1. ' MUHAMMAD ZAHOORUL HAQ, J.-The petitioner is aggrieved against the order passed by Member, Board of Revenue, Government of Sind, respondent No, 1 on 2-8-1977, by which order he accepted the appeal of respondent No, 5 namely Messrs Hajib Anjuman Moro and revoked the grant of the plot which bad been made by Deputy Commissioner Nawabshah in favour of the present petitioner and ordered the same to be put to open auction.
2. ' The relevant facts are that the petitioner had applied for grant of plot measuring 1,200 sq. Feet near Station Moro Taluka Moro District Nawabshah for residential purpose. The petitioner had unauthorisedly constructed over the said plot. The Mukhtiarkar saw the site on 2-3-1972 and did not raise any objection about the grant of the said plot to the petitioner and recommended that Re. 1 per square foot may be recovered as Malakano from the petitioner. The Deputy Commissioner did not agree with Maikano of Re. 1 per square foot and eventually Rs, 2.50 per square foot was fixed as Malkano to regularise the grant of the plot in view of the unauthorised construction.
3. ' Consequently on 23-9-1975 the Deputy Commissioner Nawabshah granted the said plot of land to the petitioner. The grant of the land was however, subject to the confirmation of the same by the Commissioner of Sukkur Division vide Annexure 'F' to the petition. On 29-11-1975 the Commissioner Sukkur Division sent a letter to the Deputy Commissioner Nawabshah Annexure 'G'. The subject of that letter was "Regularization of a Sikni plot encroached upon by Ch. Mukhtar Ahmed son of Ch. Muhammad Chiragh Arain in Moro. The Commissioner confirmed the grant of the land in favour of the petitioner. However, in the second para. Of the said letter the following statement was made about the Malkano.
4. "The question of fixing the rate of Malkano to be charged will be decided after clarification is received from the Board of Revenue as this is a case of unauthorised occupation and is not covered by the present policy."
5. ' In pursuance of the said grant the petitioner disposited a sum of Rs, 3,000 as a Malkano of the said plot in favour of the Mukhtiarkar Moro on 18-2-1976 (Annexure 11'). On the same day the petitioner executed a Kabuliat in respect of the said land Annexure T which was executed before Mukhtiarkar Moro.
6. ' Meanwhile the respondent No, 5 appeared to have submitted an application (Annexure 'R-1,) to Chief Minister Government of Sind on 21-5-1975 seeking that a plot be given to them for opening a school for girls in the heart of the town. It was also pointed out in that application that open plot for school is purely vacant which is adjacent to Sweepers Colony Moro. The said application was endorsed to the Deputy Commissioner Nawabshah for disposal. The Deputy Commissioner Nawabshah in turn sent the same to the Assistant Commissioner Moro and the same also appears to have been endorsed to the District Education Officer Nawabshah who forwarded the same in original on 13-8-1975 to Assistant Commissioner Moro with the remarks that the request of the residents of new plot Moro is quite recommendable and plot for the school may please be provided. There is no other endorsement on the said application as to whether the present plot in question was considered by any authority for grant to the respondent No,
5. The only thing that we have on the record before us is that the impugned order was passed by the respondent No, 1 on appeal of respondent No, 5 on 2-8-1977. The respondent No, 1 took the view that there was a competition over grant of the said plot and, therefore, the sale of the plot by negotiation was not justified and it was against the provisions of land grant policy on the subject. He, therefore, revoked the grant of the plot from the name of the petitioner and directed that it should be put in open auction. The petitioner filed two review applications before the respondent No, 1, but they were dismissed on 3-1-1978 and 7-5-1978.
7. ' Mr. Muhammad Ibrahim Memon has submitted before us that there was no competition over the grant of the plot in question and the respondent No, 5 had become interested in the same after it was granted in favour of the petitioner. Mr. Muhammad Ibrahim Memon has also contended that the appeal filed by the respondent No, 5 was timer-barred and should have been dismissed on 2- 8-1977 as it was filed on 8-4-1976. He further submitted that orders of 3-1-1978 and 7-5-1978 being based on the illegal order of 2-8-1977, they are themselves without lawful authority and of no effect. The contention in this regard is in para. 2 of the grounds of the petition. The contention of the petitioner as contained in the second para. Of its petition in respect of the limitation has not been controverted anywhere in the counter-affidavit. Of Mr. Mumtaz Ali Kureshi who is the president of respondent No, 5 and in para. 15 of the said counter-affidavit Mr. Mumtaz Ali Kureshi only submitted that his appeal before the Revenue Board was competent and it was rightly decided. It is, therefore, obvious that the contention in para. 2 of the petition that the appeal of the respondent was filed on 8-4.1976 has to be accepted a correct although Mr. Abdul Sattar Shaikh learned counsel for the respondents Nos. 1 to 4 stated that actually the appeal was filed on 15-4-1976. Mr. Mir Muhammad Shaikh for the respondent No, 5 has stated that appeal was filed on 12-4-1976 and that the appeal was also accompanied by an application under section 5 of the Limitation Act or condoning the delay in the filing of the appeal. It is, therefore, positive that appeal of respondent No, 5 was not filed before 8-4-1916.
8. ' Mr. Mir Muhammad Shaikh has contended that the petitioner had come to the Court with unclean hands inasmuch as he had a number of allotments in his favour and house No, 11-C-VIII/C at Moro was allotted to him by Deputy Settlement Commissioner Nawabshah but it is also stated that it was further urged that another house No, 2-D-1 was allotted t3 the father of the petitioner and further that 25 acres of land had been allotted to the petitioner by the Rehabilitation Authorities near town which 2 acres have been converted into SIKNI. We are not satisfied that on these grounds the petitioner would be deprived of his remedy in this petition if the same was available to him. The allotment of houses by Rehabilitation Authorities in favour of sister and father of the petitioner does not amount to the allotment of a house in favour of the petitions. So also the allotment of agricultural land does not mean the allotment of land in the town of Moro. In any case the petitioner does not appear to have made any misstatement before the Deputy Commissioner or made suppression of a material fact when he stated that he did not have a house in Moro town.
9. ' We intend to dispose of this petition on the short ground that the appeal of respondent No, 5 before the respondent No, 1 was time-barred and the same should have been dismissed as such under section 3 of the Limitation Act.
10. ' Section 162 of the West Pakistan Land Revenue Act, 1967 as applicable to Sind, in subsection thereof provided a period of 90 days for an appeal which lies to the Board of Revenue. Under section 161 (1) it is provided that an appeal shall lie from an original or appellate Order of a Revenue Officer as follows namely : ' To the Board of Reuenue only on a point of law when, the order is made by a Commissioner ?"
11. It is, therefor; obvious that since the order confirming the grant of land to the petitioner had been made by the Commissioner Sukkur on 29-11-1975, therefore, 90 days time for filing the appeal would be counted from 29-11-1975.
12. Mr. Muhammad Ibrahim Memon wanted that the time should be counted from 23-9.1975 which was the date of the order of original grant of the plot of land in favour of the petitioner by the Deputy Commissioner, Nawabshah. But we do not agree with this submission as the grant by Deputy Commissioner was subject to confirmation by the Commissioner and hence the relevant date would be the date of confirmation of the grant by the Commissioner viz. 29-11-1975. However, even from 29-11-1975 the 90 days as provided under section 162 expired on 27-2-1976 and, therefore, the appeal whether filed on 8-4-1976 or 12-4-1976 or 15-4-1976 was obviously time- barred and should have been dismissed and the same not having been done the order in question suffers from legal infirmity.
13. ' The respondent No, 1 has not considered the question of limitation of the appeal and has dealt with the case on merits. It was held in PLD 1969 SC 167 as under :- "A waiver of the question of limitation is not permissible even where the period of limitation is prescribed by a special or a local law. Mere disposal of the appeal on merits is not sufficient to lead to the inference that `the delay must have been condoned'. It was also held "whether the plea of limitation was raised or not it was the duty of the settlement Court, to notice the point of limitation'."
14. ' In this case reliance was placed on PLD 1964 SC 236.
15. It is, therefore, obvious that the respondent No,1 had no jurisdiction to consider the appeal of respondent unless and until he had considered the question of limitation and had come to the conclusion that the appeal was within time. But he has not done so and, therefore, his order is not valid in law and has to be set aside.
16. Mr. Mir Muhammad Shaikh, counsel for the respondent No, 5 wanted us to remand the case back to the respondent No, 1 on the ground that the respondent No, 5 had filed an application for condonationl, of delay under section 5 of the Limitation Act. Mr. Muhammad Ibrahim Memon on the other hand contended that section 5 of the Limitation Act does not apply to Revenue Appeals. He has referred us to 3 decisions of the Board of Revenue in this regard. In PLD 1978 Rev. 17 (41) which were decided by one member of Board it of Revenu was held that delay in respect of appeal or applications filed under provisions of Land Revenue Act, 1967 cannot be condoned under section 5 of the Limitation Act, 1908 and it was further held that unless the delay was brought under any exemption of part 3 of the Limitation Act, 1908, delay in filing appeal or applications for review cannot be excused by virtue of section 29 of the Limitation Act, 1908 read with section 161 Land Revenue Act. However, more important in this respect is the decision reported in PLD 1978 Rev. 28
(32) where a full Board of 3 Members took the same view.
17. ' Mr. Abdul Sattar the learned A. A.-G. Brought our attention to a case reported in PLD 1982 SC 88 where it was held that clauses (a) and (b) of section 29 (2) of the Limitation Act in context of Sind Rental Premises Ordinance, 1979 do exclude the application of section 5 of the Limitation Act, 1908 and condonation of delay was not possible in case of an appeal filed under section 21 of the same Ordinance. The relevant portion of the judgment of the Supreme Court is reproduced below:- "Subsection (2) of section 29 of the Limitation Act relates to special and local laws. The Sind Ordinance, it has been admitted, is such a law. We have already held that the period of limitation for filing the appeal under this law (thirty days) is different from the period prescribed by Article 156 of the Limitation Act ; therefore, as provided in section 29 (2), the provisions of section 3 thereof would apply to such a situation, but subject to the exclusions contained in section 29 itself, when section 3 of the Limitation Act is applied, the provisions of sections 4 to 25 of that Act would get (normally) attracted by virtue of section 3. But if it is a case covered by section 29, the provisions of sections 4 to 25 would apply only to the extent that any of them have not been excluded by the combined reading of clauses (a) and (b) of section 29 (2) and, it is not denied that the said two clauses when read together in the context of Sind Rental Premises Ordinance, 1979 do exclude section 5 of the Limitation Act."
18. The provisions of the Land Revenue Act are also special law as envisaged in section 29 (2) of Limitation Act and clearly, therefore, clause (b) of sub- E section (2) of section 29 is applicable in respect of the same. Section 29 of the Limitation Act is herein reproduced :- "29. Savings.-(1) Nothing in this Act shall affect section 25 of the Contract Act, 1872.
(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law-
(a) the provisions contained in section 4, sections 9 to 18 and section 22 shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law ; and
(b) the remaining provisions of this Act shall not apply.
(3) Nothing in this Act shall apply to suits under the Divorce Act (IV of 1869).
(4) Sections 26 and 27 and the definition of "easement" in section 2 shall not apply to cases arising in territories to which the Easements Act (V of 1882), may for the time being extend."
19. It is, therefore, obvious that clause (b) of subsection (2) of section 29 excludes the application of section 5 of the Limitation Act to the Land Revenue Act and hence in view of the dictum of their Lordships of the Supreme Court cited above the delay in respect of filing appeal under section 161 of the W. P. Land Revenue Act, 1967 cannot be condoned under section 5 of the Limitation Act. It is, therefore, obvious that even if the respondent No, 5 had filed an application for condonation of the delay in filing the appeal the delay could not be condoned as section 5 of the Limitation Act does not apply to the Revenue appeals. It would, therefore, be useless and futile to remand the case back to, the Members of Board of Revenue for the purpose of consideration of the application to respondent No, 5 made under section 5 of the Limitation Act. The plea of Mr. Mir Muhammad Shaikh, therefore, fails.
20. The upshot of the above discussion is that the appeal filed by respondent No, 5 before Members of Board of Revenue was hope loosely time-barred as discussed earlier and the same should have been dismissed as such. The failure of the members of the Board of Revenue to dismiss the said appeal as time-barred amounted to failure to exercise the jurisdiction that vested in him under law, and, therefore, the impugned decision of the Members, Board of Revenue, dated 2-8-1977 was without lawful authority and is hereby set aside.
21. Since the orders of the respondent No, .1 dated 3-1-1978 and 7-5-1978 are the orders dismissing the first and second review application of the petitioner against the order passed on 2-8-1977, which has been declared to bell without lawful authority, therefore, even the latter two orders are also without lawful authority, as they are also hit by the same infirmity and they are also declared to be without lawful authority, in view of PLD 1958 SC (Pak.) 104 where it was held as under : "If on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal the changed position, of the parties is in operation, fall on the ground because such orders have as little legal foundation as the void order on which they are founded."
22. ' Consequently the impugned orders of respondent No, 1, dated 2-8-1977, 3-1-1978 and 7-5-1978 are declared to be without lawful authority.