P L D 1965 Supreme Court 269 (PLP)

B. Z. KAIKAUS, J.‑This judgment will dispose of civil appeals by Special Leave Nos. 34 and 145 of 1963, the main point involved in which is common. In both cases orders had been passed registering the claims of the appellants under the Registration of Claims (Displaced Persons) Act and these orders were set aside by Raja Muhammad Zia Ullah Khan, Claims Commissioner, exercising powers of revision. In Civil Appeal No. 34 of 1963 which relates to two claims orders registering claims had been passed by a Claims Officer while in Civil Appeal No. 145 of 1963 the Claims Officer had not accepted the whole of the claim which related to a house‑holding that the appellant was entitled only to a part of it, but on appeal the Deputy Claims Commissioner had held the appellant to be entitled to the whole house and had enhanced the amount for which the claim was registered. In Civil Appeal No. 34 of 1963 Raja Muhammad Zia Ullah Khan, Claims Commissioner, had on the report of the Enforcement Staff found the claim to be bogus and had set aside the order of the Claims Officer. In Civil Appeal No. 145 of 1963 the Claims Commissioner had found that the order of the Deputy Claims Commissioner in the appeal was unjustified and he had simply restored the order of the Claims Officer. The appellants in both these appeals had by writ petitions attacked the orders of the Claims Commissioner on the ground that he could not exercise revisional jurisdiction after the expiry of ninety days from the date of the order which he set aside. Revisional jurisdiction had been granted by the Registration of Claims Act to the Claims Commissioner by section 7 of the Act which provided that the Claims Commissioner could sue motu "within the prescribed period" call for the record of any case which had been decided by a Claims Officer, a Deputy Claims Commissioner or an Additional Claims Commissioner and could then pass such orders in relation to it as he thought fit. The period for the exercise of revisional jurisdiction had been prescribed by rule 6 (2‑A). It runs: 6. . . . . . . . . . (2‑A) A Claims Commissioner may under subsection (3) of section 7 of the Act call for the record of any case within ninety days of the date of publication of this rub‑rule, or the date on which the case has been decided by a Claims Officer, a Deputy Claims Commissioner, or an Additional Claims commissioner, whichever date be later: Provided that the Claims Commissioner may, if he deems fit, call for the record of any case after the said ninety days." The contention of the appellants before the High Court was that the proviso to this rule was ultra vires because it permitted the exercise of power at any time after ninety days and therefore was in conflict with section 7 which permitted revision only within the prescribed period. It was urged that whereas the main provision in sub‑rule (2‑A) prescribed a period of ninety days the proviso permitted revision with no prescribed period whatsoever. It may be stated here that the orders of the Claims Commissioner in both these cases had been passed long after the expiry of ninety days from the date of the order which was interfered with. The learned Judges of the High Court dismissed the petitions holding that there was no conflict between the rule and the section. It is not necessary to discuss the question raised at any great length for the question as to the authority of the Claims Commissioner to act beyond the period of ninety days has already been decided by this Court after. full discussion of the matter in Muhammad Farooq Imam v. Claims Commissioner (P L D 1964 S C 385). We held in that case that the provision empowering the Claims Commissioner to interfere "if he deem, fit" was similar to the provision in section 5 of the Limitation Act and that the Claims Commissioner was empowered to act beyond the period of ninety days only if he came to the conclusion that circumstances existed justifying interference after the ordinary period of limitation. Neither the appellant nor the respondent challenges the correctness of the decision in Farooq Imam's case. We hail held further however in that case that there must be a finding express or implied by the Claims Commissioner as to the existence of circumstances justifying interference after the expiry of the ordinary period of limitation if he is to exercise his revisional powers after ninety days. The sole question. therefore, which remains for discussion is whether in this case there is fully express or implied finding to this effect. Express finding admittedly there is none. The learned Attorney‑General who appears for the respondent contends that there is in this case an implied finding and for this contention he relies on the fact that in the order passed by the Claims Commissioner the date of the order which he is revising is mentioned. He urged that if the Claims Commissioner was conscious of the expiry of more than ninety days he must be deemed to have satisfied himself before taking action that sufficient cause did exist justifying action after the expiry of the ordinary period of limitation. The learned Attorney General has in this connection relied on (Nawab Major) Muhammad Akbar Khan v. Court of Wards (AIR 1934 P C 93) wherein there is an observation to the effect that if the Revenue Commissioner passed an order of review after the expiry of the period of limitation for review and limitation could be extended only if "the applicant satisfies the Revenue Officer that .he has sufficient cause for not making the application within that period", the Revenue Commissioner should be deemed to have applied his mind and come to a conclusion that sufficient cause existed for extension of limitation. We are not inclined to hold simply on the strength of reference in the order of the Claims Commissioner to the date of the order under revision that he had applied his mind to the question of extending limitation and had reached a conclusion that there were sufficient grounds for doing so. There is nothing to show that the Claims Commissioner was conscious of the need of such a finding at all. The proviso to rule 6 (2‑A) had been construed by both parties during argument before the High Court as granting a free and absolute power to the Claims Commissioner to interfere in revision at any time without coming to any conclusion as to the existence of reasonable grounds for so doing. In Farooq Imam's case too neither of the parties had urged either in the High Court or before us that the words "if he deems fit" were capable of an interpretation on the lines of section 5 of the Limitation Act and it is only this Court which on its own initiative reached such a conclusion. Under the circumstances it cannot be assumed that the Claims Commissioner had put on this provision the interpretation adopted by this Court in Farooq Imam's case. There is nothing in his order which shows a consciousness of the need for recording a finding as to the existence of sufficient cause. We are at the same time not inclined to agree that the simple mention of the date of an order which is to be interfered with will relieve the officer interfering with the order after the expiry of the ordinary period of limitation from making any reference to limitation. If we were to hold so the result would be that no officer need ever go beyond mentioning the date of the order which is being interfered with when he is exercising his powers after the expiry of the ordinary period of limitation although these powers he can exercise only if circumstances exist justifying a condonation of delay. Orders passed by officers are liable to judicial control under the Constitution and it is proper that there should be material before the Court for determining whether the grounds of extension are within the law, and the finding as to the existence of such grounds has been reached in a legal manner. The judgment in (Nawab Major) Muhammad Akbar Khan v.. Court of Wards and others is not very helpful in deciding the question before us. In that case there was a sale by the Court of Wards which sale could be valid only with the sanction of the Revenue Commissioner. A sale of some property was made and the Revenue Commissioner granted sanction. The appellant before the Judicial Committee who was interested in purchasing the land himself, moved the Revenue Commissioner for a review of the order granting sanction, after the expiry of the period of limitation for review. The relevant provision authorised the Revenue Commissioner to exercise powers of review even after the expiry of limitation if the applicant satisfied him that he had sufficient cause for not making the application within the period prescribed. The Revenue Commissioner accepted the application for review, but instead of directing that the property be sold to the appellant before the Judicial Committee simply cancelled the sale. The appellant felt aggrieved and filed a suit for pre‑emption contending that the cancellation of the sale after the expiry of limitation was invalid as there was no finding which could be the basis of extension of limitation. The Judicial Committee did say "it must be assumed that the Revenue Commissioner, before entertaining it, was satisfied that there was sufficient cause for the delay", but we are of the opinion that the decision of the Judicial Committee can be explained with reference to the doctrine that a party cannot be allowed to blow hot and cold. It was the appellant before the Judicial Committee who had applied for and secured the order on review and it was he himself who was now challenging the order on the ground that when he filed the application time had already expired and it had not legally been extended. When he filed the application for review obviously his position was that circumstances existed entitling him to extension of time. His application for review was accepted and the sanction was revoked. Just because the order passed on review did not suit him he took up the plea that there was no extension of limitation. Having secured an order on the basis that his application was within time he was estopped from taking up an inconsistent position. The result of the above discussion should be that both these appeals should succeed. However, we are allowing only the appeal of Tufail Muhammad and others, that is, Appeal No. 34 of 1963 and we are dismissing the appeal of Khalil‑ur‑Rahman Dawoodi, that is, Appeal No. 145 of 1963 on the ground that it is not a case where writ jurisdiction should be exercised. Khalil‑ur‑Rahman Dawoodi bad filed a claim on the allegation that he was the owner of a house at Lawar in District Meerut. Column 6 of the application for registration of claim required a statement as to the source of ownership, but this column he left blank and said that full particulars would be submitted later. In the witness‑box he said that the house belonged to his mother who had died in 1930‑

31. He admitted, however, that he had a sister as well as a father alive who too were the legal heirs of the deceased. In view of the existence of other heirs the Claims Officer accepted the claim in respect of one‑half of the house to which Khalil‑ur‑Rahman was as a heir of his mother entitled. Khalil‑ur‑Rabman then filed an appeal before the Deputy Claims Commissioner, who without going into the question as to how Khalil‑ur‑Rahman had become the owner of the whole of the house registered the claim in respect of the whole house on the basis of affidavits filed by the father and sister to the effect that they had nothing to do with the house. He also increased the valuation of the house. The Claims Commissioner acting in the exercise of revisional power found that there was no reason for granting the whole house to Khalil‑ur‑Rahman and there was also no good ground disclosed in the order of the Deputy Claims Commissioner for enhancing the valuation. It is clear to us that Khalil‑ur‑Rahman was not entitled to more than one‑half of the house. In the application for registration of claim he did not explain the source of his ownership at all. He then took up the plea that the house belonged to his mother. But obviously in that case he could be entitled only to one‑half. The simple filing of affidavits of his father and sister to the effect that they had no right in the house could hardly under the circumstances establish his claim to the whole house. The affidavit of the father has not been placed before us, but the affidavit of the sister has been produced and it says that the mother had left two houses and the house in dispute had fallen to the share of Khalil‑ur‑Rahman. No such case had been made out by Khalil‑ur‑Rahman before the Claims Officer. On the other band Mahmud‑ul‑Haq, an Advocate, whom Khalil‑ur‑Rahman produced as a witness at some stage in the proceedings stated that this house had been gifted to Khalil‑ur‑Rehman by his mother during her life‑time. The writ jurisdiction is not to be exercised in aid of injustice. We have little doubt that Khalil‑ur‑Rahman was putting forward an untrue case before the Settlement Authorities when he claimed the whole house. Appeal No. 34 of 1963 is allowed, the order of the Claims Commissioner is set aside because there is no finding as to the existence of sufficient cause for extending limitation. The Claims Commissioner is, of course, entitled to re‑consider the matter and pass an order extending limitation in which case he can exercise revisional jurisdiction over the order of the Claims Officer. Appeal No. 145 of 1963 is dismissed. There is no order as to costs in either appeal. A. H. Order accordingly.