P L D 1961 (W (PLP)

SHABIR AHM.AD, J.‑The questions that require determination are common to this Letters Patent Appeal and Letters Patent Appeals Nos. 227 of 1960 and 228 of 1960 and, therefore, all the three appeals, which are directed against judgments of my brother Bashir Ahmad, J. will be disposed of by this order.

2. This appeal is directed against the order of my brother Bashir Ahmad in Writ Petition No. 486/R of 1960. Letters Patent Appeal No. 227 of 1960 is directed against the order of the same learned Judge in Writ Petition No. 577/R of 1960, while Letters Patent Appeal No. 228 of 1960 is directed against his order in Writ Petition No. 580/R of 1960.. In the three writ petitions mentioned above, relief had been sought against the orders of the Chief Settlement Commissioner, who had declined to exercise powers of revision vested in him by subsection (2) of section 20 of the Displaced Persons (Compensation and Rehabi litation) Act, 1958 (to be hereinafter referred to as the Act). Applications for revision in the three cases had been presented to the Chief Settlement Commissioner who had, without hearing the persons who .had applied for exercise of revisional jurisdiction or someone oft behalf of the applicants, declined to exercise powers of revision. The mode of disposal by the Chief Settle ment Commissioner of the applications for revision was, in each case the same, namely that the application was, in the first instance, considered by a Deputy Settlement Commissioner working in the office of the Chief Settlement Commissioner, West Pakistan and had been submitted to the latter officer through the Settlement Commissioner (Policy), West Pakistan who also had expressed his view regarding the application for revision. It was when the papers came to him in the manner mentioned above that the Chief Settlement Commissioner had passed the orders which were impugned in the writ petitions, the dismissal of which has led to these three appeals presented under Clause 10 of the Letters Patent of this Court.

3. The learned counsel for the appellant in each case contended that the orders purporting to have been passed by the Chief Settlement Commissioner were not valid orders in the eye of law because that officer was bound to send for the record for examining it and to give a hearing to the applicant for revision before disposing of the application which things had not been done. The main question that requires determination is whether the appellants had a right of being heard before their applications for exercise of revisional jurisdiction by the Chief Settlement Commissioner could be disposed of. Powers of revision have been given to the Chief Settlement Commissioner by section 20 of the Act. This Act was amended by means of Ordinances 1 and 53 of 1959 and one of the amendments was that sub section (I) of section 20, which conferred some powers on the Central Government, was deleted. At the relevant time, section 20 of the Act was in the following terms "(2) The Chief Settlement Commissioner at any time may, and shall on being directed by the Central Government, call for the record of any case or proceeding under this Act in which a Settlement Commissioner or an Additional Settle ment Commissioner or a Deputy Settlement Commissioner or an Assistant Settlement Commissioner has passed an order, for the purpose of satisfying himself as to that correctness, legality or propriety of such order, and may pass such order in relation thereto as he thinks fit. (3) A Settlement Commissioner specially empowered in this behalf by the Chief Settlement Commissioner may, at any time, call for the record of any case or proceeding under this Act in which an Additional Settlement Commissioner or a Deputy Settlement Commissioner or an Assistant Settlement Commissioner under his jurisdiction has passed an order, 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. (4) An Additional Settlement Commissioner specially empowered in this behalf by the Chief Settlement Commissioner may at any time call for the record of any case or proceeding under this Act in which a Deputy Settlement Commissioner or an Assistant Settlement Commissioner under his jurisdiction has passed an order, 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. (5) No order under this section shall be passed revising or modifying any order affecting any person without giving such person a reasonable opportunity of being heard." The learned Judge in Chambers has taken the view that the` sec(ion reproduced above did not confer on any person the right to put in an application for revision and, therefore, no right of being heard could be held to exist. The correctness of this view was contested by the learned counsel for the appellants, one of whom referred to clause (c) of the proviso to section 21 of the Act which is to the effect that an order against which an appeal or an application for revision has been preferred shall not be reviewed. It appears to me that the learned Judge in Chambers was right in saying that the Act did not confer on a party a right to lodge an application for revision because it does not any where say in so many words that an application for revision can be presented to the Chief Settlement Commissioner. As, however, it has not been said in the Act anywhere that no application for revision to the Chief Settlement Commissioner could be presented the matter is not concluded on account of the right to present a petition for revision not being given specifically. Subsection of section 20 of the Act is clear on the point that it is open to the Chief Settlement Commissioner to exercise powers of revision mentioned in that section, but nowhere does the Act say that that officer can exercise the powers of revision vested in him only if no one has requested him to do so. I have no doubt in my mind that the officer can exercise his powers of revision either of his own motion or when he receives any information about an order or when an application for revision is presented to him by any person, be the persons presenting the application a party to the proceedings in which the order the revision of which is sought was passed or not. It follows, therefore, that if an application for revision is presented to the Chief Settlement Commissioner, it cannot be said to be incom petent. Subsection (2) of section 20 of the Act which confers on the Chief Settlement Commissioner powers of revision, is couched in language which is not materially different to that employed with regard to powers of revision given to High Courts by section 439 of the Code of Criminal Procedure and by section 115 of the Code of Civil Procedure, but it has never been) doubted that an application can be put in to move the High Court to exercise its powers under section 439 of the Code of Crimiral Procedure or section 115 of the Code of Civil Procedure. I would, therefore, hold that an application can be made to the Chief Settlement Commissioner for exercise of hi powers under subsection (2) of section 20 of the Act.

4. Having held that an application can be made to move the Chief Settlement Commissioner to exercise the powers of revision vested in him by subsection (2) of section 20 of the Act, I proceed to consider the second question raised during argu ments, namely, whether or not it was incumbent on that officer to hear the applicant before disposing of the application. In this connection, learned counsel for the appellants, raised two contentions. The first was that the relevant provision of law made it incumbent on the Settlement Commissioner to call for the records of the proceedings regarding which an application for revision has been put in, and the second was that sub section (5) of section 20, as well as principles of natural justice require that the applicant be heard before the disposal of the application. In support of their arguments that it was incumbent on the Chief Settlement Commissioner to call for the records of the proceedings on an application for revision being put in, the learned counsel for the appellants contended that the word "may" which occurred for the first time in subsection (2) of section 20 of the Act was in the context intended to have the same meaning as the word "shall" and invoked support for this contention from the following decisions :‑ (i) The King v. Mitchell and another (1913) 1 K B 461. (ii) The King v. Marshland Smeeth and Fen Distt. Commis sioners (1920) 1 K B 155. (iii) Alcock Ashdom & Co. v. The Chief Revenue Authority _ Bombay A I R 1923 P C 138. (iv) Government of Burma v. The Muncipal Corporation of Rangoon A I R 1930 Rang. 297 (F 8). (v) Mahabir Singh v. The Emperor A I R 1944 Cal. 17. (vi) The Chief Controlling Revenue Authority Bombay v. Maharashtra Sugar Mills A 1 R 1948 Bom.

254. It appears to me that in the first place the decisions relied upon by the learned counsel for the appellants do not say what the learned counsel contended that they did, namely that when the word "may" is employed in connection with exercise of powers it is to be deemed to be mandatory and in the second place that they are entirely irrelevant for the determination of the question that arises in the present appeals, namely the inter pretation of subsection (2) of section 20 of the Act which section has been reproduced in the last paragraph. It will be noticed that while with regard to the calling by the Chief Settlement Commissioner of the records of the proceedings of a case without his being moved by the Central Government in that behalf, the Legislature has employed the word "may", it has thought fit to use the word "shall" when exercise or power of revision arises on a reference made by the Central Government. It may be that in certain contexts the word "may" may mean the same thing as the word "shall". But this cannot be said with regard to subsection (2) of section 20 of the Act because if the Legislature had intended that the Chief Settlement Commissioner was bound to call for the records when an application for exercise of that power had been made, it could have easily made that clear as it had done with regard to cases in which the Central Government makes a reference that powers of revision should be exercised. Moreover, if the contention of the learned counsel for the appellants were to be accepted, the result would be that the Chief Settlement Commissioner will have to call for the records of each and every case decided by an officer subordinate to him and this is an interpretation to which even the learned counsel for the appellants admitted that subsection (2) of section 20 of the Act was not open. I would, therefore hold that it is not incumbent on the Chief Settlement Commissioner to call for the records of a case if an application for exercise of powers of revision by him is made.

5. I now pass on to the consideration of the question whether or not the Chief Settlement Commissioner was bound to hear an applicant for revision or someone authorised by the applicant before disposing of the application. As mentioned already, learned counsel for the appellants contended that subsection (5) of section 20 of the Act made it incumbent on the Chief Settlement Commissioner to give a hearing, to the person who had moved an application for exercise of powers of revision. The contention was that when an application for revision is dismissed at the preliminary hearing, the order affects the person who had made the application and, therefore, subsection (5) of section 20 of the Act does not permit the dismissal of the application without the person who made the application being given a reasonable opportunity of being heard. This contention of the learned counsel for the appellants cannot be accepted because I am clear in my mind that subsection (5) of section 20 of the Act comes into play only where, in the exercise of powers of revision, the Chief Settlement Commissioner alters the order of an inferior authority. The argument of the learned counsel for the appellants was that if the dismissal of an application for revision without hearing the applicant were contemplated by subsection (5) of section 20 of the Act, it would not has been necessary to say that no order should be person revising or modifying an order to the prejudice of any person without such person being afforded a reasonable opportunity of being heard, as the word "modifying" alone would have served the purpose. If an order is not altered at all, nobody can say that it has been revised or modified. When providing for an opportunity to be heard before an order is revised or modified, the Legislature meant that if the order was to be altered wholly or partially, the subsection will come into play. If an order, is reversed it could be said to have been revised, but if it were altered in some respect only it would have been modified. If it is for this reason that the two expressions on which the learned counsel for the appellants relied were used in subsection (5) of section 20 of the Act. I have no hesitation in holding that if the application for revision were to be dismissed, subsection (5) of section 20 will not come into operation, even though the appli cation had been dismissed after hearing the applicant.

6. The argument that omission to give opportunity to a person who presents an application for revision offends against the principle of natural justice that no person shall be condemned unheard may now be taken up. It does not appear to in necessary in this case to examine the correctness of the repeated argument that it is one of the principles of natural justice that a person should be heard before being condemned because it is clear that if the person who applied for exercise of revisional jurisdiction by the Chief Settlement Commissioner had been condemned, his condemnation had already taken place, and all that had been prayed for in the application, for revision was that that condemnation should be set aside. It was, therefore, not a case of ,condemning a person without hearing him but a case of not being prepared to set aside his condemnation, and the principle of natural justice relied upon by the learned counsel for the appellants, even if it were applicable to proceedings in Court, cannot be invoked in the circumstances.

7. I will now deal with a point which was raised by Dr. Nasim Hassan Shah, the counsel for the appellant in Letters Patent Appeal No. 217 of 1960. He contended that the order of dismissal of the application for revision put in by his client had been passed by the Settlement Commissioner (Policy) and not the Chief Settlement Commissioner, and in this connection he relied on Annexure C to the writ petition from which it would appear that the order was passed on the 7th of July 1960 by the Settlement Commissioner (Policy) and not by the Chief Settlement Commissioner. It is established on the record by Annexure D to the writ petition that the order of the Settlement Commissioner (Policy) dated the 7th of July 1960 was withdrawn and the Chief Settlement Commissioner passed the order of dismissal of the application for revision on the 22nd of August 1960. Objection was also taken by Dr. Nasim Hassan Shah to the Chief Settlement Commissioner consulting a Deputy Settlement Commissioner and the Settlement Commissioner (Policy) when considering whether or not powers of revision should be exercised. Section 32‑A of the Act empowers the Chief Settlement Commis sioner to transfer a case before him to another officer for report. There is, therefore, considerable force in the contention of Mr. Parvez Akhtar, Advocate, learned counsel for Abdullah, res pondent No. 2 in Letters Patent Appeal No. 217 of 1960, that the fact that the Chief Settlement Commissioner acted on a report of a Deputy Settlement Commissioner and the Settlement Commis sioner (Policy) cannot invalidate his order, nor can the fact that instructions to prepare reports regarding revision petitions were not issued in the particular case but were of a general character applicable to all cases invalidate the instructions or the orders passed on the application for revision.

8. In view of what I have said above, I find no force in any of the three Letters Patent Appeals, and would dismiss all of them but as a point of law was involved, 1 would leave the parties to bear their own costs of the appeals. S. A. MAHMOOD, J.‑I agree. A. H. Appeals dismissed.