Sardar Muhammad Sadiq Khan, J.--The captioned appeal with the leave of the Court has been addressed against the judgment of the High Court dated 10.10.2009 whereby the writ petition filed by the appellants herein has been dismissed.
2, The summary of facts, necessary for disposal of the appeal is that the land bearing Survey No, 1620-min, measuring 10 kanals, situated in village Har-do-Uchhi, Islamgarh, Tehsil and District Mirpur was allotted to Sain (the father of the appellants), on 4.8.1951. Initially, the land was in possession of Sain Khan but after his death, it was occupied by his legal heirs, the appellants herein. It is averred that the Rehabilitation Authorities allotted this land to Respondents No, 1 to 3 on 29.9.1977 without cancellation of the allotment made in the name of appellant's father. It is further averred that the allotment was made in favour of Respondents No, 1 to 3 as local destitute, without hearing the appellants. In December 1985, when the appellants came to know about the allotment made in the name of respondents by Assistant Rehabilitation Commissioner, they challenged the same before the Deputy Rehabilitation Commissioner Mirpur who remanded the case to Assistant Rehabilitation Commissioner. The order of Deputy Rehabilitation Commissioner dated 28.2.1991 was challenged and after a protracted litigation up to the Custodian, the case was ultimately remanded to the Assistant Rehabilitation Commissioner. The Assistant Rehabilitation Commissioner took up the case and after necessary proceedings, vide order dated 8.2.2000, observed that the declaration of the private respondents as local destitute is not attached with the file. It is further observed that neither the allotment of respondents is entered in the register concerned nor the stamp of Assistant Rehabilitation Commissioner is affixed on the allotment chit.
It was further observed that in the year 1951-52, Rehabilitation Act, was not in force, therefore, the land allotted shall be deemed on lease. The requirements for declaring any body as local destitute have been enumerated by the Assistant Rehabilitation Commissioner. He declared that the respondents are not fulfilling the criteria laid down in the Rehabilitation Act, for allotment of land being local destitute. On appeal, the Deputy Rehabilitation Commissioner Mirpur, vide order dated 27.6.2000, reversed the findings recorded by the Assistant Rehabilitation Commissioner and observed that as per-record, the allotment in the name of Sain, the father of appellants was made without preparing "Tatima". The spot of the land in dispute could not be find out and the appellants could not obtain possession of the allotted land. The land allotted to the appellants was not entered in the revenue record. The Deputy Rehabilitation Commissioner further observed that neither the Assistant Rehabilitation Commissioner was competent to cancel allotment of respondents nor he was empowered for allotment of land. It was observed that in the settlement of 1959-60 and 1991-92, the land allotted to the appellants should have been entered as such in the revenue record but the same was not entered which shows that actually the allotment was not made in favour of the appellants. He opined that on 29.9.1977, the land in dispute according to record was still to be allotted and the same was rightly allotted to the respondents. The appellants challenged the order of Deputy Rehabilitation Commissioner, before the Commissioner Rehabilitation Mirpur, who maintained the observations of the Deputy Rehabilitation Commissioner vide order dated 20.2.2003 and observed that the appellants failed to enter their allotment in the revenue record. He declared that the Assistant Rehabilitation Commissioner, was not competent to cancel the allotment, he can only probe into matter of allotment according to record and submit recommendations. The private respondent's being in United Kingdom is not a valid reason to challenge their declaration as local destitute. The appellants filed a review petition against the judgment of Rehabilitation Commissioner dated 20.2.2003. The Rehabilitation Commissioner dismissed the review petition vide order dated 24.5.2003 on two different grounds. Firstly, that the counsel for the appellants have failed to bring on record any proof in support of their plea.
Secondly, that the appellants had a forum for redressal of their grievance, they should approach the proper forum. The appellants filed a revision petition against the judgment of the Rehabilitation Commissioner dated 24.5.2003 before the Custodian of Evacuee Property. The order of Rehabilitation Commissioner dated 20.2.2003 was also challenged through the same revision petition. The Custodian of Evacuee Property dismissed the revision petition against the order of Rehabilitation Commissioner vide judgment dated 7.3.2005 on the ground that the only order of Rehabilitation Commissioner can be assailed before the Custodian of Evacuee Property through which any allotment has been made, cancelled or confirmed whereas the order dated 24.5.2003 does not fulfil the requirement of this statutory provision, hence, the revision petition to this extent is not maintainable. The Custodian further observed that the order dated 20.2.2003 passed by the Rehabilitation Commissioner has also been challenged through the same revision petition after 8 months and 23 days which is barred by time limitation. According to Rehabilitation Act, limitation for filing revision against the order of Rehabilitation Commissioner is provided as 15 days, therefore, the revision petition to this extent is barred by time limitation. Review petition was filed by the appellants before the Custodian of Evacuee Property on 2.4.2005, against the judgment dated 7.3.2005. The Custodian of Evacuee Property dismissed the same vide judgment dated 22.2.2006 stating therein that no fresh ground has been raised, therefore, the same is not maintainable. The appellants, feeling aggrieved from the judgment of the Custodian dated 2.2.2006, filed a writ petition in the High Court on 5.7.2006 which was also dismissed on the following grounds:--
(i) That under Order 484/59 dated 21.9.1959, and according to Section 12(1) of the Rehabilitation Act, 1956, revision petition can be filed against the judgment of Commissioner Rehabilitation before the Custodian of Evacuee Property against an order through which the Rehabilitation Commissioner has allotted the Evacuee Property, cancelled or confirmed the allotment of same.
(ii) That the limitation provided for revision petition against the judgment of Rehabilitation Commissioner is provided under Rule 10(2) of the Rehabilitation Rules, 1951, wherein 15 days limitation has been provided whereas the revision petition was filed before the Custodian after elapse of 3 months and 23 days.
The appellants have challenged the judgment of the High Court as well as Custodian through the instant appeal.
3. Initially, the case was taken up for final arguments on 27.2.2012 by the other bench of this Court consisting of two learned Judges, and after hearing the arguments the judgment was kept reserved. On 2.3.2012 the learned Members of the bench presented the file before Hon'ble Chief Justice for constitution of larger bench on the ground that interpretation of Government notification under Section 12 of the Pakistan Rehabilitation Act, 1956 and the question of limitation for filing revision petition before the Rehabilitation Commissioner requires an authoritative view of the Court, hence, the instant bench was constituted and arguments are heard.
4. Raja Hassan Akhter Advocate, the learned counsel for the appellants attacked the judgment of the High Court on numerous grounds. He submitted that the judgment of the High Court and the Rehabilitation Authorities, except that of Assistant Rehabilitation Commissioner, are against law. He further argued that it is established from the record that the first allotment was made in the name of the father of the appellants in the year 1951. He continued the possession and on his death, his legal heirs (appellants), continued as such. The subsequent allotment made in the name of respondents without cancellation of first allotment, is void ab-initio. He further contended that the subsequent allotment in the name of respondents has been made without hearing the appellants which is against the principles of natural justice. All the Courts below, except the Assistant Rehabilitation Commissioner, failed to consider this aspect of the matter while recording its findings. He argued that the Assistant Rehabilitation Commissioner Mirpur has rightly declared that the respondents are not local destitute and they have other sources of income but the Deputy Rehabilitation Commissioner as well as Custodian of Evacuee Property illegally reversed the findings of Assistant Rehabilitation Commissioner. The learned counsel contended with vehemence that under the provisions of the Rehabilitation Act, review petition can be filed against the order of Rehabilitation Commissioner. The learned counsel zealously contended that under Section 23 of the Rehabilitation Act, 1956, the limitation for filing revision petition before the Custodian is governed by the Rehabilitation Rules of 1953 which is 45 days and the revision petition against the order of Rehabilitation Commissioner dated 24.5.2003 has been filed within 45 days, therefore, the same was within time but the learned Judge in the High Court as well as the Custodian, illegally held that the revision petition was time barred. He further argued that the review petition was filed before the Rehabilitation Commissioner with bonafide intention and it is settled law that whenever there is a bonafide mistake and any body knocks at the door of such wrong forum instead of competent forum, the delay is always to be condoned but the learned Custodian dismissed the revision petition and review petition without any justification. The learned counsel pressed into service the submission that the appellants are admittedly refugees of, 1947 whereas the Respondents No, 1 & 2 are not local destitute, therefore, the Assistant Rehabilitation Commissioner Mirpur has rightly recorded the findings on this point but the other Rehabilitation Authorities as well as Custodian and the High Court, wrongly arrived at a different conclusion. The learned counsel further contended that the review petition was filed before the Rehabilitation Commissioner against the order through which the cancellation of allotment was challenged therefore, the requirement of the Government Order No, 484/59 has been fulfilled. He lastly submitted that the impugned judgment dated 10.10.2009 and the order of the Rehabilitation Authorities, except the order of Assistant Rehabilitation Commissioner Mirpur dated 8.2.2000 be set-aside and the allotment of the appellants be restored in their names.
5. Conversely, M. Ashraf Chaudhry Advocate, the learned counsel for the respondents, defended the impugned judgment of the High Court as well as the Custodian and opposed the order of the Assistant Rehabilitation Commissioner Mirpur on different grounds. He submitted that the land comprising survey number 2126/1 was allotted to the appellants in the village Har-do-Uchhi on the basis of possession. The father of appellants was allotted different survey number which has no concern with the respondent's allotment. He further submitted that the appellant's allotment permit is not entered in the revenue record up till now. He further contended that the High Court has rightly dismissed the writ petition. He further contended that the revision petition before the Custodian was filed by the appellants after elapse of 3 months and 23 days which was hopelessly time barred moreover, the Custodian declared the same as incompetent. He finally submitted that all the Rehabilitation Authorities, except Assistant Rehabilitation Commissioner have rightly recorded their findings. The High Court and the Custodian as well have also rightly maintained the judgment of Deputy Rehabilitation Commissioner which need no interference by this Court.
6. We have heard the learned counsel for the parties and have also gone through the record made available. It transpires from the record that the land in dispute was firstly allotted to the father of the appellants on 4.8.1951 being refugee of 1947. On 29.9.1977, the same piece of land was allotted to the respondents on the basis of being a local destitute. When the appellants got knowledge of allotment in the name of the respondents, they approached the Deputy Rehabilitation Commissioner who remanded the case to the Assistant Rehabilitation Commissioner with the direction to issue orders in the light of record after spot inspection in presence of the parties. The Assistant Rehabilitation took up the case and after necessary proceedings observed that the private respondents are not entitled to allotment and the allotment in their name is without lawful authority. On appeal the Deputy Rehabilitation Commissioner, reversed the findings of Assistant Rehabilitation Commissioner and declared the private-respondents entitled to allotment on different grounds. The judgment of the Deputy Rehabilitation Commissioner was upheld by the Commissioner Rehabilitation Mirpur. The controversy took another move when the order of Rehabilitation Commissioner dated 20.2.2003 was challenged by the appellants through a review petition. The review petition was dismissed by the Rehabilitation Commissioner through the order dated 24.5.2003 and on a revision petition, the. Custodian also upheld the order passed by the Rehabilitation Commissioner on 7.3.2005. The writ petition filed by the appellants has also been dismissed by the High Court through the impugned judgment.
7. It may be mentioned here that the Rehabilitation Commissioner dismissed the review petition filed by the appellants vide order dated 24.5.2003 on two different grounds. Firstly, that no documentary evidence has been brought on record in support of the A claim of appellants and secondly, that even otherwise, the appellants have the forum for redressal of their grievance, therefore, there is no justification to review. The relevant portion of the order dated 24.5.2003 is reproduced below:-- {{URUD TEXT}} It appears from the ingredients of the above mentioned order that the same has been passed firstly on merits and secondly on the ground that there is no justification for filing review in the presence of alternate remedy at a proper forum. The appellants filed a revision petition before the Custodian against the order of Rehabilitation Commissioner dated 24.5.2003 through which they also challenged the order dated 20.2.2003. The Custodian of Evacuee Property observed that firstly, only that order of Rehabilitation Commissioner can be challenged before the Custodian of Evacuee Property through which an order of allotment, cancellation or confirmation of the same has been made, whereas in the order dated 24.5.2003, no such pre-requisite been passed and the review petition has been dismissed by the Rehabilitation Commissioner on the ground that forum for proper remedy is available to the appellants. On the other hand, the Custodian observed that the order dated 20.2.2003 recorded by Rehabilitation Commissioner has been challenged after 3 months and 23 days. It is further observed that under the Rehabilitation Act, the appellants should have challenged the order of Rehabilitation Commissioner dated 20.2.2003 within 15 days the prescribed period of limitation. It is specifically mentioned in the order dated 7.3.2005 recorded by the Custodian that the revision petition is dismissed on technical ground.
8. The controversy in hand in our view has called in question the following points to be looked into by this Court resolution of which is necessary to advance the remedy and to suppress the mischief: --
1. Whether the limitation for filing appeal/review or revision against the orders of Rehabilitation Authorities is provided as 15 days according to Rehabilitation Act 1956 or it is 45 days.
2. Whether the review petition lies against an order of the Rehabilitation Commissioner or not.
3. Whether any such order like the order passed by the Rehabilitation Commissioner dated 24.5.2003 could be challenged before the Custodian through revision petition or not, if not then what is remedy.
4. Whether the order of Rehabilitation Commissioner dated 24.5.2003 has been passed on technical ground. If not, then what will be the fate of the judgments of the Custodian of Evacuee Property and the High Court."
9.The first question which needs deliberation in our view is that whether the revision petition filed ,by the appellants against the order of the 'Rehabilitation Commissioner dated 20.2.2003 before the learned Custodian, was time barred. Section 11 (I) of the Act, 1956 deals with the appeal, revision and review against the order of Rehabilitation Commissioner which is reproduced below:--
11. Appeal, revision and review.--(1) Any person aggrieved by any order under this Act, may prefer an appeal--
(a) to the Deputy Rehabilitation Commissioner, where the order has been passed by an Assistant Rehabilitation Commissioner;
(b) to the Rehabilitation Commissioner, where the order, not being an order passed in appeal under clause (a) has been passed by a Deputy Rehabilitation Commissioner or Additional Rehabilitation Commissioner.
(2) The appeal shall be presented in such manner and within such time as may be prescribed.
(3) The Rehabilitation Commissioner, to whom an appeal is preferred under clause (b) of sub- section (1); may dispose of it himself, or make it over for disposal to an Additional Rehabilitation Commissioner.
(4) (4) The Rehabilitation Commissioner may, at any time, either of his own motion or on perusal of an application made to him in this behalf, call for the record of any proceeding relating to any of the purposes of this Act, which is before, or has been disposed of by an Additional Deputy or Assistant Rehabilitation Commissioner, for the purpose of satisfying himself as to the legality or propriety of any order passed in the said proceeding, and may after perusal of the record and without hearing any person or his counsel or authorized agent pass such order in relation thereto as he thinks fit: Provided that the Rehabilitation Commissioner shall not under this sub-section pass an order revising or modifying an order affecting any person without giving such person an opportunity of being heard.
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12) Powers of revision by Government in specified cases.--(1) The Central Government may, by order notified in the official Gazette, specify the cases or class of cases in respect of which a revision petition may be made, and unless such order is published, no revision petition against the order of any Rehabilitation Commissioner. - or Rehabilitation Board shall lie.
(2). A revision petition made in pursuance of sub-section (1) may, after such inquiry, as may be considered necessary, be disposed of by the Custodian concerned.
(19) Delegation of powers.--The Central Government may, from time to time, subject to such conditions as it thinks fit, by an order published in the official Gazette, delegate any of its powers under this Act, including the powers of revision under Section 12 any Provincial Government or other authority, and such order may provide that any such Government or other authority may, with the previous approval in writing of the Central Government, authorize any officer or officers to exercise any or all of such powers.
(20)
21. Power to make rules.--The Central Government may by notification in the official Gazette make such rules, including rules prescribing fees to be charged under the rules, whether as Court fee or otherwise as appear to it to be necessary for carrying into effect the provisions of this Act..."
10. In this case, revision petition was filed before the Custodian, under Section 12(a) of the Pakistan Rehabilitation Act (XLII of 1956) (hereinafter to be referred as the Act, 1956), as adapted in Azad Kashmir by virtue of Section 3 of the Azad Kashmir Adaptation of Laws, Act, 1959 (hereinafter to be referred as the Act, 1959). Section 21 of the Act, 1956, confers on the Azad Government, power to make by notification in the official Gazette such rules as- may appear to it to be necessary for carrying into effect the provisions of the said Act, while under Section 23 of the same, any corresponding provision of any law in force in the Azad Jammu and Kashmir immediately before the commencement of the said Act shall be deemed to be the provision of the Act, 1956 and any rules made under the provision of any such law shall be continued and deemed to have been made under it. The Rehabilitation Ordinance, 1952 and the rules made thereunder in the year 1953 were enforced in the Azad Jammu and Kashmir before Rehabilitation Act, 1956. Under Section 3 of the Act, 1959 the Rules, 1953 and the Act, 1956 are given effect. Section 10(H) of the Rehabilitation Rules 1953 deals with limitation for filing appeal, revision and review before the Custodian, against the order passed by Rehabilitation Commissioner which is reproduced as under:--
10. Appeal, revision review.--(i) An appeal under sub-section
(i) of Section 12 shall be presented within forty five days of the date of the order appealed against.
(ii) An application for revision under Section 12-A shall be made within forty five days of the date or order sought to be revised."
Section 23 of the Rehabilitation Act, 1956 clearly shows that the corresponding laws and rules in Azad Kashmir immediately before commencement of the Act, 1956 were protected and given effect. Section 23 of the Rehabilitation Act, 1956 is reproduced as under:-- "23. Any corresponding provision of any law in force in any area immediately before 'commencement of this Act, shall be deemed to be a provision of this Act, and any thing done, action taken, obligation, liability, penalty or punishment incurred, inquiry or proceeding commenced, officer appointed or person authorized, jurisdiction or power conferred, rule made and order issued under any of the provisions of such law, shall be continued, and, so far as may be, be deemed to have been respectively done, taken, incurred, commenced, appointed, authorized, conferred, made or issued under this Act, and any enactment or document referring to any such provision shall, as far as may be, be construed to refer to this Act or to the corresponding provision thereof.
The limitation for filing revision petition against the order of Rehabilitation Commissioner, before the commencement of the adaptation of laws Act, 1959, was governed in the Azad Jammu and Kashmir under the Rehabilitation Rules, 1953 and limitation for filing revision petition before the Custodian under these Rules is 45 days. Section 23 of the Pakistan Rehabilitation Act, 1956 shows that the Rehabilitation Rules of 1953 made under the Rehabilitation Ordinance, 1952 have been protected in the Azad Jammu and Kashmir whereas the Rehabilitation Rules of 1951, enforced in Pakistan have no application.
11. Before the Rehabilitation Act, 1956; the previous law on the subject in force in the Azad Kashmir was called the Azad Kashmir Rehabilitation Ordinance, 1952, (hereinafter to be referred as Ordinance, 1952). Under Section 12(a)(I) of the Ordinance, 1952, a revision petition against the order of any Rehabilitation Commissioner or Rehabilitation Board, lay to the, Government and Section 18 of the said Ordinance, empowered the Government to make such rules as appear to it to be necessary for carrying into effect the provisions of the said Ordinance while under Section 20, any corresponding provision of any law in force in Azad Kashmir before the commencement of the said Ordinance was deemed to be the provision of the said Ordinance and the rules made under such previous law were continued and deemed to have been made under it. The Government, in exercise of its powers under Section 18 made rules called the Azad Kashmir (Rehabilitation) Rules, 1953 (hereinafter to be referred as the Rules, 1953)e Clause (2) of Rule 10 of the Rules, 1953 prescribed the' period of limitation for presenting an application for revision under Section 12(a) of the Ordinance, 1952 according to which such an application could be made within 45 days from the date of the order sought to be revised. The position of law stated above would show that the Rule 10(ii) of the Rules, 1953, shall be deemed to be the rule made under the Rehabilitation Act with the result that an application for revision against the order of the Rehabilitation Commissioner to the learned Custodian under Section 12-A of the Rehabilitation Act, read with Government Order No, 484/59, is competent within 45 days from the date of the order of the Rehabilitation Commissioner sought to be revised in such a revision petition.
12. It may be stated here that this Court, in a judgment titled Bashir Ahmed Khan vs Custodian Evacuee Property Azad Jammu and Kashmir Muzaffarabad & 2 others, reported as [PLD 1987 SC
(AJK) 118] has declared the limitation for filing revision petition before the Custodian as 16 days. In the light of a detailed survey of the provisions enumerated above, the judgment of this Court reported as [PLD 1987 SC (AJK) 118], suffers from defect because the interpretation of provision contained in section and 6 of the Act, 1959 along with Sections 21 and 23 of the Act, 1956 and the schedule provided with Section 3 of the Act, 1959 have not been interpreted as per intention of legislature. For appraisal Sections 3 and 6 of the Act, 1959 along with Schedule of Section 3 is reproduced as under:-- "3. The laws of Pakistan as contained in the schedule to this Act and rules, notifications and orders made there under and in force immediately before the commencement of this Act, and rules, notifications and orders made there under and in force immediately before the commencement of this Act, are adapted and shall, as far .as practicable, be in force in the Azad Jammu and Kashmir territory subject to the modifications as stated below :-- SCHEDULE (Section 3)
(1) The West Pakistan Agriculturists Loans Act, 1958 (XLVII of 1958)
(35) The Evacuee Property (Multiple Allotments) Act, 1956 (VII of 1956),
(50) The Land Acquisition Act, 1894 (1 of 1894),
(51) The Land Acquisition (Mines) Act, 1885 (XVIII of 1885)
(52) The Land Improvement Loans Act, 1883 (XIX of 1883).
(84) The Pakistan (Administration of Evacuee Property) Act, 1957 (XII of 1957),
(86) The Pakistan Rehabilitation Act, 1956 (XVII of 1956). (101) The Treasure Trove Act, 1878 (VI of 1878).
(108) The Punjab Court of Wards Act, 1903 (II of 1903),
(111) The Punjab Land Preservation (Chose) Act, 1900 (II of 1900).
(119) The Punjab Land Consolidation Act, 1936.
4 5
6. If immediately before the coining into force of this Act there is in force in the Azad Kashmir territory any laws corresponding to any law adapted under this Act it shall, subject to the other provisions of this Act, cease to have effect on and from the date of commencement of this Act: Provided that the provisions of this Act shall not render invalid anything duly done before the coming into force of this Act under the provision of any previous law.
The apex Court has declared the limitation for filing revision petition before the Custodian as 15 days instead of 45 days which is not in line with the provisions contained in the adaptation of laws Act, 1959. It is well established principle of Interpretation of Statute that various provisions of statutes must be interpreted harmoniously to each other and one provision cannot be interpreted in such a manner that the other becomes nugatory. The Courts have to suppress the mischief and advance the remedy. In this case, the interpretation and the construction of Sections 23 of Rehabilitation Act, 1956, and sections 3 and 6 of the Act, 1959 by this Court in a case titled Bashir Ahmed Khan vs. Custodian & others, reported as [PLD 1987 SC (AJK) 118], is not in line with the settled principles of the Interpretation of Statute laid down in numerous judgments of the apex Court. Moreover, the interpretation in the said judgment has made the effect of Section 23 of the Act, 1956 and Section 3 of the Act, 1959 as redundant. Thus, in our view, the correct position is that the limitation for filing revision petition against the order of Rehabilitation Commissioner is 45 days, not 15 days. The judgment of this Court titled Bashir Ahmed Khan vs. Custodian & others, reported as [PLD 1987 SC (AJK) 118], is overruled to the extent ' of the observation regarding the point of limitation. Our this view finds support from the case titled Messrs Standard Printing Press v. Sindh Employees Social Security Institution" reported as [1988 SCM R 91], while analysing the provisions of West Pakistan Employees' Social Security Ordinance it is laid down in para. 7 as follows: The result of these several statements is that construing any statute the Court should adhere to the ordinary meaning of the word used, and to their grammatical construction, unless the words when so read produce some manifest absurdity or injustice, inconsistency, inconvenience or incongruity; or unless the meaning so given be repugnant to the context, or at variance with the intention, or as it may be collected from other parts of the same statute."
In another case titled Abdul Qayyum etc vs. Niaz Muhammad etc., reported as [NLR 1992 SCJ 199], it has been observed in paragraph 6 of the judgment that:-- .... It is well settled that if two interpretations are possible, the one which will be consistent with the smooth working of the Statute and eliminates uncertainty, confusion, and contradiction should be adopted. Thus, efforts should be made to harmonize the two provisions and one construed with reference to the other, so that conflicting meaning are avoided..."
It appears from the above quoted observation that while interpreting any statute, the Courts should adhere to the ordinary meanings of the words used, and to their grammatical construction, nothing can be added or subtracted. The interpretation should not be so which creates absurdity, inconsistency or inconvenience. In the case in. hand, Section 23 of the Act, 1956 when read along with Section 3 of the Act, 1959, it clearly shows that the Rules, 1953, made under the Ordinance, 1952, have-been protected, thus, the limitation for filing revision petition before the Custodian Indian under the Rules, 1953 is 45 days.
13. It may be stated here that the appellants filed the Review petition against the order of Rehabilitation Commissioner dated 20.2.2003 on 5.4.2003, after 44 days from the judgment sought to be reviewed. The Rehabilitation Commissioner decided the review petition on 24.5.2003. It is not mentioned in the order dated 24.5.2003 that the review petition filed by the appellants before the Rehabilitation Commissioner was time barred, thus, it becomes clear that the review petition before the Rehabilitation Commissioner was within time. The order of Rehabilitation Commissioner dated 24.5.2003 was challenged by the appellants before the learned Custodian of Evacuee Property on 12.6.2003, after a period of 18 days, which is also within time. The observation of the learned Custodian that the appellants were to challenge the order of Rehabilitation Commissioner dated 20.2.2003 through a revision petition within 15 days from the order of Rehabilitation Commissioner, is not correct. It is established that the appellants filed a review petition before the Rehabilitation Commissioner and the same was decided on 24.5.2003. In our view, the limitation for filing revision petition against the order of Rehabilitation Commissioner starts from 24.5.2003 not from 20.2.2003. Therefore, the same was filed within time.
14. The next point which requires deliberation by this Court is that whether the. Rehabilitation Commissioner can review his own order or not. Section 11(5) of the Act, 1956 provides procedure for filing appeal/revision or review before the Rehabilitation Authorities. Whether the Rehabilitation Commissioner can review his own judgment or not is also one of the main questions to be resolved by this Court. Under Section 11(5) of the Act, 1956, the Rehabilitation Commissioner can review his own order so for as the justice may require. Relevant portion of Section 11(5) of the Rehabilitation Act, 1956 is reproduced as under:-- "11 (5) The Rehabilitation Commissioner or Additional, Deputy or Assistant Rehabilitation Commissioner may, after giving notice to the parties concerned, review his own order, so far as justice may require, to correct errors or supply omissions which are apparent upon the face of the record.
(underlining is ours)
A study of above referred Section 11(5) of the Act, 1956 reveals that the Rehabilitation Commissioner is empowered to review his own judgment or order as the justice may require.
Similarly, Section 43(6) of the Pakistan (Administration of Evacuee Property), Act, 1957, provides the Custodian of Evacuee Property, powers to review his own judgment. Relevant provision of the Act, 1957 is reproduced below:-- "... 43(6). The Custodian or Additional Custodian may on application made to him in his behalf within the prescribed period or of his own motion at any time and after giving notice to the parties concerned and the Rehabilitation Authority, review his own order or an order passed by his predecessor in office on any ground whatsoever as the justice of the case may require..."
A study of above referred Section 11(5) reveals' that the Rehabilitation Commissioner has the jurisdiction to review his own judgment or order as the justice may require. The meanings of this section cannot be restricted to the extent of only correction of errors or omissions, as the words "as the justice may require" need liberal interpretation. It is well established principle of the Interpretation of Statute that where two interpretations are possible Courts do not accept a construction which renders a legislation futile. The words as the justice may require" have to be liberally construed. The intention of legislature can be known by the words used in the statute. A plain reading of the words "as the justice may require" clearly shows that the Rehabilitation Commissioner can review his own order as the justice may require. Therefore, keeping in view the provision contained in Section 43(6) of the Pakistan (Administration of Evacuee Property), Act, 1957, the powers to review I the own judgment have been provided to the Custodian and the words "as the justice may require" have been incorporated. Now the resolution of the controversy in the light of juxtapose perusal of Section 43 (6) of the Pakistan (Administration of Evacuee Property) Act, 1957 and section 11(5) of the Act 1956 makes it clear that the words as the justice may require" are common in both the statues. The Custodian is exercising the review jurisdiction but the Rehabilitation commissioner exercising the review is against the intention of legislature. A perusal of the above stated provisions show that the powers to review have been provided to the Custodian and the words "as the justice may require" have been incorporated. Therefore, we agree with the contention of the learned counsel for the appellants that the review petition before the Rehabilitation Commissioner was rightly filed by the appellants under Section 11(5) of the Rehabilitation Act, 1956.
15. It will be pertinent to mention here that the first part of the verdict dated 24.5.2003 made by the Rehabilitation Commissioner relates to the merits of the case. The learned Custodian as well as the High Court failed to appreciate this very important aspect of the matter while recording the impugned judgment. In this case, the appellants filed review petition before the Rehabilitation Commissioner against the order dated 20.2.2003 and the same was dismissed by the Rehabilitation Commissioner on merits as well as on technical ground. The learned Custodian as well as the High Court failed to take into consideration the first three lines of the order recorded by the Rehabilitation Commissioner on 24.5.2003, it is settled that when the rights of parties are involved, the Courts should avoid technicalities. Keeping in view, the above proposition of law, we are unable to agree with the findings recorded by both the Custodian and the High Court as well.
We are of the opinion that while deciding a case on technical ground, discussion on merits should be avoided. Our this view finds support from the case titled Muhammad Yaqoob v. Feroz Din, reported as [NLR 1992 SCJ 178], wherein it is observed that:-- "... Mr. Akhter took us through the relevant provisions of Order IX of the Civil Procedure Code and submitted that the learned single Judge had erred in dismissing the writ petition on merits. He also relied on a judgment reported in Messrs S. M. Abdullah and sons vs. Messrs Pak. Mercantile Corpn, Ltd, (PLD 1976 Kar 268). Learned counsel for the caveator, on the other hand, relief on a judgment of this Court reported in Muhammad Haleem and others v. H. H, Muhammad Naim & others, [PLD 1969 S.0 270], However, after some arguments and in view of our observations, both the learned counsel stated that the case could be remanded to the High Court in order to enable the petitioner to file a restoration application against the dismissal of his writ petition in default..."
In another pronouncement titled Muhammad Saleem us. L.D.A, reported as [1993 M LD 2312], it is observed that:- "... A valuable right of the petitioners is involved in the suits which cannot be allowed to be defeated in law on a mere technical point. It is well settled that the Courts are to avoid technicalities in deciding the disputes between the parties on their merits. In .these circumstances Mr. Raza Mohsan Qazilbash, learned counsel for the respondents came out and states that he would not oppose the acceptance of the revision petitions..."
In the present case, the Rehabilitation Commissioner has discussed merits of the case in first three lines of the order dated 24.5.2003 whereas the review petition has been dismissed on technical ground as well. The order dated 24.5.2003 has been challenged by way of revision petition before the Custodian. The Custodian observed that the revision petition filed by the appellants is time barred and merits of the case need not to be discussed. The High Court also arrived at the same conclusion. It was enjoined upon the Custodian as well as the High Court to record findings keeping in view the first three lines of the order recorded by the Rehabilitation Commissioner on 24.5.2003.
Thus, the findings recorded by the Custodian as well as High Court are not in line with the consistent practice of the apex Court. It has been enunciated in numerous judgments of the apex Court, that when the merits of the case are discussed, technicalities should be avoided. Thus, the findings recorded by the Custodian and the High Court, are not liable to be maintained.
16. Another point which requires deliberation is that whether the order of Rehabilitation Commissioner, passed in the review petition can be challenged through a revision petition before the Custodian or not. The contention of the learned counsel for the private-respondents, that the order recorded by the Rehabilitation Commissioner dated 24.5.2003 could not be challenged before the Custodian, appears to be misconceived. The appellants filed review petition against the order of Rehabilitation Commissioner recorded on 20.2.2003, a study of which clearly indicates that the same was recorded on the issue of allotment and the cancellation of allotment. It cannot be said that the review petition filed by the appellants in furtherance of the same cause does not fulfil the requirement laid down for filing revision petition before the Custodian, under the Government Order No, 484/59 dated 21.9.1959. The review petition filed by the appellants before the Rehabilitation Commissioner was filed in continuation of the same subject matter against which the appellants could file revision petition before the Custodian of Evacuee Property. Therefore, the appellants have rightly filed the revision petition against the order of Rehabilitation Commissioner dated 24.5.2003 passed in the review petition. Thus, the findings recorded by the Custodian on 7.3.2005 and that of the High Court dated 10.10.2009 suffers from error of misreading and non- reading of material available on record which are not maintainable.
17. In this case, different propositions of law relating to Rehabilitation Act and the Evacuee Property Act, have been elaborated with due deliberation and the limitation for filing revision petition before the Custodian of Evacuee Property and the scope of review available to the Rehabilitation Commissioner has been discussed in detail. The epitome of above stated facts of the case, in the light of the conclusion drawn by this Court after interpretation of the relevant provisions of the statutes dealing with the subject is that the limitation for filing revision petition before the Custodian of Evacuee Property against the order of Rehabilitation Commissioner is 45 days, not 15 days. Moreover, review petition can be filed against the order of Rehabilitation Commissioner.
In view of 'above, the appeal is accepted and the order of the Custodian dated 7.3.2005 and that of the High Court dated 10.10.2009 are set-aside. The case is remanded to the learned Custodian with the direction to decide the same afresh keeping in view the points resolved by this Court, hereinabove. As the case is pending disposal for decades, for effective administration of justice, expeditious disposal of the same under law is desired for the ends of justice. No order as to costs.