1. ' BASHARAT AHMAD SHAIKH, J.--- This appeal by leave of the Court arises out of an order passed by the Azad Jammu and Kashmir High Court on 7th of December, 1991, whereby a writ petition filed by Muhammad Bashir, who is a respondent in this Court, was accepted and the order of allotment of land in favour of the appellant Kh. Ghulam Qadir on 9-4-1961 was declared to be void and consequently the Proprietary Rights Transfer Orders issued in respect of the land in dispute in favour of appellants, Kh. Ghulam Qadir and Kh. Manzoor Ahmed, were quashed.
2. ' The writ petition in the High Court was filed by Muhammad Bashir son of Pir Muhammad alone while ten other successors-in-interest of Pir Muhammad were impleaded as pro forma respondents. In his writ petition Muhammad Bashir stated that evacuee land bearing Survey Nos.1030, 1032, 1-1033 and 1034 measuring 52 Kanals, 11 Marlas situated in village Dhamni District Poonch was allotted (date not shown) to Pir Muhammad. A certified copy, of the allotment chit was attached as Annexure "A" Pir Muhammad was stated to be on duty in Army and the land was under cultivation of his tenant who gave him share of the produce till the year 1988 when he died. It was stated that Kh. Ghulam Qadir moved an application before Tehsildar Rawalakot somewhere in the year 1961 and prayed that the land in dispute may be allotted to him. Thereupon allotment chit was issued to him on 16-6-1961. It was averred that this allotment was ordered without cancelling the previous allotment standing in the name of Pir Muhammad. It was alleged that Kh. Ghulam Qadir had obtained number of allotments in his name without any entitlement. Out of the disputed land, land measuring 17 Kanals, 19 Marlas was got cancelled by Kh. Ghulam Qadir from his own name and it was ordered to be allotted in the name of his son Kh. Manzoor Ahmed, appellant No,2. Both of them obtained entitlement certificates in 1983 and 1981 respectively from the Rehabilitation Commissioner. Subsequently, two Proprietary Rights Transfer Orders were also issued in their favour on 4th of December, 1983. All these orders were challenged in the writ petition. It was claimed in the petition that Muhammad Bashir and others, successors-in-interest of Pir Muhammad, tried to receive the produce of the land in dispute after the death of Pir Muhammad but they came to know that Kh. Ghulam Qadir and Kh. Manzoor Ahmed, had received the allotment of the land in dispute.
3. Thereupon Muhammad Bashir challenged the grant of Proprietary Rights Transfer Orders before the Custodian of Evacuee Property by filing a review petition on 12-7-1990 but it was dismissed on 21-7-1991. It was submitted in the writ petition that the petitioner and pro forma-nonpetitioners had not filed the writ petition earlier because they did not have the knowledge of the orders mentioned above. A separate application for condonation of delay was also moved. In the writ petition various grounds were raised including the grounds that no allotment could be made without cancellation of the earlier allotment made in favour of Pir Muhammad, and that Kh. Ghulam Qadir had obtained more than 500 Kanals of land in Azad Jammu and Kashmir. It was also contended that the land in dispute had been given to a tenant on yearly payment of Rs,250. In the written statement the respondent stated that Pir Muhammad was in fact settled in District Sialkot and had obtained the allotment of land there. He was in Army service and due to his posting there stayed in Rawalakot for a couple of years and got married there. His father-in-law, Muhammad Ibrahim, was in an unauthorized possession of land in dispute but, apprehending dispossession, he got this land allotted in the name of Pir Muhammad and also remained in possession till 1960. It was stated that Pir Muhammad went away from Rawalakot after 1960. In these circumstances it was contended that the land had been abandoned by Pir Muhammad with no intention to return. In 1961 Muhammad Ibrahim, father-in-law of Pir Muhammad allottee, made a statement to that effect whereupon the competent Rehabilitation Authority cancelled the allotment of Pir Muhammad on the basis of abandonment. Subsequently the allotment was made in favour of Kh. Ghulam Qadir.
4. Order of the A.R.C. Pallandri Camp Rawalakot dated 16th of June, 1961 was also attached as a proof of -this contention. The order recites that applicant Kh. Ghulam Qadir is a refugee, the land proposed to be allotted to him already stands allotted to Pir Muhammad but is stated that he does not reside there, and his father-in-law, Ibrahim, who is in possession of the land is present and states that Pir Muhammad has left the allotted land and had gone to Sialkot after handing over the allotment chit to him (Muhammad Ibrahim). He wanted that the land allotted to him in Dhamni may be cancelled from his name. The A.R.C. Then proceeded to record the following order:-- ' "Consequently the land under Survey Nos.1030, 1032, 1033 and 1034 is cancelled from the name of Pir Muhammad and is allotted to Kh. Ghulam Qadir."
5. ' In accepting the writ petition the learned Judge in the High Court observed that at the time when the allotment was made in favour of Kh. Ghulam Qadir, it had been stated in the order that father- in-law of Pir Muhammad had abandoned the land. The learned Judge thought that it was quite surprising because Muhammad Ibrahim was not an attorney of the allottee and he had no authority to abandon the land. The learned Judge observed that the learned Custodian fell in error in holding that the land had been abandoned. The learned Judge, therefore, concluded that the order of allotment in favour of Kh. Ghulam Qadir was a void order and all the subsequent orders were also void. The learned Judge also overruled the contention that the basic order of allotment in favour of Kh. Ghulam Qadir had not been challenged through an appeal before the Rehabilitation Authorities and it had become final. The learned Judge also held that the order of allotment in favour of Kh. Ghulam Qadir was also void because Pir Muhammad has not been heard before cancelling the allotment. The learned Judge was of the opinion that it was not necessary to separately challenge the order of allotment because it had been merged in the Proprietary Rights Transfer Order. So far as the contention that revision petition had not been filed against the Proprietary Rights, the learned Judge was of the view that no revision was competent. The learned Judge also rejected the plea that the writ petition suffered from laches by holding that delay per se is not a ground for refusal of a writ petition. He relied on Nusrat Fatima v. Azad Government of the State of Jammu and Kashmir PLD 1985 SC (AJ&K)
93. It was observed that the petitioner was not aware of the order of cancellation of the allotment because the order has been passed without hearing and there is no question of laches.
6. ' After hearing the learned counsel for the parties we have reached the conclusion that the learned Judge in the High Court fell in error in accepting the writ petition. The learned Judge was persuaded by the fact that the allotment order in favour of Pir Muhammad was cancelled without affording him an opportunity to show cause against the proposed action. The learned Judge, therefore, formed the view that the order of allotment passed in favour of Kh. Ghulam Qadir in year 1961 was a void order and all the subsequent orders including the entitlement certificate and the Provisional Rights Transfer Orders in favour of Kh. Ghulam Qadir and Kh. Manzoor Ahmed, appellants before us, were void. The learned Judge also took note of the fact that Muhammad Ibrahim, who is stated to have made a statement before the Rehabilitation Authorities that Pir Muhammad had abandoned the land, was not an attorney of the allottee and his statement had no value in the eye of law. The learned Judge expressed the view that there is no limitation in respect of void order. There seems to be no difficulty in reaching the conclusion that the order passed in favour of Kh. Ghulam Qadir appears to be a void order for the reasons recorded by the learned Judge. However, before granting the relief to a litigant the Court is duty bound to see whether the relief prayed by him is legally allowable in accordance with the procedure laid down for seeking it. No doubt technicalities should be kept at their proper place and should not be extended to defeat the purpose of law and justice, but technicalities which are fundamental and basic cannot be bypassed. This Court has held in Mirza Lal Hussain v. Custodian and others 1992 SCR 214 as follows:-- "11. No case having been made out for condonation, we now pass on to the other limb of the arguments of the learned counsel for the appellant that the order of allotment in favour of Abdul Aziz was void on account of the fact that it had been passed during the subsistence of a previous allotment order made in his favour. The contention (of the learned counsel is that a void order has to be struck down without regard to limitation. The cases cited by the learned counsel for the appellant have already been mentioned.. These judgments do lay down the proposition canvassed by Ch. Muhammad Sharif Tariq that there is no limitation so far as a void order is concerned.
7. However, it is not a universal rule which may be necessarily applied in every case - with regard to the consequence. While this rule would apply to cases where a person who is adversely affected by such an order does not come to know of its existence and has had no occasion to challenge that order, there is no warrant for the conclusion that a void order should be left unchallenged. If a person comes to know of a void order which adversely affects him but still he does not challenge it within a reasonable time the Courts may validly refuse to ignore it on the ground of laches, acquiescence or estoppel. In this connection I would do not better than to reproduce the following observations of the Supreme Court of Pakistan in Sharif Ahmed Hashimi's case which has been rightly relied upon by Mr. Abdul Ghafoor Qureshi:-- ' This passage does not mean that a void order is always to be struck down regardless to the consequences of such a decision, but that a void order must be struck down provided there is no statute or principle of law which would make it unjust or inequitable to strike down the void order.
8. This qualification is very important, and that it why, for example, a writ may be refused against a void order this would enable the petitioner to circumvent the provisions of a statute of limitation.
9. (See this Court's judgment in' Civil Appeals Nos.150 and 166 of 1970, Jalal-ud-Din and others v. Mst.
10. Noor Sain and others and Jalalud-Din and others v. Shamas-ud-Din and others respectively.
11. Similarly in Ghulam Mohi-ud-Din v. Chief Settlement Commissioner PLD 1964 SC 829 a writ petition had been filed against an order which this Court held was void. Nonetheless the writ petition was dismissed on the ground that it was barred by acquiescence on the part of the petitioner. There is also ample authority for the proposition that a writ against a void order may be dismissed, if the petitioner is estopped by his conduct from challenging it, or if he has been guilty of laches'."
12. ' The facts of the present case show that the allotment in favour of Kh. Ghulam Qadir was made in 1961. He obtained entitlement certificate on 30-1-1983 and the Provisional Rights Transfer Order in his favour was issued on 8th of August, 1983. Similarly Kh. Manzoor Ahmad obtained entitlement certificate on 1-10-1981 and Proprietary Rights Transfer Order on 4-12-1983. Respondent Muhammad Bashir filed a review petition before the learned Custodian of Evacuee Property on 12-7-1990. On the relevant date the Custodian of Evacuee Property enjoyed the power of Review as vested in him by subsection (6) of section 43 of the Administration Eyacuee Property Act, 1957 which is to the following effect:- "(6) The Custodian or Additional Custodian may on application made to him in this behalf within the prescribed period or of his own motion at any time and after giving notice to the parties concerned and the Rehabilitation Authorities, review his own order or an order passed by his predecessor-inoffice on any ground whatsoever as the justice of the case may require: ' Provided that no final order passed on or before the seventeenth day of November, 1956, declaring any person to be not evacuee or any property to be not evacuee property shall be reviewed."
13. As may be seen an application for review could be filed before him within prescribed period which is thirty days. On the face of it the review petition was barred as it had been filed after 7 years. It was for the person who filed the review petition to explain the delay. Lack of knowledge could be pleaded and in that case petition could be filed within thirty days from the date of knowledge. In the review petition it was pleaded that the order of cancellation from the name of Pir Muhammad was passed without hearing and in a clandestine manner in collusion with the Rehabilitation Authorities and that Pir Muhammad could not come to know about it. It is on the record that Pir Muhammad died in 1988 but it has nowhere been stated as to when Muhammad Bashir came to know that entitlement certificates and proprietary rights Transfer Orders had been issued in favour of Kh. Ghulam Qadir and Kh. Manzoor Ahmed. In view of the settled principle of law that delay of each day has to be explained the Additional Custodian of Evacuee Property was right in holding that the review petition was time-barred. In the writ petition order of allotment in favour of Kh.
14. Ghulam Qadir passed in the year 1961 was also challenged as being void ab initio and thus conferring no rights. However, again no specific plea was taken about the date of knowledge. In para.9 of the writ petition following averment was made:-- "(9) That the petitioner and pro forma non-petitioners after the death of the father of petitioner tried to collect the produce of the land allotted to the father of petitioner. The petitioner came to know that the non-petitioners Nos.1 and 2 with the connivance of Rehabilitation Department without notice and without knowledge of petitioner's father got the land allotted in their names and thereafter got the certificate of entitlement and transfer orders of proprietary rights from respondents Nos.4 and 5."
15. ' It is stated in the writ petition itself that Pir Muhammad died in the year 1988. If attempt was made in year 1988 after the death of Pir Muhammad to collect the produce it means that review petition filed on 12-7-1990 with the Custodian of Evacuee Property to challenge the grant of proprietary rights was filed after about two years. The writ petition was filed on 1st of August, 1991 and the order of allotment passed in 1961 was directly challenged for the first time. This clearly amounts to laches.
16. It is also important that in the review petition filed before the Custodian of Evacuee Property it was claimed that the land was in possession of Pir Muhammad till 1965. Revenue Record has been filed on behalf of Kh. Ghulam Qadir showing him to be in possession of the land in dispute since 1975 and that it was under the cultivation of one Wali Muhammad on behalf of Kh. Ghulam Qadir. It is, therefore, an extraordinary feature that Pir Muhammad did not come to know of dispossession from the land for a period of 13 years or so. Pir Muhammad was alive till 1988 but he did not take any step to challenge the allotment and subsequent grant of proprietary rights. If he had been alive he was the best person to convince the Court that he did not come to know that the land had been cancelled from his name and that he had been dispossessed by Kh. Ghulam Qadir. In the present record there is nothing to show that Pir Muhammad did not have the knowledge of these facts. So far as Muhammad Bashir, the legal representative of Pir Muhammad, is concerned he has miserably failed to make out a case to bring his action within time.
17. With these observations the appeal is accepted and the order of High Court, dated 7-12-1991 is vacated. Consequently, the writ petition filed by Muhammad Bashir shall stand dismissed.