MAHMOOD SHARIF Versus CLAIMS COMMISSIONER, LAHORE

ANWARUL HAQ, C. J.‑ This appeal under Clause 10 of the Letters Patent has arisen out of an order made by a learned Single Judge of this Court on the 22nd of October 1969, whereby he has dismissed a petition moved by the present appellants Mirza Mahmood Sharif and four others, under Article 98 of the Constitution, to challenge the correctness and legality of an order made by the learned Claims Commissioner, on the 31st of October 1966. By this order the learned Claims Commissioner had refused to entertain a review petition filed by the appellants on the ground that the power of review had been taken away with effect from the 31st of March 1965, by an amendment in subsection (3‑A) of section 7 of the Registration of Claims (Displaced Persons) Act III of 1956 (hereinafter referred to as the Act).

2. The facts averred by the appellants regarding the verifica tion of their claim under Schedules 1 and 3 are elaborately set out in the judgment under appeal, and they need not, therefore, be repeated by us, suffice it to say that the last order in the field was the revisional order made by the learned Claims Commissioner on 10‑1‑1961. On the 1st of March 1961, the appellants filed a review petition in which unfortunately no action was taken by the learned Claims Commissioner until the 30th of May 1963, on which date notice was issued. The matter again remained pending, having been tossed from one Court to another, and ultimately came up for disposal before Chowdhury Ali Ahmad, acting as Claims Commissioner, on the 31st of October 1966. As already stated, this officer rejected the review petition on the ground that the power of review was no longer available after the 31st of March 1965.

3. It was, inter alia, contended before the learned Judge in Chambers that the amended subsection (3‑A) of section 7 of the Act should be liberally construed so as to save pending review petitions, but the learned Judge felt unable to accept this contention in view of the fact that the amendment had been expressly given retrospective effect. The learned Judge compared the language of subsections (3) and (3‑A) in reaching this conclusion. The other points urged before the learned Judge in Chambers have not been raised before us in the present appeal.

4. In order to appreciate the true legal position in the matter of powers of review enjoyed by the learned Claims Commissioner, it would be profitable to make a brief mention of the history of legislation in this behalf. In the original Act III of 1956 subsection (4) of section 7 provided that :‑

"The Claims Commissioner or the Additional or the Deputy Claims Commissioner may, within the prescribed period and after giving notice to the parties concerned, review his own order under this section."

In accordance with rule 6 (2) of the Registration of Claims (Displaced Persons) Rules, thirty days period was prescribed for presenting review petitions, and suo motu review could be carried out within ninety days. By Ordinance LXXX of 1962 the subsection in question was amended to empower the officers concerned to review an order made by their predecessor‑in‑office.

5. On the 20th of February 1963, the Central Government introduced an amendment in rule 6 by a notification, giving it retrospective effect, and empowered the Claims Commissioner to review his own order or that of his predecessor‑in‑office even after the expiry of ninety days. It was stated at the bar that this amendment was introduced for a specific purpose, namely, to permit scrutiny of certain inflated claims at any time the matter was brought to the notice of the Claims Commissioner. However, the retrospective effect of this notification was struck down by their Lordships of the Supreme Court in the case of Sheikh Fazal Ahmad (P L D 1964 S C 293). As a result the original rule 6 laying down the periods of limitation for review on the application of the parry or sue motu by the Claims Commissioner remained intact.

6. Then came Ordinance XIII of 1964 by which subsec tion (3) of section 7 relating to the revisional power of the Claims Commissioner was amended, a new subsection (3‑A) was added, and the words 'Claims Commissioner' were omitted from subsec tion (4). As a result of these amendments, subsections (3) and (3‑A) of section 7 of the Act stood as follows

"(3) A Claims Commissioner may suo motu call, at any time before the thirty‑first March 1965, 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 effecting any person without giving such person an opportunity of being heard.

(3‑A) The Claims Commissioner, may, at any time before the thirty‑first day of March 1965, after giving notice to the parties concerned, review any order passed under subsection (3)."

7. It will be seen that the language employed in the two sub sections is somewhat different inasmuch as subsection (3) permits a Claims Commissioner to suo motu call for the record of any case at any time before the thirty‑first of March 1965, whereas sub section (3‑A) states that the Claims Commissioner may at any time before the 31st of March 1965, review any order passed under subsection (3). At first glance, therefore, it would appear that the intention underlying the two subsections is different, namely, that in the matter of revision the limiting date is for the purpose of calling for the record, and once the record had been called before the prescribed date, the pending revision petition could be disposed of even subsequently, whereas in the matter of review no such provision is made, and it is only prescribed that the power of review may be exercised up to the 31st of March 1965. The question is whether this apparent difference in the language employed in the two subsections is indeed substantial and in fact intended to lead to different results.

8. The amending Ordinance was promulgated on the 28th of December 1964, and the limiting date prescribed in subsec tion (3‑A) as well as in subsection k3) was the 31st of March 1965. Thus the learned Claims Commissioner was allowed only a period of a little over three months to dispose of all pending review petitions as well as any new petitions which may be instituted before the limiting date. The intention obviously appears to be to finalise all pending cases as expeditiously as possible by prescribing an outside limit beyond which the power of review would not be available to the Claims Commissioner. If a strict interpretation is adopted, then all petitions which remained undisposed of on the 31st of March 1965, would automatically become incompetent as the Claims Commissioner could not exercise the power of review beyond that date. In other words, it would be possible for a Claims Commissioner to defeat all pending review petitions by merely refusing to decide them before the 31st of March 1965, a result which could not, in all conscience, be contemplated or tolerated by the law‑maker.

9. It is well settled that :‑

"Where the main object and intention of a statute are clear, It must not be reduced to a nullity by the draftsman's unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used." (Maxwell, 11 th Edition, page 221). Even though, as a general rule, a Court of law is not authorized to supply a cassus omissus or to alter the language of a statute for the purpose of supplying a meaning, yet in certain circumstances it is permissible for the Courts to give effect to the true and patent intention of the law maker to supply the omission in order to avoid doing a manifest injustice."

(See Muhammad Ismail v. State (PLD 1969 SC 241)). Again, as observed in Abdul Mutaleb v. Razia Bugum (PLD 1970 SC 185) it is the duty of the Court to put such construction on statutory provisions as it appears to it to be most in accord with reason, justice and fairness and to avoid such construction as may cause hardship and injustice. It seems to us that the subsection in question must, in these circumstances, and in view of the clear intention of the law‑giver, be interpreted to mean that it was directory in nature and not mandatory in the sense that the Claims Commissioner could not dispose of pending petitions which he could not finalise by or before the prescribed date.

10. Another way of looking at the matter is that for all practical purposes the relevant provision of law conferring power of review on the Claims Commissioner would stand repealed with effect from the 31st of March 1965, and that such repeal should be read into the relevant subsection right from the enforcement of the original provision for the reason that the amendment was given retrospective effect by the Ordinance itself. Now, the appellants had filed their review petition on 1‑3‑1961. and it would be deemed that even on that date the law was that the poser could be exercised only up to the 31st of March 1965. The review petition being a pending proceeding could, therefore, be decided by or before the prescribed date, or continued in terms of section 6 of the General Clauses Act, 1897, for the reason that there is no indication to the contrary in the amending Ordinance. We have not been able to discover any provision in Ordinance Ill of 1964 laying down that pending proceedings must automatically lapse after the 31st of March 1965. There is, therefore, no compelling reason not to apply the general provisions contained in section 6 just mentioned.

11. The view that pending proceedings could be continued in such circumstances finds support from the dictum in The Queen v. The Justices of the County of London and the London County Council ((1893) 2 QBD 476). By the valuation in Metropolis Act, 1869, a time limit had been fixed for hearing appeals in matters of local assessment. The appeal was entered in due time to be heard at the February Sessions, 1891, but owing to the pressure of business in the Court, and through no default of the parties, it was not heard before the 31st of March of that year. It was held by the Court of Appeal that the restrictions did not apply in such a case and that the Justices had an authority to hear the appeal, although the time prescribed by the Act had expired. It will be seen that the principle emerging from this Judgment is nothing other than the one embodied in section 6 of the General Clauses Act, and also the other principle that such provisions must be regarded as directory in the sense that they impose certain obligations on the public functionary but are not intended to deprive the private parties of rights which had accrued to them but could not be enforced due to default of the Court and through no fault of theirs.

12. The view that we have expressed above finds support from observations made in Abdul Rahman v. Settlement & Rehabilitation Claims Commissioner (PLD 1966 SC 362), to the effect that retrospective operation of a Statue cannot divest rights possessed fn absence of any clear provision to that effect. While dealing with the nature of evacuee legislation their Lordships were pleased to observe in Rafi‑ud‑Din v. Chief Settlement & Rehabilitation Commissioner (PLD 1971 SC252) that ‑

"Evacuee and Rehabilitation legislations are legislations of an extremely special character which are from the very nature of things to be construed not so much on considerations that would weigh with Courts of law but also on consideration of policy. They were designed for meeting an extraordinary situation of a complex and confusing nature created by the influx of a large number of refugees who had to be settled and were intended to be so adaptable as to meet the changes in the situation that developed from time to time. They could not, therefore, be construed upon strict legal principles and certainly not in such a manner as to defeat the very object for which such special legislation was designed."

We have already stated that the obvious intention of the time limit prescribed in subsection (3‑A) of section 7 of the Act was to ensure an early finalization of the work of the verification of claims, and not to defeat pending review petitions by simple in action to dispose them of before the prescribed date. It would, therefore, be in keeping with this intention and policy to interpret the subsection in such a manner as to permit the disposal of pending proceedings even after the expiry of the limiting date, in the absence of any clear provision to the contrary.

13. For the foregoing reasons we have reached the conclusion that the provisions contained in subsection (3‑A) of section 7 of the Act cannot be interpreted as meaning that the pending review petitions would automatically lapse after the 31st of March 1965. All that the subsection means is that after this date the power of review would not be available to the Claims Commissioner so as to enable hits to entertain new petitions in this behalf. The pending proceedings would continue to be governed by the law operating at the time they were instituted, and could, therefore, be disposed of in accordance with that law even after the 31st of March 1965.

14. As result, the appeal succeeds and is hereby accepted. The order of the learned Claims Commissioner dated the 31st of October 1966, is set aside, and he is directed to dispose of the appellants review petition on merits. There will be no order as to costs.

K. B. A. Appeal accepted.