PLJ 2025 Lahore 1011
[Rawalpindi Bench, Rawalpindi]
Present: Jawad Hassan, J.
MUAZZAM ALI GORAYA etc.--Petitioners
versus
MEMBER (JUDICIAL-I) etc.--Respondents
W.P. No. 4078 of 2021, decided on 21.1.2025.
Punjab Land Revenue Act, 1967 (XVII of 1967)--
آئین پاکستان ، 1973 ، آرٹیکل ۔ 199-نقشہ جیم-منظور شدہ-تقسیم کا طریقہ-اپیل-نمٹا دیا گیا-کو-ہدایت-ایڈیشنل کمشنر کے سامنے اپیل-کمشنر کو منتقل-اپیل مسترد-حد - ایک سال اور 21 دن کی تاخیر-دائرہ اختیار-قانون کے اوپر کے التزام سے واضح طور پر ظاہر ہوتا ہے کہ کمشنر کے حکم کے خلاف بورڈ آف ریونیو میں اپیل دائر کرنے میں نوے دن مقرر کیے گئے تھے-یہ اعتراض شدہ حکم سے ظاہر ہوتا ہے کہ حکم پر ایک سال اور 21 دن کی غیر معمولی تاخیر کے بعد حملہ کیا گیا تھا - حد بندی کا سوال اہمیت کا حامل تھا-حد بندی ایکٹ 1908 کے سیکشن 3 کے لحاظ سے ، ہر عدالت فریقین کی طرف سے اس طرح کے سوال پر غور نہ کرنے کے باوجود اس پر غور کرنے کی پابند تھی ۔ حد کا سوال اتنا ہی اہم تھا جتنا کہ عدالت کا دائرہ اختیار-غیر معمولی تاخیر کی کوئی قابل اعتماد وجوہات بتائے بغیر پانچ ماہ اور سولہ دن کے وقفے کے بعد ، کیونکہ لاچوں کا ایسا اصول لاگو ہوتا تھا ، اس عدالت کے رٹ دائرہ اختیار میں کسی فریق کے لیے منفی حکم پر حملہ کرنے کے لیے تین ماہ کا وقت معقول سمجھا جاتا تھا - آئین کے آرٹیکل 199 کے لحاظ سے آئینی دائرہ اختیار کا استعمال صوابدیدی تھا جسے صرف غیر معمولی اور غیر معمولی حالات میں ہی استعمال کیا جا سکتا تھا ۔ عدالت نے اپنے آئینی دائرہ اختیار کو استعمال کرتے ہوئے ہمیشہ مداخلت میں تحمل کا مظاہرہ کیا جب تک کہ ریکارڈ کی سطح پر کوئی بدنیتی یا غیر قانونی حیثیت موجود نہ ہو ۔ یہ قانون کا ایک طے شدہ اصول تھا کہ جب قانون کسی چیز کو کسی خاص انداز میں بیان کرتا ہے یا کرنے کا مطالبہ کرتا ہے تو اسے اسی انداز میں کیا جانا چاہیے یا بالکل نہیں ۔
----Ss. 161, 162 & 167--Limitation Act, 1908 (IX of 1908), S. 3--Constitution of Pakistan, 1973, Art. 199--Naqsha jeem-approved-mode of partition-appeal-disposed of--Direction to--Appeal before additional commissioner--Transferred to commissioner--Appeal dismissed--Limitation--Delay of one year and 21 days--Jurisdiction--Above provision of law clearly manifested that ninety days were prescribed in filing of appeal against order of Commissioner to Board of Revenue--It evinced from impugned order that order was assailed after inordinate delay of one year and 21 days--Question of limitation was of significance importance--In terms of Section 3 of Limitation Act, 1908, every court was bound to consider such question despite being not raised by parties to lis--Question of limitation was as important as jurisdiction of Court--Interestingly after lapse of five months and sixteen days without explaining any convincing reasons for inordinate delay, as such principle of laches was applicable three months time was considered reasonable for a party to assail adverse order in writ jurisdiction of this Court--Exercise of constitutional jurisdiction in terms of Article 199 of Constitution was discretionary which could only be invoked in extraordinary and exceptional circumstances--Court while invoking its constitutional jurisdiction always exercised restraint in interfering unless some perversity or patent illegality was floating on surface of record--It was a settled principle of law that when law described or required a thing to be done in a particular manner, it should be done in that manner or not at all.
[Pp. 1013, 1014, 1015 & 1016 ] A, B, C & D
M/s. Hassan Raza Pasha and Abdul Basit Khan Tanoli, ASCs for Petitioners.
M/s. Ajam Naz Malik and Raja Muqsit Nawaz Khan, Advocates for Respondent No. 7.
Date of hearing: 21.1.2025.
Judgment
This constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the “Constitution”) calls in question the vires of order dated 01.07.2021 passed by Member (Judicial-I), Board of Revenue, Punjab whereby appeal filed by the Petitioners against order dated 06.01.2020 of Commissioner Rawalpindi Division was dismissed.
2. Brief facts necessitating the filing of instant petition are that the Respondent No. 6 approved Naqsha Jeem vide order dated 26.07.2016 in response to application filed by the Petitioners. Feeling aggrieved from aforementioned order, the Respondent No. 7 appealed before the Respondent No. 2/Additional Commissioner (Revenue), Rawalpindi who disposed of the same vide order dated 05.09.2016 with direction to Tehsildar that during partition proceedings previous possession of the parties and mode of partition be kept in view however, Naqsha Jeem was subsequently approved by CRO on 17.09.2016. The said order, thereafter, was challenged by the Petitioner before the Additional Deputy Commissioner (Revenue), Rawalpindi which was dismissed vide order dated 13.03.2018. This order was then assailed by the Petitioners through appeal before the Additional Commissioner (Revenue), Punjab however, during proceedings, on application of the Petitioners, the said appeal was transferred to the Commissioner Rawalpindi Division, Rawalpindi who vide order dated 06.01.2020 disposed of revision petition and directed the Tehsildar Taxila to proceed further in the Naqsha Jeem as per law. The Petitioners filed appeal against above-stated order before the Member (Judicial-I), Board of Revenue, Punjab which was dismissed vide order dated 01.07.2021 (the “impugned order”), hence this petition.
3. Learned counsel for the Petitioners inter alia argued that the “impugned order” was passed by the Respondent No. 1 on technical grounds and without providing proper right of hearing to the Petitioners; that the “impugned order” is against the law and facts; that the impugned judgment is the result of mis-reading and non-reading of material available on record.
4. Learned counsel for the Respondent No. 7, on the other hand, supported the “impugned order” and stated that same was passed by the Respondent No. 1, as per law and this petition is liable to be dismissed as there is no illegality or infirmity in the “impugned judgment”.
5. Arguments heard.
6. From perusal of the “impugned order” it reveals that appeal of the Petitioners was dismissed by the Respondent No. 1 on the point of limitation. Admittedly, the litigation between the parties was initiated under The Punjab Land Revenue Act, 1967 (the “Act”) which is a special law and provides its own period of limitation for appeals. Section 161 of the “Act” deals with filing of appeal whereas period for filing is provided under Section 162 of the “Act” which reads as under:
Limitation for appeals.--Save as otherwise provided by this Act, the period of limitation for an appeal under section 161 shall run from the date of the order appealed against and shall be--
(a) thirty days, where the appeal lies to the Collector;
(b) sixty days, where the appeal lies to the Commissioner;
(c) ninety days, where the appeal lies to the Board of Revenue.
Above provision of law clearly manifests that ninety days are prescribed in filing of appeal against the order of the Commissioner to the Board of Revenue. Pertinently, provision of Section 167 of the “Act” having expressly providing that limitation shall be governed by the provisions of Limitation Act, 1908 in filing of appeal, review or revision filed under this Act. It evinces from the “impugned order” that the order dated 06.01.2020 passed by the Commissioner Rawalpindi Division was assailed after inordinate delay of one year and 21 days. The question of limitation is of significance importance. In terms of Section 3 of the Limitation Act, 1908, every Court is bound to consider such question despite being not raised by the parties to the lis. It has paramount importance, as with the afflux of time certain rights do accrue in favour of the adversary, which cannot be taken away in a slipshod manner. The object for framing the law for the purpose of regulating the limitation was to push the parties to file their respective claims within stipulated period. The time period provided for filing the proceedings in terms of appeal, review or revision petition cannot be lightly ignored or brushed aside. The question of limitation is as important as jurisdiction of the Court. The Supreme Court of Pakistan in “Lahore Development Authority versus Mst. Sharifan Bibi and another” (PLD 2010 Supreme Court 705) held that “law of limitation could not be considered merely a formality and required to be observed being mandatory in nature. Purpose of law of limitation was to help vigilant and not the indolent. Helping hand might not be extended to a litigant having going into deep slumber, on having become forgetful of his rights. Concerned person had to be made aware of invasion of his interest and such awareness had to be ascertained as a matter of fact. Supreme Court declined to interfere with exercise of discretion regarding question of limitation by High Court and order passed by High Court was neither illegal nor unreasonable but well based and did not warrant interference”. In the “impugned order” the Respondent No. 1 has rightly observed that:
“This case has chequered history of litigation. The matter remained pending adjudication in different revenue Courts and ultimately, learned Commissioner, Rawalpindi Division vide his order dated 06.01.2020 disposed of the revision petition with the direction to Tehsildar Taxila to proceed further in Naqsha Jeem dated 16.08.2018 as per law. Partition of land of joint khata is righto of each and every land owners/co-sharer provided under the law and it cannot be denied. This appeal has been filed with the inordinate delay of one year and 21 days”.
7. Furthermore, the Petitioners fully knew factum of litigation history and passing of order dated 06.01.2020 by the Commissioner, Rawalpindi Division and to assail it before the Board of Revenue in terms of Section 161(1)(c) of the “Act” within the statutory period of limitation but they remained slept for more than one year. Reliance is made on “Muhammad Azhar Khan and another versus Assistant Commissioner/Collector, Toba Tek Singh and others” (2006 SCMR 778) wherein the Supreme Court has held that “Honourable Judge in the Chambers of the High Court, who had decided the writ petition filed by the respondents on 7-7-1993 has held that appeal before the Deputy Commissioner was time-barred, therefore, the same was rightly dismissed. It is to be noted that once the appeal was not filed in time before the Appellate Authority how the writ or review petition was competent because before approaching the High Court for redressal of the grievance-by invoking its Constitutional jurisdiction under Article 199 of the Constitution, it was incumbent upon the respondents to have availed alternative remedies according to law”. Moreover, the law helps the vigilant and not the indolent. Reliance in this regard is placed on “Aftab Iqbal Khan Khichi and another versus Messrs United Distributors Pakistan Ltd. Karachi” (1999 SCMR 1326). It is a settled principle of law that when a law describes or requires a thing to be done in a particular manner, it should be done in that manner or not at all. Reliance in said regard may well be placed upon observation in “Attaullah Khan versus Ali Azam Afridi and others” (2023 PLC (C.S) 182).
8. Aptly, the petition in hand was filed on 17.12.2021 and the Petitioners have called in question the “impugned order” order but interestingly after lapse of five months and sixteen days without explaining any convincing reasons for the inordinate delay, as such principle of laches is applicable upon this case as three months’ time is considered reasonable for a party to assail an adverse order in writ jurisdiction of this Court. The Supreme Court of Pakistan in “Civil Aviation Authority through Director General and 3 others versus Mir Zulfiqar Ali and another” (2016 SCMR 183) has held as under:
“The Respondent No. 1, who appeared in person, despite opportunity failed to explain or justify the delay. Since the petition was filed after a lapse of almost 10 years and that too without any justification or explanation for such delay, the same ought to have been dismissed as such.”
In “State Bank of Pakistan through Governor and another
versus Imtiaz Ali Khan and others” (2012 SCMR 280) it has held as under:
“laches is a doctrine whereunder a party which may have a right, which was otherwise enforceable, loses such right to the extent of its enforcement if it is found by the Court of a law that its case is hit by the doctrine of laches/limitation. Right remains with the party but it cannot enforce it. The limitation is examined by the Limitation Act or by special laws which have inbuilt provisions for seeking relief against any grievance within the time specified under the law and if party aggrieved do not approach the appropriate forum within the stipulated period/time, the grievance though remains but it cannot be redressed because if on one hand there was a right with a party which he could have enforced against the other but because of principle of limitation/laches, same right then vests/accrues in favour of the opposite party”.
It was further held by Supreme Court of Pakistan in “Member (S&R)/Chief Settlement Commissioner, Board Of Revenue, Punjab, Lahore and another versus Syed Ashfaque Ali and others” (PLD 2003 Supreme Court 132) as under:
“On account of Laches in setting the machinery of law into motion they have indeed disentitled themselves to the exercise of discretionary and equitable jurisdiction, which in all cases must be exercised in order to foster the ends of justice and to right a wrong. Writ jurisdiction is undoubtedly discretionary and extraordinary in nature which may not be invoked by a party who demonstrates a style of slackness and laxity on his part. Furthermore, if a party does not choose legal remedy available under the Statute strictly speaking Constitutional
jurisdiction of the High Court cannot be exercised in his favour. Law is well-settled that a patty guilty of gross negligence and laches is not entitled to the equitable relief. One who seeks equity must show that equities lean in his favour. In the facts and circumstances of the appeal we are, therefore, in no manner of doubt that the High Court was not competent to exercise its writ jurisdiction conferred under Article 199 of the Constitution”.
9. The exercise of constitutional jurisdiction in terms of Article 199 of the “Constitution” is discretionary which can only be invoked in extraordinary and exceptional circumstances. The Petitioners have badly failed to point out any illegality or material irregularity in the impugned order, warranting interference by this Court in exercise of constitutional jurisdiction. This Court while invoking its constitutional jurisdiction always exercises restraint in interfering with the judgment or order passed in exercise of revisional jurisdiction unless some perversity or patent illegality is floating on the surface of record. The constitutional jurisdiction can only be exercised in such an eventuality if the impugned judgment or order suffers with certain legal infirmities or patent illegalities, resulting into failure of justice.
10. Learned counsel for the Petitioners is unable to point out any illegality or irregularity in the “impugned order” warranting interference by this Court in its constitutional jurisdiction. Resultantly, the instant petition stands dismissed.
(J.K.) Petition dismissed
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