MIRZA LAL HUSSAIN Versus CUSTODIAN OF EVACUEE PROPERTY, AJ&K, MUZAFFARABAD

BASHARAT AHMAD SHAIKH, J.‑‑‑ The subject‑matter of this appeal, by leave of the Court, is evacuee land under Survey No.603, situated in village Khuiratta. The parties have been in litigation for the last thirty years or so and the litigation consists of many rounds. This is the second time that this case has come to this Court. Previously the case was remanded by this Court on 17‑5‑1986 for a second hearing after setting aside the order passed by the High Court dismissing the present appellant's writ petition in limine. The High Court has this time dismissed the petition after hearing both the parties.

2. Leaving out the unnecessary details, Mirza Lal Hussain, the appellant herein, in his writ petition filed on 7‑2‑1981 challenged the order passed by the Additional Custodian of Evacuee Property (a learned Judge of the High Court) on 24‑9‑1980, whereby he had dismissed a revision petition filed by Mirza Lal Hussain against Abdul Aziz, who died during the pendency of the writ petition and is now represented by respondents Muhammad Yunus and Muhammad Umar his sons. Both Mirza Lai Hussain and Abdul Aziz claimed that they were allottees of the land in dispute. Muhammad Nawaz, who claims that he is in fact the first allottee of the land in dispute, was also arrayed as a respondent during the pendency of the writ petition. According to their respective claims, the allotment in favour of Muhammad Nawaz respondent was made in 1950, the allotment in favour of Mina Lal Hussain was made in the year 1956 and the allotment order in favour of Abdul Aziz was passed in 1960. During the arguments before us each of the contestants contended that his allotment was the only valid allotment.

3. In the writ petition filed by Mirza Lal Hussain it was averred by him that land measuring 20 Kanals, including a house standing thereupon, bearing Nos.603 and 606 in village Khuiratta was allotted to him on 12‑3‑1956 by the Assistant Rehabilitation Commissioner. The land was in possession of one Muhammad Iqbal, the father of respondent Muhammad Nawaz. His contention was that Muhammad Iqbal was local and he had taken possession of the evacuee land in lieu of his own land which had come under Military use. Both the survey numbers mentioned above were allotted to Abdul Aziz on 16‑6‑1960 without giving a notice to Mirza Lai Hussain and without cancelling the previous allotment standing in his name. Upon coming to know of it Mirza Lal Hussain filed a review petition before the Assistant Rehabilitation Commissioner Mirpur on 15‑9‑1961 praying for cancellation of order of allotment in favour of Abdul Aziz. He also prayed that he may be put in possession of the land under reference. In his order passed on 17‑1‑1962 the Assistant Rehabilitation Commissioner observed that Survey N0.606 was allotted to Mirza Lal Hussain but had been cancelled without any legal justification. He, therefore, ordered the cancellation of the allotment in favour of Abdul Aziz. In that order he did not mention Khasra No.603 one way or the other. This officer also arranged to put Mirza Lal Hussain in possession of land under Survey No. 606. Abdul Aziz moved the Rehabilitation Commissioner in order to have the order of 17th January, 1962 vacated, but revision petition filed by him did not succeed. The litigation in respect of Survey No.606 ended with the aforementioned order of the Rehabilitation Commissioner. Mirza Lal Hussain again moved an application with the Assistant Rehabilitation Commissioner praying that Khasra No.603 may also be cancelled from the name of Abdul Aziz. It may be mentioned that in the writ petition the claim that Assistant Rehabilitation Commissioner was moved again was not substantiated by any record, but 'it was admitted in their written statements by Muhammad Yunus and Muhammad Umar that a second application was made, but the date on which the second application was moved was not disclosed in the writ petition. However, it is now clear from the record that it was done on 8‑8‑1964 as is borne out from a certified copy placed at page 43'of the High Court file.

4. Having failed to get relief from the Assistant Rehabilitation Commissioner in respect of Khasra No.603 Mirza Lal Hussain filed, on 30‑4‑1969, an appeal before the Deputy Rehabilitation Commissioner Mirpur against the order of the Assistant Rehabilitation Commissioner Mirpur passed on 16‑6‑1960 by which the allotment of the land in dispute was made in favour of Abdul Aziz. The Deputy Rehabilitation Commissioner Mirpur dismissed the appeal on 8‑5‑1970. It was held by him that the impugned order was passed in the year 1960 but the appeal had been lodged in 1969 which was clearly barred by time. It was observed by him that Lai Hussain had made an attempt to get the order of the Assistant Rehabilitation Commissioner reviewed but lodging of the review could not be taken into consideration for extension of time. He also observed that Abdul Aziz got the allotment in his favour ten years earlier and there was no justification for disturbing him. This order was challenged by Mirza Lal Hussain before the Rehabilitation Commissioner but the order of Deputy Rehabilitation Commissioner was maintained. Another revision was filed with the Custodian of Evacuee Property. A learned Judge of the High Court, who had been designated as Additional Custodian for the disposal of that revision petition, dismissed the petition on 24‑9‑1980. The learned Additional Custodian held that even if it was assumed that allotment was in fact made in favour of Mirza Lal Hussain in 1956, the appeal filed with the Deputy Rehabilitation Commissioner was time‑barred and the delay was neither condoned by the Deputy Rehabilitation Commissioner nor by the Rehabilitation Commissioner. It was also observed that Abdul Aziz had made improvements over the land. In these circumstances the learned Additional Custodian found no valid basis for condonation of delay. This order was challenged in the High Court. The writ petition was dismissed in limine on 13‑12‑1981. An appeal, by leave of the Court, was accepted by this Court on 17‑5‑1986 and the case was remanded for decision after formulating certain points involved in the case. On rehearing the writ petition has been dismissed by a learned Additional Judge of the High Court by the order impugned in this appeal. In the order under appeal the operative part is that the petitioner had failed to point out any illegality in the orders passed by the lower authorities.

5. Lengthy arguments have been addressed by the learned counsel for the parties. Ch. Muhammad Sharif Tariq, the learned counsel for the appellant Mirza Lal Hussain, vehemently contended that there was no limitation for challenging a void order and in this view of the legal position Assistant Rehabilitation Commissioner, Deputy Rehabilitation Commissioner and the Rehabilitation Commissioner as well as the learned Additional Custodian were in error in holding that the appeal filed by his client with the Deputy Rehabilitation Commissioner was barred by time. He contended that the order of allotment in favour of Abdul Aziz was a void order because in presence of the order of allotment in favour of Mirza Lal Hussain it was without jurisdiction. He contended that there is no limitation for a void order and such an order has to be ignored whenever it is brought to the notice of a Court or authority. In this respect he relied on Syed Nazir Hussain v. Settlement Commissioner, Lyailpur PLD 1974 Lah. 434, Mst. Rehm at Bibi v. Punnu Khan 1986 SCMR 962, Muhammad Rashid v. Azad Jammu and Kashmir Government PLD 1987 SC (AJ&K) 60 and Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC 104 in support of his contention. Ch. Muhammad Sharif Tariq dealt at length with the history of legislation in respect of the evacuee property and tried to prove that the allotment claimed to have been made in favour of Muhammad Nawaz in 1950 could not have been made by the Assistant Rehabilitation Commissioner who is said to have made that allotment. The learned counsel then contended that section 5 of the Limitation Act was applicable and acting under it Deputy Rehabilitation Commissioner should have condoned the time spent by Mirza Lal Hussain in pursuing the remedy by way of review petitions filed with the Assistant Rehabilitation Commissioner. The learned counsel contended that the allotment in favour of Muhammad Nawaz in fact did not exist. Muhammad Nawaz has not produced the allotment chit in respect of the land in dispute and the copy of allotment register placed on the file of the High Court stood contradicted by the documents produced by Mirza Lai Hussain.

6. Ch. Shah Wali Advocate, who appeared for Muhammad Nawaz, contended that although Muhammad Nawaz has not been able to produce the allotment chit issued in his favour in the year 1950 but the copy of the relevant entry in the allotment register placed on page 80 of the High Court file was proof of that allotment. The contention of the learned counsel is that allotment in favour of Muhammad Nawaz being the earliest in time should be treated as the only valid allotment and the subsequent allotments should be treated as void. He alternatively supported the allotment in favour of Abdul Aziz.

7. Appearing on behalf of Muhammad Yunus and Muhammad Umar, the heirs of Abdul Aziz, Mr. Abdul Ghafoor Qureshi vehemently supported the order of the learned Additional Custodian as well as the Rehabilitation Authorities. He submitted that the remedy by filing the review petition with the Assistant Rehabilitation Commissioner was not recognised by law and, therefore, this period could not have been condoned. He also pointed out that after the decision of the first review petition on 17‑1‑1962 the second review petition was filed by Lad Hussain on 8‑8‑1964 which means that he wasted two and a half years by not moving the proper Court or authority. Thus the time wasted by him could not be covered by the claim of Mirza Lai Hussain that time consumed by him in pursuing the remedy in wrong forum was to be deducted.. The learned counsel strenuously argued that mistaken advice was no ground for condonation of delay. On the question of order being void he contended that this question could only arise if Mirza Lai Hussain was able to show that he in fact was allotted the land in dispute in 1956, but he had failed to produce the allotment chit before the rehabilitation authorities or before the learned Additional Custodian. In the alternative, be submitted that it was not correct that a void order has always to ‑ be struck down regardless of consequences. He also submitted that thirty years have elapsed since Abdul Aziz and subsequently his heirs have been in possession of the land in dispute. They have also made improvements. He relied on a judgment of the Supreme Court of Pakistan reported as Sharif Ahmad Hashmi v. The Chairman, Screening Committee, Lahore 1980 SCMR 711. He also contended with great force that the appellant wants the quashment of the orders passed by the Assistant Rehabilitation Commissioner, Deputy Rehabilitation Commissioner and the Rehabilitation Commissioner but they have not been impleaded as respondents and the writ petition was liable to be dismissed on this short ground.

8. After giving anxious thought to the submissions made at the Bar we first deal with the claim of Muhammad Nawaz that he was the first allottee, therefore, the subsequent allotments in favour of Lai Hussain and Abdul Aziz, if any, should be treated as void. Muhammad Nawaz has not been able to produce the allotment chit in his favour. The copy of the extract from the register of allotment was placed by him on the High Court file. The copy shows that at entry No.42 of the register Muhammad Nawaz son of Muhammad Iqbal newly converted to Islam was in possession of Khasra Nos.603 and 606 due to the exchange in lieu of land brought under Kotli Road. On page 89 of the High Court file there is a document which has been filed by Mirza Lai Hussain. It is a report made by Tehsildar Kotli that the land in dispute was given to Muhammad Nawaz on account of exchange due to land having been brought under the Kotli Road but there was no mention of any allotment in favour of Muhammad Nawaz. There are certain other documents in support and rebuttal of factum of allotment. This being a question of fact of disputed nature the High Court was not the proper forum in which its determination could have been undertaken. Leaving that aside since 1950 till the 15th of July 1990 he did not agitate the question of his allotment. It is on the aforesaid date that it was ordered by the learned Additional Judge of the High Court that Muhammad Nawaz was a necessary party and should be impleaded as such and was summoned as a respondent. This was done on the application moved by Mr. Abdul Ghafoor Qureshi, Advocate for heirs of Abdul Aziz, Muhammad Yunus and Muhammad Umar. The reason seems to be that he was closely related to them and they would have liked that the disputed land may go to Muhammad Nawaz if it they were not to get it. For forty long years he never, before any Court or authority, claimed that he was an allottee of the land in dispute. He has never been in possession except in the early days. He does not hold an allotment chit. The proof on which he relied in support of his claim is, disputed and discrepant and in any case is not determinable while exercising the writ jurisdiction. I have, therefore, reached the conclusion that his claim has no merit and must be rejected out of hand.

9. The real dispute thus is between Mirza Lai Hussain, the appellant, and Muhammad Yunus and Muhammad Umar, the heirs of Abdul Aziz. The question whether there was an allotment in favour of Mirza Lal Hussain or not has been made subject of dispute. It is primarily the function of the Rehabilitation authorities to decide whether the allotment existed or not. The Rehabilitation Commissioner has observed in his order the allotment has not been proved. In my view this question, however, would arise only if the hurdle of delay is crossed. Therefore, I first deal with question of limitation. It has already been noted that there was delay of approximately nine years in the appeal filed by Mirza Lal Hussain with the Deputy Rehabilitation Commissioner. He tried to explain that delay by taking the position that he had been pursuing the remedy in a wrong forum, therefore, he should have been given benefit of this period. I would attend to the legal aspect of this contention a little later but on the factual plane this stand seems to be without force. Mirza Lal Hussain's first review petition filed with the Assistant Rehabilitation Commissioner was decided on 17‑1‑1962. The second review petition was filed by him on 8‑8‑1964. During this period Mirza Lal Hussain took no measure to seek any remedy, therefore, there is no question that this period should be deducted merely on the ground that in 1964 he again moved a review petition. This is a cardinal principle that delay of each day has to be explained. When a person seeks the deduction of time which he spent in pursuing a remedy in a wrong forum he can only claim deduction of that period which was actually spent in pursuing that remedy. The time during which he slept over his claimed right cannot be condoned. The appellant, as the facts show, cannot be given the benefit of the period between 17‑1‑1962 to 8‑8‑1964.

10. Even the legal aspect of the contention of Mirza Lai Hussain has no validity. The benefit of the period spent by a litigant in pursuing a remedy in a wrong forum can only be extended to one who chooses the forum with due care and caution. He has to show that he was misled by some practice of the Court on an erroneous judgment. If a litigant spends time in pursuing a remedy under a mistaken advice the period spent by him goes waste and no consideration can be shown in such a situation. On this point the law is settled as is apparent from a recent judgment of this Court in Masud Ahmad v. United Bank Ltd. (Civil Appeal No.46 of 1991) decided on 23‑11‑1991 (1992 SCMR 424). Para. 8 of the judgment may be usefully reproduced:‑

"This takes us to the question whether the appellant can successfully urge that the appeal filed in the Court of District Judge had been filed and prosecuted with good faith. If the appellant's contention is shown to be well founded, it would furnish a "sufficient cause" for condonation of delay. Notwithstanding the fact that both the learned counsel who appeared in this appeal were not aware of it, this proposition stands concluded by judgments of this Court that circumstances as appearing in the present case cannot be termed as being the result of "good faith"; rather in fact they constitute "gross negligence" and cannot be treated as a sufficient cause for condonation of delay. Where the provision of law is clear question of condonation does not arise. If may arise when a litigant is misguided by some practice of a Court or by an erroneous judgment."

The law is clear that power of review was not vested in the Assistant Rehabilitation Commissioner and the appellant clearly acted with gross negligence in going to the said officer to seek review. The case of Raja Muhammad Ayub v. Muhammad Ijaz and others (1982 SCMR 1105) cited by Ch. Muhammad Sharif Tariq does not advance his case because it is a case of where there was a factual misunderstanding about the Court which had been vested with the powers of Settlement Commissioner and it was thus a case of bona fide mistake.

11. No case having been made out for condonation, we now pass on to the other limb of the argument 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. However, it is not a universal rule which may be necessarily applied in every case without regard to the consequences. 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 no better than to reproduce the following observations of the Supreme Court of Pakistan in Sharif Ahmad Hashmi's case which has been rightly relied upon by Mr. Abdul Ghafoor Queshi:

"This passage does not mean that a void order is always to be struck down regardless of the consequences of such a decision, but that a void order must be struck down provided there is no statute or ",T principle of law which would make it unjust or inequitable to strike down the void order. This qualification is very important, and that is why, for example, a writ may be refused against a void order if this would enable the petitioner to circumvent the provisions of a statute of limitation. (See this Court's judgment in Civil Appeals 150 and 166 of 1970 Jalal‑ud‑Din and others v. Mst. Noor Sain and others and Jalal‑ud‑Din and others v. Shams‑ud‑Din and others respectively.) 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. As the facts show the appellant herein has been guilty of laches and he has thus become disentitled to get any relief in writ jurisdiction. The Deputy Rehabilitation Commissioner in his order passed on 8th of May 1970 correctly appreciated the law when he observed:

"There is another aspect of the case also and that is that the respondent got the allotment in his favour ten years earlier and, therefore, it would not be justified to disturb him after the lapse of ten years."

Apart from that the Rehabilitation Commissioner in his order recorded on 6‑8‑1989 also observed that even if it was accepted that the disputed land was allotted to Lal Hussain in the year 1956 even then he was not entitled to any relief because respondent Abdul Aziz had during the intervening period constructed a house on the land and had also made considerable improvements. The learned Custodian also observed in his order dated 24‑9‑1980 that Abdul Aziz had made improvements over the land. In this view of the matter the dictum of Sharif Ahmad Hashmi's case is fully applicable to the case in hand. Even otherwise it is settled principle of law that laches destroy the remedy available by way of writ.

13. Another point of fundamental importance was raised by Mr. Abdul Ghafoor Qureshi that Rehabilitation Commissioner, Deputy Rehabilitation Commissioner and Assistant Rehabilitation Commissioner had not been made a party in the writ petition although the orders passed by them were sought to be quashed. On this point the view of the Court has been expressed in the cases reported as Muhammad Resham Khan v. Chairman, Inspection Team 1990 CLC 1355 and Abdul Hamid v. Muhammad Zameer 1990 MLD 1617. These judgments support Mr. Qureshi's contention.

14. This point was not raised before the High Court and has not been raised in concise statement filed in this Court, but once it has been brought to our notice the question is whether we should pass an order behind the back of a Government functionary without hearing him. I am quite clear in my mind the answer to this question has to be in the negative. If a necessary party is absent there can be no adjudication. The situation in the aforementioned case was also the same and in fact this point was noticed by the Court itself. Therefore, the writ petition filed by Mirza Lal Hussain can be dismissed on that score alone:

The upshot of the foregoing is that the appeal has no merit and is dismissed with costs.

AA./329/S.CA. Appeal dismissed.