the writ petitions against the order of Mr. A. Rauf Choudhary. From Martial Law Regulation No. 88 as amended by Martial Law Regulation No. 93 it is clear that the intention was to exclude altogether the jurisdiction of the Court with respect to matters dealt with by Martial Law Authorities: Paragraph 2 (b) of Martial Law Regulation No. 93 says: "Martial Law Authority" includes a person or body of persons authorised by or under any Martial Law Regulation or Order to perform any function or exercise any power under such Regulation or Order, and if a question arises whether any person or body is a Martial Law Authority or not, the certificate of the Chief Martial Law Administrator or the Zonal Martial Law Administrator that such person or body is Martial Law Authority shall be final." It was contended that in the absence of any certificate from the Chief Martial Law Authority Mr. A. Rauf Choudhary was not entitled to claim any immunity under the Martial Law Regulations Nos. 88 and

93. We have already held that he was property appointed under paragraph 4(1) of the Law Regulation No 89. to dispose of claims pending verification at the commencement of the Regulation. There can therefore, be no question as to his being a Martial Law Authority within the meaning of the aforesaid paragraph 2(b) of the Martial Law Regulation No.

93. Mr. Brohi seemed to think that whenever the authority of a person to act under the Martial Law Regulation is questioned he must produce a certificate from the Chief Martial Law Administrator or Zonal Martial Law Administrator. This construction of paragraph 2(b) would really render the first part of the said paragraph meaningless and ineffective. The words and if in the said paragraph clearly indicate that only in case of a doubt whether a person was acting as a Martial Law Authority or not, a certificate from the Chief Martial Law Administrator, will be necessary. This is also manifest from the expression for removal of doubt' occurring in the beginning of the paragraph. But when there are enough materials to show that the person in question was duly authorised to act as a Martial Law Authority, no such question of production of a certificate either from the Chief Martial Law Administrator or the Zonal Martial Law Administrator could arise. We may however, mention that this argument was advanced for the first time in this Court and hence we had not the benefit of the High Court's views on this point. Lastly Mr. Brohi had drawn our attention to paragraph 1 of the Martial Law Regulation 88, which is in these terms: "Notwithstanding anything in any law for the time being in force no proceedings, whatsoever, shall lie in any Court in respect of any order made or anything done or to be done, or intended, expressed or purported to be done, or to have been done by any Martial Law authority in pursuance of any Martial Law Regulation or Martial Law Order." He has argued that the expression `in pursuance of means `conformable to' or `in accordance with' and therefore, only such order of a Martial Law Authority will be immune from an attack in a Court of law which has been done in accordance with Martial Law Regulation. According to him hearing of the revision petition was not an act done by Mr. A. Rauf Choudhary in pursuance of Martial Law Regulation. Mr. A. Rauf Choudhary began his order as follows: "This case of revision was partially disposed of by my predecessor‑in‑office, Mr. M. Hanif Siddiqi, Claims Commis sioner, by his order dated 29‑4‑61, but applicant Syed Khairuddin moved an application before Chief Settlement Commissioner and Claims Commissioner, Pakistan, Mr. Ahsanuddin, C. S. P., with the prayer that under para. 4 of Martial Law. Regulation 89 an officer not below the rank of Additional Settlement Commissioner maybe authorised to finally dispose of his agricultural claim. Accordingly C. S. and R. C. marked the case to me for disposal in exercise of my powers of Claims Commissioner. Applicant Mr. Khairuddin's plea before the Chief Settlement and Claims Commissioner, Pakistan, was that Mr. Hanif Siddiqi could dispose of only that part of the revision petition which related to urban property but could not deal with agricultural property involved in the revision because of the Martial Law Regulation

84. Accordingly I notified all the parties interested in the proceeding and gave them a regular hearing." It is thus manifest that he purported to dispose of the revision petition by virtue of his appointment under paragraph 4(1) of the Martial Law Regulation No. 89 made by the Chief Settlement Commissioner. This argument is also therefore, without any force. It appears to us that the Martial ‑Law Regulation No. 88, as amended by Martial .Law Regulation 93 altogether ousts the jurisdiction of the Court in respect of acts done or purported to be done in exercise of the powers under any Martial Law Regulation. The impugned order having been passed by Mr. A. Rauf Chaudhry in exercise of the power granted to him by Martial Law Regulation No. 89 is thus immune from attack or challenge in a Court of law. The learned Single Judge lies therefore, rightly, rejected the writ petitions on the found of lack of jurisdiction. These appeals are accordingly dismissed. Each party will bear its costs in both these appeals. A. H. Appeals dismissed.