1. SAIYED SAEED ASHHAD, C.J.--In this Constitutional petition, the petitioner has sought the following reliefs:-
(1) It is, therefore, prayed that this Honourable Court may be pleased to set aside the impugned orders i,e, order dated 17-11-1994 passed by the Member (RS&EP) Board of Revenue, Sindh, Hyderabad the respondent No,2 and order dated 28-12-1991 passed by the Additional Commissioner-II. Hyderabad Division, Hyderabad the respondent No,3 being illegal, void, not maintainable and maintain the Entry No,385 of Record of Rights dated 24-10-1987 in favour of the petitioner being Qabuli land.
(2) Till the decision of the petition, the implementation of the impugned orders may be stayed.
(3) Any other relief which this Hon' able Court deems fit and proper may also be awarded. The petitioner has impugned the order dated 17-11-1994 of Member (RS&EP), Board of Revenue, Sindh, Hyderabad whereby his appeal was rejected and the grant of agricultural land admeasuring 12.37 acres comprised in Survey Nos.423 and 425, Deh Padd, Taluka Mirpur Bathoro, District Thatta (hereinafter referred to as the demised land) in favour of father of respondent No,5 in the year 1958-59 was confirmed. It is the case of the petitioner that the demised land was granted to him on Harap condition in 1962-63 without any encumbrance and denied that it was ever granted to the father of respondent No,5 which became his Qabuli land and he has remained in physical possession thereof since 1962-63. The petitioner further submitted that after a lapse of 27 years, on 6-6-1988 respondent No,5 submitted an application before respondent No,4, Revenue Officer, Kotri Barrage, Hyderabad, claiming the demised land to have been granted to his father. In this application, respondent No,5 further stated that he was in cultivating possession of the demised land and prayed that the grant and the T.O. Form issued in favour of the petitioner be cancelled which application was rejected by respondent No,4 vide order dated 6-2-1989 with the observation that after issuance of T.O. Form and mutation of the name of the petitioner in respect of the demised land in the Record of Rights he did not have the jurisdiction to entertain such application. Respondent No,5 feeling aggrieved and dissatisfied with the order of respondent No,4 filed appeal before respondent No,3, Additional Commissioner-II, Hyderabad Division, Hyderabad, who vide his order dated 28-12-1991 allowed the appeal and set aside the order dated 6-2-1989. This order did not satisfy the petitioner who assailed the same by way of appeal before respondent No,2, Member (RS&EP), Board of Revenue, Sindh, Hyderabad, who dismissed the appeal and upheld the order of Additional Commissioner-II, Hyderabad Division, Hyderabad. Hence this petition. We have heard the arguments of Mr.Jagdish R. Mulani, Advocate for the petitioner, Mr. Saleemuddin A. Patoli, Advocate for respondent No,5 and Mr.Qazi Khalid Ali, learned Additional Advocate-General, Sindh and have also perused the material on record. Mr. Jagdish R.Mulani vehemently attacked the appellate order dated 28-12-1991 on the ground that the appeal was hopelessly time-barred as it was filed after a lapse of 27 years of the order of grant of the demised land in favour of the petitioner and ought to have been dismissed as such. He further submitted that the order dated 6-2-1989 passed by respondent No,4 was just and proper order whereby he upheld the grant of the demised land in favour of the petitioner on the ground that as the T.O. Form had been issued and the demised land had been mutated in favour of the petitioner in the Revenue Records, respondent No,4 did not have the authority to cancel either the T.O. Form or the Khata. He further submitted that as grant had been made in 1962-63 as confirmed by respondent No,4 in his order dated 6-2-1989, the Additional Commissioner-II, Hyderabad Division, Hyderabad should have dismissed the appeal filed by respondent No,5 against the above order on the ground of limitation. Mr.Jagdish R.Mulani also assailed the order of Member (RS&EP), Board of Revenue, Sindh on the same ground that he also did not decide the question of limitation in accordance with law and wrongly held that the grant of the demised land in favour of the petitioner in 1962-63 was not legal and valid on the ground that it was not available for grant having already been granted to the father of respondent No,5 in 1958-59 as there was no material before him to come to such conclusion. Mr. Saleemuddin A. Patoli. Advocate for respondent No,5 on the other hand submitted that from perusal of the order of respondent No,2, the contention of the Advocate for the petitioner that there was no material to substantiate the grant of the demised land in favour of the father of respondent No,5 in 1958-59 stood completely demolished from the contents/observations appearing in order of respondent No,4 dated 6-2-1989 and in support thereof he drew our attention to certain portions from the order of respondent No,4 dated 6-2-1989 which are reproduced as under:-- "ORDER OF THE REVENUE OFFICER, KOTRI BARRAGE. HYDERABAD. I have perused the relevant record and found that these S.Nos.(424 and 425) have granted in duplicate to Jehan Khan -son of Rustam Khan on Harap conditions from Chard 1962-63. ... The original grantee is, therefore,advised to file regular appeal before the competent authority." From a bare perusal of the aforesaid two portions, the only possible inference which can be drawn is that respondent No,4 did not controvert or deny the factum of earlier grant of the demised land in favour of the father of respondent No,5 but did not intervene in the matter and refused to cancel the subsequent/duplicate grant of the demised land in favour of the petitioner as he did not have the jurisdiction to do so after issuance of the T.O. Form in favour of the petitioner and mutation of the Khata in his name in the Record of Rights, thus advising respondent No,5 to file a regular appeal before the competent authority. He further submitted that the order of grant of the demised land in favour of the petitioner was an absolutely illegal and void order inasmuch as the demised land was not available for grant having already been granted/settled in favour of the father of respondent No,5 therefore, the subsequent/duplicate order of the grant could be challenged at any time on the basis of the established principle that the statute of limitation did not operate for assailing an illegal/void order.. His further submission was that the petitioner had manipulated the grant of the demised land in his favour by making false statements and concealing true facts that the demised land was not available as it had already been settled by way of grant in favour of the father of respondent No,5 and also did not take any further action with regard to obtaining the possession or informing respondent No,5 of the grant having made in his favour which clearly went to establish his mala fides and dishonesty. He further submitted that had the petitioner disclosed the factum of grant of the demised land in his favour to respondent No,5, then respondent No,5 would have taken recourse to the aforesaid legal proceedings on disclosure of such fact and the delay in initiating the above legal proceedings was not on account of any inadvertent, imprudent or careless behaviour or attitude of respondent No,5 but was on account of the peculiar facts and circumstances of the case on account of which he was absolutely in the dark as to subsequent/duplicate grant of the demised land in favour of the petitioner. Mr.Qazi Khalid Ali, learned Additional Advocate-General, Sindh supported the arguments of Mr. Saleemuddin A. Patoli and submitted that from perusal of the material on record, there was not the least doubt that the land in question had been legally granted in favour of the father of respondent No,5 from Kharif 1958-59 as a result of which it ceased to be available for any further grant, thus the alleged grant in favour of the petitioner from Kharif 1962-63 was absolutely illegal and void and such order of grant of the demised land could not be sustained. From perusal of the material on record, it is to be observed that there is ample material on record in support of the contention of respondent No,5 that the land measuring 10 acres from U.A, No,15 of Deh Padd. Muhag Survey Nos.392 and 393 was granted in favour of his father on Zamindari condition from Kharif 1958-59. It also can be verified from the material on record that the grant was revised vide order of the Revenue Officer dated 31-3-1966, as a result of which the area of the land granted to the father respondent No,5 was increased to 14.12 acres and the Survey Nos.392 and 393 were renumbered as Survey Nos.423, 424 and 425. There is also material on record to establish that a subsequent/duplicate order of grant of the demised land was made in favour of the petitioner from Kharif 1962-63. In support of the above, reference is made to the observations of respondent No,4, Revenue Officer, Kotri Barrage, Hyderabad, which were arrived at by him from the report called by him from the Barrage Mukhtiarkar, Sujawal. According to this report, the demised land had been granted in duplicate to the petitioner on Harap condition'from Kharif 196263 from which the only possible inference is that the demised land had already been granted earlier in favour of Syed Faiz Muhammad Shah, father of respondent No,5, as claimed by respondent No,5. The demised land, therefore, was not available for grant and the subsequent order of grant in favour of the petitioner was illegal, being void ab initio. From perusal of the orders of the Additional Commissioner-II, Hyderabad Division, Hyderabad and Member (RS&EP), Board of Revenue, Sindh, Hyderabad, it is to be found that both of them had thoroughly examined the necessary facts which were relevant and material for determining the dispute in question. Both the Authorities had examined the Record of Rights relating to the demised land as well as various orders, passed by the concerned Authorities relating to the grant of the demised land and after consideration thereof had come to the conclusion that the petitioner had obtained the order of grant of the demised land in his favour by suppression and concealment of material facts which if were in the knowledge of the authorities would not have permitted passing of an order of grant in favour of the petitioner. Both the Authorities had specifically discussed in great details the contention of the petitioner that the land granted to him was an altogether separate piece of land and was not carved out or taken from the demised land claimed by respondent No,5 and had come to the conclusion that the land allegedly granted to the petitioner formed part of the demised land granted to the father of respondent No,5 and categorically held that such was not legally permissible, thus rendering the order of grant of the demised land in favour of the petitioner as null and void. Coming to the question of limitation relating to the admission of the appeals filed by respondent No,5, it is to be observed that the delay in approaching the relevant authorities for a Declaration of cancellation of the subsequent/duplicate order of grant in favour of the petitioner and for restoration of the original grant in favour of his father was on account of his ignorance regarding the subsequent/duplicate transfer. As already stated above, the demised land was originally granted/settled in favour of Syed Faiz Muhammad, father of respondent No,5 on Zamindari condition from Kharif 1958-59. Respondent No,5 could never have conceived of grant/settlement of the demised land in favour of any other pc son after its grant/settlement in favour of his father.
2. However, such was done but it was kept concealed from respondent No,5 who after the death of his father claimed to be the lawful owner of the demised land as well as of being in cultivating possession. The subsequent order of grant in favour of the petitioner was thus an absolutely illegal and void order as the demised land was not available for grant/settlement. A void order is a nullity in eye of law and does not confer any right on the parties as observed by the Supreme Court in the cases of: (i) Evacuee Property Board through the Deputy Administrator, Evacuee Trust property, Sahiwal v. Muhammad Azam and 2 others (1995 SCMR 520), and (ii) Malik Khawaja Muhammad and 24 others v. Marduman Babar Kahol and A 29 others (1987 SCMR 1543). It is also a settled principle that a party who is adversely affected by a void order should take resort to proper proceedings for getting it set aside in accordance with the provisions of law as and when it comes in the knowledge of the affected party as observed by the Supreme Court in the case of Messrs Conforce Ltd. v. Syed Ali Shah and others (PLD 1977 SC 599). It is the case of respondent No,5 that he had no knowledge of subsequent/duplicate order of grant till 6-6-1988 and as soon as he came to know of such order, he immediately on that very day filed an application before respondent No,4 who was the proper authority, for cancelling/setting aside the grant/settlement of the demised land in favour of the petitioner. Such statement was made by respondent No,5 in his counter- affidavit wherein he stated that the original order of grant being illegal and void, all subsequent proceedings resulting in issuance of T.0 Form and mutation of the Khata in the name of the petitioner in the Record of Rights were absolutely mala fide, illegal, nullity in the eye of law and did not confer any right on the petitioner in respect of the demised land. This categorical statement has gone unchallenged and unrebutted as no affidavit-in-rejoinder was filed by the petitioner and, therefore, the facts narrated above have to be accepted as true. Respondent No,5 cannot be said to have acted negligently, inadvertently or indolently and he rushed to the proper forum for redress of his grievance as soon as he came to know of the adverse order granting/settling the demised land in favour of the petitioner. In the circumstances, no exception can be taken to the findings of the Additional Commissioner and the Member (RS&EP) in holding that the order of grant in favour of the petitioner being an illegal and void order, the provisions of the Limitation Act relating to the period of limitation for filing application/appeal did not apply and deciding the matter on merits. Mr.Jagdish R. Mulani in support of his contention that once the land had been granted in favour of the petitioner in pursuance whereof he had made payments of all moneys by way of price and other charges, T.0 Form had been issued and the Khata had been mutated in the name of the petitioner in the Record of Rights, thus conferring the title of Qabuli owner on the petitioner who was in physical possession, the order of grant could not have been recalled, set aside or cancelled referred us to the following cases:
(i) Rehmat Ali v. Muhammad Ramzan through Legal Heirs (2001 SCMR 1283);
(ii) Jahana and others v. Sadiq and others (1990 SCMR 1008); and
(iii) Mitho Khan v. Member, Board of Revenue, Sindh, Hyderabad and another (PLD 1997 Karachi 299). In the first cited case, the predecessor-in-interest of the respondent was allotted the land in question which was reserved for permanent settlement of the Islamabad oustees and deed of conveyance was registered in his favour. Petitioner Rehmat Ali had assailed the allotment on the ground that the land in question had already been , allotted to him under the Grow More Food Scheme. The allotment in favour of predecessor-in-interest was cancelled by the Board of Revenue under the provisions of section 30(2) of the Colonization of Government Lands (Punjab) Act, 1912.
3. Lahore High Court in exercise of its Constitutional jurisdiction set aside the order of Board of Revenue and restored the allotment in favour of the respondent as from the material on record it could not be established that the land in question was ever allotted to petitioner Rehmat Ali under the Grow More Food Scheme. The facts and circumstances of the cited case are absolutely different from the facts and circumstances of the present case inasmuch as the subsequent order though passed in favour of the petitioner does exit, but the same was found to be unlawful, in exercise of illegal jurisdiction and void ab initio on the ground that a valid and legal order granting the demised land to the father of respondent No,5 had been passed earlier. In the second cited case, the Lahore High Court had set aside the order of Board of Revenue as it was found to be violative of the provisions of section 30(2) of Colonization of Government Lands (Punjab) Act, 1912, as a result of which it was not legally maintainable. The order was declared to be without lawful authority. The judgment of the Lahore High Court was challenged before the Supreme Court but the Supreme Court refused to grant leave to appeal. We are unable to comprehend as to how the pronouncement made in this case would be of any help to the petitioner. In the presence of peculiar facts and circumstances of the cited case, the order passed by Board of Revenue was found to be defective and not legally maintainable and, therefore, it was set aside by the Lahore High Court. This is not a universal principle or observation that the order of the Board of Revenue should be set aside and the same can be set aside only if it is found to be illegal, either on account of it being in excess of jurisdiction or on account of violation of some provisions of law. In the present cas , the order of Member (RS&EP), Board of Revenue does not suffer from an illegality nor is violative of any provisions of the law requiring interference therewith. In the third cited case, a Division Bench of this Court set aside the order of Board of Revenue whereby the concurrent findings of two Revenue Forums were set aside on the ground of duplicate grant. After examining and considering the facts and circumstances of the case, this Court had come to the conclusion that the order of Board of Revenue recalling the orders of the two forums of the Revenue Authorities namely Colonization, Sukkur Barrage and Additional Commissioner, Hyderabad concurring with each other suffered from inherent flaws as it was found to have been passed without lawful authority being of no legal effect. It was further observed that the petitioners therein having paid full instalments had acquired absolute ownership of land in question which had become their Qabuli land and the order of grant of land could not have been set aside. This is not so in the present case. The Order of Member (RS&EP), Board of Revenue, Sindh, Hyderabad upholding the order of Additional Commissioner-II, Hyderabad Division, Hyderabad was passed after taking into consideration all the material facts and evidence and was made in accordance with the provisions of law holding that the order of grant of the demised land in favour of the petitioner was a duplicate order having been passed without verification of the fact that the demised land had already been granted/settled in favour of the father of. Respondent No,5 and was not available for grant to any other person including the petitioner. This case is also of no help to the petitioner. Mr.Jagdish R.Mulani in support of his contention that the representation made by respondent No,5 and his appeal before the Additional Commissioner, Board of Revenue were hopelessly time- barred which ought to have been dismissed solely on this ground without being considered on merits referred us to the following cases:
(i) Cantonment Board, Kharian Cantt. Through Executive Officer v. Muhammad Shafi (PLD 1991 SC 400):
(ii) Ahsan Ali and others v. District Judge and others (PLD 1969 SC 167):
(iii) Muhammad Ibrahim v. ,Mst. Farzana and another (PLD 1994 Karachi 255):
(iv) Muhammad Yamin and 16 others v. Member (Land Utilization), Board of Revenue, Sindh and others (1981 CLC 1700).
4. At the outset, it may be pointed out that the observations and pronouncements made in the aforecited cases have no relevance or bearing to the facts and circumstances of this case. As already discussed hereinabove the order of grant of demised land in favour of the petitioner was a duplicate order as the demised land had already been granted/settled in favour of the father of respondent No,5/respondent No,5 and without verifying the above factum, the granting officer had passed the order which in the circumstances was an unlawful order, without any legal effect and void ab initio. In view of the settled principle of law that for assailing or challenging a void order, provisions of statute of limitation do not apply and that a party adversely affected by a void order can resort to appropriate proceedings for getting it set aside within a reasonable time from the date when the same come to his knowledge. The order of duplicate grant came to the knowledge of respondent No,5 on 6-6-1988 and on that very day he moved an application before respondent No,4. Revenue Officer, Kotri Barrage, Hyderabad for setting aside the order of grant in favour of the petitioner. For the foregoing reasons and upon the above discussion, we find that this Constitutional petition is without any substance and does not merit consideration. No case is made out for interference in the order of the learned Member (RS&EP), Board of Revenue, Sindh, Hyderabad. Accordingly, this Constitutional petition stands dismissed alongwith the miscellaneous application pending therein with no order as to costs.