The dispute involved in this Constitutional petition relates to an evacuee property. On 25th June, 1974 the Deputy Settlement Commissioner, Rawal--pindi, transferred the said property in favour of the petitioner, Mst. Asghari Khanum. His order was challenged by respondents Nos. 2 and 3, namely the Director of Education, Rawalpindi Division, Rawalpindi, and the Muslim High School No. 1, Rawalpindi through its Headmaster, by filing a revision ,petition before the Settlement, Commissioner, Rawalpindi. By his order, dated the 10th June 1975, the Settlement Commissioner suspended operation of the order of the Deputy Settlement Commissioner. Feeling aggrieved by the order of the Settlement Commissioner, Mst. Asghari Khanum has filed this writ petition.
2. It was contended by learned counsel for the petitioner that before the filing of the revision petition, the Displaced Persons (Compensation and Rehabilitation) Act, 1958, whereunder respondents Nos. 2 and 3 had sub--mitted the revision petition, had been repealed by Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, and, therefore, the Settlement Commissioner had no authority to hear the revision petition. According to him, therefore, the Settlement Commissioner's order under challenge was without lawful authority. He relied on Sungreen & Co. Ltd. Karachi v. Noncan Bai and 3 others PLD 1978 Kar. 100,to support his contention.
3. The petition in band was resisted by respondents Nos. 3 and 4, namely, the Headmaster, Muslim High School No. 1, Rawalpindi, and the Punjab Province, hereinafter referred to as the respondents. It was urged by their learned counsel that by virtue .Of the provisions of section 6 of the General Clauses Act, 1897, the revision petition could be filed even after the repeal of Displaced Persons (Compensation and Rehabilitation) Act, because the repeal of any law did not take away the right or remedy available to a party under that law. It was also maintained by them that since the period of limitation for filing the revision petition had not expired before the repeal of the Displaced Persons (Compensation and Rehabilitation) Act, the revision petition filed before the Settlement Commissioner would be deemed to be a pending proceeding within the meaning of subsection (2) of section 2 of the Evacuee Property and Displaced Persons Law (Repeal) Act and could, therefore, be heard and decided by the Settlement Commissioner. In this connection. They placed reliance on Ghaus Muhammad v. Sh. Safdar Ali and another (1), Federation of Pakistan v. Muhammad Saddiq (2), Sona arid another v. The State etc. (3), Mlan Rafi-ud-Din and 6 others v. The Chief Settlement and Rehabilitation Commissioner and 2 others (4), Ghias-ud-Din v. Iqbal Ahmad and S others (5), Gorikapati Veeraya v. N. Subblah Choudhry and others (6), Nawab Din v. Member, Board of Revenue (Settlement and Rehabilitation) Punjab, Lahore and 4 others (7) and Salah-ud- Din etc. v. Malik Muhammad Ibrahim (8).
4. Section 6 of the General Clauses Act, which has been relied upon by learned counsel for the respondents, reads as under :- "6. Effect of repeal.-Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different inten--tion appears, the repeal shall not-
(a) revive any thing not in force or existing at the time at which the re: peal takes effect ; or
(b) affect the previous operation of any enactment so repealed or any thing duly done or suffered thereunder ; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed ; or
(d) affect any penalty, forfeiture or punishment incurred in respect of .Any offence committed against any enactment so repealed ; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty forfeiture, or punishment as aforesaid ; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed."
5. The provisions of subsection (2) of section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, which would be referred to for deciding the point in issue, make the following reading :-- "2. Repeal of certain laws.-- . . .
(1) 1975 SCMR 153 (2) 1980 SCMR 443
(3) .PLD 1970 SC 264(4) PLD 1971 SC 252
(5) PLD 1975 Lah. 780 (6) PLD 1957 SC (Ind.) 448
(7) PLD 1979 SC 846(8) 1979 CLC 895 (2)Upon the repeal of the aforesaid Acts and Regulations, all proceedings 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."
6. Section 20 of the Displaced Persons (Compensation and Rehabilita--tion) Act, whereunder the revision petition was filed, is to the following effect :- "20. Revision.-(1) The Settlement Commissioner may, of his own motion at any time or on an application made in that behalf, within the prescribed time, call for the record of any case or proceedings under this Act in which an Additional Settlement Commissioner, a Deputy Settlement Commissioner or an Assistant Settlement Com--missioner has passed an order, for the purpose of satisfying himself as to the correctness, legality or propriety of any such order and may pass such order in relation thereto as he thinks fit Provided that the Settlement Commissioner shall not exercise his powers under this subsection in a case in which an appeal is pending.
(2) Without prejudice to the generality of the foregoing power, if the Settlement Commissioner is satisfied that in obtaining an order for payment of compensation the claimant has used fraudulent means or made false representation, then, notwithstanding anything contained in this Act, the Settlement Commissioner may, in cases where the whole of such order has been so obtained, reverse the order, and in other cases, modify the order so as to reduce the compensation to an amount to which the claimant would have been entitled if he had not used fraudulent means or made false representation.
(3) Any amount paid to a claimant as compensation which he was not entitled to receive shall be repaid by him, and, if not so repaid, shall be recoverable from him as arrears of land revenue.
(4) The Settlement Commissioner shall not pass an order under this section reversing or modifying any earlier order without giving the person affected thereby a reasonable opportunity of being heard.
(5) Any person aggrieved by an order made under subsection (2), may, within thirty days of the date of the order, make an application for. The revision of the order, in such form and manner as may be prescribed, to the Central Government, and the Central Government may pass such order thereon as it thinks fit."
7. Undoubtedly, it . Has not been expressly laid down in the Evacuee Property and Displaced Persons Laws (Repeal) Act that with the repeal of the Displaced Persons (Compensation and Rehabilitation) Act the rights con--ferred and remedies provided by the Displaced Persons (Compensation and ` Rehabilitation) Act shall no longer be available. It is, therefore, to be seen whether by enacting the Evacuee Property and Displaced Persons Law (Repeal) Act, the Legislature had, by implication, taken away the said rights and remedies. The cases of Ghaus Muhammad,, Federal of Pakistan, Sona and another, Mian Rufi-ud-Din and 6 others, Ghias-ud-Din, Garikapati veeraya, Nawab Din and Salah-ud-Din etc., on which reliance was placed by learned counsel for the respondents, have no direct bearing on the point in issue and relate to situations arising out of circumstances different from those of the present case. The authority reported as Sungreen & Co.
Ltd. Karachi, which was cited by learned counsel for the petitioner, however, deals with the precise question involved in the case in hand. The view expressed in that Case by Mr. Justice Zaffar Husain Mirza (now a Judge of the Supreme Court) was that if any proceeding did not fall within the purview of subsection (2) of section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, the provisions of section 6 of the General Clauses Act could riot be 'made use of for launching that proceeding. Relevant observations made in the case read as follows :- "It is not disputed that the subject-matter of adjudication in the main revision No. 86/63 was finally disposed of by the former Custodian on 6-5-1974 before the coming into force of the repealing Ordinance on 30th September, 1974 and even before 1-7-1974 the date from which the said Ordinance was given effect to. It was, however, contended by Mr. Abdul Wahab that notwithstanding the repeal of the Evacuee Property Act XII of 1957, the right to remedy available thereunder would remain intact, in view of section 6 of the General Clauses Act. I find no substance in this contention. Section 6 of the General ,Clauses Act expressly provides that the repeal of an Act does not affect idly, right or remedy under the repealed enactment, `unless different intention appears'. If, therefore, the repealing enactment contains any such contrary provision the rights and remedies under the repealed enactment cannot survive. Section 2 of the repealed Act was speci-- fically 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 proceedings 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."
I, with respect, share the view taken in the case of Sungreen & Co. Ltd. Karachi and would follow the same for deciding the controversy raised in the instant case.
8. I will also like to add that while repealing the Displaced Persons (Compensation and Rehabilitation) Act the Legislature was certainly aware of its provisions, including section 20 thereof, whereunder a revision petition could be filed within the prescribed period. Just as it had struck the Legislature that some of the cases involving application of the Displaced Persons (Compensation and Rehabilitation) Act were likely to be remanded by -the Supreme Court and the High Courts it would have also occurred to it that there would be orders which could be attacked by filing revision petitions but the period for filing such petitions had not expired. Since the Legislature had made provision for the cases to be remanded by the Superior Courts but had not made similar provision in regard to the revision petitions for the filing of which the period of limitation had not expired it would be presumed that the Legislature was not in favour of the institution -of any more revision petitions. It is also too well known that a revision cannot be claimed as a matter of right, but even if it is assumed that the respondents had a right to file a revision petition or the remedy of the making of that petition was available to them under the Displaced Persons (Compensation and Rehabilitation) Act the same had been impliedly taken away by the Legislature by not catering for revision petitions for the submission of which the period of limitation had not expired.
9. It is also to be noted that section 6 of the General Clauses Act not only deals with rights and remedies but also takes care of pending proceed--ings (legal proceedings). If while repealing the Displaced Persons (Compensa--tion and Rehabilitation) Act, it was intended by the Legislature that each and every safeguard provided by section 6 of the General Clauses Act should remain available qua the repeal of the Displaced Persons (Compensation and Rehabilitation) Act, there was no need for making specific provision in sub--section (2) of section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Act in regard to the pending proceedings. Since the framers of the law had expressly saved the pending proceedings it would follow that they did not intend to make such saving in regard to any thing else which could be done under the Displaced Persons (Compensation and Rehabilitation) Act before it was repealed.
10. Another factor which deserves mention is that the functionaries before whom the revision petitions could be filed had disappeared with the coming into force of the Evacuee Property and Displaced Persons Laws (Repeal) Act and instead provision for a new machinery was made for dealing with pending proceedings and the cases to be remanded by the Superior Courts. Thus, the functionary before whom the revision petitions could be filed under the said Act had ceased to exist. All this speaks volumes of the intention of the Legislature not to allow fresh institution of revision petitions under the said Act.
11. It appears that the Evacuee Property and Displaced Persons Laws (Repeal) Act was designed to finalise things on the departmental side. This is evident from the word "final" used in subsection (2) of section 2 of the said Act. According to this provision, if any proceeding pending before the Deputy Settlement Commissioner is decided by the officer notified in this behalf the order of the said officer cannot be called in question before the officer who is notified to dispose of matters pending before Settlement Commissioners at the time of the repeal of the Displaced Persons (Compensa--tion and Rehabilitation) Act. It would, therefore, follow that if in the present case the order of the Deputy Settlement Commissioner is treated as final order on the departmental side, it would be in consonance with the scheme of the Evacuee Property and Displaced Persons Laws (Repeal) Act. The respondents, who have lost before the Deputy Settlement Commissioner, are, therefore, not in a disadvantageous position as compared to those who were involved in proceedings pending before the Deputy Settlement Com--missioners at the time of the coming into force of the Evacuee Property and Displaced Persons Laws (Repeal) Act.
12. This brings me to the argument of learned counsel for the respondents that the revision petition involved in the instant case may be treated as a pending proceeding for the purpose of subsection
(2) of section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Act. 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 authority it cannot be called a pending proceeding. The revision petition in question had not been filed before the repeal of the Displaced Persons (Compensation and Rehabilitation) Act. It is, therefore, not a pending proceeding within the meaning of subsection (2) of section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Act.
13. In view of what has been ruled in the case of Sungreen & Co. Ltd. Karachi and for the reasons given above, I hold that the revision petition giving rise to this Constitutional petition cannot be heard by the Settlement Commissioner. His order under challenge . Is, therefore, without lawful authority and it is hereby quashed. The writ petition is, accordingly, accepted with no order as to casts.