MOHAMMAD SAYEED AKHTAR, J. - The land measuring 38-kanals,
16. Marls (reduced to 36-kanals, 13- marlas during the consolidation proceedings) in khewat No. 100/91-min, khatauni No. 220/216/217 situate in Mouza Jonjhanwali Tehsil Kot Adu District Muzaffargarh was mortgaged with Naba Ram on 22.11.1895 vide Mutation No. 210, Ahmed Bakhsh, the petitioner moved an application on 30.1.1960, before the Revenue/Assistant/Assistant Rehabilitation Commissioner, with powers of Collector, stating that his grandfather Chandan had mortgaged the above-said land with Naba Ram and that an order for redemption of the same on payment of mortgaged money be passed.
The said application was allowed vide order dated 29.5.1963, by Revenue Assistant/Assistant Rehabilitation Commissioner/Collector. It was observed that the land in question was mortgaged money be passed. The said application was allowed vide order dated 29.5.1963, by Revenue Assistant/Assistant Rehabilitation Commissioner/ Collector. It was observed that the land in question was mortgaged on 22.11.1985 vide Mutation No. 210. Vide another Mutation 372 attested on 20.12.1935, mortgage agreement was renewed. The petitioner was directed to pay five times of the original "Lagan" which came to rupees four and ten anas. Another order was passed by the Revenue Assistant/ARC on 7.8.1963 stating that the mortgage money had been deposited and the case be consigned to record. The petitioner moved another application before the same office on 12.2.1964, that he had deposited the mortgage money on 7.8.1963 but the redemption mutation could not be sanctioned nor the warrants of possessions were issued, he prayed for the same.
Thereafter, the learned Revenue. Assistant/ARC with powers of Collector, Muzaffargarh reviewed his order dated 29.5.1963 on the ground that the said order was passed on the basis of acknowledgment in the Jamabandi which, in his opinion, was sufficient acknowledgement, however, subsequently, it transpired to him. That the fresh period of limitation begins to run only if the acknowledgement is in writing and signed by the party against whom it is claimed. He came to the conclusion that the period of sixty years and already expired and as such no redemption order could be passed. He therefore, recalled his order dated 29.5.1963 vide order dated 28.7.1964 and rejected the petition for redemption of the mortgage being time-barred. Thereafter the land in question was allotted as evacuee land to Ghulam Muhammad and Ghulam Masood, respondents 4 and 5 on RL-II in lieu of their claims for land left behind in India. They subsequently sold the same to Ghulam Hussain and Ghulam Abbas, respondents 1 and 2 vide Mutation No. 1288, dated 12.2.1968.
Ghulam Hussain, respondent No. 1 further transferred his share of land to respondent No. 3, his son, on 23.6.1972 vide Mutation No. 1479. The petitioner remained ignorant of the allotment in favour of respondents. The petitioner filed a suit for declaration against respondents challenging the order of allotment in favour of respondents 4 and 5 as well as further alienation in favour of other respondents. However, the same was withdrawn with permission to refile. The second suit to the same effect was filed on 25.10.1984, but that too was withdrawn on the basis that the Civil Court had no jurisdiction. Thereafter the petitioner tiled an appeal against the Additional Commissioner on 31.7.1988 against the order dated 28.7.1964 of the Revenue Assistant/ARC with powers of Collector reviewing his earlier order dated 29.5.1963. The same was dismissed on 28.8 1988 as being barred by time.
2. Learned counsel for the petitioner contends that on payment of the mortgage money i.e. Rs. 4.10, the land stood redeemed. The learned Revenue Assistant/ARC had rightly passed the order dated 29.5.1963 for redemption of the land. He urged that there was no power of review available to the Revenue Assistant/ARC, as such his order dated 28.7.1964 was without jurisdiction and nullity in the eye of law, the same was to be ignored. The learned Additional Commissioner proceeded on erroneous premises that the appeal was barred by time. It was maintained that the land in question was not evacuee property and was not available for allotment to the respondents. It was argued that according to the order of the learned Revenue Assistant/Collector dated 29.5.1963, there was an acknowledgement in the Jamabandi for the year 1955-1956 about the mortgage and that the fresh period of sixty years is available to the petitioner. The learned Collector had rightly passed the order of redemption. Reliance was placed on Samar Gul v. Central Government and others (PLD 1986 SC 35), Ghulam Muhammad and 3 others V. Member, Board of Revenue Punjab, Lahore and 16 others (PLD 2005 Lahore 119) and Allah Ditta and others V. Sardar Khan and others (PLD 1977 Lahore 716).
3. Conversely, learned counsel for the respondents submitted that the appeal -of the petitioner before the learned Additional Commissioner was clearly barred by time. It was submitted that even a void order created results, an aggrieved person was required to initiate proceedings for setting aside .The void order within a reasonable time. Reliance was placed on Sarfraz V. Muhammad Aslam Khan and another (PLJ 2001 SC 1134), Karim Bakhsh and 4 others it. Riaz Hussain and another (1993 SCMR 1667) and Fecto Belarus Tractor Ltd. v. Government of Pakistan through Finance Economic Affairs and others (PLD 2005 S.C. 605). It was further submitted that the petitioner had to exhaust his remedy before-the Member Board of Revenue and without availing the same the instant petition was not maintainable. Reliance was placed on Qurban Ali and another v.
Commissioner and another (2006 SCMR 1073). It was argued that the question of redemption could not be decided in the Constitutional petition. He placed reliance on Muhammad Zaman and 8 others V. Abdul Malik Khan and 7 others {PLD 1991 SC' 524), Muhammad Hanif through Legal Heirs and 2 others v. Zulfiqar Ali and 56 others (1996 SCMR 1869) and Mir Zaman vs. Mst. Sheda and 58 others (2000 SCMR 1699). Lastly it was maintained that the application of the petitioner for redemption of the mortgage was barred By time.
None has entered appearance on behalf of, the respondents 4 and 6 to 8 despite appearance of the names of their learned counsel in the cause list. They are proceeded ex parte.
I have perused the record, gone through the relevant law and considered the arguments of the learned counsel for the parties. The land in question was ordered to be redeemed by the Revenue Assistant/Assistant Rehabilitation Commissioner with powers of Collector vide order dated 29.5.1963. It is stated therein that the land in question was mortgaged on 22.11.19895 through Mutation No. 210. The said mortgage renewed on 20.12.1935 vide Mutation No. 372. The mortgage was ordered .To be redeemed on payment of Rupees 4 and 10 Annas (five times of the original 'lagan'). The order dated 29.5.1963 redeeming the land was reviewed by the same officer on 28.7.1964 on the ground that though there was an acknowledgement in the mutation but the same can be effective when the acknowledgement is in writing and . Signed by the party against whom the right was claimed. He, therefor, recalled the order dated 29.5.1963 and dismissed the application for redemption/restitution of the mortgage. A question arises whether the A.R.C./Collector had the jurisdiction to review his own order dated 29.5.1963. The Redemption and Restitution of Mortgaged Lands Act, 1964 came into force on 31.7.1964, whereas, the review order had been passed on 28.7.1964 there was no provision for review in the said Act much less power to review the orders passed before the enforcement of Act of 1964. The Redemption of Mortgages (Punjab) Act, 1913 and Punjab Restitution of Mortgaged Lands Act, 1938 were repealed on 31.7.1964 by the Redemption and Restitution of Mortgaged Lands Act, 1964. There was no provision of law in the repealed Redemption of Mortgages (Punjab) Act, 1913 and Punjab Restitution of Mortgaged Lands Act, 1938 enabling the officer to review his earlier order. It is well-settled that power of review emanates from a statute. It is a substantive right could not a matter of procedure. It is not available unless it- has been conferred by law. If any authority is needed see Hussain Bakhsh v. Settlement Commissioner Rawalpindi and others (PLD 1970 SC 1), Muzaffar Ali V. Muhammad Shafi (PLD 1081 SC 94) and Riaz Hussain and others V. Board of Revenue and others (1991 SCMR 2307). Since the power of review was not available to the A.R.C./Collector/Respondent No. 6 his order dated 28.7.1964 is void and nullity and the eye of law. The bar of limitation is liable to be ignored. Constraints of limitation would not apply against a void order. See Syed Muhammad Alam V. Syed Mehdi Hussain and 2 others (PLD 1970 Lahore 6), Muhammad Shafi v. Mushtaque Ahmed through Legal Heirs and others (1996 SCMR 856), Muhammad Raz Khan v. Government of N.W.F.P. And another (PLD 1997 SC 397). Malik Khawaja Muhammad and 24 others V, Marduman Babar Kahol and 29 others (1987 SCMR 1543), Fazal Elahi Siddiqi v. Pakistan through Secretary, Establishment Division and 2 others (PLD 1990 SC 692) and Gatron (Industries) Limited v. Government of Pakistan and others (1999 SCMR 107.2). The learned Additional Commissioner erred , in law in coming to the conclusion that the appeal was barred by time. No limitation runs against a void order. No useful purpose will be served in remanding the case to the learned Commissioner after 45 years as the order of the A.R.C./Collector dated 28.7.1964 is void and in any case is to be set aside/ignored. See Mr. Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi (PLD 1965 SC 698) and Muhammad Shafi v. Mushtaque Ahmed through Legal Heirs and others (1996 SCMR 856). The contention of the learned counsel that the petitioner should have approached the Additional Commissioner within reasonable time is devoid of any force. The learned A.R.C./Collector had no power of review. His arrogation of jurisdiction cannot be legalized by efflux of time; therefore, his order dated 28.7.1996 is set aside.
5. The facts are admitted, therefore, the question whether the order dated 29.5.1963 passed by the A.R.C./Collector ordering the redemption of the land was legal and within period of limitation can be decided in this Constitutional petition. The order dated 29.5.1963 reveals that the land in dispute was mortgaged on 22.11.1895 through Mutation No. 210 and the said mortgage agreement was renewed through another oral Mutation No. 372 attested, on 20.12.1935. In my view the period of limitation would start running afresh from 20.12.1935. The petitioner moved the application for redemption of the mortgage on 30.1.1960; therefor, it was well within time. A.R.C.(Collector misdirected himself as to the application of the law.
The same order dated 29.5.1963 displays that the entry in the 'Jamabandi for the year 1955/56 shows the petitioner as mortgagor and the Central Government as mortgagee. The period of 60 years had not elapsed even if this period is counted from the date of original mortgage i.e. 22.11.1895. The entry in revenue record constituted valid acknowledgement in writing under Section 19 of the Limitation Act, 1908 with the result that fresh period of limitation accrued in favour of the petitioner. See Samar Gul v. Central Government and others (PLD 1986 SC 35). The . Application of the petitioner for redemption was well within time on this score as well.
6. There is another aspect of the case that under Section 13 of the Limitation Act, 1908 in computing the period of limitation the time during which the defendant has been absent from Pakistan and from the territories beyond Pakistan under the administrative control of the Federal Government, shall be excluded. It was held in -Muhammad Shaft V. Ghulam Qadir etc. (PLD 1978 Lahore 71) as under: - "It cannot be said that the period of limitation, although has stopped running against the evacuees, will continue to run in favour of the Custodian, he having stepped into then shoes. By operation of law evacuee properties, have become vested in him,, yet he is not successor-in-interest of the evacuees so as to claim benefit under the law of limitation. Articles 148 and 120 of the First Schedule, moreover apply to suits and not to applications before the Custodian, under the provisions of the Pakistan (Administration Evacuee Property) Act XVII of 1957."
This view was affirmed in Muhammad Hussain and 2 others v. Custodian Evacuee, Property (J&K) and 13 others (1980 CLC 593), Allah Ditta and others v. Sardar Khan and others (supra) and Ghulam Muhammad and 3 others vs. Member, Board of Revenue Punjab, Lahore and 16 others (supra). It is pertinent to mention here that the learned counsel for the respondent was a counsel in the case Member, Board of Revenue, Punjab, Lahore and 16 others (supra) and had argued for the mortgagor. It was further observed in Allah Ditta and others v. Sardar Khan and others (supra) as under:- "There can be no doubt that in the instant case, It is only the equity of redemption which duly vested in the Custodian. 'The mortgage money due to the mortgagee, as laid down under Section 14(a) of Displaced Persons (Land Settlement) Act, became a charge on such land. The interest of the evacuee in the land in dispute vested in the Custodian only to the extent of the mortgage money and the land could not have been as such treated to be evacuee property, available for allotment to the predecessor-in-interest of petitioners."
In the instant case the disputed land was not evacuee property and could not be allotted to the respondents 4 and 5, at the maximum equity of redemption vested in the Custodian.
7. The situation can be looked at from another angle that the Chief Settlement and Rehabilitation Commissioner West Pakistan in its Office Memorandum No. 1393-59/4144-R(P), dated 5th November, 1958 directed the Local Rehabilitation Authorities to issue notice to the local mortgagors to redeem their land within one month. Vide press note dated 8th December, 1959 the mortgagors who wanted to get their properties redeemed were advised to contact the Local Rehabilitation Authorities. The period of one month was extended through various Memoranda and press notes.
The last press note No. 5494-66/5802 was issued on 31st March, 1967. The application of the petitioner for redemption of the land was well within time.
8. The upshot of the above discussion is that A R C./Collector had no jurisdiction to review his own order dated 29.5.1963. The land in question was not an evacuee property as such not available for allotment to the claimants/respondents 4 and 5 in lieu of their verified claims. The authorities relied upon by the learned counsel for the respondent are not helpful to him in the particular facts of the instant case and do not advance his case.
9. In view of the above this petition is allowed and the impugned orders dated 28.8.1998 passed by Additional Commissioner and that of the Revenue Assistant/A.R.C./ Collector dated 28.7.1964 are declared to be without lawful authority and of no legal effect. The order passed by A. R.C./Collector dated 29.5.1963 is upheld. The allotment of the land in question in favour of respondents 4 and 5 and further alienation by them to respondents 1 to 3 are also declared to be without lawful authority and of no legal effect.