' SARDAR SAID MUHAMMAD KHAN, C.J.---The above entitled appeals have been directed against a consolidated judgment of the High Court, dated 26-6-1998, whereby the writ petitions filed by the respondents herein, were accepted and the cases were remanded to the Revenue Commissioner for deciding the revision petitions/appeals before him afresh in light of the observations made by it. As the writ petitions were disposed of by a consolidated judgment, we propose to decide the above-entitled appeals through this single order.
2. The brief facts of the case are that Muhammad Haleem and other respondents in present appeals were sanctioned two Marlas of the land each out of 'Khalsa' comprising Survey No,2699/1484, situate in village Singola, Tehsil Bagh, by the Collector concerned and mutations were also attested in their favour. The appellants, herein, challenged the aforesaid sanctions in favor of the respondents through revisions/appeals before the Revenue Commissioner who accepted the same and remanded the cases to the Assistant Commissioner to hold a fresh inquiry in consonance with the relevant rules. The concerned respondents filed appeals, reviews and revisions to the Board of Revenue but the same were also dismissed. Thereafter, they filed three separate writ petitions in the High Court challenging the orders of the Revenue Commissioner and the Board of Revenue. The High Court accepted the writ petitions through a consolidated judgment on the grounds that neither the Commissioner nor the Board of Revenue considered the questions of limitation regarding the revisions/appeals before Commissioner and as to whether the rules under which the 'Khalsa' land was sanctioned were in conflict with the parent Act. Thus, the High Court directed the Collector concerned to decide the matter afresh in light of the observations made by it.
3. It has been argued by Sardar Sayab Khalid, Advocate the learned counsel for the appellants, that the High Court has committed an error in remanding the case because the delay, if any, in filing the revision petitions/appeals before the Revenue Commissioner was condoned by him. He has argued that the perusal of the order passed by the Commissioner on the revision petitions/appeals filed by the appellants clearly shows that the matter with regard to the limitation was argued by the parties before the Commissioner and, thus, he was fully conscious of the factum of the delay.
But despite that the learned Commissioner decided the matter on merits which implies that delay, if any, was condoned. The learned counsel has argued that even otherwise, the appellants were not party when the disputed 'Khalsa' land was sanctioned in favour of the respondents and, thus, it cannot be said that the revision petitions/appeals were in any way time-barred, specially so when the order of the Collector being volatile of law was void. The learned counsel has referred to a case reported as Ghulam Hussain v. Member, Board of Revenue (1995 SCR 355), wherein it was held that even in case of a void order, it is necessary to challenge the, same within a reasonable time; however, this principle would not apply where a person, who is adversely affected by such order, had no knowledge of its existence and he had no occasion to challenge the same. The learned counsel for the appellants has further argued that the land in dispute could not be sanctioned under the law because it is 'Chrand Ghairmumkin' and does not fall within the ambit of definition of word 'Khalsa' land, given in the relevant statute, because the same stands excluded.
4. In reply, Ch. Muhammad Ibrahim Zia, Advocate, the learned counsel for respondents, has controverted the arguments advanced by the learned counsel for the appellants. He has argued that there is no specific order by the Commissioner condoning the delay; the mere fact that the counsel for the parties raised the point before the Commissioner would not lead to the inference that delay was condoned. The learned counsel has further argued that the appellants had the knowledge of the sanction of the land in dispute in favour of the respondents as is evident from the documents on the record which show that they were present when 'Patwari' made spot inspection and submitted his report to the concerned authorities. The learned counsel has contended that it has been incorrectly mentioned by the appellants in their revision petitions/appeals filed before the Commissioner that they had no knowledge of the sanction of the land before 9-11-1993.
According to the learned counsel for the respondents, the appellants had the knowledge of the sanction order in favour of the respondents, if not in April, 1993, at least in July, 1993 when they filed a 'civil suit. Therefore, according to the learned counsel for the respondents, the revision petitions/appeals before the Commissioner are time-barred even if the limitation is reckoned from the date of the knowledge of the appellant. The learned counsel has argued that the High Court has also directed the Commissioner to decide as to whether the rules governing the sanction of the 'Khalsa' land were in conflict of the parent Act after its amendment. He has argued that this point was raised before the Commissioner but was not resolved.
5. We have given due consideration to the matter rose at the Bar and we are of the opinion that the question regarding the validity of the rules or otherwise can be raised even before the Collector, if at all, the Revenue Authorities are legally competent to decide the vires of the rules or law. Thus, we are of the opinion that if it is found that the limitation filing the revision petitions/appeals before the Commissioner would be deemed to have been condoned by necessary implication, there was no justification in remanding the case to the Commissioner. The perusal of the case-law on the point reveals that if the concerned authority is shown to be conscious of the factum of delay, but despite that it decides the review, revision or appeal on merits, it would be deemed that such authority has condoned the delay. A reference may be made to the following authorities to elucidate the point.
' In case reported as Amir Din v. Muhammad Siddiq (PLD 1966 Lah. 416), it has been held that as the judgment of the Additional Settlement Commissioner showed that' he was conscious of the delay in filing the appeal but despite that he disposed of the same on merits, it would be deemed that he had condoned the delay in the case.
' In case reported as Sardar Aftab Ahmad v. Sardar Khurshid Hussain (1999 PLC (C.S.) 40), it was observed that as the Authority concerned appeared to have been conscious of the proceedings being time- barred but despite that it decided the case on merits, it would be deemed that it had condoned the delay. Identical view was expressed in cases recorded as Ahsan Ali v. District Judge (PLO 1969 SC 167) and Muhammad Yousaf v. Member, Board of Revenue, West Pakistan, Lahore (1970 SCMR 170).
6. It is evident from the survey of the case-law that the learned Revenue Commissioner decided the review petitions on merits despite the fact that the question of limitation was hotly debated at Bar. Although the Revenue Commissioner did not specifically record in the relevant order that he was condoning the delay yet the delay would be deemed to have been condoned by necessary implications. It may also be pointed out that it is not the case of the respondents that the appellants were ever heard by the Commissioner or any Revenue Authority while they sanctioned the land in favour of the respondents. Even otherwise, the revision petitions/appeals before the Commissioner were filed within the period of 90 days from the date when the appellants instituted the civil suit. Thus, it cannot be said that delay was not condoned or it was condoned without sufficient cause.
' In the light of what has been stated above, we accept the above-titled appeals, set aside the impugned order of the High Court and restore that of Revenue Commissioner.