' SHUJAAT ALI KHAN, J. By virtue of instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, the petitioner has groused against orders dated 18.01.2012, 21.03.2012 passed by Addl. Commissioner Revenue, Faisalabad (previously named as Executive District Officer (R)/respondent No, 3) and order dated 17.10.2012 passed by Member, Board of Revenue, Punjab, Lahore (respondent No, 1).
2. Shorn of unnecessary details apart, one Wali Muhammad, father/predecessor-in-interest of respondent No, 4 was allotted land measuring 86 Kanals, 14-Marlas under Grow More Food Scheme in Chak No, 67-RB District Faisalabad. As the said land fell within the prohibited zone, the said allotment was cancelled. Consequently, on 05.07.1974, predecessor-in-interest of respondent No, 4 filed an application for allotment of alternate land which was allowed and he was allotted land measuring 97-Kanals 03- Marlas situated within the revenue estate of Chak No, 580- RB Jaranwala, District Faisalabad. Later on, vide order dated 12.03.1996, District Collector Faisalabad (respondent No, 2) cancelled the said allotment against which, the allottee filed an appeal before the Commissioner but of no avail as the same was dismissed through order dated 01.02.2000. As the predecessor-in-interest of respondent No, 4 breathed his last during pendency of proceedings before lower revenue forum, respondent No, 4 challenged order dated 01..02.2000 before respondent No, 1 by way of filing revision petition which was accepted and the lease in favour of predecessor-in-interest of respondent No, 4/his legal heirs was restored subject to payment of penalty amounting to Rs, 10,000/- by respondent No, 4 and other legal heirs. As respondent No, 4 did not pay the amount of penalty, as contemplated in order dated 25.11.2002 passed by respondent No, 2, the land was shown as Baqaya Sarkar in the revenue record. Subsequently, in view of notification dated 13.01.2010, the land in question was put to open auction and the petitioner being highest bidder was recommended by the DDO(R) for allotment of the land in question. The recommendations of DDO(R) found favour at the hands of respondent No, 2 as well. Respondent No, 4 challenged order dated 28.10.2010 whereby auction was confirmed in favour of the petitioner before the then Executive District Officer (Revenue) who vide order dated 18.01.2011 accepted the same. After acceptance of the appeal filed by respondent No, 4 before EDO(R), the petitioner submitted an application before the DDO(R) as well as respondent No, 3 for refund of amount deposited by him as 1/3 of the bid money. While dealing with the said matter, respondent No, 2 turned down the request of the petitioner for withdrawal of the bid amount vide order dated 27.10.2011 and directed the Assistant Commissioner concerned to handover the vacant possession of the land in question to him. Against order dated 27.10.2011 passed by respondent No, 2, respondent No, 4 filed au appeal before respondent No, 3 who accepted the same through order dated 21.03.2012 against which the petitioner filed a revision petition before respondent No, 1 but without any positive result as the same was dismissed vide order dated 17.10.2012, hence this petition.
3. The legal formulations put forwarded by learned counsel for the petitioner are to the effect that as respondent No, 4 did not fulfill the condition of payment of penalty amounting to Rs, 10,000/- as directed by respondent No, 1 vide order dated 25.11.2002, the lease in favour of respondent No, 4 and legal heirs of Wali Muhammad was never restored; that as the land was appearing in the revenue record as Baqaya Sarkar, the same was rightly put to auction by respondent No, 2; that even at the time of auction, the land in question was not being cultivated by respondent No, 4 thus he had no vested right; that bona fide of the petitioner is clear from the fact that he not only deposited 1/3 of the bid amount on the spot but also deposited the remaining amount later on; that respondent No, 2 being the custodian of the State land in the district rightly resumed the same and then put the same to auction; that as a result of said move of respondent No, 2, on the one hand state land was saved from the clutches of illegal occupants and on the other ensured deposit of handsome amount in the national exchequer. In addition to his oral submissions, he has relied upon Muhammad Afzal v. Muhammad Ayub (2003 SCMR 961) and Mst. Shahida Khanum v. Province of Sindh (2008 MLD 293).
4. Conversely, learned counsel appearing on behalf of respondent No, 4, while defending the order impugned in this petition, states that as the order dated 18.01.2011 passed by EDO(R) was not challenged by the petitioner before any forum, any order passed by respondent No, 2 subsequent thereto is nothing but a nullity in the eye of law; that as no time frame was given by Board of Revenue to deposit amount of penalty while restoring lease in favour of respondent No, 4 and other legal heirs of the original lessee, the order could not be recalled automatically by respondent No, 2; that at the most, the District Collector could send reference to respondent No, 1 with the assertion that respondent No, 4 failed to deposit the amount of penalty imposed upon him thus the land in question be resumed in favour of State but there is nothing on record to show that the land allotted in favour of predecessor-in-interest of respondent No, 4 and later on transferred to him upon death of the former was either resumed in favour of the state, therefore, the same was not available for auction; that the land having been allotted in favour of predecessor-in-interest of respondent No, 4 under the Grow More Food Scheme, the same could not be leased out through auction; that later on, respondent No, 4 fulfilled the condition imposed by respondent No, 1 in its order dated 25.11.2002 by depositing the requisite amount, thus, the said deficiency stood cured. In support of his oral submissions. Learned counsel appearing on behalf of respondent No, 4 has relied upon Haji Abdullah & 10 others v. Yahya Bakhtiar (PLD 2001 SC 158) and Abdul Khaliq & 8 others v. Assistant Collector/Notified Officer, Bhakkar & 11 others (PLD 2004 Lahore 521).
5. Learned Assistant Advocate General argues that as in the applications submitted by the petitioner before DDO(R) as well as the Commissioner, there was no prayer regarding handing over the possession, respondent No, 2 could not pass any order in that regard; that under Section 30(2) of the Colonization of the Government Land (Punjab) Act, 1912, the District Collector is competent to resume any land in favour of state and that to resolve the matter between the parties, it is in the fitness of the things that the matter be remitted to respondent No, 1 for decision afresh after taking into consideration all the pros and cons of the case.
6. Learned counsel appearing on behalf of the petitioner, while exercising his right of rebuttal, submits that though no time frame was fixed by respondent No, 1 in order dated 25.11.2002 regarding deposit of amount of penalty, but respondent No, 4 could not be allowed to deposit the same beyond the reasonable time; that the lease in favour of the predecessor-in-interest of respondent No, 4 under the Grow More Food Scheme was for only three years and the same, without extension by competent authority, could not be considered valid after expiry of said period thus the non-challenging of the order passed by EDO(R) on 18.01.2011 makes no difference as there is no need to challenge an illegal order; that respondent No, 2 enjoys the powers to cancel any lease in favour of a lessee; that relief can be given by the court/authority besides claimed in the pleadings; that the petitioner cannot be made to suffer on account of any illegality committed by the government functionaries. Reliance in this respect has been made on Sigello Asia v. Akbar Enterprises Pvt. Ltd. (2001 CLC 660), Muhammad Afzal v. Muhammad Ayub (2003 SCMR 961), Ms. Shahida Khanam v. Province of Sindh (2008 MLD 993), Khuda Bakhsh v. Khushi Muhammad (PLD 1976 SC 208) Khizar Hayat v. Municipal Corporation Fsd. (2000 CLC 1374) Fazal Din v. Rehabilitation Commissioner (1987 CLC 1053) Wajid and 2 others v. Mir Muhammad Baloch (PLD 1982 Quetta 41)
Muhammad Younas Khan v. Govt. Of NWFP (1993 SCMR 618) Mst. Athar Jabin v. Deputy Settlement Commissioner Circle III, Lahore (PLD 1993 Lahore 842).
7. I have given ardent hearing to learned counsel for the parties in addition to going through the documents annexed with this petition and the case-law relied upon by the learned counsel for the parties in support of their respective pleas.
8. Firstly, taking up the question as to whether due to non-payment of penalty amount by respondent No, 4, the land automatically stood resumed in favour of the State or the District Collector was required to do something in that respect, I am of the view that a perusal of order dated 25.11.2002 shows that respondent No, 1 restored lease in favour of legal heirs of Wali Muhammad, original lessee, subject't.o deposit of R.10,000/- as penalty but no time frame for such deposit was stipulated in the said order. When a court/authority passes a conditional order but does not mention about the time for fulfilment of such condition or penal consequences of non- fulfilment of said condition, the person in whose favour order is passed cannot be penalized for belated fulfilment of such condition. If any case-law is required the reference can safely be made to the case reported as Muhammad Nazir v. Qaiser Ali Khan (2003 SCMR 436).
' Insofar as the case in hand is concerned, suffice it to observe that if respondent No, 4 or other legal heirs of original lessee did not deposit the said amount within reasonable time, the District Collector could put up the matter before respondent No, 1 seeking permission for resumption of land after recalling of order regarding restoration of lease in favour of respondent No, 4 but instead of doing so, respondent No, 2 proceeded to put the same to auction. Further, order dated 25.11.2002 passed by respondent No, 1 was not challenged by anybody before any higher forum. Thus, any order passed by respondent No, 2, without prior approval of respondent No, 1, cannot be given legal sanctity. Resultantly, the action of respondent No, 2 to put the land in question to auction was rightly set at naught by the then EDO (R) through order dated 18.01.2011.
9. It is also important to mention over here that while restoring the lease in favour of legal heirs of Wali Muhammad, respondent No, 1 did not mention anything about the consequences of non- deposit of penalty imposed against respondent No,
4. In this backdrop, it was not just for respondent No, 2 to put the land to auction while impliedly taking it as resumed.
10. It is worth mentioning here that instead of challenging order dated 18.01.2011, whereby the order regarding confirmation of auction in favour of the petitioner was set aside by the EDO(R), he filed an application for withdrawal of the bid amount deposited by him. It is admitted fact that the order regarding handing over the possession was passed by respondent No, 2 on the application moved by the petitioner simultaneously before the DDO(R) and the Additional Commissioner (R) for return of the bid amount. As there was no prayer by the petitioner for handing over the possession in those applications, respondent No, 2 was not obliged to go beyond the prayer clause as no relief could be granted beyond the prayer clause. If any case-law is required, reference can be made to the cases of Citibank v. Shahanshah Hussain (2009 CLD 1564) and Haji Abdullah & 10 others (supra). Even otherwise, while filing application before the Commissioner, the petitioner inter alia averred as under:--- "That one Allah Yar filed an appeal u/s. 7 of the Colony Act read with S. 161 of West Pakistan Land Revenue Act and he succeeded in the said appeal and the auction in favour of the petitioner was declared illegal vide order dated 18.01.2011 "
11. From perusal of afore-quoted paragraph of the application submitted by the petitioner for refund of bid money it is abundantly clear that while acquiescing with the setting aside of order of confirmation of bid in his favour he moved the said application thus rested with the findings recorded by the EDO (R) dated 18.01.2011. In this backdrop, respondent No, 2 could not order for handing over possession to the petitioner.
12. The main thirst of the arguments of the learned counsel for the petitioner is that certain rights accrued in petitioner's favour due to having been declared as successful bidder in the auction proceedings conducted by respondent No, 2 pursuant to the notification dated 13.01.2010. A perusal of the said notification shows that the land already allotted to a person under any scheme was not available for auction under the said notification as no formal order regarding resumption of land in favour of state was in the field at the relevant time, the auction proceedings could not be conducted by respondent No, 2 qua the land in question.
13. Now, coming to the petitioner's grievance that as respondent No, 4 was not cultivating the land in discussion even till the holding of auction, he had no right to challenge the same. I am of the view that if respondent No, 4 was not in cultivating possession of the land in question, respondent No, 2 was fully authorized to take steps for cancellation of the lease in his favour and then to resume the same in favour of the state but no steps have been taken by respondent No, 2, thus his action is not covered under Section 30(2) of the Colonization of Government Land (Punjab Act 1912) as argued by learned Assistant Advocate General.
14. As far as the contention of the learned Assistant Advocate General regarding remand of the matter to respondent No, 1 is concerned, suffice it to note that when the matter can be decided on the basis of available record, it is not proper to remand the matter to the lower forum as it would not only result in multiplicity of proceedings but would also be an exercise in futility in addition to being a source of inconvenience and hardship for the litigants. Reliance in this regard is placed on M/s. United Woolen Mills Workers Union v. United Woolen Mills Ltd. (2010 SCMR 1475), Arshad Amin v.
M/s. Swiss Bakery & others (1993 SCMR 216) and Abdul Qadir & others v. Settlement Commissioner & others (PLD 1991 S.C. 1029).
15. Now taking the plea of the petitioner that order dated 18.01.2011 passed by the EDO(R) being totally illegal, there was no need to challenge the same, I do not find myself in agreement with the learned counsel for the petitioner for the reason that even an erroneous order cannot be brushed aside without challenging the same before the appropriate forum. The august Supreme Court in the case of Sarosh Haider v. Muhammad Javed Chundrigar and others (PLD 2014 S.C. 338) while dealing with somewhat similar preposition has inter alia held as under- " We may note that this judgment relied upon by the learned counsel for respondent No, 1 would be of no help for the reasons that the respondent No, I had more than one occasions to agitate about his seniority but he himself chose not to challenge the same and allowed them to attain finality and thus he himself acquiesced and abandoned his right to claim seniority over that of appellant and principle of estoppel will surely come into operation and debar the respondent No, 9 from asserting the right of seniority over and above that of appellant, which he himself through his own act and conduct has rested.
' Further, the Hon'ble Supreme Court of Pakistan in the case of M/s. Blue Star Spinning Mills Ltd. v.
Collector of Sales Tax & others (2013 SCMR 587) has inter alia observed as under:- "*The Court specifically adverted to the arguments raised by the petitioner's learned counsel that no limitation runs against a void order and held that this not an inflexible rule; that a party cannot sleep over to challenge such an order and that it is bound to do so within the stipulated/prescribed period of limitation from the date of knowledge before the proper forum in appropriate proceedings"
' If we adjudge the fate of order, dated 18.1.2011, passed by EDO (R) on the touchstone of the afore- quoted judgments of the apex Court of the country, the conclusion in definite is that the same having not been challenged before the higher forum holds the field till date and order of the District Collector regarding confirmation of auction in favour of the petitioner having merged into said order, the District Collector could not order for handing over the possession of the land in question to the petitioner.
16. Insofar as the case-law referred to by the learned counsel for the petitioner is concerned, suffice it to observe that action of respondent No, 2 regarding auction of the land in question having not been supported by the relevant law and order dated 18.01.2011 passed by EDO (R) having not been challenged, the same is of no help to the petitioner.
17. For what has been discussed above, I have no hesitation in my mind to hold that act of respondent No, 2 to put the land in question to auction without adopting proper procedure and without caring for the orders passed by his superiors, is bad in law. Resultantly, the petition in hand is dismissed with no order as to cost.
18. Before parting with the order, it is observed that the petitioner is at liberty to move for refund of his amount deposited at different times if so advised.