HEADMASTER, MUSLIM HIGH SCHOOL No, 1, RAWALPINDI AND ANOTHER—Appellants vs Mst. ASGHARI KHANAM AND 2 OTHERS

1. ' NASIM HASAN SHAH, J.-This appeal by leave of this Court is directed against the judgment of a learned Single Judge of the Lahore High Court passed in Writ Petition No, 721-R of 1975 on 25-4- 1982.

2. ' The relevant facts are that a plot measuring I 1 acres of land was placed at the disposal of the appellant viz. The Muslim High School No, 1, Saidpur Road, Rawalpindi City for being used as a playground by the Government of the Punjab. Respondent No, 1 Mst. Asghri Khanam was transferred about 1 Kanal of land which, according to the appellant, formed a part of the playground, in view of her claim she was occupying it and that she had raised a construction on it on her BS Form, by the order of the Deputy Settlement Commissioner, Rawalpindi on 25-6-1974.

3. Feeling aggrieved by the above order dated 25-6-1974, the appellant preferred a revision petition in the Court of the Settlement Commissioner, Rawalpindi. This petition was admittedly preferred sometimes after 1-7-1974 i. e. Sometimes after the coming into operation of the Evacuee Property & Displaced Persons Laws (Repeal) Ordinance, 1974 (Ordinance XV of 1974) which was to be deemed to have taken effect from 1-7-1974. This Ordinance was repealed by the Evacuee Property and Displaced Persons (Repeal) Act, 1975 but this too, by subsection (2) of section 2 thereof provided , that "it shall come into force at once and shall be deemed to have taken effect on the first day of July, 1974".

4. ' However, even though the revision petition was instituted after 1-74974 when it came up on 10-6- 1975 before the Settlement and Rehabilitation Commissioner, Rawalpindi Division, he entertained the said revision petition and proceeded to pass an order suspending the operation of the impugned order passed by the Deputy Settlement Commissioner dated 25-6-1974.

5. ' Respondent No, 1, thereupon challenged the assumption of jurisdiction by the Settlement Commissioner, as also the order passed by him on 10-6-1975 by instituting a writ petition (W.P. No, 721-R/75) in the Lahore High Court wherein he prayed for the annulment of the said order (dated 10-6-1975). A learned Single Judge of the Lahore High Court setting at Rawalpindi, by a well- considered order, passed on 20-5-1982, accepted this writ petition and quashed the order of the Settlement Commissioner. The learned Judge held that after the coming into effect of Evacuee Property and Displaced Persons (Repeal) Act, 1975 the rights and remedies provided by the Displaced Persons (Compensation & Rehabilitation) Act, 1958, including those contained in section 20 of the said Act (providing for revisional jurisdiction) were no longer available and, therefore, the Settlement Commissioner had no jurisdiction to entertain the revision petition and to pass any order thereon.

6. ' Dealing with the contention that the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 did not expressly take away the revisional jurisdiction of the Settlement Commissioner and that the Legislature had also, not taken it away by necessary implication, he referred to subsection

(2) of section 2 of the Repealing Act, which is in the following terms:- "Repeal of certain laws. ...........

(2) Upon the repeal of the aforesaid Acts and Regulations, all pioceedings which, immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified as aforesaid."

7. ' The learned Judge in the High Court also referred to a judgment of one of us (Zaffar Hussain Mirza, J.) delivered as a Judge of the Sind High Court, wherein it was held that if any proceeding did not fall within purview of subsection (2) of section 2 of the Repealing Act the provisions of section 6 of the General Clauses Act could also not be utilised for launching any such proceedings. The following observations are pertinent, in this regard:- , "Section 2 of the repealing Act was specifically intended to deal with the subject of survival of the proceedings and the right to remedy under the repealed enactment was preserved and continued to the extent provided for therein. If, therefore, the Legislature confined such right to only pending proceeding and cases remanded by the Superior Courts, it cannot be argued that all the rights and remedies available under the repealed enactment were intended to be preserved."

8. ' The learned Judge in the High Court then went on to observe that since the Legislature had made provision in respect of the cases to be remanded by the superior Courts but had not made any similar provision with regard to the filing of revision petitions, in respect of which the period of limitation had not yet expired, it would be presumed that the Legislature was not in favour of allowing the institution of any further revision petitions. According to the learned Judge since the Legislature had not made any provision for revision petitions including those where the period of limitation had not expired, the same had been impliedly taken away. He also pointed out that the functionaries before when the revision petitions could be filed had disappeared (with the coming into force of the Evacuee Property & Displaced Persons Laws (Repeal) Act, 1975) and instead a new machinery was provided for, for dealing with the cases to be remanded by the superior Courts. In view of all these circumstances be concluded that the order of the Deputy Settlement Commissioner, which was passed on 25-6-1974, was in the context, to be treated as a final order on the departmental side and could not be challenged before any other authority in the Settlement Department. We may mention here that a similar view has been taken by this Court (see Muhammad Yunus v. Muhammad Yunus Khan (1).

9. ' As regards the other argument raised before the learned Judge in the High Court to the effect that the revision petition filed by respondent No, 1 herein may be treated as a "pending proceeding" for the purpose of subsection (2) of section 2 of the Repealing Act, the learned Judge observed that "pending proceeding means a proceeding which is being heard, tried or considered by any authority but if any proceeding is yet to be taken to the "higher authority" it cannot be called a pending proceeding". In other words it was held that since the revision petition had not been instituted before the Settlement Commissioner before repeal of the Displaced Persons (Compensation & Rehabilitation) Act of 1958 it could not, therefore, be treated as a pending proceeding, within the meaning of subsection (2) of section 2 of the Repealing Act. This view too is supported by a judgment of this Court in Mst. Jaleesa Begum v. Lqbal Ahmad Qurehi (2).

10. We have heard the learned counsel for the parties but in view of the decisions of this Court already referred to above on the questions in issue they is hardly anything which the learned counsel for the appellants could urge before us in support of this appeal. The intention of the Repealing Act of 1975 clearly was that after 1-7-1974 no fresh revision petitions could brought before the Settlement Commissioner. Apart from the many reason in support of this view, given by the learned Judge in the High Court, with which we agree, this position is evident from the circumstance that even the forum for such a revision, namely, the Settlement Commissioner, before whom the appellant instituted his revision petition, was not kept alive by the Repealing Act.

11. ' The result is that this appeal must fail and is hereby dismissed, leaving the parties to bear their own costs. {{FOOT NOTE}}

(1) 1981 SCM R 899 (2) PLD 1982 SC 396 {{FOOT NOTE}}