2019 C L C 394
Void order---
----"Illegal" and "void" order---Distinction---Difference existed between an order which was illegal and an order which was void ab initio---Every illegal order was not void---Void order was that order which was passed by an Authority not competent to pass the same---Illegalorder was that which was not passed in accordance with law.
Arshad Munir Chughtai v. Chairman, Water and Power Development Authority, Lahore and another 2008 PLC (C.S.) 1280 rel.
Muhammad Ali Siddiqui for Petitioner.
Ch. Abdul Ghani for Respondent No.7.
Raza ul Kareem Butt, Addl. A.G. with Khalid Mehmood, Naib Tehsildar and Muhammad Anwar, Colony Clerk for Official Respondents.
Date of hearing: 9th April, 2018.
ABDUL JABBAR VS MEMBER JUDICIAL (VII), BOARD OF REVENUE
2019 C L C 394
[Lahore (Multan Bench)]
Before Muzamil Akhtar Shabir, J
ABDUL JABBAR----Petitioner
Versus
MEMBER JUDICIAL (VII), BOARD OFREVENUE and others----Respondents
W.P. No. 2500 of 2013, heard on 09/04/2018.
JUDGMENT
MUZAMIL AKHTAR SHABIR, J.---Through this constitutional petition, the petitioner has prayed as under:-
"On the basis of the above submission it is respectfully prayed that the instant petition may very graciously be accepted and allowed and the impugned Orders dated 20.01.2004, 09.03.2004 and 19.12.2012 passed by the learned Executive District Officer (Revenue), Pak Pattan Sharif and the learned Member, Board of Revenue, Punjab Lahore respectively may very kindly be set aside by declaring the same as void ab initio, without any lawful authority and in violation of the fundamental rightsprotected under the Constitution of Islamic Republic of Pakistan, 1973.
Any other relief which this Hon'ble Court deems fit and proper in the circumstances of the case may also be granted."
2.Brief facts of the case are that Sarfraz Ahmed etc (respondents Nos. 3 to 5) filed an application before the Tehsildar/Assistant Collector-I, Burewala for partition of their share measuring 15 Kanal-08Marlas out of the total land, comprising Khasra No. 26/6,7/2,14,15,16,17,24,25,34/12, 18/1,19/2 and 20, measuring 71 Kanals-18 Marlas situated in Chak No. 517/EB, Tehsil Burewala, District Vehari. The Tehsildar approved four Wandas on 01.07.1999, Sarfraz Ahmad etc were placed in Wanda No.1 (15K-8M); Muhammad Sharif (respondent No.7) was placed in Wanda No. 2 (9K-8M) and Abdul Jabbar (present petitioner) was placed in Wanda No. 3 (2K-1M), while remaining land was given to Dost Muhammad etc in Wanda No. 4. The said litigation came up for hearing before the Board of Revenue, Punjab and on application of Muhammad Sharif (respondent No.7), the case was transferred by the Senior Member Board of Revenue to the court of the Executive District Officer (Revenue), Sahiwal on 10.12.2001 by withdrawing the same from the court of the Executive District Officer (Revenue), Vehari. The Executive District Officer (Revenue), Sahiwal requested for transfer of the case to some other court, which was then entrusted to the court of Executive District Officer (Revenue), Pakpattan Sharif on 26.05.2003, which was dismissed for non-prosecution on 27.10.2003, however, on application filed by the respondents, it was restored on 24.12.2003, where after on 20.01.2004, the same was dismissed under Order IX Rule 2 of the C.P.C. for non-deposit of 'Talbana' by the present petitioner. The petitioner filed an application for recall of the said order, which was dismissed on 09.03.2004, against which the petitioner filed a revision petition with the Board of Revenue, Punjab on 10.05.2017, withadelayofmore than 2 years and 11 months, which was dismissed as barred by time. The afore-referred orders are under challenge through this constitutional petition.
3.Learned counsel for the petitioner has argued that the order dated 20.01.2004 passed by the Executive District Officer (Revenue), Pakpattan Sharif was without jurisdiction and was void order and, therefore, the same was liable to be set-aside and no limitation runs against a void order and, hence, revision petition could not be dismissed as barred by limitation.
4.On the other hand, the counsel for respondent No.7 has argued that there is a difference between void and illegal order. Although limitation does not run against a void order but every order that is passed against the law cannot be treated as void order and has to be challenged within prescribed time. Besides, the petitioner has actually called in question the order dated 09.03.2004 through this petition, whereby the respondent No.2/E.D.O (Revenue), Pakpattan Sharif has refused to set-aside the order dated 20.01.2004 and the said order was an order on merits and was to be challenged within specified time.
5.Heard. Record perused.
6.The argument by the counsel for the petitioner is that the order dated 20.01.2004 had been passed by the EDO in violation of the law provided under Order 9 Rule 2 of the C.P.C, as the respondent Muhammad Sharif was available in the court on the said date i.e. 20.01.2004, therefore, the order could not be passed Order 9 Rule 2 of the C.P.C., therefore, the matter to his extent could be proceeded with, even if it was dismissed to the extent of others. Order 9 Rule 2 of the C.P.C. is re-produced below:-
"2. Dismissal of suit where summons not served in consequence of plaintiff's failure to pay costs-- Where on the day so fixed it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the Court-fee or postal charges (if any) chargeable for such service, the Court may make an order that the suit be dismissed:
Provided that no such order shall be made although the summons has not been served upon the defendant, if on the day fixed for him to appear and answer he attends in person or by agent when he is allowed to appear by agent."
The court dismissed the petition for non-compliance of the afore-referred provision for submission of 'Talbana'.
Subsequently, it is observed that the petitioner filed an application for recall of the said order which was dismissed on 09.03.2004. The said order has been passed on merits and the petitioner waited for 2-years and 11 months before challenging the said order in revision before the Board of Revenue, which was clearly barred by time. The counsel for the petitioner claimed that no limitation runs against a void order but it is observed that the petitioner claims the order dated 20.01.2004 to be a void order but not the order dated 09.03.2004, which cannot be treated as a void order and revision petition against the same was to be filed within time prescribed by law, which has not been done. Although it has been argued that the Board of Revenue under Article 164 of the Land Revenue Act, 1967 has a suo motu revisional power, which has not been exercised and the delay had occurred due to illness of the petitioner's mother and for her treatment he was not available in the city and the Board of Revenue should have exercised suo motu jurisdiction but the petitioner should have made out a case for Board of Revenue to treat it as an order, whereby the learned forums below had not properly exercised the jurisdiction vested in them. The petitioner has failed to establish the said case, especially when the order dated 20.01.2004 had been challenged by the petitioner by filing an application which was dismissed on merits. No ground whatsoever has been mentioned for not filing revision petition within time. It was the duty of the petitioner/party to challenge the adverse order within stipulated/prescribed time of limitation before the proper forum in proper proceedings and the petitioner cannot be allowed to sleep over his right by claiming the order to be void to challenge it at its own convenience. For this purpose reliance is placed on 2014 SCMR 1594 (Ghulam Hussain Ramzan Ali v. Collector of Customs (Preventive), Karachi) and 2013 SCMR 587 (Messrs Blue Star Spinning Mills Ltd v. Collector of Sales Tax and others).
7.Besides there is a distinction between void and illegal order and there is a gulf of difference that which order is not legal and which is a void ab initio. Every illegal order is not void order. Void order was the order which was passed by an authority not competent to pass it and illegal order is an order which was not passed in accordance with law. The petitioner claimed that neither the order dated 20.01.2004 nor the order dated 09.03.2004 has been passed in accordance with law but not claimed that the forum had not got the authority to pass the same, therefore, the same cannot be treated to be as void order. Reliance in this regard may be placed on 2008 PLC (C.S.) 1280 (Arshad Munir Chughtai v. Chairman, Water and Power Development Authority, Lahore and another), therefore, the revision petition was clearly barred by limitation and has rightly been dismissed.
8.As regards the claim of the petitioner that the Board of Revenue has suo motu jurisdiction to treat revision, suffice it to say that it was for the Board of Revenue itself to treat or not to treat the revision on its suo motu jurisdiction, this Court cannot direct the court to take the suo motu action when there is no explanation on behalf of the petitioner for not filing the revision in time.
9.For what has been discussed above, this petition being devoid of any merit stands dismissed.
SA/A-52/LPetition dismissed.
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