Mazhar Alam Khan Miankhel, J.--Through this single judgment, we intend to dispose of two Writ Petitions Bearing No, 402 of 2002, titled "Mian Gul Aurangzeb vs. Zeenat Alamzeb" and 438 of 2002, titled, "Mian. Gul Aurangzeb vs. Bakht Zeba" having common questions of law and fact in both the petitions. In pursuance of Martial Law Regulation No, 115, the exercise of option of choice by the Respondent No, 1 in both the writ petitions have been questioned by the petitioners through the above-said two writ petitions.
2. The petitioners of Writ Petition No, 402/2002 have questioned the order dated 25.4.1996 of Deputy Land Commissioner, Respondent No, 5, whereby he by allowing the application of Respondent No, 1 for exercising her option of choice in respect of land in question, directed that the property mentioned in the application be adjusted/counted toward her choice and further ordered that the same be incorporated in the revenue record in the name of her son Babar Akmal Ahmad, Respondent No, 2 at her request through a separate application. The order of Deputy Land Commissioner (D.L.C.), Respondent No, 5, was upheld by the Land Commissioner, Respondent No, 4 vide his order dated 27.3.2000, when he dismissed the appeal of present petitioners and similarly, .The Chief Land Commissioner N.W.F.P. Also dismissed the revision of petitioners vide his order dated 06.12.2001.
Whereas, the petitioners in connected Writ Petition No, 438/2002 have questioned the order of Deputy Land Commissioner (D.L.C. ). Respondent No, 8 therein, dated 22.8.1996, whereby the application of Respondent No, 1 for exercising her option of choice was allowed and the property in question was directed to be adjusted/allotted in the name of Respondent No, 1, widow of the declarant late Mian Gul Aurangzeb and implementation of the said order by incorporating the same in the revenue record was also made.
The order of the Deputy Land Commissioner was upheld by the Commissioner Land Reforms vide his order dated 06.3.2000, when he dismissed the appeal of petitioners. Similarly, the revision of petitioners was also dismissed by the Chief Land Commissioner of N.W.F.P. Vide his order dated 06.12.2001. Hence, present writ petition.
4. The learned counsel for petitioners vehemently argued that the initial order of Deputy Land Commissioners was passed behind their back and similarly they being the legal heirs of the common predecessor of the parties were not impleaded in the application and huge chunk of valuable property was selected by Respondent No, 1 by exercising her option of choice in respect of land in question, which is against law.. He further argued that the very initial order is against the natural justice as the petitioners were condemned unheard and the order was passed in a clandestine manner, which is void, ab initio, having no adverse affect on their rights; That after getting knowledge of the said void order, they challenged the same by way of appeal, but the Settlement Commissioner once again fell into an error of law when he declared their appeal to be barred by Law of limitation and further held that in case of Mst. Zeenat Begum, she was rightly held entitle for the property in question because of the family settlement between the parties. He next contended that the initial orders being void, ab-initio, were challenged just after getting knowledge of the same and there is no limitation against void order. He next argued that as per verdict of Land Commissioner that father of the petitioners 3&4 had also acted in the similar manner by exercising his right of choice for allotment of land without impleading other co-owners as parties, is also not correct, as the allotment in their name has also been challenged by them and if at all he had acted in the same manner, the remaining petitioners cannot suffer because of his unlawful act. He submitted that by allowing this writ petition, the impugned orders, being unlawful and without jurisdiction, be set-aside and they be provided a fair chance of hearing. The learned counsel placed reliance on 1989 SCM R-130 "Ali Gohar Khan vs. Sher Ayaz and other." 2003 YLR-1260 "Alam Din vs. Malik Hayat Khan and 58 others" 2007 SCM R-262 "Evacuee Trust Property Board and others vs. Mst. Sakina Bibi and others" 1996 SCM R 856 "Muhammad Shafi vs. Mushtaque Ahmed through Legal Heirs and others", PLD 2001 Supreme Court 514 "Land Acquisition Collector, Nowshera and others vs. Sarfaraz Khan and others".
As against that, the learned counsel for Respondent No, 1 of both the writ petitions submitted that the impugned orders were passed strictly in accordance with law. He next contended that the appeal filed by the petitioners was hopelessly time-barred and no specific date of their getting knowledge of the orders in question was shown; Similarly, no application for condonation of delay was filed, so the appeal was rightly dismissed on question of limitation. He further submitted that the application of Respondent No, 1 for exercising her right of choice in respect of land in question was made on the basis of a family settlement between the legal heirs of Mian Gul Alamzeb, so there was no need to implead the other co-sharers. He next contended that the petitioners are not entitled to get a discretionary relief, as they have not come with clean hands and suppressed material facts from this Court as there were many other similar applications for exercise option of choice which were considered in isolation and were allowed i,e, by the Petitioners No, 3 & 4 and Petitioner No,
5. So, the petitioners are stopped to challenge the exercise of option by the Respondent No, 1 in both the writ petitions and lastly requested for dismissal of the same.
5. Learned counsel for the parties were heard and record of the case was perused.
6. Perusal of the record would reveal that Ruler of Swat Mian Gul Abdul Wadood alias Badshah Sahib, owned huge landed and other property within as well as outside the State of Swat. His State of Swat was merged into Pakistan on 15.8.1969 alongwith States of Dir and Chitral. After the said merger, Commissioner of Malakand Division performed functions of the Ex-Ruler of Swat for some- time and thereafter Regulation No, 1 of 1969 was promulgated and Dir, Chitral and Swat Administration Regulation, 1969 was promulgated and thereby, Dir, Chitral and Swat Land Disputes Inquiry Commission was constituted by the Governor of NWFP. After the appointment of Commission, many claims i,e, about 500 claims were filed against Badshah Sahib. Said claims against Badshah Sahib were pending adjudication when in the meanwhile, he died on 01.10.1971 .And his property then devolved upon his two sons, namely Mian Gul Shehzada Abdul Haq Jehanzeb and Mian Gul Shehzada ultan-e-Rome, in equal shares who wanted to alienate/transfer the same in the names of their children, but they were restrained by the Commissioner, Malakand Division vide his order dated 10th of January, 1872. In the meanwhile, Land Reforms Regulation 1972, known as Martial Law Regulation No, 115 (M.L.R.-115) was extended to Malakand Division on 07.11.1972 vide Notification No, 1964/LC. Thereafter, both the sons of late Badshah Sahib were asked to file their declarations under Para-12 of the Regulation and consequently, the entire property of the Royal Family was measured which in total turned out to be Four thousand, eight hundred & eighty- two (4,8,82) acres, equivalent to fifteen thousand, eight hundred & ninety (15,8,90) produce index units (P.I.Us.). This property was more than the permissive entitlement/ceiling under the Regulation which was 24,000 P.I.Us, so under the Regulation, they were supposed to surrender the excess P.I.Us, i,e, 26,829. They were also asked to exercise their choice under Para-11 of the Regulation, but instead of filing their choice, they took the stance that making of a choice would be meaningless unless their cases/disputes were finally decided as their almost entire property was subject matter of the claims/disputes and they were unable to ascertain that which of the property will ultimately fall to their lot, but their request was turned down by the Land Commission hierarchy and ultimately, their surplus land, as stated above, was resumed and they were directed to file their final choice. The predecessor of present parties i,e, Shehzada Jehanzeb filed his choice on 22.6.1977, whereas on failure of Shehzada Sultan-e-Rome to file his choice, so his choice was prepared by the D.L.C. In compliance of the directions of Federal Land Commission. By the time, the rest of the lands were allotted to the sitting tenants under the Regulation. Some fifty five cases out of the above referred disputes were decided in their favour and they were again asked to submit their revised choice. Each of the two were entitled to have or to retain an area equivalent to 12,000 P.I.Us, by the time the predecessor of parties to the present litigation Mian Gul Shahzada Abdul Haq Jehanzeb died on 14.9.1987, so the right to exercise choice under Paragraph-11 of M.L.R.-115 devolved upon all the legal heirs of Mian Gul Jehanzeb. The present dispute between the legal heirs of late Mian Gul Abdul Haq Jehanzeb arose when some of the legal heirs i,e, Respondent No, 1 in both the petitions and respondents of other writ petitions (which have been decided between the parties on the basis of compromise), made their choices individually by not impleading all the legal heirs of Mian Gul Jehanzeb, in spite of the fact that there was no partition amongst the legal heirs, who all were the joint owners in every inch of their joint property.
7. It is apparent from the record that the applications submitted by the Respondent No, 1 of both the writ petitions for giving/making their choices were made in isolation and independently and other legal heirs of their common predecessors were not made party and decisions thereon were made in their absence. The grievance of the petitioners is also to this effect that they being necessary party were required to be made party and under natural justice they should have been provided a chance of hearing under the law. Both the learned counsel for the parties and specially the learned counsel for the Respondent No, 1 of both the writ petitions have admitted that there was no official or private partition between the legal heirs of their common predecessor and all were the joint owners of the legacy of Mian Gul Shahzada Abdul Haq Jehanzeb to the extent of their respective Sharai Share. Being co-sharers in the joint property were owners and interested in every inch of the joint property. So, all the co-owners co-sharers were necessary party in the proceedings. Law of the land in this regard is settled and the cases of "Ali Gohar Khan vs. Sher Ayaz and others", 1989 SCM R 130, "Alain Din vs. Malik Hayat Khan and 58 others" 2003 YLR 1260" can be referred to in support of the above findings.
8. The learned counsel for Respondent No, 1 while submitting that other similar petitions were also dealt with in the same manner and the petitioners thus have suppressed such material fact from the Court fell the victim of a bit misconception. The respondents of the decided writ petitions had accepted their claims and agreed to give them the equivalent property and the matters were patched up on the basis of compromise whereas other such like applications of Petitioners Nos. 3 and 4 would reflect that all the legal heirs including the petitioners were made party in that application. Similarly, regarding one of the property, choice was made by the predecessor of the parties himself wherein others were party.
9. The golden principle of natural justice is that no one should be condemned unheard is applicable in every statute and in every case. It is again settled law that a decision made in violation of the principle of natural justice, would be unlawful, illegal and void ab initio and will not be bind in don the aggrieved party. Void order under the law is no order in the eye of law. It is settled law that there is no limitation to challenge a void order; however, that must not be left unchallenged While reverting back to the facts and circumstances of the case in hand by applying the above said settled principles of law, we are unanimous to opine that the applications made by both the ladies by selecting the lands for themselves would reveal that the other co-owners /co- share were not made parties to those applications. The decisions made by the officials thereon behind the back of the petitioners/other co-owners are no orders/decisions in the eye of law and such orders/decisions in the circumstances would be void ab initio. So, there would be no limitation to challenge the same. Reliance in this regard can be placed on the case of "Evacuee Trust Property Board and others vs. Mst. Sakina Bibi and others" 2007 SCM R 262, "Muhammad Shafi vs. Mushtaque Ahmad through legal Heirs and others" 1996 SCM R 856 and,' "Land Acquisition Collector Nowshera and others vs. Sarfaraz Khan and others" PLD 2001 Supreme Court 514 Supra.
10. The appeal of the petitioners was dismissed mainly on the ground of limitation and thus order was upheld upto the Chief Land Commissioner. Since the initial order has been declared illegal and void ab initio, passed in the absence of the parties, so maintaining said order would also be illegal and against law, which cannot be left to remain in the field.
When this being the situation, we have no alternative but to allow both the writ petitions and set aside the impugned orders with the directions to the Deputy Land Commissioner to decide the application of the respondents in presence of all the co-owners strictly in accordance with law. The matter in hand being decades old should be given preference and be decided as early as possible but not later than two months after receipt of file/judgment.
Orders accordingly.