P L D 1968 Lahore 1311 (PLP)

A. R. SHEIKH, J.‑

This writ petition is directed against the order dated the 24th of November 1960 of the Claims Commis sioner, Pakistan passed by him in revisional jurisdiction modifying the order of the Additional Claims Commissioner, dated the 21st of October 1959, so as to reduce the claim of S. K. Lodhi, the petitioner, from Rs. 38,500.00 in Schedule III to Rs. 27,500.00 in Schedule I of the Registration of Claims (Displaced Persons) Act III of 1956 (hereinafter called the Act).

2. The facts relevant for disposal of this writ petition are these. S. K. Lodhi, the petitioner, along with H. K. Lodhi (his brother), Qaisar‑ud‑Din Khan, Muhammad Ahmad Khan (represented by respondent No. 7) and Rahim Bakhsh claimed to have advanced a sum of Rs. 1,10,000.00 under two agreements dated the 15th of June 1946 and the 5th of March 1947 respectively, described as mortgage‑cum‑lease to Sh. Ghulam Dastgir, since died and now represented by Mst. Afzal‑un‑Nisa Begum (widow), Niaz Qutab and Khalid Jahangir (sons), and Mst. Bintul Zohra (daughter), respondents Nos. 3 to 6, for building a cinema known as Firdaus Cinema on his land in Jullundur City (India). Although the cinema building had been completed, but before it could be fitted with electricity or furnished, partition of the country took place and the parties were obliged to migrate to Pakistan. Separate claims for their respective shares in the said cinema were preferred by the parties concerned. The petitioner's claim for his share in the said cinema was in the first instance verified by the Deputy Claims Commissioner on the 17th of October 1957 for a sum of Rs. 1,05,150.00, without taking into consideration the claim of the mortgagor‑lessor. The petitioner's brother appealed against verification of his claim and during the pendency of his appeal, respondents Nos. 3 to 6 also challenged the verification order dated 17‑10‑57 with the result that the Claims Commissioner set aside the order of verification and remanded the case to the Deputy Claims Commissioner for reverification of claims of all the parties concerned, namely, the mortgagor‑lessor and the mortgagees lessees after hearing their cases together. The Deputy Claims Commissioner by his order dated the 22nd of September 1958 verified the petitioner's claim under Schedule III for Rs. 27,500.00. Eight appeals were filed by the aggrieved claimants including the petitioner against this order and the petitioner's claim was enhanced to Rs. 38,500.00 under Schedule III. On the basis of this appellate order, the petitioner, his brother H. K. Lodhi and Muhammad Ahmad Khan were transferred shares in Nishat Cinema, Rawalpindi. Muhammad Ahmad Khan filed a revision petition for enhancement of his claim in respect of twenty years lease‑hold and mortgagee rights in the Firdaus Cinema. The learned Claims Commissioner issued notices to the parties and after having considered the claims of the mortgagors and mortgagees inter se as also the nature of the building and other factors with regard to equipment, etc. he came to the conclusion that "it is now common ground that the cinema building had not been completed though it was nearly complete, when the parties migrated to Pakistan after Independence. It had not been fitted with electricity or furnished and possession had not been handed over to the lessee‑mortgagees". Keeping in view these facts he proceeded to decide the question as to whether a mere building can be described as an industrial concern and his answer was in the negative. Accordingly, he assessed the said cinema not fitted and equipped with machinery as an urban property under Schedule I. He also rejected the enhancement made by the Additional Claims Commissioner and held that the original verification of Rs.27,500.00 by the Deputy Claims Commissioner was the proper evaluation. In the result, the petitioner's claim was reduced to Rs. 2'7,500.00 and was verified under Schedule I in place of Schedule III.

3. Learned counsel for the petitioner has raised a number of objections. He firstly argued that the Claims Commissioner has erred in setting aside the concurrent findings of fact recorded by the lower Tribunals with reference to the verification of claims of the petitioner and other co‑mortgagees as also the mortgagors under Schedule III. He has referred us to section 7(3) of the Act, which reads as under "

7. Appeal, revision and review.‑ (1) . (2) . (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) . (5) . He Contended that the jurisdiction vested in the Claims Commis sioner is confined to his satisfaction as to the correctness, legality or propriety of any order passed by a Claims Officer, a Deputy Claims Commissioner or an Additional Claims Commissioner under his jurisdiction, but it does not mean that he can reverse the findings of fact as to whether a particular property is a cinema house, an industrial undertaking or urban property verifiable under Schedule I of the Act. He maintained that revisional jurisdiction is in the nature of superintendence and control and is limited to rectification of errors of jurisdiction and not reversal of findings of fact. This argument was met by the Departmental Representative, who, relying on the plain language of the section itself, argued, and rightly so, that the power given under subsection (3) of section 7 is wider than the power exercisable by Civil Courts under section 115 of the Code of Civil Procedure which refers to jurisdiction and jurisdiction alone. He has also invited our attention to Syed Abdul R2hman and others v. Settle ment, Rehabilitation and Claims Commissioner, Karachi and another (P L D 1966 S C 362) which judgment lends support to the view that powers of revision under the Act are of a wider import than under section 115 of the Code of Civil Procedure and if the Claims Commissioner has, on facts proved before him, come to a different finding as to the nature of property and the Schedule under which the claim is to be verified, no exception can be taken to it.

4. Learned counsel further contended that according to the definition of the words "Industrial Concern", a building of a cinema without machinery is an industrial concern and not merely a cinema building. In support of this contention, he referred to some observations in U. C. Mitra v. Mohamed Ismail and another (A I R 1941 Rang. 36). He also argued that the powers of revision are for the benefit of the claimants and are not to be exercised adversely to the claimants. For this proposition he attempted to draw support from the following observations in Syed Abdul Rehman and others v. Settlement, Rehabilitation and Claims Commissioner, Karachi and another (P L D 1966 S C 362) at page

372. The primary object of the Act was to provide for the registra tion 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 reader the enforcement of a substantive right effective. We, however, find and we say so with profound respect, that the authority cited by learned counsel does not lay down the principle that is being canvassed before us. Their Lordships have made the observations above while dealing with the argument of learned counsel that section 7 of the Act has not conferred any right on the aggrieved party to file a revision, but this authority nowhere lays down that in revisional jurisdiction the correctness, propriety or legality of the order passed by the tribunal below is t not to be considered by the revisional authority and every time it invokes revisional jurisdiction it is necessarily for the benefit of the claimant and not to his prejudice. The argument is repelled.

5. It was thirdly contended that the Claims Commissioner had acted illegally in so far as he had passed the impugned order without calling for the record of the case, which records were admittedly before this Court in a connected matter, and, therefore, the order stands vitiated for that reason alone. Lengthy argu ments have been addressed by the parties on this question and learned counsel for the petitioner vehemently contends that a quasi‑judicial authority, as the Claims Commissioner is, must conform to steps prescribed in the Act and the Rules framed thereunder, and if lie departs from the procedure laid down, his order is infirm on the legal plane. For this proposition he pieced before us a decision reported as Malik Fateh Muhammad Khan Tiwana v. Rehabilitation Authority (P L D 1956 Cust, (Pb.) 31). In that case the learned Custodian while accepting the revision petition on other grounds also considered the objection that because the record of the case bad not been sent for by the Rehabilitation Commissioner, the order should not be considered to have been passed in the exercise of his revisional jurisdiction under section 13(4) of the Pakistan Rehabilitation Ordinance (XIX of 1948) and observed asunder :‑-- "When a thing is required by law to be done by a certain person it must be proved to have been done by him. The record in this case has not been proved to have been sent for by the Rehabilitation Commissioner and the order complained of does not appear to have been passed by him under section 13(4), Rehabilitation Ordinance." Under subsection (3) of section 7 of the Act, the Claims Commis sioner has been vested with suo motu powers for calling for the record of a case decided by the lower authorities but phrase `call for the record' does not mean calling for the record physically before deciding the case. The language has been used in various statutes wherein sections for revision have been incorporated, and the import of the words is understood as entertaining a petition for revision or admitting the same for a regular hearing by conscious application of the mind of the Revisional authority. This opinion of ours finds support from a decision of their Lordships of the Supreme Court reported in Jalal Din and others v. Sheikh Muhammad Bafiq and others (P L D 1965 S C261) wherein it has been held that calling for the record is not necessary unless and until it is established that prejudice has been caused to the party concerned. The requirement of law is merely to grant an opportunity to the person likely to be affected by the revisional order before such an order is made revising or modifying the order under revision. If that express provision of law is complied with and the person affected has actually been heard in the presence of the record available before the revising authority, no prejudice can be said to have been caused. Furthermore, in the instant case, we find that this particular objection was never raised by the petitioner before the revisional authority. The petitioner sat on the fence all the time and when an order adverse to him has been passed, he has come to this Court to raise the objection for the first time, which objection we are not persuaded to uphold.

6. It was next contended that the Claims Commissioner had not based his finding with regard to the nature of the claim, whether it fell under Schedule I or under Schedule III, on any evidence. We have examined this aspect of the case and we find that the contention does not stand substantiated. Further, as a finding of fact is ordinarily not allowed to be assailed in writ jurisdiction, we decline to accept the contention.

7. It was also contended that the Claims Commissioner had no authority to verify the petitioner's claim under a Schedule different from the one indicated in the claim form filed by the petitioner and all that the Claims Organisation could do was .ether to reject the claim or to ask the party to amend the claim. We leave heard learned counsel with patience on this point and was do not feel convinced by the argument. There is no obligation placed on the Claims Organization to pass a claim as preferred by the claimant himself. The particulars of various types of properties verifiable under the Act are mentioned in subsection (2) of section 2 pertaining to definitions and rules framed under section 18 of the Act to carry out the purposes of the Act. The claimants were asked to submit their claims In duplicate in the forms prescribed and if the Claims Officers found a particular unit of claim not falling under a particular Schedule as mentioned by the claimant himself, it was not obligatory on their part to necessarily either accept the claim as filed or reject it. though finder sub‑rule (2) of rule 5, when the Registering Officer found ;hat the claim had not been submitted in the proper form or manner, he had the power to return it to the applicant for complying with such instructions and within such period as the Registering Officer might by order specify and the returned for an was to be presented again for registration, it does not lend support to the view that because the claimants in this particular case had not been asked by the Claims Commissioner to take their claim forms back, make necessary modification and prefer their claims under Schedule I and not under Schedule III, the impugned order is defective in any manner. The power has been exercised within the four corners of subsection (3) of section 7 and no exception can be taken on this score.

8. Learned counsel made a half‑hearted attempt to question the legality of the impugned order on the ground that the order had been passed behind the back of certain parties, namely, the said Qaisar‑ud‑Din Khan and Rahim Bakhsh, without hearing them as required by the proviso to subsection (3) of section 7 but when it was pointed out to him that because both of them have not approached this Court, they are to be presumed to have felt satisfied with the order and the petitioner could not take advantage of that alleged irregularity, he did not further press the argument. It was also contended that arguments in the case had been heard on the 25th of August 1960, whereas the judgment in the case was pronounced on the 24th of November 1960 and this delay vitiated the judgment. We have not been impressed by this argument as it has not been shown that the Claims Commissioner has in any manner not based his findings on evidence available before him. Mere delay in pronouncement of judgment, which may be due to multiple reasons, is no ground to detract from the correctness or legality of a particular order.

9. It was lastly contended that no period for revision having been prescribed by the statute itself the jurisdiction was not invok able and the amendment brought in by the Displaced Persons Laws Amendment Ordinance (XIII of 1964) substituting the words "within the prescribed period" by the words "at any time before the thirty‑first day of March 1965" shall not validate the impugned order. The argument is a bit confused. The conten tion appears to be that because originally there was no period prescribed and it was by virtue of rule 6(2‑A) of the Rules framed under the Act that a Claims Commissioner could call for the record of any case within ninety days from the date of promulga tion of this rule or from the date the case was decided by the lower authority whichever be later, and the Claims Commis sioner could also call for the record of any case after the said period of ninety days if he deemed fit, the amendment empowering the Claims Commissioner to call for the record at any time before the 31st of March 1965 is Invalid. Learned counsel has lost sight of section 3 of the Amending Ordinance XIII of 1964, which is a validation clause couched in the widest possible terms. The order in question has been passed on the 24th of November 1960 and admittedly the same having been made before the 31st of March 1965, stood validated by the aforesaid validating section. Further, the order has been passed by the Claims Commissioner without any objection as to limitation by the petitioner, whose co‑sharers had themselves invoked the revisional jurisdiction and as such he cannot raise this objection in writ jurisdiction. Learned counsel argued that as the Amending Ordinance XIII of 1964 bad been promulgated on the 28th of December 1964 and was approved of by the National Assembly on the 23rd of July 1965, in violation of the relevant provisions of the Constitution, it is an invalid law. He has taken the afore said dates from a judgment reported as Muhammad Sharif and others v. Muhammad Saeed‑uz‑Zaman and another (P L D 1968 Lah. 122). This Court is chary of entering into this factual controversy for which there is no material on the record of the case and, therefore, we repel the contention.

10. Coming to the main argument that the property was as 4 matter of fact a cinema house or an industrial undertaking or a cinema building, Major Ishaque Muhammad Khan, the Depart mental Representative, argues that it was primarily a finding of fact and could not be challenged in writ jurisdiction. For this purpose he placed before us a decision of this Court reported as M. A. Hafeez v. Claims Commissioner, Pakistan, Lahore and others (P L D 1962 Lah. 433) wherein a similar question was raised and refused to be gone into by this Court. He next contended that a cinema house was an industrial concern comprising building and machinery and as in the instant case the property was admittedly an incomplete cinema building, no finding contrary to the conclusions of fact arrived at by the Claims Commissioner could be given by this Court. He argued that under section 2(2) of the Act, various categories of verifiable properties have been given. Clause (a) deals with immovable property of all kinds situate in urban areas, while clause (b) talks of industrial concerns and sites thereof outside the limits referred to in clause (a) above; clause (c) pertains to lands outside the limits referred to in clause (a) above and occupied or let for agricultural purposes or for purposes subservient to agriculture or for pasture; clause (d) refers to substantial hooves, shops and godowns outside the limits referred to in clause (a) provided the value in each case is not less than Rs. 10,000.00; and clause (c) is an omnibus clause with regard to any other property which may be declared to be property for the purposes of the Act by the Central Government. According to him `claim' was to mean an assertion of a right to the ownership of, or to any interest In property which has been treated as evacuee property or of which a displaced person has otherwise been deprived under any law for the time being in force in India or in any area occupied by India, but it was to exclude the assertion of any right or interest in any land as defined in sub clause (c) of clause (2) and situated within East Punjab, Himachal Pradesh and Delhi, the Patiala and East Punjab States Union, and the States of Alwar, Bharatpur and Bikaner. Put differently, he maintains, urban immovable property, whether houses or shops or building sites other than industrial undertakings, were classified as units of property under Schedule I of the form prescribed for the purpose while properties in rural areas covered by cases falling under sub‑clause (d) of section 2 (2), namely, substantial houses, shops and godowns of value not less than Rs. 10,000.00, situated in rural areas were placed in Schedule II, and the industrial concerns whether in urban areas or in rural areas both falling under sub‑clauses (a) and (b) of subsection (2) of section 2 were to be verified under Schedule III ; agricultural land and gardens in urban areas were to be verified under Schedule IV, and Schedule V was prescribed for agricultural property in areas other than Punjab, Delhi, etc., i.e., agreed areas. He contends that the nomenclature of these Schedules clearly shows that if a particular claim was with regard to property in an urban area and the verifying authorities came to the conclusion that it was not an industrial concern as claimed, it was necessarily to be verified under Schedule I and not Schedule III. The Departmental Representative has also referred us to the dictionary meaning of the words `industry' and `trade'. He has argued that an industrial undertaking and an industrial concern is not the same thing as an industrial building. He says that in the instant case the building was admittedly not, even though complete, a business established.

11. We find that the arguments of the Departmental Representative have force in view of the fact that in Schedule I, there is no mention of machinery, etc. and a going industrial concern has to be something more than a mere building. It has of necessity to contain some machinery or equipment, etc. for purposes of manufacture and the proper Schedule for the purpose is Schedule III, which contains a column for verification of E machinery installed therein. If a particular property claimed to be an industrial concern or a cinema house although intrinsically constructed as an industrial building or a cinema house has no machinery or equipment installed therein, it is not necessarily verifiable under Schedule III. There is no gainsaying the fact that although the property in question was being claimed as a cinema house, both by the mortgagors‑lessors and mortgagees‑lessees, it was incomplete and the finding of the Claims Commissioner in R this regard that it is verifiable as a cinema building and not as an industrial concern under Schedule III is not defective, nor does it lack in lawful authority.

12. Before parting with this case, it may be added that it is only the petitioner S. K. Lodhi, who has come to this Court and not his co‑claimants, who are arrayed as respondents in this case. Although they support the contentions of the petitioner, yet even if we were to accept the petition, no relief could be given to them. This fact alone shows that except for the petitioner, all others are satisfied with the verification of their claims under Schedule I.

13. For the reasons given above, we hold that the impugned order suffers from no error and no case has been made out for issuance of a writ under the Laws (Continuance in Force) Order, 1958, which piece of legislation governs this case. The writ petition fails and is dismissed. However, the parties are left to bear their own costs. A.E. Petition dismissed.