2012 M L D 78

[Lahore]

Before Malik Shahzad Ahmed Khan, J

Malik YARAN KHAN---Petitioner

Versus

CHIEF LAND COMMISSIONER, PUNJAB, LAHORE---Respondent

Writ Petition No.3102 of 2006, decided on 9th September, 2011.

(a) Land Reforms Regulation, 1972 (M.L.R. 115)---

----Paras 7 & 13---Constitution of Pakistan, Art. 199---Constitutional petition---Order

of resumption of excess land in year 1984 confirmed in year 1986 by Land
Commissioner---Dismissal of revision before Chief Land Commissioner filed after
sixteen (16) years of passing of resumption order---Petitioner's plea that provisions of
Land Reforms Regulations, 1972 about resumption of land had been declared as un -
Islamic by Supreme Court vide judgment reported as PLD 1990 SC 99, thus, question
of limitation would not arise against resumption order and resumed land was available
till target date i.e. 23-3-1990 fixed in such judgment, thus, same was liable to be
returned to him---Validity---Petitioner had complete knowledge about resumption
order and had not been condemned unheard---Petitioner had not given any plausible
explanation for such delay, which could not be condoned merely on ground that
resumption order was void---Decisive steps regarding resumption of petitioner's land
had been taken much prior to such target date fixed in the Supreme Court judgment---
Petitioner could not be returned such land as the Supreme Court judgment had no
retrospective effect---High Court dismissed constitutional petition in circumstances.

Sardar Muhammad Jafar Khan Leghari v. Balochistan Land Commissioner,

Quetta through its Secretary and others 1997 MLD 1934; Qazalbash Waqf and others
v. Chief Land Commissioner, Punjab Lahore and others PLD 1990 SC 99; Aacher and
5 others v. Dur Muhammad Usto and 8 others 2002 SCMR 958; Chief Land
Commissioner Punjab and others v. Chief Administration of Auqaf, Punjab PLD 1998
SC 132; Mst. Ulfat Jan and 3 others v. Deputy Land Commissioner Bahawalpur 2001
YLR 1539 and Begum Syeda Azra Masood v. Begum Noshaba Moeen and others
2007 SCMR 914 ref.

Qazalbash Waqf and others v. Chief Land Commissioner, Punjab, Lahore and
others PLD 1990 SC 99; Sardar Muhammad Jaffar Khan Leghari and others v.
Balochistan Land Commissioner, Quetta through Secretary and others 1997 MLD
1934; Shah Jehan Khan Abbasi v. Deputy Land Commissioner, Bahawalpur and
another 2006 SCMR 771 and Mst. Ulfat Jan and 3 others v. Deputy Land
Commissioner Bahawalpur and 9 others 2001 YLR 1539 rel.

(b) Void order---

----Void order, if created certain consequences, must be challenged within shortest

possible time by aggrieved person---Principles.
 Void order is only a type of an illegal order, and if it has created certain
consequences, an aggrieved person must get rid of it within the shortest possible time.
If it is accepted that no limitation runs against void order, then there may not be any
limitation at all to challenge an illegal order by describing it as a void order.

Begum Syeda Azra Masood v. Begum Noshaba Moeen and others 2007 SCMR
914 ref.

Mujeeb-ur-Rehman Kiani for Petitioner.

Rashif Hafeez, A.A.-G. for the State.

ORDER

MALIK SHAHZAD AHMED KHAN, J.---This writ petition has been filed
to challenge the order dated 19-8-2006 passed by the learned Senior Member Board
of Revenue/Chief Land Commissioner Punjab, Lahore.

2. As per brief facts of the present case the petitioner was owner of land in
village Lawa Tehsil Talagang, District Chakwat. The holding of the petitioner was
determined by the learned Deputy Land Commissioner, Attock on 9-7-1977 and an
area equal to 2366 produce index units was resumed under the Land Reforms
Regulations 1972 (MLR 115 of 1972). The holding of the petitioner was scrutinized
by inspection team of the Federal Land Commission and it was held that more area of
the petitioner equivalent to 748 produce index units was liable to resumption.
Therefore more land of the petitioner equivalent to 748 produce index units, was
resumed vide order dated 6-8-1984 passed by the learned DLC, Attock. The choice of
the petitioner/declarant was also considered at the time of passing the said order. The
said resumption order was further confirmed by the Land Commissioner, Rawalpindi
vide order dated 18-9-1986. The petitioner, after the lapse of almost Eighteen years,
filed a Writ Petition No.826 of 2002 before this Court which was disposed of vide
order dated 20-5-2002. It was observed in the said order that the writ petition was
filed with the delay of about eighteen years so the same was hit by the principle of
laches. Any how, it was also observed that the petitioner may approach the
appropriate forum for redressal of his grievance because the order impugned was
appealable under the relevant law. The petitioner, thereafter, filed a revision petition
before the learned Chief Land Commissioner, Punjab Lahore which has been
dismissed vide the impugned order dated 19-8-2006; hence, the present writ petition.

3. It is contended by the learned counsel for the petitioner that the relevant
provisions/sections of the Land Reforms Regulation 1972 (MLR 115 of 1972), about
Resumption of Land, have been declared as un-Islamic by the Hon'ble Supreme Court
of Pakistan in the case of Qazalbash Waqf and others v. Chief Land
Commissioner and others (PLD 1990 SC 99); that the respondents cannot be
allowed to allot resumed land of the petitioner to any one else and the said land is
liable to be returned to the petitioner in the light of the above mentioned judgment of
the Hon'ble Supreme Court of Pakistan. He has further placed reliance on the case of
Sardar Muhammad Jafar Khan Leghari v. Balochistan Land Commission,
Quetta through its Secretary and others (1997 MLD 1934). He argued that possession
of the resumed land is still with the petitioner and he is still shown in possession of
the land in question, in relevant Khasara Girdawaries; that the petitioner has been
condemned unheard as he was not associated at the time of proceedings initiated for
resumption of land in dispute; that as the impugned resumption order is illegal and
void, therefore, the question of limitation would not arise against such an order; that
the said order has wrongly been passed against the petitioner on the ground that his
revision petition was barred by time, therefore, this petition may be accepted and
resumed land of the petitioner may be returned to him and impugned resumption
orders may be declared null and void.

4. On the other hand the learned A.A.-G. has vehemently opposed this petition on
the grounds that revision petition filed by the petitioner before respondent No. I was
rightly dismissed as the same was hopelessly time barred; that the order of resumption
was passed keeping in view the choice of the petitioner, therefore, the petitioner could
not challenge the said order; that the Attorney of the petitioner had been appearing
during the impugned resumption proceedings and the petitioner was properly
represented by his Attorney, therefore, he cannot claim that he was condemned
unheard; that the impugned proceedings of resumption of the land of the petitioner
were finalized, far earlier than the judgment passed by the Hon'ble Supreme Court of
Pakistan in the case of Qazalbash Waqf and others v. Chief Land Commissioner
Punjab Lahore and others (PLD 1990 SC 99); that the said judgment has no
retrospective effects, therefore, this petition may be dismissed. He has supported his
above contentions with the case law reported as "Aacher and 5 others v. Dur
Muhammad Usto and 8 others" 2002 SCMR 958 "Chief Land Commissioner, Punjab
and others v. Chief Administrator of Auqaf Punjab" PLD 1998 Supreme Court 132
and "Mst. Ulfat Jan and 3 others v. Deputy Land, Commissioner Bahawalpur" 2001
YLR 1539.

5. Arguments heard and record perused.

6. The land of the petitioner was initially determined by Deputy Land

Commissioner, Attock under the Land Reforms Regulation, 1972 (MLR 115 of 1972)
and it was held that an area equal to 2366 produce index units of the land of the
petitioner was liable to be resumed. This was held vide order dated 9-7-1977. The
holding of the petitioner/declarant was later on scrutinized by the inspection
team of Federal Land Commission and it was held that more land of the petitioner
equivalent to 748 produce index units was liable to resumption. Therefore, more land
of the petitioner equivalent to 748 produce index units was resumed vide order dated
6-8-1984 passed by the learned DLC, Attock. The said order was further confirmed
by the learned Land Commissioner, Rawalpindi, vide order dated 18-9-1986. The
petitioner, thereafter, remained silent for, as long as sixteen years. The petitioner,
then, filed Writ Petition No. 826 of 2002 before this Court which was disposed of
vide order dated 20-5-2002. It was observed in the said order that the writ petition
was filed with the delay of about eighteen years so the same was hit by the principle
of laches. It was further observed that the impugned order was appealable under Land
Reforms Regulation, 1972 (MLR 115 of 1972) and the petitioner may seek his
alternate remedy. The petitioner, then, filed a revision petition before the Chief Land
Commissioner, Punjab, Lahore in the year 2002. The said revision has been
dismissed vide the impugned order dated 19-8-2006 as the same was filed with
the delay of sixteen years and the same was hopelessly barred by time.

The petitioner could not explain such a gross and inordinate delay in
challenging the impugned orders. Although it is claimed by the petitioner that he was
condemned unheard but it is evident from the record that the petitioner had authorized
Malik Mahar Dad son of Ahmad Khan who appeared on his behalf before the DLC,
Attock in connection with the proceedings regarding determination of his holding. It
is also evident from the record that the petitioner/declarant had given a choice in
respect of the land surrendered by him. The said choice was given by the petitioner as
per Annexure-A with the order dated 6-8-1984 passed by the learned DLC, Attock.

7. The learned counsel for the petitioner has contended that as the impugned
order of resumption of the land of the petitioner is illegal and void, therefore, the
question of limitation would not arise against such order. This contention of the
learned counsel for the petitioner is not convincing on two counts. Firstly, as
discussed above, the petitioner had complete knowledge of the impugned orders and
he was not condemned unheard and secondly the petitioner has given no plausible
explanation in challenging the impugned order after the lapse of almost 16 years. The
above mentioned gross delay in challenging the impugned order cannot be condoned
merely on the ground that the impugned order was alleged to be void. Presuming
without conceding that the impugned order was void even then it cannot be accepted
that no limitation would run against such order. Void order is only a type of an illega1
order and if it has created certain consequences, an aggrieved person must get rid of
it, within the shortest possible time. If it is accepted that no limitation runs against
void order then there may not be any limitation at all to challenge an illegal order by
describing it as a void order. The land of the petitioner which was resumed vide the
impugned orders has been allotted to different persons under Land Reforms
Regulation, 1972 (MLR 115 of 1972) and if the impugned order is disturbed then
a third party will be prejudiced. I am fortified in my above mentioned views by the
judgment of the Hon'ble Supreme Court of Pakistan given in the case of "Begum
Syeda Azra Masood v. Begum Noshaba Moeen and others" 2007 SCMR 914. It
was held by the Hon'ble Supreme Court of Pakistan as under:--
"---Section. 3---Void order---Limitation---Applicability---Void order is only a
type of an illegal order and if it has created certain consequences, an
aggrieved person must get rid of it---If it is accepted that no limitation runs
against void order, then there may not be any limitation at all to challenge an
illegal order by describing it as a void order, after any period say 5 years, 10
years, 20 years and so on---One of the objects of legal system, particularly to
prescribe limitation, is to settle rights of parties and provide certainty in
human affairs---If it is accepted that no limitation runs against void order, then
it will have the effect of unsettling the rights and may affect transactions
which may have taken place in the meanwhile and thus prejudice a third
party."

The learned counsel for the petitioner has next contended that the land of the
petitioner cannot be resumed and the same is liable to be returned as per law laid
down by the Hon'ble Supreme Court of Pakistan in the case of Qazalbash Waqf and
others v. Chief Land Commissioner, Punjab Lahore and others (PLD 1990 SC
99). He submits that paras 2(7) 7, 8, 9, 10, 13, 15, 16, 17, 19, 20 and 25 of Land
Reforms Regulation 1972 (MLR 115 of 1972) and sections 3, 4, 5, 6, 7(5), 8, 9, 10,
12, 13, 14, 15, 16 and 17 of Land Reforms Act, 1972 have been declared against the
injunctions of Islam in the above said judgment. He has further argued that as the land
of the petitioner was resumed under the above mentioned provisions of MLR 115 of
1972 which have been declared against the injunctions of Islam and as the Land of the
petitioner was not allotted to any one before the target date fixed in the above
mentioned judgment, i.e. 23-3-1990, therefore, the same may be returned to the
petitioner. In support of his above contention, the learned counsel for the petitioner
has also placed reliance on "Sardar Muhammad Jaffar Khan Leghari and others v.
Balochistan Land Commission, Quetta through its Secretary and others" (1997 MLD
1934).

The said argument of the learned counsel for the petitioner is not convincing.
The land of the petitioner was finally resumed vide order dated 6-8-1984 passed by
the learned Deputy Land Commissioner, Attock. The said order was further confirmed
by the learned Land Commissioner, Rawalpindi vide order dated 18-9-1986. The
decisive step by the Land Reforms Authorities regarding resumption of the land of the
petitioner had already been taken, far earlier than the above mentioned target date
fixed in Qazalbash Waqf case, i.e. 23-3-1990. The above judgment of the Hon'ble
Supreme Court of Pakistan has no retrospective effect, therefore, the land of the
petitioner which was already resumed far earlier than the above mentioned target
date, cannot be retuned to him.

A similar proposition came under discussion before the Hon'ble Supreme

Court of Pakistan in the case "Shah Jehan Khan Abbasi v. Deputy Land
Commissioner, Bahawalpur and another" 2006 SCMR 771. It was held in the said
case as under:--
"Para 13---Land Reforms Act (II of 1977), Ss. 7 & 9---Constitution of Pakistan
(1973), Art. 185 (3)---Resumption of excess land---Litigation concerning
gift concluded on 10-7-1988---Authority thereafter resumed excess land---
High Court dismissed Constitutional petition of petitioner alleging such
resumption to be illegal for no material action having been taken by authorities
before 23-3-1990---Validity---Declaration had been filed in year 1972---Land
Commissioner had rejected petitioner's appeal on 7-5-1972---Deputy Land
Commissioner in order dated 6.4.1981 had observed that petitioner had
accepted surrender of marked area---Resumption, thus, stood finalized on such
acceptance on 6-4-1981---Any dispute or litigation, if existed about such land,
would not be material in view of provision of S.9 of Land Reforms Act, 1977--
-Factum of litigation would not negate or counter the vesting of property in
Government---Material proceedings qua resumption had already been taken
much prior to crucial date (23-3-1990) given in Qazalbash Waqf case PLD
1990 SC 99---Supreme Court dismissed petition and refused leave to appeal."

Same view was taken by the Hon'ble Division Bench of this court in the case
of "Mst. Ulfat Jan and 3 others v. Deputy Land Commissioner Bahawalpur and 9
others" 2001 YLR 1539.

The learned counsel for the petitioner has further argued that the above
mentioned judgment of the Hon'ble Supreme Court of Pakistan has declared the
relevant paras of the Land Reforms Regulation, 1972 (MLR 115 of 1972) regarding
the resumption of excess land of land owners, to be repugnant to the injunctions of
Islam and as the petitioner is a Muslim, therefore, the above mentioned judgment in
Qazalbash Waqf case is to be given a retrospective effect. I am afraid I could not
agree with this contention of the learned counsel for the petitioner. Law declared by
the courts was never retrospectively effective and it only takes effect after the
announcement of the judgment or the date notified by the court. As the Hon'ble
Supreme Court of Pakistan has itself fixed a target date i.e. 23-3-1990 in the above-
mentioned judgment, therefore, the said judgment has clearly no retrospective effect
and the same cannot be implemented retrospectively. In my above mentioned views I
am fortified by the law laid down by the Hon'ble Supreme Court of Pakistan in the
case of "Muhammad Younis and others v. Essa Jan and others" 2009 SCMR 1169,
wherein it was held as below:--
"Land Reforms Regulation, 1972 [MLR 115]
---Preamble---Provisions of Land Reforms Regulation, 1972 had been declared
against the injunctions of Quran and Sunnah by the Shariat Appellate Bench of
the Supreme Court---Decision in said case would be effective from 23-3-1990-
--Law declared by courts was never retrospectively effective and it only takes
effect after the announcement of the judgment or the date notified by the court.

The learned counsel for the petitioner has lastly argued that as the resumed
land of the petitioner was not allotted to any other person till the above mentioned
target date fixed in the Qazalbash Waqf case i.e. 23-3-1990, therefore, the said land
after the above mentioned target date cannot be allotted to any one and the same is
liable to be returned to the petitioner in view of the law laid down in the case reported
as Sardar Muhammad Jefar Khan Leghari v. Balochistan Land Commission,
Quetta through its Secretary and others (1997 MLD 1934). The judgment referred
by the learned counsel for the petitioner is distinguishable from the facts of the
present case. In the said case the land of the petitioners was not resumed till the
crucial date (23-3-1990) fixed by the Hon'ble Supreme Court of Pakistan in
Qazalbash Waqf case and no action taken under para 13 of the Land Reforms
Regulation, 1972 in respect of the land in question till the above mentioned dat e. As
the land of the petitioners in the above said case was resumed after the crucial date
i.e. 23-3-1990, by the Land Reforms authorities, when relevant provisions, of the land
reforms Regulation, 1972, ceased to have effect, therefore, the land of the p etitioners
of the above mentioned writ petition, was directed to be returned to them. The said
judgment is not applicable to the case of the petitioner because, as discussed earlier
the land of the petitioner was resumed far earlier than the target date fi xed by the
Hon'ble Supreme Court of Pakistan in the above-mentioned Qazaibash Waqf case.
The learned counsel for the petitioner could not point out any material illegality
or irregularity in the impugned orders

8. In the light of above discussion, this petition being devoid of any force is
hereby dismissed.

S.A.K./Y-11/L Petition dismissed.