1980 PLP 1386 (CLC)

Date of hearing : 22nd January, 1980. By this constitutional petition, Allah Rakha and others have challenged the order dated 7th May, 1977 passed by respondent No. 1, i.e. the Additional Deputy Commissioner (G)/Additional Settlement Commissioner (Lands), by which an appeal filed by Muhammad Ramzan respondent No. 2 was accepted and the allotment of land made in favour of Kundan and Nazir Khan was held to have been secured by fraud.

2. The facts leading to this writ petition are that a claim form No. 49675 was allegedly filed by two brothers Kundan and Nazir Khan for the land abandoned by Nain Khan son of Gonga. This claim form was duly verified by the Central Record Room and was sent to Mauza Lakhnekay, Tehsil Kasur, District Lahore (now District Kasur) and land m lieu of this claim was allotted in the said village. Since Nain Khan was stated to have died, mutation No. 27 (Annexure A') in respect of the inheritance of Nain Khan was sanctioned by the A. R. C. (L) on 13th May, tin favour of Kundan and Nazir Khan real brothers of Nain Khan de eased. Land allotted in village Lakhnekay, District Kasur was can celled from the names of the heirs of Nain Khan as the same fell within the border area and consequently the units of the claim were sent to village Kakar Gil Tehsil and District Sheikhupura, in consequence whereof, land measuring 669 kanals and 17 marlas was allotted and confirmed in the names of heirs of Nain Khan, the original claim-holder. This is evidence from a copy of Register R. L.-II (Annexure `B') on the file of this writ petition. One Mehar Ali is stated to have acted as general attorney of Kundan and Nazir Ahmad sons of Gonga who had sold away the land in dispute to the petitioners for a consideration of Rs. 20,000 and conse quently a mutation of sale was sanctioned by the Revenue Authorities on 28th December, 1961 (Annexure `C'), and since then the petitioners are in undisputed possession of the land in question.

3. In the year 1962, a complaint in respect of the genuineness of the claim and allotment of the disputed land was lodged with the Enforcement Staff. The Rnatter was duly investigated and after the investigation it was reported that the complaint lodged against the claim of Nain Khan was absolutely incorrect and false and the claim, according to the said report, was held to be genuine and correctly verified by the Central Record Room the petitioners have relied in this connection on Annexure `D'. Respondents Nos. 2 to 4 had also filed an appeal against the allotment of land made in favour of Kundan and Nazir Ahmad as successors-in-interest of the original claim-holder Nain Khan but the same was dismissed by order dated 13th February, (962 (Annexure `E'). Having failed to achieve their object in a lawful manner, respondents Nos. 2 to 4 on 17th January, 1970 again made an application (Annexure `F') purporting to be under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958. This application was dismissed by A. D. C. (G)/Additional Settlement Commissioner (Lands) exercising the powers of Chief Settlement Commissioner (Lands), Sheikhupura, by order dated 29th September, 1972 (Annexure `C'). It was held in the order that the claim form was not bogus nor there was any element of fraud in obtaining the allotment. Aggrieved by the order dated 29th September 1972, respondents Nos. 2 to 4 filed an appeal before the Settlement Commissioner (Lands) on 29th November, 1972. The appeal was, however, accepted by the Additional Deputy Commissioner (General)/ Additional Settlement Commissioner (Lands) exercising the powers of Chief Settlement Commissioner (Lands and the land obtained in the name of Nain Khan was cancelled, vide order dated 7th May, 1977 (Annexure `H'), against which the present writ petition has been filed.

4. Learned counsel for the petitioners has taken serious objection to the jurisdiction of respondent No. 1 and has stated that when the appeal was filed against the order of Additional Settlement Commissioner (Lands) on 29th November 1972, it was only competent before the Settlement Com missioner (Lands) as the order passed by the Additional Settlement Com missioner (Lands) could only be legally challenged before the Settlement Commissioner (Lands). According to the learned counsel, the appeal in fact was filed before the Settlement Commissioner but it was heard and decided by respondent No. 1 who was an Additional Deputy Commissioner (General) acting as Additional Settlement Commissioner (Lands). It is important to note that in between the period of filing of appeal and its disposal, section 18 of the Displaced Persons (Land Settle ment) Act, 1958 providing the remedy of appeal was completely omitted by the Evacuee Property and Displaced Persons Laws (Amendment) Act, 1973 (Act LV of 1973) which came into force on 30th July, 1973 and for the existing section 19, the following was substituted by the said amending Act

19. Revision.-(1) A Settlement Commissioner may, either on an application made by a person aggrieved by an order passed by an Assistant Settlement Commissioner or an Additional Settlement Commissioner under this Act, within fifteen days from the date of such order, or of his own motion at any time, call for the record of any case or . proceeding for the purpose of satisfying himself as to the correctness, legality or propriety of such order and may pass such order in relation thereto as he thinks fit. (2) All appeals pending before a Deputy Settlement commissioner or an Additional Settlement Commissioner shall be transferred to, and be disposed of by the Settlement Commissioner as revision petitions under this section. (3) The Settlement Commissioner may either himself dispose of a case called for by him under subsection (1) or an appeal transferred to him under subsection (2) or entrust it to an Additional Settlement Commissioner and the order of such Additional Settlement Com missioner on such case or appeal shall be deemed to be an order of the Settlement Commissioner passed in revision and shall have effect accordingly. (4) No order under this section shall be passed revising or modifying any order affecting any person without giving such person a reason able opportunity of being heard. (5) 1n computing the period of fifteen days referred to in sub section (I ), the provisions of sections 5 and 12 of the Limitation Act, 1908 (IX of 1908), shall apply." 6 Learned counsel for the contesting respondents has, on the other and, contended that since the provision providing" for a remedy of appeal, e., section 18 was completely omitted, the provisions of section 19 newly added by tie amending Act would be applicable and that the Additional Settlement Commissioner (Lands) was competent under those provisions to decide the appeal of the respondents and, in fact, the decision arrived at y respondent No. 1 was quite legal and no objection to his jurisdiction ~n be taken before this Court.

7. By subsection (2) of newly-added section 14, it is provided that I appeals pending before a Deputy Settlement Commissioner or an Additi onal Settlement Commissioner shall be transferred to, and be disposed by, the Settlement Commissioner as revision petitions under section 19, he present case definitely would not fall within the ambit of the above provision for the simple reason that the language of subsection (2) is ambiguous and very clear and only confines to the appeals pending 'fore a Deputy Settlement Commissioner or an Additional Settlement Commissioner. In the present case, the original order was passed by an additional Settlement Commissioner and an appeal under section 18 (then existing) was only competent before a Settlement Commissioner. It is also very clear that the appeals pending before the Settlement Commissioners were not affected by the new section

19. Questions then arise whether the appeals pending before Settlement Commissioner could be treated as revision petitions under section 19 newly added and whether the Settlement Commissioner was competent to transfer appeals pending before him to an Additional Settlement Commissioner. The answer would obviously be in e negative. It will be relevant to refer to subsection (3) of section 19 to arrive at a correct conclusion. Subsection (3) clearly provides that a Settle ment Commissioner may either himself dispose of a case called for by him under subsection (i) of section 19-which in turn provides that a Settlement Commissioner may, either on an application made by a person aggrieved an order passed by an Assistant Settlement Commissioner or an Addi tional Settlement Commissioner under this Act, within fifteen days from date of such order, or of his own motion at any time, for the purpose of satisfying himself as to the correctness, legality or propriety of such order an appeal transferred to him under subsection (2) as revision petition, entrust the same to an Additional Settlement Commissioner and the order thus passed shall be deemed to be an order of the Settlement Commi ssioner in revision. It is, therefore, abundantly clear that this was a revisional jurisdiction which was invested to a Settlement Commissioner by the new section

19. By no stretch of imagination, an appeal pending before a Settlement Commissioner can be treated by him as a revisions under the provisions of subsection (1) of section 19 as the provisions of appeal and revision have always been distinct remedies. However, under subsections (2) and (3) of section 19, it is provided that only appeals pending before a Deputy Settlement Commissioner or an Additional Settle ment Commissioner shall be transferred to the Settlement Commissioner and shall be treated as revisions under section 19 and the Settlement Com missioner may either himself dispose them of/or entrust them to an Addi tional Settlement Commissioner and the orders passed thereon shall be deemed to be orders of the Settlement Commissioner passed in revision and would have the legal effect accordingly. Words of section 19 do not admit doubt and lead to irresistible conclusion that Settlement Commis sioner cannot treat an appeal before him as a revision nor has any lawful authority to transfer an appeal pending before him to an Additional Settle ment Commissioner under any of the provisions of section 19 substituted by the Evacuee Property and Displaced Persons Laws (Amendment) Act,

8. Learned counsel for the respondents has taken a further objection that since section 18 was completely omitted by the amending Act, 1973, the repeal will be retrospective affecting the pending appeals as well before Settlement Commissioners and as the respondents were left with no remedy, their appeal was rightly treated as a -revision petition under the new section

19. He has also argued that remedy of appeal is a matter of proce dure. I am afraid, the argument advanced by the learned counsel for the respondents is merely imaginary and fallacious. It is now well-settled that when a law is altered or repealed during the pendency of an action, the rights of the parties are decided according to law as it existed when the action was initiated and not the law that existed at the time of the judgment or order. This is, however, subject to the exception that the new law shall apply if it is a mere matter of procedure or if it has been so specifically and expressly provided. On this principle, the case of Mian Rafi-ud-Din and 6 others v. The Chief Settlement and Rehabilitation Commissioner and 2 others (P L D 1971 S C 252), can be safely quoted. This rule has again been signified in Craies on Statutes, 6th Edition, page 400 which says. "It is a general rule that when the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending action, do not affect them, but there is an exception to this rule, namely, where enactment merely affect procedure and do not extend to right of action". In the present case, the action by way of an application by respondents Nos. 2 to'4 was initiated on 17th January, 1970 and the order on the said application was made on 29th September, 1972 by the Additional Settlement Commissioner (Lands). The appeal in ques tion was duly filed before the Settlement Commissioner (Lands) on 29th November, 1972. At that time, the provision of appeal under section 18 o the Act was available to the respondents and thus, they had acquired vested right to appeal to the Settlement Commissioner, though right o appeal i.e., section 18 was omitted by the amending Act, 1973 which came into force on 30th July, 1973.. General principle of interpretation o statutes regarding the repeal is that if it relates to a matter of procedure only, the provision would be retrospective; on the other hand, if it be more D than a matter of procedure touching a right in existence, it would not retrospective. The above principle of law is more clearly stated in a well-I known case of Colonial Sugar Refining Company, Ltd. v. Irving (1905 A C 369). In that case the Collector of Customs acting under an Act called the .Excise Tariff Act, 1902 required the appellants therein to pay 20,100 excise duty on 6,700 tons of sugar. The appellant disputed the claim. So they deposited the money with the Collector and then brought an action in the Supreme Court of Queensland against the Collector for recovering the sum so deposited. The writ in the action was issued on 25th October, 1902. At the date of the institution of the action the Order in Council of 30th June, 1860 gave a right of appeal to His Majesty in Council from the judgment of the Supreme Court. A special case having been stated for the opinion of the Full Court, that Court on 4th September, 1903 gave judgment for the Collector. In the mean time the Judiciary Act, 1903 had been passed and is received the royal assent on 25th of August 1903, that is to say about ten days before the judgment was delivered by the Supreme Court. By section 38 the jurisdiction of the High Court of Australia in certain specified matters was made exclusive of the jurisdiction of the several Courts of the States and by section 39 it was made exclusive in all other matters except as therein provided. Subsection (2) of section 39 provided that the several Courts of the States would be invested with Federal Juris diction in all matters above-mentioned except those specified in section 38, subject to certain conditions and restrictions, one of which was that every decision of a Court of a State from which, at the establishment of the Commonwealth, an appeal lay to the Queen-in-Council, should be final and conclusive except so far as an appeal might be brought to the High Court. The result of this Act was that Her Majesty in Council ceased to be a Court of Appeal from the decision of the Supreme Court and the only appeal from the Supreme Court under that Act lay to the High Court of Australia. The Supreme Court of Queensland having granted leave to the appellants under the Order in Council of 1860 the appellants filed the appeal in the Privy Council. The respondent filed a petition before the Privy Council praying that the appeal might be dismissed with costs on the ground that the right of appeal to His Majesty in Council given by the Order in Council of 30th June 1860, under .which the leave had been granted, had been taken away by the Judiciary Act, 1903 and that the only appeal from a decision of the Supreme Court of Queensland lay, to the High Court of Australia. On behalf of the appellants it was contended that the provisions of the Judiciary Act, 1903, on which the respondent relied, were not retrospective so as to defeat a right in existence at the time when the Act received the royal assent. Their Lordships of the Privy Council dismissed the respondent's petition and observed as follows:- "As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be more than a matter of pro cedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is. Was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure ? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no .difference between abolishing an appeal all together and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested." The proposition of law mentioned above has been finally established in English Jurisprudence and the above decision is accepted as sound and cited with approval in leading text-books. It has also been consistently followed and applied in numerous decisions in England and in Pakistan as well as India and its correctness or authority has not been questioned by any of the learned counsel appearing before me. It will be sufficient just to mention a few decisions accepting the above rule of law : see Mtan Rafi-ud-Dins case, Adnan Afzal v. Capt. Sher Afzal (P L D 1969 S C 187) and Saeed Ahmad v. The State (P L D 1964 S C 266). It does not seem necessary to discuss the matter an further in view of the provisions contained in section 6 of the General Clauses Act which runs :--

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 any thing 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 such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid ; and any such investigation, legal proceedings or remedy ma 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. In view of the above provision of law it can be observed that one of the effects of the repeal is that it shall not affect any investigation legal proceeding or remedy in respect of any such right privilege, obligation, liability ,penalty, forfeiture or punishment and any such investigated legal proceeding or remedy may be instituted , continued or enforced as if the repealing Act had not been passed. It may also be pointed out that there is no difference between a repeal and an amendment and if in the case of a total repeal a proceeding can be continued as if there was no repeal why should the proceedings not be continued in the case of an amended provision.

9. The next question that arises is whether the provision of an appeal is a mere matter of procedure. The learned counsel for the contesting respondents has laid great stress on this argument that the provision of appeal is nothing but a matter of procedure and is not a vested right. It is 'by now well-settled that the right of appeal is a vested right and is not a mere matter. of procedure. Reliance in this respect can again be placed on the case of Colonial Sugar Refining Company Ltd. which was adopted and applied by a Full Bench of the Lahore High Court in Kirpa Singh v. A. Jaipal Singh (A I R 1928 Lah. 627). It was regarded as settled that the right of appeal was not a mere matter of procedure but was a vested right which inhered in a party from the commencement of the action in the Court of first instance and that such right could not be taken away except by an express provision or by necessary implication. There is a chain of authorities and the principle is so well established that it need not be discussed any further. From the. language of section 19 (newly added) of amending Act, 1973, it is clear that the appeals pending before the Settlement Commissioner were not at all affected and the appeal, in the instant case therefore could not be treated by the Settlement Commissioner as a revision under section 19 nor had he any lawful authority to transfer it to an Additional Settlement Commissioner (Lands) nor he could delegate his power in cases of appeals pending before him to the Additional Settlement Commissioner. Treating the appeal under any of the. provisions of section 19 was without lawful authority and consequently its transfer to the Additional Settlement Commissioner as a revision was also not in accordance with law and the decision given by the Additional Settlement Commissioner (Lands), dated 7th May, 1977 was also without lawful authority, and I declare it so.

10. Learned counsel for the contesting respondents has raised various other objections and had argued that the point of jurisdiction was not raised before the Additional Settlement Commissioner (Lands) and the same objection now cannot be taken before this Court. In support o this contention he had relied on Ghulam Muhi-ud-Din v. Chief Settlement Commissioner (Pakistan), Lahore and 2 others (P L D 1964 S C 829) and Sh. Muhammad Anwar v. Ch. Sultan Muhammad Khan and another (1974SCMR 371). I am afraid, the argument of the learned counsel has no force for the simple reason that the Additional Settlement Commissioner (Lands) was not at all legal competent to decide the appeal of the contending respondents and the question of jurisdiction can be raised at any stage. In support of this view, reliance can be easily placed on Malik Ghulam Jilani v. The Government of West Pakistan, through the Home Secretary, Lahore and another (PLD1967SC373). Jurisdiction will not vest in Additional Settlement Commissioner (Lands) merely because objection to jurisdiction was not taken by the petitioners before him. The petitioners were respondents before the Additional Settlement Commissioner. It were not the petitioners who took the matter before the Additional Settlement Commissioner by an appeal. Their conduct therefore, cannot be put under attack. Learned counsel has also argued that the petitioners have raised the point of jurisdiction only during the arguments. The objection of the learned counsel is again not tenable. He has failed to notice para. 9(a) of the writ petition where it is clearly stated "that respondent No. I (Additional Settlement Commissioner (Lands) was not competent to entertain, bear and dispose of appeal filed by respondents Nos. 2 to 4 against this order dated 29th September, 1972 (Annex. `G') and as such the impugned order dated 7th May, 1977 is wholly without jurisdiction and lawful authority. It is submitted that the order dated 29th September, 1972 was passed by a learned officer enjoying the powers of the Additional Settlement Commissioner (Lands) and invested with powers of the Chief Settlement Commissioner (Lands) to dispose of applications under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958, and, therefore, no appeal was competent before respondent No. 1 having equivalent powers under the said provisions of law. Respondent No. 1 could not sit in judgment over the order passed by an officer of coordinate jurisdiction. Even otherwise, under the Displaced Persons (Land Settlement) Act, no such appeal was competent." It cannot, therefore, be said that the question of jurisdiction was raised for the first time only during the arguments.

11. Learned counsel for the respondents has further objected to the grant of relief on the ground that party guilty of fraud is not entitled to any relief in writ jurisdiction and reliance in this behalf has been placed on Ahmad Khan and others v. Custodian of Evacuee Property, West Pakistan and others (P L D 1963 Kar. 450). He has also argued the case on merits. But as stated earlier, the writ petition can be decided on the point of juris diction and I need not discuss the merits or the arguments advanced relating to merits of the case. I have already held that the impugned order passed by the Additional Settlement Commissioner (Lands) was without lawful authority. Consequently, the appeal filed by respondents Nos. 2 to 4 will be deemed to be still pending before the Settlement Com missioner and both the parties will be at liberty to lead evidence and also to raise any objection with regard to the merits of the case. As a result, I accept this writ petition and remand the case to the notified competent officer Who is acting in place of a Settlement Commissioner, with a direc tion to decide the appeal afresh in accordance with law. There shall be no order as to costs. M. A. K. Petition dismissed. Case remanded.