Ghulam Muhammad petitioner filed his Claim No, 4664/T on 29-8-1958. The Claims Officer on 12-11- 1959, dismissed the same for non-prosecution. The petitioner filed an appeal before the Deputy Claims Commissioner who vide order dated 19-3-1964, rejected the same being badly barred by time. The petitioner then filed a revision petition before the Additional Claims Commissioner, Sargodha, who by his order dated 13-5-1964, accepted the same and remanded the case to the Deputy Claims Commissioner with the following observations :- "In fact the appeal was initiated against the order of the Claims Officer who dismissed the case for want of prosecution. I have gone through the order of the learned Claims Officer and I find that no proper service was effected on the petitioner and, therefore, he remained under suspense as to the fate of his case for such a long time. Since there is question of the right to the property abandoned in India, I think it is better in the interest of justice that opportunity should be given to the petitioner to prove his case on merits. The order passed on a short point of limitation by the D. C. C, is hereby set aside and the case is remanded to the D. C. C, who should hear the parties on merits and decide the case after taking all the relevant evidence which they seek to produce before him."
When the case came up before the Deputy Claims Commissioner after remand, he referred the same to the 0. S. D. (Claims) for obtaining necessary approval of the Claims Commissioner for the restoration of the claim. It may be mentioned that the Claims Commissioner, Pakistan, vide Memo.
No, 7455-AD- Reh/63, dated 20-11-1963, issued general instructions which are reproduced below and the Deputy Claims Commissioner had moved the Claims Commissioner under this Memo. :-- "It has been noticed that a large number of belated claims, appeals and revisions had recently been entertained by the officers who had been conferred with the powers of Claims Commissioner, Deputy Claims Commissioner and Additional Claims Commissioner, or were also forwarded for admission by the Officer-in-Charge Records (Claims). They are requested to furnish immediately a list of cases in which delay has been condoned from 1-1-1963, with brief reasons recorded against each for doing so.
The Claims Commissioner, Pakistan, does not approve of the practice and has ordered that the practice of entertaining belated applications, appeals or revisions should be stopped forthwith. In future, only such cases in which exceptionally strong grounds exist, for condonation of delay, should be forwarded with recommendation for order of the Claims Commissioner, Pakistan."
The OA. D. (Claims) forwarded the case to the Claims Commissioner through the Chief Accounts Officer who put up the same vide note (Annex 'C') reproduced below:-- "The claim was rejected by the Claims Officer on 12-11-1959 for want of prosecution. An appeal against this order was submitted by the claimant on 26-3-1964, which was rejected by the Deputy Claims Commissioner, being time-barred. The Additional Claims Commissioner, however, by his order dated 13-5-1964, remanded the case to the Deputy Claims Commissioner. Since the claimant took no action from 12-11-1959 to 23-3-1964, there is no justification for condonation of delay of over 4 years. The claim case cannot now be considered and the request of the applicant may be rejected."
When this note was put up before the Claims Commissioner he agreeing with the office note passed one word order in the margin "reject". This order was conveyed to the petitioner by letter dated 10-11-1964 by the Officer-in-Charge, Central Record Office (Claims), in the following words :- "You are hereby informed that your request for the reverification of your claim bearing (Registration No, 4664/ f) has been considered by the Claims Commissioner, Pakistan, and was rejected. No further action can therefore be taken on your petition referred to above and has been consigned to the record."
Aggrieved by the impugned order the petitioner has challenged the same through the present writ petition.
2. Mr. Maqbool Elahi Malik appeared on behalf of the Department and produced the original Department file of the case. According to him, the Claims Commissioner in 1963 issued general instructions referred to above. When the present case was taken up by the Claims Commissioner after remand he thought that this case was covered by the said general instructions referred to above. He, therefore, instead of proceeding with the case himself in accordance with the remand order passed by the Additional Claims Commissioner, forwarded the case to the 0. S. D. (Claims) for onward transmission to the Claims Commissioner. According to Mr. Malik the delay in this case is at more than one stage. The claim initially was filed as time-barred and then after the dismissal of the claim by the Claims Officer for non-prosecution, the appeal was filed beyond the period of limitation and the same was rightly dismissed as such by the Deputy Claims Commissioner.
According to him, in view of the general instructions issued on the subject it was only the Claims Commissioner who alone was competent to condone the delay. The Deputy Claims Commissioner, therefore, followed the correct procedure by forwarding the case through the 0. S. D. (Claims) to the Claims Commissioner. When asked about the nature of the order and the provisions under which the Claims Commissioner passed the impugned order, Mr. Maqbool Elahi Malik contended that it was passed in exercise of his suo motu revisional jurisdiction under section 7(3) of the Registration of Claims (Displaced Persons) Act, 1956. However, when confronted with the situation that how the learned Claims Commissioner was legally justified to pass the impugned order without issuing any notice to or hearing the petitioner, Mr. Maqbool Elahi Malik half-heartedly had to concede that the impugned order was defective from that point of view. As pointed out earlier, the learned Additional Claims Commissioner came to the conclusion that no proper service was effected on the petitioner by the Claims Officer and that there was question of the right to be property abandoned by him in India. We, therefore, thought it better in the interest of justice that opportunity should be given to the petitioner to prove his case on merits. Thus, he passed the order on merits on the judicial side. Once a judicial order having been passed on merits by a competent Authority under the Registration of Claims (Displaced Persons) Act, 1956, in favour of the petitioner, he could not be deprived of the benefit of the same, except by following the procedure as laid down in the Act. The only relevant provisions under the said Act, according to Mr. Malik, is section 7(3) under which while exercising his suo motu revisional power, the Claims Commissioner, for the purpose of satisfying himself as to the correctness, legality or propriety of any order passed by his subordinates, may pass such order in relation thereto as he thinks fit. Even under this section it is specifically provided that the Claims Commissioner shall not pass an order revising or modifying any order affecting any person without giving such person an opportunity of being heard.
Undoubtedly the petitioner is the person who is directly affected by the order of the learned Claims Commissioner and, therefore, he was entitled to have the opportunity of being heard. The wor "shall" in this proviso to clause (3) of section 7 clearly indicates the intention of the Legislature. Even this mandatory provision has been overlooked by the learned Claims Commissioner while passing the impugned order. The learned counsel for the Department could not cite any other provision of law under which the learned Claims Commissioner could deal with the case in question. The impugned order is, therefore, contrary to the mandatory provision contained in the proviso to subsection (3) of section 7 of the Registration of Claims (Displaced Persons) Act, 1956.
3. It was frankly conceded by the learned counsel for the Department that the impugned order was passed by the learned Claims Commissioner on the administrative side on the note put up by his subordinates. Neither any notice was issued to the petitioner, nor otherwise any opportunity afforded to him to defend his cause and support the order passed in his favour by the Additional Claims Commissioner. Thus, a judicial order passed by a competent Additional Claims Commissioner, however erroneous it may be, cannot be set at naught by the Claims Commissioner on the administrative side without hearing the affected or aggrieved party. The impugned order is also hit by the principle of audi alterarn partem, because neither any notice was issued to nor otherwise any opportunity afforded to the petitioner before passing the impugned order against him. Thus, looked from any angle the impugned order of the learned Claims Commissioner cannot be sustained. This order is, therefore, clearly without lawful authority and I declare the same as such.
4. Accordingly, while quashing the impugned order, I remand the case to the Claims Commissioner with a direction that he should dispose of the case afresh in accordance with law after issuing notice to the parties concerned. There will be no order as to costs.